Return to Transcripts main page
CNN Newsroom
Day Three of Supreme Court Nominee Sonia Sotomayor's Confirmation Hearings; House and Senate Make Progress in Push for Health Care Reform
Aired July 15, 2009 - 10:05 ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
WOLF BLITZER, CNN ANCHOR: Candy Crowley, I guess politics part of this process as much as everyone who wants to take the high road. We just heard the Chairman Patrick Leahy made mention of several Hispanic groups, including in Texas, the home state of John Cornyn who just spent 30 minutes trying to grill Sonia Sotomayor that was immediately followed by Jeff Sessions, the ranking republican, pointing out the NRA isn't too thrilled with her from that perspective.
CANDY CROWLEY, CNN SENIOR POLITICAL CORRESPONDENT: I have yet to see an issue that comes up on Capitol Hill that doesn't have a political bend to it, even when there's not political intent, which clearly there was in this case.
But even when there isn't, there is always a political implication. And certainly, and honestly, what we're seeing at this point is not the undoing of a nominee. We're seeing the march towards a new Supreme Court justice. What we're hearing is where the parties differ when it comes to judicial philosophy, but we're getting it mostly through the eyes of this one state. And this one case.
BLITZER: And I want to play the exchange. Once again, there was a lot of discussion that Senator Cornyn and Sonia Sotomayor had on her controversial "wise Latina woman" comment. Listen to this.
Unfortunately, we don't have the audio, but we're going to cue that up and we'll work the audio. Jeff Toobin, did Senator Cornyn make any inroads in trying to - clearly, what he was trying to do is undermine her confirmation?
JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: Well, I don't think she's in jeopardy of losing confirmation, but there is a paradox here, which I don't understand the precise answer to, which is everybody on all sides of the aisle seem to think it's important to have diversity on the bench. But, at the same time, it's forbidden to say that because of your background you view things differently. So, why is it important to have diversity if people don't see things differently because of their background? Everyone is trying to navigate around that paradox, and I don't have a clear answer to it.
GLORIA BORGER, CNN SENIOR POLITICAL ANALYST: Because it presents opportunity, right? For young people to, you know, on the one hand you leave it at the door. On the other hand, it helps you listen and understand. I think what she's trying to say, but it's really difficult. MARIA ECHAVESTE, SENIOR FELLOW, CENTER FOR AMERICAN PROGRESS: People recognize the studies in corporate America and about the fact of having different voices around the table may help you make better decisions. The reason there is so much focus in this particular, I thought a lot about Lindsay Graham overnight and I realized that he was a skillful lawyer because he sucked you in by focusing on wise Latina, it's using race and that's something that makes it difficult in this country to talk about.
And he's basically saying to a lot of people, you know, there's a double standard. They're getting away with something that I don't, poor white men. He did it in a way that just was skillful. And then, he went after her temperament, right? Think about it, you get to call this woman, a 55-year-old woman, "you are a bully. You don't know how to act nice to people." That is pretty patronizing. So, it was a job well done because the image in American people is she is out of control.
BLITZER: He was quoting a lawyer's comments.
ECHAVESTE: Right.
BLITZER: Anonymous comments.
ECHAVESTE: Some of them.
BLITZER: Some who had offered these thought about that she was tough.
ALEX CASTELLANOS, CNN CONTRIBUTOR: Yes, if anybody made a good case he should be on the Supreme Court yesterday I though was Lindsey Graham and by the way, whether you're male or female and old or young, some people are bullies. And Lindsey, I think, those statements were not something that Lindsey Graham made up. Those were other lawyers commenting on her. So should he be prescribed - people prescribed from actually bringing those up and questioning her on something like that? Because of her gender or her ethnicity?
BLITZER: A lot of people have made the point overnight that, you know, the kind of tough comments that were anonymously made about her would never have been made about a male colleague on the bench because that's the way men supposedly operate whereas women, they are held to a different standard. And we can discuss those...
TOOBIN: It's also worth noting that those of us who watched the Supreme Court arguments watch Scalia in the lawyers' faces all the time, much more than Sotomayor ever is. Chief Justice Roberts, who is now giving Justice Scalia a run for his money as the toughest justice on the court.
So, you know, she sounds to me like she's going to fit right in there, not because she's some shrinking flower, but because she's tough. That's considered a skill for a Supreme Court justice.
BLITZER: All right. Let's take a quick break because there's a lot to digest and we got the exchange that Sonia Sotomayor had with John Cornyn ready to go on the wise Latina woman comment. Remember, Cnn.com, you can see these hearings uninterrupted and we're streaming all of that live. Our coverage will continue right after this.
(COMMERCIAL BREAK)
BLIZTER: We're continuing our coverage of day three of the Sonia Sotomayor confirmation hearings before the Senate Judiciary Committee. We think this is going to be the final day where she could be answering questions, although it could go into tomorrow morning, as well. Tomorrow, they scheduled outside witnesses to come in for and against her confirmation, including some of the firefighters from New Haven, Connecticut. We're going to have a discussion of that coming up.
But I want to play this exchange that she had just a little while ago. Questions from John Cornyn, the republican senator from Texas on her controversial "wise Latina woman" comment.
(BEGIN VIDEO CLIP)
SOTOMAYOR: It is clear from the attention that my words have gotten and the manner in which it has been understood by some people that my words failed. They didn't work.
SEN. JOHN CORNYN (R), TEXAS: Do you stand by your words of yesterday and when you said it was a failed rhetorical flourish that fell flat, that there are words that don't make sense and that they're a bad idea?
SOTOMAYOR: I stand by the words, it fell flat. And understand that some people have understood them in a way that I never intended, and I would hope that in the context of the speech they would be understood.
(END VIDEO CLIP)
BLITZER: All right. It's already causing some controversy because the Associated Press has just moved the story, saying she's standing by her "wise Latina woman" comments, although you clearly heard her say she's standing by the words she said yesterday when she regretted saying those words because they fell flat. John, this is a sensitive news issue we're been talking about. Thousands of news organization rely on the Associated Press to get it right.
JOHN KING, ANCHOR "THE STATE OF THE UNION": You know, but she's -- yes, she said there, I stand by the words, it fell flat, but she is the source of the confusion in the sense that the Republicans are flummoxed over how to handle this.
Because she gave in that speech, and if you read the whole speech, and we have it online at cnn.com, and you should go read the whole thing. She does at the end of the speech say now it's also important that every time we put the robot we set all our biases aside. But that's my job as a judge. She did say that in that speech. She also said in the same speech though that a wise Latina would come to a better conclusion than a white male in some cases. And what the Republicans are trying to say is if you said that in a speech and you've done other things as a lawyer, do you carry that on to the judge? How can you not carry that on to the bench? They're trying to say she's a judicial activist. Now what strikes me is that they have not used those words in the questioning as strongly as they did.
If we went back in time to the Clinton administration to Justice Ginsburg, and Justice Breyer, the Republicans at that time were much more direct in saying are you a judicial activist? Do you try to make policy from the bench. They're dancing around it with Judge Sotomayor for some reason even though in here speeches, if you are a Republican or if you're Jeff Toobin and a lawyer doing a cross-examination, there is plenty in her speeches to cross examine her on that point.
BORGER: But she did not retract those words.
KING: She did not.
BORGER: Her clear message is that they were misinterpreted or misunderstood or that they fell flat because her meaning was unclear and she's trying to clarify it, but she's not retracting it because politically if she were to start down that road, that she retracted those words, that would become more of a problem for her.
BLITZER: She said, "My words failed." That is pretty, you know, clear I think.
TOOBIN: One thing, speaking of lawyers, you learn is when to stop beating a dead horse, and I think this comment has been picked over to such an extent, she has said what she's going to say about it and it seems to me that you might want to move on to some of the subjects John was talking about. Broader, philosophical discussions.
I mean, I am surprised, for example -- why aren't they asking her, "Do you believe in interpreting the Constitution according to its original intent?". Lindsey Graham hinted at that a little bit. What about the living Constitution, something that was associated with the liberal William Brennan. What about the living Constitution, some thing that was associated with the liberal William Brennan (ph), just try to get her talking about substantive issues as opposed to defending this one comment, which for better or worse, we know...
ECHAVESTE: I think the reason is that it's a way of bringing race, uncomfortable, in and to do the kind. You said yesterday, affirmative action and Democrats are in favor of affirmative action and that's going to hurt people in the poll. Why are we bringing it up when we have substantive issues to discuss.
KING: I think the Republicans though will tell you, members of the committee will tell you they privately that they feel strong by the initial reaction, the Rush Limbaugh and the others saying she's a racist. She's a reverse racist. And they feel hamstrung in some ways that if they get all aggressive with her, it will backfire.
ECHAVESTE: So they are doing it very under the table, but it's there.
CASTELLANOS: Oh come on, I think it's very straightforward, and we do know where Judge Sotomayor stands. What Judge Sotomayor stands for literal interpretation of the law, the other one doesn't and so we're seeing very clearly their strategy here and she seems to be repudiating everything she said before, and I think that is why it is important for the questioning to go to a bigger picture.
There is a current of thought in the law, a legal realism that the living, breathing constitution that says the constitution is improved by people's experiences. That is a liberal perspective and Judge Sotomayor is self-described as a liberal. Does she adhere to that? Oliver Wendell Holmes, Judge Brennan(ph). Does she, will she get on the court and judge that way?
(CROSSTALK)
CASTELLANOS: Well, we should.
CROWLEY: And this is something -- I mean, they're not at this point trying to -- they understand that we do that she's kind of given all she's going to give on this particular subject. So this is now due diligence by Republicans. Look, let's get this into record and let's do this again.
And I think part of the reason about judicial activism, at least in this case has to do with the fact that some of the members of those committee understand that she's a judicial activist and that they -- that's not something they can complain about because they got a president in office who was elected by the people who wants a bit of judicial activism or however that is defined and so --
CASTELLANOS: But in closing -- Candy, in closing of one door, she has opened another. She is trying to close the door that "I'm an activist. No, I'm going to interpret the law literally; what Congress says, that's what I'll do." But she has opened another door and that door is credibility. She said just the opposite for years. Are we not to believe anything this woman has said for years and years and years?
BORGER: That's why she won't retract her statement because if she had said, I didn't mean what I said, then that would have opened the door for Republicans to say, OK, what do you mean? What do you really think? We don't know who you are.
BLITZER: Guys, hold those thoughts, because there's a lot more to discuss, and remember the final Republican Tom Coburn, the senator from Oklahoma. He is getting ready to ask his questions. We'll see if he continues along this line or goes to some new areas of questioning.
Our coverage will continue from the Senate Judiciary Committee, right after this.
(COMMERCIAL BREAK) BLITZER: The United States Supreme Court, that's where Sonia Sotomayor hopes to be one of the nine justices serving starting in October. She has to be confirmed though by the Senate Judiciary Committee and then the full senate over the next few weeks. That seems very, very likely, although the questioning of her is continuing right now.
We're standing by the final republican member of the committee Tom Coburn, the republican from Oklahoma. He's getting ready in the next few moments to start his questioning. There will be other Democrats who will follow, including Arlen Specter, the republican turned democrat, himself a former chairman of that committee and Al Franken, the newest member of the committee himself, the new junior senator from the state of Minnesota. The whole attitude, her philosophy on the court, the senator from Texas John Cornyn pressed her to try to explain what these justices should be doing.
(BEGIN VIDEO CLIP)
CORNYN: Do you know then on what basis, if that's the case, and I accept your statement, on what basis that the White House officials would subsequently send a message that abortion rights groups do not need to worry about how you might rule in the challenge to Rowe versus Wade?
SOTOMAYOR: No, sir. Because you just have to look at my record to know that in the cases that I addressed on all issues, I follow the law.
(END VIDEO CLIP)
BLITZER: All right. Not exactly the clip that we wanted, but an important discussion on abortion rights. Jeff Toobin, our senior legal analyst, he was trying to get her to say, yes, she supports abortion rights and she was, obviously, not prepared to say that.
TOOBIN: And also, I mean, I have to say, this is where these hearings are such a disappointment because the idea that you are going to make up your mind about abortion just by following the law is simply absurd. Justice Thomas thinks he's following the law. He thinks Rowe v. Wade should be overturned. Justice Ginsburg thinks she's following the law because she thinks abortion rights should be supported under a different theory than that outlined in Rowe v. Wade.
Justice Kennedy thinks Rowe v. Wade is just fine. All of them think they're following the law and they come out completely differently on these issues. So to dock these questions, as all these nominees to by simply saying you're following the law is not edifying, to say the least.
BLITZER: You know, Candy, when she said that it was settled law abortion rights for women yesterday, that's what John Roberts said when he was testifying a couple of years ago, as well.
CROWLEY: Absolutely, he also mentioned the core of being settled law. There are so many things that now cover the Supreme Court that bubbled up from the states or in the pipeline. What does that mean exactly? Does that mean that requiring parental consent, does that violate the law? I mean there are so many abortion issues around the parameters of core law that it means virtually nothing to say it is law, except for that, it is.
BLITZER: All right. Guys, hold on for one second.
There is breaking news up in the Senate, as well.
SEN. CHRISTOPHER DODD (D), CONNECTICUT, SENATE BANKING CHAIRMAN: It is no longer just unacceptable, the health care system, it is unsustainable. We cannot continue.
BLITZER: Christopher Dodd, he is the acting chairman -- if the acting chairman of this committee that's dealing with health care reform and just a few moments ago, they passed this health care reform. You see the vote, 13-10 in favor. Let's listen in briefly to Chris Dodd.
DODD: That makes us bring together the synergy and the opportunity to do what every other Congress and every other administration has been unable to achieve for almost seven decades. We're determined that that will not happen on our watch. With that, let me turn to Senator Harkin and the rest of my colleagues.
SEN. TOM HARKIN (D), IOWA: Well, first of all, Mr. Chairman, thank you very much for your great leadership on getting us over the finish line. It's been a long slog, but we all worked hard, we all stuck together and what we now have is we now have a bill that does four things. It reduces costs, it protects choice, it assures coverage for all Americans, and it also begins to change our system to be a health care system rather than just a sick care system.
As President Obama has said many times, that prevention and wellness and public health is the one way that we're going to change the system so that we can keep costs down in the future. And in this bill, we have made great strides forward and putting more emphasis on prevention, keeping people healthy in the first place and keeping them out of the hospital. And so think this is a good bill for America. It is the right prescription for what ails this country right now.
And I want to thank all my colleagues for all the great work they did and sitting there throughout all these long hours and drafting a bill that I believe now will garner a lot of support in the Senate, and I believe we'll get it over the finish line, some time this fall, and we're going to have this on the president's desk some time early this fall. Robert.
BLITZER: All right, so, the Senate has, at least the key Senate committee, has passed legislation for major health care reform. Similar action has been done on the House side, although very different in terms of raising taxes on wealthier Americans.
Eventually at some point, if, in fact, a Senate version does emerge and a House version emerges, different versions, they're going to have to reconcile those two versions and come up with something that both houses can then send to the president of the United States for his signature. That is a lot easier said than done.
Dana Bash is our senior congressional correspondent up on the Hill. Huge differences between the House version, the tax increases there, and the Senate version, missing some of those huge tax increases.
DANA BASH, CNN SENIOR CONGRESSIONAL CORRESPONDENT: That's right. Those are some of the huge differences.
But I think the key thing that our viewers need to understand is that certainly this is something that is worth noting, and it is incredibly important to these senators who have been working day in and day out for weeks and weeks on this specific committee, the so- called Health Committee, to pass this legislation.
But there is another committee, the Senate Finance Committee, that really is the one that is going to make this happen. This -- you noticed this passed by 13-10, really along party lines. This other committee, the Senate Finance Committee, led by Max Baucus of the state of Montana and also on the Republican side, Charles Grassley of Iowa, they're the ones. The White House knows, the Democratic leadership knows and pretty much everybody on all sides of Capitol Hill, they're the ones that will ultimately determine what exactly this health care reform bill looks like.
And they are working also day in and day out, and they might come up with something in the next couple of days, even, we're told, through this committee. That is certainly the place we're going to look for it. Doesn't take away the fact that Democrats can certainly speak proudly about the fact that they made some progress finally on this issue, which has been taking a very long time. But this is probably something we should be looking ahead towards, especially since the fact that this committee isn't really where the action is going to be ultimately.
BLITZER: Dana, stand by. John King is here. John, 13-10, along party lines it passes -- this committee. The Democrats all voting in favor, the Republicans all voting opposed. I guess it's something to say that all Democrats held together on it because there's a lot of different views among the more liberal versus the more conservative Democrats.
KING: But to Dana's point, this committee has a more liberal Democratic composition than the Finance Committee, where they have to come up with how to pay for this.
Wolf, if you want to know one thing about the health care debate today that is instructive, it is that Barack Obama's own political organization, Organizing for America, has started running ads in about ten states, many of those states with Democratic senators. In North Dakota, where Kent Conrad, the chairman of the Budget Committee. In Louisiana, Mary Landrieu on the ballot next year. In Arkansas, Blanche Lincoln on the ballot next year. They are running ads in states with Democratic senators in vulnerable states, in more conservative states who are worried about the price tag here and are worried about a greater government role in health care.
You have a Democratic president running ads to pressure Democratic lawmakers. So, this is a critical step, an important step. They're making progress towards passing this legislation, but when it comes to paying for it, taxing health care benefits, taxing the rich and a government -- some sort of a government-option health care plan, there are enough jitters out there, a dozen, 15 or so, 20 Democrats or so that are still very, very nervous. Moving, but not at the finish line.
BLITZER: Yes, and Kent Conrad, the chairman of one of the key committees, Candy, told me the other day -- a Democrat, that this House version, the Charlie Rangel version of raising taxes, and yesterday they went ahead with it for the wealthiest Americans. That's simply not going to fly in the Senate.
CANDY CROWLEY, CNN SENIOR POLITICAL CORRESPONDENT: Absolutely so. You have, you know, here's what the president -- and that's what these ads speak to. The Republicans are really a little irrelevant at this point because if he's going to get what he wants out of Congress, he needs to court the Democrats.
And, yes, they understand they have a very popular president, but they also have constituencies back home who are increasingly looking at this now trillion-dollar deficit and saying, "Whoa, whoa, whoa." And looking at the stimulus bill and saying, "What has it done to the economy?" and that kind of thing that, in fact, they may look more to their constituencies than they will to the president's popularity.
BLITZER: All right. Important news happening on Capitol Hill involving health care reform. We'll have more on that, but we're expecting some fireworks on the Sonia Sotomayor confirmation hearings. The Republicans senator from Oklahoma, Tom Coburn -- he's up next. His questioning when we continue.
(COMMERCIAL BREAK)
BLITZER: We'll get right back to the Senate confirmation hearings for Sonia Sotomayor. Republican senator Tom Coburn asking questions.
But let's check in. Some other important news happening right now. CNN's Tony Harris is watching that. Tony?
TONY HARRIS, CNN ANCHOR: Good to see you, Wolf. Hello, everyone. A new warning from al Qaeda's number two man, Ayman al- Zawahiri, telling the people of Pakistan to support militants to counter U.S. influence in Pakistan or face punishment from God. Ayman al-Zawahiri's audiotaped message was released today on the radical Islamist Web sites.
An Iranian airliner has crashed, killing all 168 people onboard. The Caspian Airlines jet was flying from Tehran to Armenia when it went down. An area commander says the Russian-made plane disintegrated. A huge crater, as you can see here, scattered with charred pieces of the plane marks a spot where it slammed under to the ground. Military forces are searching for the flight data and cockpit recorders to help determine the cause of the crash.
Seven suspects in custody, but authorities are still looking for one more in the shooting deaths of a Florida couple known for adopting special needs children. Sheriff's officials say the six adult suspects and an unidentified juvenile will all face murder charges. The couple's daughter reacted to the news and reflected on the family's loss.
(BEGIN VIDEO CLIP)
ASHLEY MARKHAM, DAUGHTER OF VICTIMS: We're relieved that the people involved in this crime have been apprehended, and we are certain that justice will be served. In the events that have unfolded in the last week and the last couple days have devastated our family. As you know, our mom and dad were loving, caring, giving people. They have simply been taken from our lives too soon.
(END VIDEO CLIP)
HARRIS: The family is establishing a trust fund for the couple's nine younger children.
Shuttle launch, take six. NASA tries again today to get the space shuttle Endeavour into orbit. The launch has been delayed five times since mid-June. The last three times were because of weather. Endeavour will carry the final piece of the Japan's Kibo science lab to the international space station. The launch is set for 6:03 p.m. Eastern, weather permitting.
We are keeping you informed, and now back to Wolf Blitzer and CNN's special coverage of the Sonia Sotomayor confirmation hearings.
Wolf?
BLITZER: And weather permitting, we'll show you that launch live at 6:03 p.m. in "THE SITUATION ROOM."
Tony, thanks very much. We'll get back to the Sonia Sotomayor hearings right after this.
(COMMERICAL BREAK)
BLITZER: Senator Tom Coburn, himself a physician, Republican of Oklahoma, is now questioning Sonia Sotomayor. They just had an exchange on abortion.
(JOINED IN PROGRESS)
JUDGE SONIA SOTOMAYOR, SUPREME COURT NOMINEE: ... and so there are situations in which they might and situations where that definition would or would not have applicability to the dispute before the court. All state action is looked at within the context of what the state is attempting to do and what liabilities it's imposing.
SEN. TOM COBURN (R), OKLAHOMA: But you would not deny the fact that states do have the right to set up statutes that define, to give guidance to their citizen what constitutes death?
SOTOMAYOR: As I said, it depends on -- in what context they're attempting to do that.
COBURN: They're doing it so they limit the liability of others with regard to that decision, which would inherently be the right of the state legislature, as I read the Constitution. You may have a different response to that.
And -- which brings me back to technology again.
As recently as six months ago, we now record fetal heartbeats at 14 days post-conception. We record fetal brainwaves at 39 days post- conception. And I don't expect you to answer this, but I do expect you to pay attention to it as you contemplate these big issues is we have this schizophrenic rule of the law where we have defined death as the absence of those, but we refuse to define life as the presence of those.
And all of us are dependent at different levels on other people during all stages of our development from the very early in the womb, outside of the womb to the very late. And it concerns me that we are so inaccurate or -- inaccurate is an improper term -- inconsistent in terms of our application of the logic.
You said that Roe v. Wade is settled law yesterday. And I believe it's settled under the basis of the right to privacy, which has been there. So the -- the question I'd like to turn to next is in your ruling, the 2nd Circuit ruling on -- and I'm trying to remember the name of the case -- Maloney, the position was is that there's not an individual fundamental right to bear arms in this country. Is that -- is that a correct understanding of that?
SOTOMAYOR: No, sir.
COBURN: OK. Please educate me, if you would.
SOTOMAYOR: In the Supreme Court's decision in Heller, it recognized an individual rights to bear arms as a right guaranteed by the Second Amendment, an important right and one that limited the actions a federal -- the federal government could take with respect to the possession of firearms. In that case we're talking about handguns.
The Maloney case presented a different question. And that was whether that individual right would limit the activities that states could do to regulate the possession of firearms. That question is addressed by a legal doctrine. That legal doctrine uses the word fundamental, but it doesn't have the same meaning that common people understand that word to mean.
To most people, the word by its dictionary term is critically important, central, fundamental. It's sort of rock basis.
Those meanings are not how the law uses that term when it comes to what the states can do or not do. The term has a very specific legal meaning, which means is that amendment of the Constitution incorporated against the states.
COBURN: Through the 14th Amendment.
SOTOMAYOR: Through -- and others. But the -- generally. I shouldn't say and others, through the 14th. The question becomes whether and how that amendment of the Constitution, that protection applies or limits the states to act. In Maloney, the issue with -- for us was a very narrow one. We recognized that Heller held -- and it is the law of the land right now in the sense of precedent, that there is an individual right to bear arms as it applies to government, federal government regulation.
The question in Maloney was different for us. Was that right incorporated against states? And we determined that, given Supreme Court precedent, the precedent that had addressed that precise question and said it's not, so it wasn't fundamental in that legal doctrine sense. That was the Court's holding.
COBURN: Did the Supreme Court say in Heller that it definitely was not? Or did they just fail to rule on it?
SOTOMAYOR: Well, they failed to rule on it. You're right.
COBURN: There's a...
SOTOMAYOR: But I...
COBURN: There's a very big difference there.
SOTOMAYOR: I agree.
COBURN: OK. Let me continue with that. So I sit in Oklahoma in my home, and what we have today as law in the land as you see it is I do not have a fundamental incorporated right to bear arms, as you see the law today?
SOTOMAYOR: It's not how I see the law.
COBURN: Well, as you see the interpretation of the law today? In your opinion of what the law is today, is my statement a correct statement?
SOTOMAYOR: No, that's not my interpretation. I was applying both Supreme Court precedent deciding that question and Second Circuit precedent that had directly answered that question and said it's not incorporated. The issue of whether or not it should be is different question, and that is the question that the Supreme Court may take up.
In fact, in his -- in his opinion, Justice Scalia suggested it should. But it's not what I believe. It's what the law has said about it.
COBURN: So, what does the law say today about the statement? Where do we stand today about my statement that I have -- I claim to have a fundamental, guaranteed, spelled-out right under the Constitution that is individual and applies to me the right to own and bear arms. Am I right or am I wrong?
SOTOMAYOR: I can't answer the question of incorporation other than to refer to precedent.
COBURN: OK.
SOTOMAYOR: Precedent says, as the Second Circuit interpreted the Supreme Court's precedent, that it's not -- it's not incorporated. It's also important to understand that the individual issue of a person bearing arms is raised before the court in a particular setting. And by that I mean, what the Court with look at is a state regulation of your right.
COBURN: Yes.
SOTOMAYOR: And then determine can the state do that or not. So even once you recognize a right, you're always considering what the state is doing to limit or expand that right and then decide is that OK constitutionally.
COBURN: You know, it's very interesting to me. I went back and read the history of debate on the 14th Amendment. For many of you who don't know, what generated much of the 14th Amendment was in reconstruction. Southern states were taken away the right to bear arms by freedmen -- recently freed slaves. And much of the discussion in the Congress was to restore that right of the Second Amendment through the 14th Amendment to restore an individual right that was guaranteed under the Constitution.
So one of the purposes for the 14th Amendment, the reason -- one of the reasons it came about is because those rights were being abridged in the Southern states post-Civil War.
COBURN: Let me move on.
In the Constitution, we have the right to bear arms. Whether it's incorporated or not, it's stated there. I'm having trouble understanding how we got to a point where a right to privacy, which is not explicitly spelled out but is spelled out to some degree in the Fourth Amendment, which has settled law and is fixed, and something such as the Second Amendment, which is spelled out in the Constitution, is not settled law and settled fixed.
I don't want you to answer that specifically. What I would like to hear you say is, how did we get there? How did we get to the point where something that's spelled out in our Constitution and guaranteed to us, but something that isn't spelled out specifically in our Constitution is? Would you give me your philosophical answer?
I don't want to tie you down on any future decisions, but how'd we get there when we can read this book, and it says certain things, and those aren't guaranteed, but the things that it doesn't say are?
SOTOMAYOR: One of the frustrations with judges and their decisions by citizens is that -- and this was an earlier response to Senator Cornyn -- what we do is different than the conversation that the public has about what it wants the law to do.
We don't, judges, make law. What we do is, we get a particular set of facts presented to us. We look at what those facts are, what in the case of different constitutional amendments is, what states are deciding to do or not do, and then look at the Constitution, and see what it says, and attempt to take its words and its -- the principles and the precedents that have described those principles, and apply them to the facts before you.
In discussing the Second Amendment as it applies to the federal government, Justice Scalia noted that there have been long regulation by many states on a variety of different issues related to possession of guns. And he wasn't suggesting that all regulation was unconstitutional; he was holding in that case that D.C.'s particular regulation was illegal.
As you know, there are many states that prohibit felons from possessing guns. So does the federal government.
And so, it's not that we make a broad policy choice and say, "This is what we want -- what judges do." What we look at is what other actors in the system are doing, what their interest in doing it is, and how that fits to whatever situation they think they have to fix, what Congress or state legislature has to fix.
All of that is the court's function, so I can't explain it philosophically. I can only explain it by its setting and what -- what the function of judging is about.
COBURN: Thank you.
Let me follow up with one other question. As a citizen of this country, do you believe innately in my ability to have self-defense of myself -- personal self-defense? Do I have a right to personal self- defense?
SOTOMAYOR: I'm trying to think if I remember a case where the Supreme Court has addressed that particular question. "Is there a constitutional right to self-defense?" And I can't think of one. I could be wrong, but I can't think of one.
Generally, as I understand, most criminal law statutes are passed by states. And -- I'm also trying to think if there is any federal law that includes a self-defense provision or not. I just can't -- what I was attempting to explain is that the issue of self-defense is usually defined in criminal statutes by the state's laws. And I would think, although I haven't studied all of the state's laws -- I'm intimately familiar with New York...
COBURN: But do you have an opinion, or can you give me your opinion of whether or not in this country I personally, as an individual citizen, have a right to self-defense?
SOTOMAYOR: As I said, I don't know. I don't know if that legal question has been ever presented.
COBURN: I wasn't asking about the legal question, I was asking about your personal opinion.
SOTOMAYOR: But that is sort of an abstract question with no particular meaning to me outside of...
COBURN: Well, I think that's what American people want to hear, Your Honor. They want to know. Do they have a right to personal self-defense? Does the Second Amendment mean something under the Fourteenth Amendment? Does what the Constitution -- how they take the Constitution, not our bright, legal minds, but what they think is important -- is it okay to defend yourself in your home if you're under attack? In other words, the general theory is, do I have that right?
I understand if you don't want to answer that because it might influence your position that you might have in a case and that's a fine answer with me, but those are the kind of things people would like for us to answer and would like to know. Not how you would rule or what you're going to rule and specifically what you think about it, but just yes or no. Do we have that right?
SOTOMAYOR: I know it's difficult to deal with someone like a judge who's so -- sort of, whose thinking is so cornered by law.
COBURN: I know...
SOTOMAYOR: Could I...
COBURN: Kind of like a doctor, I can't quit using doctor terms.
SOTOMAYOR: Exactly. That's exactly right. But let me try to address what you're saying in the context that I can, okay? Which is what I have experience with, all right? Which is, New York criminal law, because I was a former prosecutor. And I'm talking in very broad terms, but under New York law, if you're being threatened with eminent death or very serious injury, you can use force to repel that. And that would be legal.
The question that would come up and does come up before juries and judges is how eminent is the threat? If the threat was in this room -- I am going to come get you and you go home and get -- or I go home, I don't want to suggest I am, quite frankly.
(LAUGHTER)
SOTOMAYOR: Please -- I don't want anybody to misunderstand what I'm trying to say. If I go home, get a gun, come back and shoot you, that may not be legal under New York law because you would have alternative ways...
COBURN: You'd have lots of explaining to do.
(LAUGHTER)
SOTOMAYOR: I'd be in a lot of trouble then. But I couldn't do that under a definition of self-defense.
COBURN: Okay...
SOTOMAYOR: So, that's what I was trying to explain in terms of why, in looking at this as a judge, I'm thinking about how that question comes up and how the answer can differ so radically given the hypothetical facts before you...
COBURN: You know, the problem is, is we think -- we doctors think like doctors. Hard to get out of the doctors' skin. Judges think like judges. Lawyers think like lawyers.
And what American people want to see is inside and what your gut says. And part of that's why we're having this hearing.
I want to move to one other area.
You've been fairly critical of Justice Scalia's criticism of the use of foreign law in making decisions. And I would like for you to cite for me, either in the Constitution or in the oath that you took, outside of the treaties, the authority that you can have to utilize foreign law in deciding cases in the courts of law in this country.
SOTOMAYOR: I have actually agreed with Justice Scalia and Thomas on the point that one has to be very cautious even in using foreign law with respect to the things American law permits you to. And that's in treaty interpretation or in conflicts of law because it's a different system of law. I...
COBURN: But I accepted that. I said outside of those...
SOTOMAYOR: Well...
COBURN: In other areas where you will sit in judgment, can you cite for me the authority even given in your oath or the Constitution that allows you to utilize laws outside of this country to make decisions about laws inside this country?
SOTOMAYOR: My speech and my record on this issue is I've never used it to interpret the Constitution or to interpret American statutes is that there is none. My speech has made that very clear.
COBURN: So you stand by the -- there is no authority for a Supreme Court justice to utilize foreign law in terms of making decisions based on the Constitution or statutes?
SOTOMAYOR: Unless the statute requires or directs you to look at foreign law. And some do, by the way. The answer is no. Foreign law cannot be used as a holding or a precedent or to bind or to influence the outcome of a legal decision interpreting the Constitution or American law that doesn't direct you to that law.
COBURN: Well, let me give you one of your quotes. To suggest to anyone that you can outlaw the use of foreign or international law is a sentiment that's based on a fundamental misunderstanding. What you would be asking American judges to do is to close their mind to good ideas. Nothing in the American legal system prevents us from considering those ideas. We don't want judges to have closed minds just as much as we don't want judges to consider legislation and foreign law that's developed through bodies, elected bodies outside of this country, to influence what, either rightly so or wrongly so, against what the elected representatives and Constitution of this country says.
So would you kindly explain the difference that I perceive in both the statement versus the way you just answered?
SOTOMAYOR: There is none. If you look at my speech, you'll see that repeatedly I pointed out both that the American legal system that structured not to use foreign law. It repeatedly underscored that foreign law could not be used as a holding, as precedent, or to interpret the Constitution or the statutes.
What I pointed out to in that speech is that there's a public misunderstanding of the word "use." And what I was talking about, one doesn't use those things in the sense of coming to a legal conclusion in a case. What judges do -- and I cited Justice Ginsberg -- is educate themselves. They build up a story of knowledge about legal thinking, about approaches that one might consider.
But that's just thinking. It's an academic discussion when you're talking about -- thinking about ideas than it is how most people think about the citation of foreign law in a decision. They assume that a -- if -- if there's a citation to foreign law, that's driving the conclusion.
In my experience, when I've seen other judges cite to foreign law, they're not using it to drive the conclusion. They're using just to point something out about a comparison between American law or foreign law, but they're not using it in the sense of compelling a result.
COBURN: I'm not sure I agree with that on certain 8th Amendment and 14th Amendment cases.
Let me -- let me go to another area. I have just a short period of time.
Do you -- do you feel -- it's been said that we should worry about what other people think about us in terms of how we interpret our own law. And I'm paraphrasing not very well, I believe.
Is it important that we look good to people outside of this country, or is it more important that we have a jurisprudence that is defined correctly and followed correctly according to our Constitution and, whatever the results may be, it's our result rather than a politically correct result that might please other people in the world?
SOTOMAYOR: We don't render decisions to -- we don't render decisions to please the home crowd or any other crowd. I know that, because I've heard speeches by a number of justices, that in the past justices have indicated that the Supreme Court hasn't taken many treaty cases and that maybe it should think about doing that, because we're not participating in the discussion among countries on treaty provisions that are ambiguous.
That may be of consideration in -- to some justices. Some have expressed that as a consideration. My point is, you don't rule to please any crowd. You rule to get the law right under its terms.
COBURN: All right, thank you. Thank you, Mr. Chairman.
SEN. PATRICK LEAHY (D-VT), CHAIRMAN, JUDICIARY COMMITTEE: (INAUDIBLE), Mr. Coburn.
Senator Whitehouse.
SEN. SHELDON WHITEHOUSE (D), RHODE ISLAND: Thank you, Mr. Chairman.
