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Sonia Sotomayor Confirmation Hearing

Aired July 15, 2009 - 11:07   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

WOLF BLITZER, CNN ANCHOR: All right, so, the final Republican member of the Senate Judiciary Committee, Republican Senator Tom Coburn of Oklahoma, has asked his questions. They got into very sensitive issues, including abortion, including foreign law, issues that we are going to digest and assess.

Several Democrats still have 30 minutes each to ask their questions, including Arlen Specter, the Republican turned Democrat, and Al Franken, the newest member of the Senate Judiciary Committee.

We'll have extensive coverage of all of this right after this.

(COMMERCIAL BREAK)

BLITZER: All right. So, the final Republican member of the Senate Judiciary Committee, Republican Senator Tom Coburn of Oklahoma, has asked his questions. They got into very sensitive issues including abortion, including foreign law, issues that we are going to digest and assess.

Several Democrats still have 30 minutes each to ask their questions, including Arlen Specter, the Republican-turned-Democrat, and Al Franken, the newest member of the Senate Judiciary Committee.

We'll have extensive coverage of all of this right after this.

(COMMERCIAL BREAK)

BLITZER: Welcome back.

We're continuing our coverage, extensive coverage of this, the third day of the Sonia Sotomayor confirmation hearings before the Senate Judiciary Committee.

All seven Republican members of the committee have now had a chance to ask their questions. Yesterday, we heard from the ranking Republican, Jeff Sessions. We heard from Orrin Hatch, Chuck Grassley, and Jon Kyl and Lindsey Graham. And today we heard from the two remaining Republicans, John Cornyn of Texas, Tom Coburn of Oklahoma.

Candy Crowley, there was an extensive exchange that Coburn had with Sonia Sotomayor on abortion rights. Earlier, John Cornyn asked several questions on abortion rights. She made it clear that the president of the United States and no one else ever asked her in vetting her whether she would be the nominee to spell out what her position on abortion rights is.

In fact, I'll play a little clip of what she just said.

(BEGIN VIDEO CLIP)

SEN. TOM COBURN (R), OKLAHOMA: Should viability, should technology at any time be considered as we discuss these very delicate issues that have such an impact on so many people? And your answer is you can't answer it?

SOTOMAYOR: I can't because that's not a question that the court reaches out to answer. That's a question that -- it's created by a state regulation of some sort, or an action by the state that may or may not, according to some claimant, place an undue burden on her.

We don't make policy choices in the court. We look at the case before us with the interests that are argued by the parties.

(END VIDEO CLIP)

BLITZER: All right, Candy. And she also said, as did Samuel Alito, when he was before the Judiciary Committee, and John Roberts, when he was before the Judiciary Committee, she really can't get into the substance of this issue because it's an issue that will come before the court down the road.

CANDY CROWLEY, CNN SENIOR POLITICAL CORRESPONDENT: And certainly abortion is one you can count will get to the Supreme Court, either if it's viability, as Coburn, a doctor, brought up, saying we can detect life at 14 days. So, what does this mean for how early or how late you can have an abortion?

We saw South Dakota, just one of many states that have tried to restrict abortion, and it tried to ban abortion completely in the state. It ultimately did not do that, but it went through the court system in the state.

And where do they always end up? They end up at the Supreme Court. So, this is what I was talking about before.

While she says, you know, that Roe is established law, there are so many things around it where certainly those who are against abortion are trying to sort of tighten the parameters of abortion. And she will get those, and she's not that different -- or any different from anyone since Robert Bork to say, I can't do that, it's coming to me.

BLITZER: Alex Castellanos, our CNN contributor and a Republican strategist, she basically took the exact same line that Alito and Roberts took in saying, you know what? I'm not going to talk about it.

ALEX CASTELLANOS, CNN CONTRIBUTOR: That seems to be what's coming out of these hearings, that she will be an Alito and Roberts on the court. I mean, really, you can almost see no differences, which I think most people would find inaccurate, that that's actually not her background. Now, on the Puerto Rican Legal Defense Fund, which, again, she was on the litigation committee -- I believe she headed it and was active in supporting it -- that committee -- and she signed I think a letter to that effect -- they did go to try to limit taxpayer funding of abortion and wipe out parental notification on a few occasions, things like that. But again, most Republicans would have no trouble voting for her if she was pro-choice or pro-life, as long as she adhered to the law, strict interpretation of the law, and hadn't said those other things like judges make policy from the bench. That's the real concern.

MARIA ECHAVESTE, SENIOR FELLOW, CENTER FOR AMERICAN PROGRESS: I think the only -- on the litigation committee, she's reviewed staffing, resources, didn't write the briefs. But more importantly, I don't think the reason you can't really expect Roberts, Alito or Sotomayor to answer the question, "What about viability and technology?" is those are precisely the issues that are going to come up, which is a perfect example of why the law -- law does get changed and moved as things -- circumstances change. And so this notion that...

CASTELLANOS: But she won't say that, will she? She has said just the opposite.

ECHAVESTE: No, she hasn't.

GLORIA BORGER, CNN SENIOR POLITICAL ANALYST: She said Congress changes the law, the judges don't. And you can disagree with that.

JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: The fact that those issues are going to come before the court is precisely why I think she should have to answer those questions, because she is going to be up there for 30 years with no oversight, with no possibility of being removed, and we're supposed to not ask her questions on the one opportunity that we have to ask them questions. I just think it is preposterous.

(CROSSTALK)

BLITZER: But this sort of goes back to Ruth Bader Ginsburg and when she was testifying. And she didn't want to go into all those areas as well.

TOOBIN: They all do it. No, because they all do it, yes.

BORGER: You can argue that's what presidential elections are about. If this is what the hearings are going to be after Judge Robert Bork -- and that has changed since then -- then that's what presidential elections are about, and you have to assume...

BLITZER: But you know what? This is potentially an area -- I don't know if it is or it isn't, but let me let John King weigh in.

She's going to succeed -- and we will all assume she will be confirmed -- David Souter, who was nominated by the first President Bush as a conservative, yet he turned out to be a liberal once he got on the bench.

Is it possible -- we don't know that much about her personal views in any of this -- that she could be a surprise on the bench?

JOHN KING, CNN CHIEF NATIONAL CORRESPONDENT: Sure, it's possible. It does happen, that judges appointed by liberal presidents don't turn out to be as liberal. Judges appointed by conservative presidents, or middle of the road Republican presidents like George H. H. Bush, don't turn out to be as conservative as they had thought.

I'll tell you, the happiest people in town when Senator Coburn, a conservative Republican, was asking those questions are the abortion rights groups, because they want the answers. As much as conservatives want the answers, they want the answers, because just to your question, they are a bit nervous about this judge because her case record, all those cases, don't deal with the specifics of Roe v. Wade and, more importantly, the cases in the pipeline now are not so much about Roe v. Wade. They are about parental notification and parental consent, and the so-called late-term or partial-birth abortion, as critics of the procedure call it.

There are several state laws, late-term abortion laws, that some have made their way up to the court, been sent back. The biggest question in those is the health and the safety of the mother. Is there an exception in the case if -- does the mother's life have to be at risk, or just some sort of a health issue?

Those cases -- and there are many of them percolating in the federal court system. And in those cases, the technology questions could come up. As we make medical advances both at the beginning of life and at the end of life, there are very delicate, very sensitive emotional, personal issues, but also very open legal questions.

BLITZER: I was going to say, you heard when Senator -- I think it was Senator Cornyn was quoting one of her former partners in a law firm, saying, look, don't worry about her. She's a down-the-line liberal, blah, blah, blah.

BORGER: And you could tell she got angry.

BLITZER: Yes. She said, you know what? He was a litigator and he's involved with corporate stuff, he has no idea what my personal views are.

BORGER: She said, "I didn't talk to him about that." And these pro-abortion rights groups want the Democrats to be asking more questions on her views on abortion.

KING: And the White House has told them...

(CROSSTALK)

BORGER: And the White House has said, you know, why should they be -- so, you're hearing Republicans ask it, but it's the liberal groups who are worried about it. TOOBIN: You mentioned the surprise that some presidents get in their Supreme Court nominees. That's actually much more the exception than the rule.

Most justices turned out to be just what's advertised. Look at the last five on the court: Alito, Roberts, Breyer, Ginsburg, Thomas, all exactly as predicted. Souter, somewhat more liberal, although he was always known as a moderate up in New Hampshire.

She is a centrist Democrat, likely to be a Democrat on the bench, you know, voting with Breyer and Ginsburg most of the time. I don't think there are going to be a lot of surprises.

BLITZER: Did Sandra Day O'Connor become a surprise?

TOOBIN: You know, she had such a limited record. And she was, I think, a centrist conservative...

BLITZER: What about Anthony Kennedy?

TOOBIN: ... and I think Anthony Kennedy pretty much as advertised, I think.

BLITZER: All right, guys. Hold all those thoughts, because we're going to have to take another quick commercial break.

The issue of "a wise Latin woman," that certainly came up today. We're going to go down to Florida. Rick Sanchez is standing by. He's got some wise Latin women with him. We're going to assess what's going on.

And we're also gearing up -- Amy Klobuchar, she's a wise Minnesota woman. She's going to be asking some questions, as well.

Our coverage will continue right after this.

(COMMERCIAL BREAK)

BLITZER: Welcome back. We're watching day three of the Senate Judiciary Committee confirmation hearings for Sonia Sotomayor.

At issue once again today during some of the questioning, her controversial comments about "a wise Latina woman."

Here's what she had to say today.

(BEGIN VIDEO CLIP)

SEN. JOHN CORNYN (R-TX), JUDICIARY COMMITTEE: 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 I 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, that they would be understood.

(END VIDEO CLIP)

BLITZER: Rick Sanchez is joining us now from Florida, where there are a lot of wise Latina women, Rick. And you had a chance to meet some of them.

RICK SANCHEZ, CNN CORRESPONDENT: Yes. And what we want to do, Wolf, is, from time to time, take the conversation outside the beltway and get a perspective from people living in America, especially people who are touched by this particular vernacular, this new term that's going to be used and has been used by so many people, "wise Latina woman."

So, what I have done is I have assembled a panel of very wise Latina women in south Florida. And I think when you hear what they have to say, a perspective that, look, most of us don't often hear, like the stories they told me about what it's like to walk into a courtroom as a Latina woman and have people immediately come up to you and imagine that you are the court reporter, or maybe some other lawyer's wife, but that you're not there as a federal prosecutor, or as a distinguished defense attorney who studied in the finest of Ivy League schools, like these women that you will be hearing from throughout the day did, their perspective is extremely interesting, and certainly will be a valuable part of the conversation that you all are having there in Washington today.

But I had to start it, of course, with the wisest of all Latina women. With some trepidation, we chose to come back and do this in the place where I grew up, my hometown in Hialeah, in the home where I grew up. And I started off by asking -- I asked my mom a question I'd never really been that serious about because she more often than not likes talking about what my kids are doing. I asked her what she thought of Sonia Sotomayor, and here's what she had to say.

(BEGIN VIDEO CLIP)

SANCHEZ: (SPEAKING SPANISH) You like Sotomayor.

ADELA FERNANDEZ, RICK SANCHEZ'S MOTHER: (SPEAKING SPANISH)

SANCHEZ: (SPEAKING SPANISH) Are you proud?

FERNANDEZ: (SPEAKING SPANISH)

SANCHEZ: You're proud.

FERNANDEZ: (SPEAKING SPANISH)

SANCHEZ: Proud (SPEAKING SPANISH). Proud because someone like you has that position.

FERNANDEZ: (SPEAKING SPANISH)

SANCHEZ: Oh. You're proud because she came from nowhere like you. You're proud (SPEAKING SPANISH). FERNANDEZ: (SPEAKING SPANISH)

SANCHEZ: (SPEAKING SPANISH)

FERNANDEZ: (SPEAKING SPANISH)

SANCHEZ: And you're proud, and you like the fact that she did it on her own. Nobody gave it to her. (SPEAKING SPANISH)

FERNANDEZ: (SPEAKING SPANISH)

SANCHEZ: (SPEAKING SPANISH) She did it on her own.

FERNANDEZ: (SPEAKING SPANISH)

SANCHEZ: (SPEAKING SPANISH) That's what makes you (INAUDIBLE).

FERNANDEZ: That's the main thing.

(END VIDEO CLIP)

SANCHEZ: My mom is not an accomplished lawyer, former prosecutor, but she does seem to have that resounding sentiment that I've been hearing, Wolf, from people all over the country, including some of those women that you're about to hear from throughout the day who seem to say there's something special about having someone like Sonia Sotomayor on the bench at some point, because she does bring with her a rootedness, a sense that this is a woman who really came from nowhere.

You know, the bottom line is, in America we do pay a lot of attention to that log cabin mentality, somebody who picked themselves up from their own bootstraps and made it, even much more so than the British and other European countries. And as you go around the country and you talk to people, and certainly people in the Hispanic community, this is something that's very, very important for them.

BLITZER: You know, Rick, I want you to stay with us, because we've got Alex Castellanos. He's here. He was born in Cuba, as you know. And Maria Echaveste is here, as well. She's a wise Latina woman, I must say.

When you heard, Maria, Rick talking to those women, talking to his mom, you were smiling broadly.

ECHAVESTE: Well, because it's -- both from the mother, it's absolutely this notion of -- and it's true, only in America can you start from nothing and actually end up -- a farm worker's daughter working in the White House. I mean, it's only in this country.

But what you are getting from those other women, the lawyers, is the fact is, you still -- you walk in the room -- I practice corporate law, walking in the courtroom, and having people assume you're the secretary, that you don't belong here. That why are you here?

And so, it's a wonderful country, but it has its issues. (CROSSTALK)

BLITZER: Rick, hold on one second. I just want to point out to Alex that even Sonia Sotomayor, herself, is now saying that that comment she made about "a wise Latina woman" is not playing well, it was a failure and she regrets it.

CASTELLANOS: Well, she does. And I think that's understandable. But her own experience is that equal opportunity has advantaged her. And that's I guess one of the issues that she has to deal with.

Is she -- does she feel that she's a product of, say, affirmative action? Has that been a help to her? And would she use the court to advantage that? That's a fair question to ask.

I think one of the issues Hispanics have to deal with is, how tough is it fair to be on a Hispanic? Is it OK to ask a Hispanic in America what their views are on affirmative action, or are you singling them out because of their background?

I would love to live in a country, in the United States, where you can be asked the toughest questions regardless of your ethnicity, regardless of your gender, and I think that's what we should aspire to and not have our first line of defense be, oh my heavens, they're asking a Hispanic person that sensitive area.

BLITZER: Rick, come into this conversation.

SANCHEZ: Well, I can't help but think of some of the conversations I was having last night over cafecitos and pastelitos, those famous Cuban pastries, Wolf, that you had down here in south Florida. And I challenged these ladies, these women who are so accomplished on that, and I said, "She didn't say 'as well as,' she said better."

And take yourself out of Miami and Los Angeles, or Chicago or New York and put yourself in Kansas or in South Dakota and in Iowa, and tell me how you think that's supposed to be taken. Because we're not one country, and we're not monolithic.

And they held their ground for the most part, saying that they believe that what she was trying to say is, there's a perspective that's been missing for a long time in our judicial system. And it's about time we have a woman who is Latina who can at least share a perspective, just like it's good to have a justice who may have once been a soldier and can understand a veteran's perspective, and especially at a time when the number of Latinos in the United States is growing. That's the resounding sentiment that they were sharing with me.

BLITZER: It's an enormous amount of pride the thought, Maria, that there is about to be a Hispanic on the United States supreme court, only the third woman ever to be on the United States Supreme Court, and there's nothing wrong with that pride.

ECHAVESTE: No, there's nothing wrong with that pride at all, and I think that it's shared by women, and it's shared by Latinos, in particular. But I also think that she's been very clear in making -- that she's got the qualifications, and she's been asked tough questions. No one's pulled any punches on her. So, let's not, you know, what you're describing that somehow we're not asking tough questions. She's getting asked hard questions.

CROWLEY: Well, some of her supporters, though, at the very beginning, and this is outside the Senate, but some supporters, the minute she was nominated, said, well, woe be to the Republican that goes after the first Latina woman that goes on the Supreme Court. That has also been -- that has always been the political undertow there that you cannot go after a minority because all the -- everybody else will get so upset.

So, I mean, to Alex's, you know, complaint about can we just ask any question, I think it goes to what Lindsey -- what Senator Graham was saying. When Larry Summers says women think differently and may not be as good at chemistry, he's, you know, absolutely, you know, pilloried. So, you know, I think white men, and, you know, my favorite sons are white men...

(LAUGHTER)

CROWLEY: ... have a very hard time navigating these waters right now, because it still is pretty new.

TOOBIN: It's heartbreaking how white men suffer in this society.

(LAUGHTER)

TOOBIN: They only have about 90 seats in the Senate, they only have eight...

CROWLEY: (INAUDIBLE), navigation questions, not about where they -- trust me...

TOOBIN: I know, I'm just giving you a hard time.

CROWLEY: ... I get it.

TOOBIN: I'm just giving you a hard time.

ECHAVESTE: Can we just say that, to Alex's point, she has openly and happily said that she is an affirmative action baby, that in fact, she would not have gotten into the Ivy League schools that she got into. She did, however, perform really well once she got there. But she happily said, I'm an affirmative action baby, and that helped me. So, that's not something she's ever hidden.

TOOBIN: Why aren't we getting that in the hearings? Why aren't they asking that? That would be an interesting, useful discussion, rather than...

BLITZER: Let me play that clip of what she said about being an affirmative action baby. Listen to this.

(VIDEO CLIP)

BLITZER: We'll get that down the road. This is live television. Yes, it's a very good clip. You know, she...

SANCHEZ: But, you know...

BLITZER: Rick, I was going to point out -- Rick Sanchez is sticking around to help us. She, what, she may have had advantages getting into Princeton or Yale law school, but she was, what, summa cum laude. It's not easy for anyone to do that, no matter how you got into college.

SANCHEZ: What did she say when she arrived at Princeton? She felt like she was an alien or something, she didn't understand? You know, look, that's an experience that many of us -- I'll be honest with you, when I went to the University of Minnesota after being born in Cuba and growing up in Hialeah, you talk about a culture shock.

You talk about, in many ways, people not understanding me and asking me if I made good tacos, which, you know, Cubans generally don't eat tacos.

(LAUGHTER)

SANCHEZ: There's a perspective in this country and it's a very important conversation that we're going to need to have. And that's why, you know, I'm excited about the fact that we're doing a "BLACK IN AMERICA" and a "LATINO IN AMERICA" and all these segments because the resounding question continues to be, what does it matter that she's Hispanic? Why do we need a Hispanic on the Supreme Court? Why don't we just get a judge on the Supreme Court?

Or why do we need a woman on the Supreme Court or an African American on the Supreme Court? And we tussle with this still as a nation, and it's part of the conversation that you all are having and that really is still underlying many of the conversations or many of the confirmation hearings themselves. This is something I got into with many of these accomplished lawyers and leaders in south Florida, as well, these wise Latina women. And it's an important part of this conversation, as well. I look forward to seeing what some of the other folks have to say.

BLITZER: All right, Rick, don't go away. We're going to continue this conversation. We're going to continue our special coverage of these historic hearings before the Senate Judiciary Committee. Amy Klobuchar, the Democratic senator from the state of Minnesota, one of only two women on the judiciary committee, she's getting ready to ask her questions.

(COMMERCIAL BREAK)

BLITZER: All right, you're looking at these live pictures from the Senate Judiciary Committee. They're taking a photo opportunity. These are the New Haven firefighters who've come in. Some of them will be testifying tomorrow, outside witnesses. They were upset, several of them, with Sonia Sotomayor's decision as part of a lower court ruling overturned later by the U.S. Supreme Court in a 5-4 decision that stood with them as opposed to her. And they're coming in to testify tomorrow to make their case.

The Republican ranking member of this judiciary committee, Senator Jeff Sessions of Alabama, has come outside. He's speaking to reporters, talking about guns right now. Let's listen in.

SEN. JEFF SESSIONS (R), ALABAMA: It's good to have Senator Cornyn here. He does a great job in these hearings, the Supreme Court justice and the attorney general of Texas. And, John, I'll turn it over to you.

SEN. JOHN CORNYN (R), TEXAS: I want to say for my part that Judge Sotomayor is a very charming and, obviously, very intelligent individual. And I admire her service on the federal courts, the District Court and the Court of Appeals. What we've been trying to do, though, is trying to reconcile the Sonia Sotomayor that we have come to learn about in her speeches and that approach to judging and compare that to what we know about her judicial record.

And we're left with a lot of questions. Principally because as a district judge and a Court of Appeals judge, she would have all of her decisions reviewed by the United States Supreme Court. But as a member of the United States Supreme Court, she would have no one review her decisions, and she would be free to do, basically, whatever she wants.

And if that means she would embrace some of the philosophies and approaches that she's done in her speeches, then that would be very troubling, indeed, because that would, I think, would give way to a kind of judge-made law that would provide a lot of unpredictability and, really, put judges in the position of legislators that happen to wear black robes.

And, oh, by the way, you don't get to vote on life-tenured federal judges. So, I think that would result in the reduction and diminution in our rights as the American people to determine what laws govern us. So, we have not yet, I think, had satisfactory answers to how do you reconcile those approaches and those two things. I hope as the hearing proceeds, we'll hear more about that.

Let me just say finally, I'm glad that some of the New Haven firefighters who were the plaintiffs in the Ricci case are here in the audience today. I hope the American people get to hear their story. Frank Ricci, a dyslexic man who underwent great hardship and sacrifice in order to do well on this promotion examination, it was ultimately disregarded by the New Haven City Council, as well as Benjamin Vargas, a 40-year-old man of Puerto Rican extraction who was likewise denied a promotion based on the color of his skin.

I was shocked that the judge handled that case so dismissively on the Court of Appeals in a way that it was virtually hidden from any of the other judges on the D.C. Circuit.

BLITZER: All right, so, let's talk about this case a little bit, the Ricci case, the firefighters case from New Haven, Connecticut. While the judiciary committee is in a break right now, and you saw some of the firefighters from New Haven posing for pictures in the Senate Judiciary Committee hearing room, we're going to ask John King and Jeff Toobin to walk over to the magic wall right now and help us with some background on this sensitive case in which she was part of the three-member panel that decided one thing that was later overturned by the U.S. Supreme Court in a 5-4 decision.

John, why is this so sensitive? And set the stage for this testimony tomorrow from some of these firefighters.

KING: Well, it is so sensitive, Wolf, because affirmative action always is an issue in Supreme Court nominations and has long been a defining issue in our politics. Here's the topic. The case right here is Ricci v. DeStefano. It's a 2008 case in the 2nd Circuit, where Judge Sotomayor now sits.

The New Haven firefighters, they alleged workplace discrimination. The issue, these white firefighters say, is that they challenged the city decision to throw out the promotion exam. The white firefighters took the test, and they passed the test. They said they deserved their promotions.

But what happened was, the 2nd Circuit, on which Judge Sotomayor sat, writing for the three-judge panel, they upheld the lower court's rejection of the firefighters' lawsuit, and Jeff, essentially said, you know what, send this back to the city. You did not come up with a test that African Americans and other minorities passed, so write a new test. And because of that, these white firefighters who took it and passed it were denied promotions.

TOOBIN: They said the city had a right to start a new test if they wanted to. And you know, an issue that's come up in the testimony today, it is really generally inside baseball. But more and more Courts of Appeals are issuing what they call these short per curiam rulings, opinions that are not published widely. Now, they are -- they have the same force and effective law as a longer opinion, but they're called different things in different circuits -- memo opinions they're called.

And the way the Sotomayor panel dealt with this case -- and it wasn't just her decision, it was a three-judge panel -- they issued the short, one-paragraph opinion. And Judge Cabranes, who is another judge on the 2nd Circuit, wrote a long opinion saying, you know, we deserve to give this case more treatment. But that's one thing that came up. When you hear Senator Cornyn saying they treated the case dismissively, he meant writing the short -- a short opinion.

KING: And there are two views which have made it such a political firestorm. Number one, Judge Sotomayor says there was a lower court ruling. We looked at it. There was precedent. That's our job -- we look at the law. It was within the law, and we sent it back. We said, no, there's no case here.

Others say, aha, this is an example. What the conservatives are trying to say is, is this an example where a woman and a Latina said, I'm going to exercise my view that maybe minorities deserve a chance. That is their argument, right? Is this an example of her bringing her life, her history, her background on to the bench?

TOOBIN; Absolutely. And there is the question of why did they write such a short opinion. I mean, frankly, I think Judge Cabranes did have a point. Whatever you think of the Ricci case, it's a complicated, difficult issue, and it deserved better than a one- paragraph opinion.

But, you know, the heart of the Ricci case is, may a city take steps to make sure its fire department is racially integrated? May it move African Americans up in the pecking order? And that's the key question about affirmative action, whether it's a university admissions or whether it's a public employer, that's the hard question, and that remains very controversial. That's why she's getting so many questions about it.

KING: And I'll let you turn it back over to Wolf with a quick sentence, first explaining the Supreme Court said Judge Sotomayor and her colleagues were wrong.

TOOBIN: Correct. Five to four opinion, with Justice Souter, whom Justice -- whom Judge Sotomayor would replace, in the minority. They said that simply -- Justice Anthony Kennedy's opinion said, simply fearing that the black firefighters might file a lawsuit, that's not a good enough reason to overturn a test that was administered to everybody. So, 5-4, the white firefighters led by Frank Ricci, who will be testifying later, probably tomorrow, they won their case, and Sotomayor's position was overturned.

KING: Seventeen years on the bench, Wolf, but this is the case we have heard the most about in these first three days of hearings.

BLITZER: A real substantive case, indeed. And there's probably going to be more discussion of that. Guys, come back here to the table.

Candy, you know, you think about it, not only affirmative action, but abortion rights, gun control, property rights, international law, whether foreign law, as it's being described, whether that should have any say on the United States Supreme Court, decisions by the justices of the Supreme Court, we're learning a lot in the course of these three days about some of the more explosive issues out there and the rule of law.

CROWLEY: Absolutely. It doesn't have much to do with how she would rule on any of these things, but if you're watching, it's sort of a fascinating "Reader's Digest" look, for those of us who aren't lawyers, at what the issues are out there about how you can make a decision on abortion or gun rights, and it really wasn't a decision on abortion or gun rights but on something much narrower like, well, the fear of a lawsuit isn't enough.

That doesn't speak to, you know, in general, whether this is -- you know, that's not a challenge to having the test itself. I think, again, to sort of speak to Jeffrey's point about wouldn't it be nice if we actually discussed how she felt about these things. In fact, we always say, well, because they want to make sure that he or she gets confirmed. But this is not a question here, so this might have been a good test case. It doesn't really matter what -- how she feels personally on abortion because she's going to go through.

BLITZER: All right, guys.

CROWLEY: So, it might be a good time to do it.

BLITZER: And after Robert Bork...

CROWLEY: They won't.

BLITZER: ... and his unsuccessful confirmation, all of these justices, potential justices have come before the committee saying, you know what, these are sensitive issues. They're going to come before the court. We can't really get into that kind of detail right now, which is a relatively safe position to take if you want to be confirmed.

We're getting ready. They're still in recess right now, the Senate Judiciary Committee. Amy Klobuchar, one of only two women on the committee, 19 members on the committee, she's getting ready to ask some questions. Our coverage will continue after this.

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BLITZER: We're continuing our coverage of the confirmation hearings for the Supreme Court nominee, Sonia Sotomayor. She's walking back in. They've just taken a break.

Their ranking Republican, the top Republican on the committee, Senator Jeff Sessions of Alabama, is joining us. We're seeing the chairman, Senator Sessions, your friend, Patrick Leahy's photographer taking some pictures inside, as well. Whenever he has a chance, he likes to snap some pictures.

Senator Sessions, have you heard anything definitive so far that's going to convince you to either vote to confirm or reject her nomination?

SEN. JEFF SESSIONS (R), RANKING MEMBER, JUDICIARY COMMITTEE: No. But I am disappointed that we still have a lot of muddled testimony and lack of clarity. Really, a person going on the Supreme Court should be clearer, in my view. And I do think Roberts and Alito are far superior in terms of answering questions crisply and with clarity and having very little inconsistencies in what they said.

For example, I think the judge continues to obfuscate a bit the colossal importance of her decision, saying that the Second Amendment right to keep and bear arms does the not apply to the states. And that means they or their cities can eliminate totally the right to keep and bear arms. That decision she rendered would have to be reversed by the Supreme Court. She had some formal precedent back in the 1800s. But the net result, that that's not reversed, then we'll have a complete evisceration of the Second Amendment.

BLITZER: Well, are you saying you're still undecided, though, as far as how you're going to vote, Senator Sessions?

SESSIONS: I think I'm committed to working through this whole hearing, to examine her testimony comprehensively and see how I feel about her answers. But I am troubled, and that has not been allayed to date.

BLITZER: Well, so far, I take it from what I'm hearing, you're leaning not to confirm.

SESSIONS: Well, Wolf, I don't think it's appropriate to -- for me to say now. And I'm just wrestling with these issues.

I think most of us would love to vote for her. We didn't make these speeches. We haven't had these difficulties that she had. I mean, we didn't make them. If they weren't there, I think she'd be in a lot better position. If she'd tested -- if she'd spoken the last 10 years like she testified about fidelity to the law yesterday, I think we'd be in a better shape.

BLITZER: On the "wise Latina woman" comment that she explained yesterday, repeated that explanation today, saying it fell flat, it was a rhetorical flourish. What she was trying to do, inspire young people, simply failed.

Are you -- I guess, bluntly, to ask the question, do you buy it?

SESSIONS: Not completely, because the whole thrust of that speech was an intellectual critique of the ideal that each judge should put aside all their biases, prejudices and backgrounds and render fair judgment of the parties before them and not be biased. And they take an oath to impartiality.

And her speech was really a critique of that belief. She said, it's just not possible. I readily accept the fact my background chooses -- or allows me to choose the facts I wish to see. So, that's a -- I mean, this is just a dramatic statement she made, and I'm sorry she made it. And I'm not sure her statements today overcome that.

BLITZER: I know you've got to go back inside. They've just reconvened...

SESSION: Yes, I got to go back.

BLITZER: .... and we're going to try to talk to you again later.

Senator Sessions, thanks very much.

SESSIONS: Thank you, Wolf.

BLITZER: All right, Amy Klobuchar, the Democratic senator from Minnesota, is now asking questions of Sonia Sotomayor.