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Sotomayor Confirmation Hearings

Aired July 15, 2009 - 11:55   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, Amy Klobuchar, the Democratic senator from Minnesota, is now asking questions of Sonia Sotomayor.

(JOINED IN PROGRESS)

SEN. AMY KLOBUCHAR (D), MINNESOTA: ... brilliant. What are you going to do?"

(LAUGHTER)

OK. So, let's move on. I had some...

JUDGE SONIA SOTOMAYOR, SUPREME COURT NOMINEE: We should introduce our mothers, OK?

KLOBUCHAR: Yes, exactly. I have some quick questions here at the beginning just to follow up on some of the issues raised by my colleagues. Senator Coburn was asking you about the Heller case and Second Amendment issues. And I am -- personally agree with the Heller case.

But I remember that yesterday you said that in Maloney, your 2nd Circuit case, that you were bound by precedent in your circuit, but that you would keep an open mind if the Supreme Court takes up the question of whether the Second Amendment can be incorporated against the states. Is that right?

SOTOMAYOR: Yes, Senator. I take every case, case by case, and my mind is always open, and I make no prejudgments as to conclusions.

KLOBUCHAR: OK. And then a follow-up question that Senator Whitehouse was asking you about the Puerto Rican legal defense fund. You were on that board.

And one just minor follow-up, but isn't it true that the ABA, that their code of conduct, the American Bar Association code of conduct bars Board members from engaging in litigation because of a lack of an actual lawyer-client relationship?

SOTOMAYOR: Yes.

KLOBUCHAR: OK.

And then, finally, just one point. We've heard so much about your speech in which you used the phrase, "Wise Latina," and I'm not going to go over that again. But I did want to note, for the record, that you made a similar comment in another speech that you gave back in 1994, which you have provided not only in this proceeding but you also provided it when you came before the Senate for confirmation to the Circuit Court in 1997 and 1998. And no senator at that time -- do you remember them asking you about it or making any issue about it at the time?

SOTOMAYOR: No.

KLOBUCHAR: All right. Thank you.

Now we can move on to what I want to talk about, which is your work as a criminal prosecutor. And Senator Whitehouse initially asked a few questions about that.

You were quoted in the New York Times a while back about your time there, and you said, "The one thing I have found is that, if you come into the criminal justice system on a prosecutorial or defense level thinking that you can change the ills of society, you're going to be sorely disappointed. This is not where those kinds of changes have to be made." Do you want to elaborate on that a little bit?

SOTOMAYOR: By the time a criminal defendant ends up in court, they've been shaped by their lives. If you want to give people the best opportunity at success at life -- it's a message I deliver frequently to my community -- it has to be through early childhood forward. If you're waiting to do that once they're before a judge in court, your chances of success have diminished dramatically.

And so one of my messages in many of my speeches to my community groups is pay attention to education. It's the value mom taught me, but her lesson had -- was not lost on me when I became a prosecutor.

And it's a lesson that I continue to promote because I so fervently believe it. The success of our communities depends on us improving the quality of our education of our children and of parental participation in ensuring that that happens in our society.

KLOBUCHAR: It also reminded me of that comment about -- some of the comments you've made about the limited role that -- a prosecutor has one role, and the limited role that a judge may have to respect that judicial role of not making the laws but interpreting the laws. Would that be a correct summary?

SOTOMAYOR: That is. In the statement I made to the newspaper article, I was focusing on a different part of that, but it is. As a prosecutor, my role was not to look at what I though the punishment should have been, because that was set in law. Sentences are set by Congress, which -- within statutory ranges.

And my role was to prosecute on behalf of the people of the State of New York. And that role is different than one that I would do if I were a defense attorney whose charge is to do something else, to ensure that a defendant is given a fair trial and that the government has proven its case beyond a reasonable doubt.

But we cannot remedy the ills of society in a courtroom. We can only apply the law to the facts before us.

KLOBUCHAR: Yes.

I think Justice Ginsburg made a similar comment in an article this weekend in an interview she did. And she was talking about -- this was her exact quote -- "The legislature can make the change, can facilitate the change, as laws like the Family Medical Leave Act do" -- she was talking about family arrangements -- "but it's not something a court can decree.

"A court can't tell the man," she said, "you've got to do more than carry out the garbage." I thought that was another way -- you don't have to comment on that -- but it was another way of making the same point.

The other thing that I wanted to focus on was just that role as a prosecutor, some of the difficult decisions you have to make about charging cases, for instance.

Sometimes you have to make a difficult decision to charge a family member, maybe in a drunk driving case, where someone kills their own child because they were drunk, or you have to make a decision when the court of public opinion has already decided someone's guilty, but you realize you don't have enough evidence to charge the case.

Do you want to talk about any -- maybe a specific example of that in your own career as a prosecutor or what goes into your thinking on charging?

SOTOMAYOR: I was influenced so greatly by a television show in igniting the passion that I had as being a prosecutor, and it was "Perry Mason."

For the young people behind all of you, they may not even know who Perry Mason was, but Perry Mason was one of the first lawyers portrayed on television. And his storyline is that, in all of the cases he tried -- except one -- he -- he proved his client innocent and got the actual murderer to confess.

In one of the episodes, at the end of the episode, Perry Mason with the character who played the prosecutor in the case were meeting up after the case. And Perry said to the prosecutor, "It must cause you some pain having expended all that effort in your case to have the charges dismissed." And the prosecutor looked up and, "No, my job as a prosecutor is to do justice, and justice is served when a guilty man is convicted and when an innocent man is not."

And I thought to myself, that's quite amazing to be able to serve that role, to be given a job, as I was by Mr. Morgenthau, a job I'm eternally grateful to him for, in which I could do what justice required in an individual case.

And it was not without bounds, because I served a role for society, and that role was to ensure that the public safety and public interests were fully represented. But prosecutors in each individual case, at least in my experience, particularly under the tutelage of Mr. Morgenthau, was, we did what the law required within the bounds of understanding that our job was not to play to the home crowd, not to look for public approval, but to look at each case, in some respects like a judge does, individually.

And that meant in some cases bringing them the top charge. And I was actually known in my office for doing that often, but that's because I determined it was appropriate often.

SOTOMAYOR: But, periodically, I would look at the quality of evidence and say, "There's just not enough." I had one case with a individual who was charged with committing a larceny from a woman.

And his defense attorney came to me and said, "I never, ever do this, but this kid is innocent. Please look at his background. He's a kid with a disability. Talk to his teachers. Look at his life. Look at his record. Here it is." And he gave me the file.

And everything he said was absolutely true. This was a kid with not a blemish in his life. And he said, "Please look at this case more closely."

And I went and talked to the victim, and she -- I had not spoken to her when the case was indicted. This -- this was one of those cases that was transferred to me, and so it was my first time in talking to her. And I let her tell me the story, and it turned out she had never seen who took her pocketbook.

In that case, she saw a young man that the police had stopped in a subway station with a black jacket, and she thought she had seen a black jacket, and identified the young man as the one who had stolen her property. The young man, when he was stopped, didn't run away. He was just sitting there. Her property wasn't on him, and he had the background that he did.

And I looked at that case and took it to my supervisor and said, "I don't think we can prove this case." And my supervisor agreed, and we dismissed the charges.

And yet there are others that I prosecuted, very close cases, where I thought a jury should decide if someone was guilty, and I prosecuted those cases and more often than not got convictions. My point is that that is such a wonderful part of being a prosecutor.

That TV character said something that motivated my choices in life and something that holds true, and that's not to say, by the way -- and I firmly, firmly believe this -- defense attorneys serve a noble role, as well. All participants in this process do: judges, juries, prosecutors, and defense attorneys. We are all implementing the protections of the Constitution.

KLOBUCHAR: Thank you. That was very well said. And I want take that pragmatic experience that you've had, not just as a civil litigator, but also as a prosecutor, a lot has been said about whether judges' biases or their gender or their race should enter into decision-making. And I actually thought that Senator Schumer did a good job of asking you questions where, in fact, you might have been sympathetic to a particular victim or to a particular plaintiff, but you ruled against them. And it actually gave me some answers to give to this baggage carrier that came up to me at the airport in Minneapolis. It was about a month ago, after you had just been announced, and he came up and he said, "Are you going to vote for that woman?"

And at first, I didn't even know what he was talking about. I said, "What?" He said, "Are you going to vote for that woman?" And I said, "Well, I think so, but I want to ask her some questions." And he said, "Well, aren't you worried that her emotions get in front of the law?"

And I thought if anyone heard what the cases -- the TWA case, where you decided against -- had to make a decision from some very sympathetic victims, the families of people who had been killed in a plane crash, and a host of other cases where you put the law in front of where your sympathies lie, I think that would have been a very good answer to him.

KLOBUCHAR: But another piece of this that's a very different part of it is the practical experiences that you've had, the pragmatic work that you've done. And I just wanted to go through some of the cases that you've had, the criminal cases that you've handled as a judge, and talk to you a little bit about how that pragmatic experience might be helpful on the courts, not leading you to always side with the prosecution, obviously, or -- but helping you to maybe ferret through the facts, as you've been known to be someone that really focused on the facts.

One of them is this United States v. Falso case, and this was a case where child pornography was found in a guy's home and on his computer. And you ruled that, although the police officers didn't have probable cause for the search warrant, that the evidence obtained in the search, the child pornography on the computer, should still be considered under the good faith exception to the exclusionary rule, because the judge had not been knowingly misled. And in other words, it was a mistake.

And I -- could you talk about that case and how perhaps having that kind of experience on the front line helped you to reach that decision? Because there was someone, I believe, that dissented in that case.

SOTOMAYOR: That case presented a very complicated question in Second Circuit law. There had been two cases addressing how much information a warrant had to contain and what kind in order for the police to search a defendant's home or -- I shouldn't say a home -- a computer to see if the computer contained images of child pornography.

The two cases -- I should say the two panels -- I wasn't a member of either of those panels -- had very extensive discussions about the implications of the cases because they involved the use of the Internet and how much information the police should or should not have before they look to get a warrant to search someone's computer, because the computer does provide people with freedom of speech, at least with respect to accessing information and reading it and thinking about it.

In the case before me, I was looking at it in the backdrop of the conflict that it appeared to contain in our case law, and what our case law said was important for a police officer to share with a judge and examine the facts before my case, looking at -- that's the information that the police have before them and considering whether, in light of existing Second Circuit law as it addressed this issue, had the police actually violated the Constitution, but -- I hope I can continue.

LEAHY: You can continue. That was not a comment from above, (inaudible). I have certain powers as chairman, but not that much.

SOTOMAYOR: (Inaudible) whether they should get a warrant or not. And I -- and one member of the court said "yes," and -- they had violated the Constitution. And I joined that part of the opinion because I determined, examining all of the facts of that case, that -- and the law, that that was the way the law -- the result the law required.

SOTOMAYOR: But then, I looked at what the principles underlying the unreasonable search and seizures are without a warrant and looked at the question of what was the doctrine that underlay there. And it -- what doctrine it underlays is that you don't want the police violating your constitutional rights without a good-faith basis, without probable cause.

And that's why you have a judge make that determination. That's why you require them to go to a judge. And so what I had to look at was whether we should make the police responsible for what would have been otherwise a judge's error, not their error.

They gave everything they had to the judge. And they said to the judge, "I don't know." Even if they thought they knew, that isn't what commands the warrant. It's the judge's review.

So I was the judge in the middle. One judge joined one part of my opinion; the other judge joined the other part of the opinion. And so I held that the acts violated the Constitution, but that the evidence could still be used, because the officers had -- there was in law a good-faith exception to the error in the warrant.

KLOBUCHAR: And I think you...

(END OF COVERAGE)

BLITZER: All right. We're going to continue our coverage. Amy Klobuchar is continuing to ask questions, the Democratic senator from Minnesota, of the Supreme Court nominee, Sonia Sotomayor. By the way, she's the senior senator from Minnesota. The new junior senator from Minnesota, Al Franken, he's slated to ask questions later today as well, so we'll have extensive coverage of all of that.

CNN.com is where you can see all of this uninterrupted, if you want.

We'll take a quick break. Our coverage will resume right after this.

(COMMERCIAL BREAK)

BLITZER: The United States Capitol, inside the Senate Judiciary Committee hearing room, the Senate Hart Office Building. They're continuing questioning of Sonia Sotomayor. Amy Klobuchar is asking some of those questions.

We'll continue our coverage in a moment, but there's other important news unfolding right now.

CNN's Tony Harris is joining us with that -- Tony.

TONY HARRIS, CNN ANCHOR: Yes, good to see you, Wolf. Thank you.

Here's what's happening right now in the news.

The Senate Health Committee has just passed legislation to overhaul health care. The $600 billion measure would expand coverage to almost all Americans by requiring individuals get insurance and employers to help foot the bill. As expected, the vote was along party lines. Republicans, unanimous in opposition.

(BEGIN VIDEO CLIP)

SEN. JOHN MCCAIN (R), ARIZONA: All of us Republicans are committed to the prospect that we need to reform health care in America. But our principal and our fundamental belief is that health care has to be available and affordable, and the problem with health care is not the quality of health care in America, it is the cost of health care. Let me point out that this legislation has not one single provision that is aimed at reducing the cost of health care.

(END VIDEO CLIP)

HARRIS: President Obama plans to address health care at 1:00 p.m. Eastern in the Rose Garden. CNN, of course, will bring it to you live.

Iraq's prime minister is coming to Washington. The White House says President Obama's looking forward to welcoming Prime Minister Nuri al-Maliki next Wednesday. This will not be the first meeting between the two leaders. They had talks in April when President Obama made a quick visit to Iraq.

A major 7.8 magnitude earthquake struck off the coast of New Zealand, generating a small tsunami. Authorities have since called off a tsunami warning. No injuries or major damage reported.

The Pennsylvania swim club that canceled memberships for dozens of daycare children faces a possible lawsuit. The Valley Swim Club revoked pool privileges for about 65 mostly black and Hispanic children. The daycare center is pursuing a federal civil rights lawsuit against the club.

Some children say club members made racist comments. The club says its decision was based on safety concerns and not racism.

We are keeping you informed.

Now back to Wolf and CNN's special coverage of the Sonia Sotomayor confirmation hearings -- Wolf.

BLITZER: Tony, thank you very much. And we'll check back with you as well.

We're going to take another quick break. After the break, we'll resume our coverage inside the Judiciary Committee hearing, where Sonia Sotomayor is being questioned.

(COMMERCIAL BREAK)

BLITZER: The United States Capitol. That's where the activity is going on right now inside the Senate Judiciary Committee hearing room. The senior senator from Minnesota, Amy Klobuchar, is continuing her questioning of Sonia Sotomayor. They're talking about sentencing guidelines.

(JOINED IN PROGRESS)

SOTOMAYOR: And so, to the extent that in all my cases I balanced the individual sentence with, as I was directed to, the interest that society sought to protect, then I applied that evenly -- even-handedly to all cases.

And so, it's important to remember the guidelines were mandatory. And so I took my charge as a district court judge seriously at the time to only deviate in the very unusual case, which was permitted by the guidelines.

KLOBUCHAR: And what do you think about the change now that they are guidelines, and -- suggested guidelines and not mandatory?

SOTOMAYOR: As you know, there's been great number of cases in the Supreme Court. The Booker Fan Fan case determined they were guidelines. My own personal experience with that -- with -- as an appellate judge is that, because the Supreme Court has told the district courts to give serious consideration to the guidelines, there's been a little bit -- not a little bit. There's been discretion given to district courts, but they are basically still staying within the guidelines. And I think that's because the guidelines prove useful as a starting point to consider what an appropriate sentence may be.

KLOBUCHAR: Just one last question, Mr. Chairman. All these guys have been asking about your baseball case and they've been talking about umpires and judges as umpires. Did you have a chance to watch the All-Star game last night because most of American didn't watch the replay of your hearing?

(LAUGHTER)

SOTOMAYOR: It might have been watching it. I haven't seen television...

(LAUGHTER)

... for a very long time. But I will admit that I turned it on for a little while.

KLOBUCHAR: OK. Because otherwise I will say, and maybe you didn't turn it on on this moment, but your Yankee, Derek Jeter tied it up, but you must know that he scored only because there was a hit by Joe Mauer of the Minnesota Twins.

(LAUGHTER)

I just want to point that out.

All right. Thanks very much, Judge.

SOTOMAYOR: That's called teamwork.

KLOBUCHAR: All right. Thank you.

(END OF COVERAGE)

BLITZER: All right, so, Amy Klobuchar, one of two women on the committee, asking questions, getting through some substantive issues, having a little fun at the end, talking about the Major League Baseball All-Star Game last night. A lot of us did watch that All Star Game, when we saw the president of the United States throw out that first pitch.

There is a baseball factor in all of this, Jeff Toobin, our senior legal analyst. Is it fair to say that Sonia Sotomayor allowed that Major League All Star Game to take place last night?

JEFFREY TOOBIN, CNN SR. LEGAL ANALYST: Well, indirectly, that is true. Going back to 1995, when Judge Sotomayor was on the District Court, before she was promoted to the Court of Appeals, she had a case involving the infamous baseball lockout of that year.

It wasn't a strike, it was a lockout. And what had happened was, the owners wanted to change the contract unilaterally and force the players back to work. The NLRB joined the players union...

BLITZER: The National Labor Relations Board.

TOOBIN: The National Labor Relations Board said, owners, you can't do that. You can't change the contract unilaterally and lock out the players. Judge Sonia Sotomayor, a Yankee fan, although that wasn't highly relevant to this decision. I'm sorry. I know.

BLITZER: She was born in the Bronx.

TOOBIN: She just lost Senator King's vote here, yes. But she ruled that the owners were wrong, that they couldn't do it, that the unilateral change in the contract was impermissible. And that was what led to the end of the lockout and began the 1995 season.

So, President Obama mentioned this case in announcing her nomination six weeks ago, so it's a big deal.

BLITZER: It's a huge deal, because a lot of people say that decision she made saved Major League Baseball.

TOOBIN: Saved the national pastime.

BLITZER: She sided with the players, as opposed to the owners, and the All Star Game continued last night.

TOOBIN: That's a nice thing to have on your resume. Right?

BLITZER: Did you like that pitch that the president threw? Did you have a chance to see that?

JOHN KING, CNN SR. NATIONAL CORRESPONDENT: I only saw the replay, because I was out at a charity event before that. But he made it. He reached...

TOOBIN: No, but can we just discuss one thing?

BLITZER: Yes.

KING: Oh, now you're going to...

TOOBIN: No, no. It doesn't have to do with your Red Sox. Don't worry.

It has to do with our competitors at Fox, with the sports division. The coverage, you couldn't see the ball cross the plate or not cross the plate.

BLITZER: They replayed it.

TOOBIN: But I mean, I though, come on, this is what everybody wanted to know. And they didn't show...

BLITZER: Did he reach home plate? And the catcher helped him a little bit.

TOOBIN: I never -- I never actually saw it. Did he actually...

(CROSSTALK)

BLITZER: Yes, he did.

KING: The best thing about this, the president admits he didn't play baseball as a kid, so he was happy to reach home plate, which he did twice. He did it at another baseball game, he pitched, so good for the president last night. The best thing is the All Star Game now matters. The winning league is home in the World Series, which means the Boston Red Sox will be the home team in the World Series this year.

(LAUGHTER)

BLITZER: Although you'll notice he was wearing a Chicago White Sox little jacket.

KING: He's allowed to root for wrong Sox if he wants.

BLITZER: Yes.

GLORIA BORGER, CNN SR. POLITICAL ANALYST: He got some boos.

BLITZER: All right. Let's move on from baseball, because other substantive issues were certainly discussed today. And we're going to go through some of the most important issues that came up today, on this, the third day, of her confirmation hearings.

Our coverage will continue right after this.

(COMMERCIAL BREAK)

WOLF BLITZER, CNN ANCHOR: There he is, the president of the United States, last night in St. Louis, Busch Stadium, going out to throw out the first pitch. All right, I want everybody to study this pitch. This is the way it went down.

Are you watching, John? You see that? Did you see that? He threw that first pitch, a little soft, not too hard. Let's play it again right now and then we'll get another little assessment. Watch this. Well, we didn't see it. That was the wrong angle. Let's show that first angle. That's what we saw live if you were watching the game last night. But let's take a look now, you'll see a better shot. You'll see that he actually manages to throw the ball and reach the catcher. Watch. All right. So, here -- here's --

KING: Pujols was sitting on the plate, too.

BLITZER: Yes, he got a little assist. Somebody said it was a little bit of a girly throw. John, what do you think?

BORGER: Excuse me, Wolf.

KING: Hey, look. Look. Look, it takes guts for a politician, even a popular president, to go out and do that. So let's put partisanship aide and even objectivity aside for a second and say, let's give him credit. He put on his jeans. He put on his Sox jacket. He says his wife says he looks cute in that jacket. Sixty feet, 6 inches. Albert Pujols gave him probably that last foot, reaching out a little bit. That's OK.

ALEX CASTELLANOS, REPUBLICAN CONSULTANT: A good Republican hitter could have hit that one. BLITZER: George Bush, he used to do a pretty good job throwing out the opening pitch too. George W. Bush, when he was president. A former owner of a baseball team.

BORGER (ph): Well, he owned a ball team.

(CROSS TALK)

BLITZER: And the serious reason why we're talking about this was Sonia Sotomayor saved Major League Baseball in a decision she had in the lower courts when she ruled in favor of the players, as opposed to the owners. They came back from their lock-out and they played ball, which was very, very important for all of us.

KING: The new Busch Stadium. It's a beautiful place.

BLITZER: It is a beautiful stadium in St. Louis, Missouri. That was a state that he barely lost to John McCain, if you remember, about 3,000 votes.

KING: You don't think that played into going out there, do you?

BLITZER: I think it did. I think they're thinking ahead, down the road, because they always are.

Let's talk a little bit about what we've learned today. And we spoke earlier with Jeff Sessions, the ranking Republican on the Judiciary Committee, and he raised the issue of guns. He isn't sure where she stands on the Second Amendment to the Constitution. In fact, I think we have a little clip of an exchange that occurred on guns earlier in the day.

(BEGIN VIDEO CLIP)

SEN. TOM COBURN, (R) OKLAHOMA: Where do we stand today about my statement that I have -- I claim to have a fundamental guarantee spelled outright under the Constitution that is individual and applies to me the right to own and bear arms. Am I right or am I wrong?

JUDGE SONIA SOTOMAYOR, SUPREME COURT NOMINEE: I can't answer the question of incorporation, other than to refer to precedent. Precedent says, as the second circuit interpreted the Supreme Court's precedent . . .

COBURN: I understand.

SOTOMAYOR: That it's not -- it's not incorporated.

(END VIDEO CLIP)

BLITZER: All right. That was an exchange with Tom Coburn, another supporter of the Second Amendment, a supporter of guns. Tom Coburn, the Republican senator from Oklahoma. Jeff Sessions, in the interview we just had, he's also concerned about guns.

Jeff Toobin, help us explain, are her position specifically on the federal obligation to support the Second Amendment, as opposed to local communities or states.

TOOBIN: You know, it's funny, the way that this hearing goes, you would think that Supreme Court precedent is some unchanging thing that is just the law that is changed. But if you look at the Second Amendment, that's something that's changed dramatically over the last -- for 50 years, including when I was in law school, which was more recently than 50 years ago. The idea that you had a Second Amendment right to a gun was considered preposterous. The text of the Second Amendment, I believe we have it -- we have it in our system, you know, speaks of a well-regulated militia and the right to bear arms.

Well, courts used to say, well, this only affects the rights of state militias. But the Supreme Court, two years ago, in the famous Heller decision, said that when it comes to the federal government, we -- individuals have a personal right to bear arms. And the D.C. gun control law was thus unconstitutional.

And the question that came before Judge Sotomayor in the second circuit was, what about states? Do individuals have a right against states -- state law to a personal right to bear arms? And she said, according to her reading of the precedents, is that that's not decided yet. That it only applies to the federal government. Now, it's up to the Supreme Court to make that decision.

By the way, the seventh circuit agrees with her.

BLITZER: It might be useful for you and John to go back to the magic wall. There's a key case, Maloney versus Cuomo that deals with this issue specifically. And let's walk through some of those issues, because I suspect that we haven't heard the last of the Second Amendment and guns.

You did hear Senator Sessions earlier in the day cite a release put out by the National Rifle Association saying they've got some serious problems with this nominee, Wayne LaPierre, the leader of the NRA, saying, you know what, we're not convinced she would be a good Supreme Court justice.

TOOBIN: And that, Wolf, as we look at the case file, that is based on the thought the NRA believes that she is in favor -- that this case puts her on the record in favor of state regulations of gun use.

Now, this is a Second Amendment case, Maloney versus Cuomo, the attorney general of the state of New York. Just decided in 2009. At issue was a New York man challenged the state law prohibiting possession, not of a gun, but of a martial arts tool, a nunchuk, saying that violated his Second Amendment right to bear arms. The ruling of the second circuit was that New York's law did not violate the Second Amendment, which, again, according to this circuit court, only restricts the federal government, not the state.

The outcome there is that Judge Sotomayor was part of a panel that dismissed the gentleman's challenge. Now, she is saying that there's nothing in the law that prohibited New York state, nothing in the federal constitution that prohibited New York state from regulating firearms.

TOOBIN: Right. One of the controversies in constitutional law over the past 50, 100 years, has been the Bill of Rights. The first 10 amendments. Which parts of it apply against the states, because most of the Bill of Rights, like the First Amendment, says Congress shall make no law abridging the freedom of speech. But what about the states, may they make a law abridging the freedom of states?

Justice Hugo Black was a great advocate of what was called incorporation. You heard justice -- Judge Sotomayor mention it. Do you incorporate the Bill of Rights against the states?

Now, most of the Bill of Rights has been incorporated, but not everything, and the Supreme Court has never said whether the Second Amendment applies against the states. That's the issue that this case was about.

KING: I want to follow up by making this point using the telestrator. This case was just decided. If she makes it to the Supreme Court, this case, and others like it, are likely to be before the court. And Republicans have been pressing her for two days now trying to say, well, you would recuse yourself if this case made it. And she has said, yes. If a case that she decided, the exact case, she would, of course, say I have a conflict, I have to step aside.

They have been trying to say, well, if there are other state cases similar to this, would you also recuse yourself? Very clear what the conservatives, Republicans are saying, they're trying to get her to commit on the record now that she would not speak to gun cases.

TOOBIN: That she would recuse herself for cases that raise the same issue.

Very interesting question about recusal. You know, the rules on recusal in the Supreme Court are different than they are on the lower courts. Because in the lower courts, it's -- they really encourage you to recuse yourself if there's any hint of conflict because it's easy to replace judges with one who doesn't have a conflict. You can't replace a Supreme Court justices -- justice. So the justices try, within ethical rules, but they're not really spelled out, not to recuse themselves. So it will be interesting to see, as these cases come down the line, and they definitely will, whether she decides to recuse herself. I bet she won't.

KING: Jeff Toobin there on that analysis.

And, Wolf, as we go back to you, another thing that was interesting, just as Senator Coburn was making the point, why should this be so difficult when the right to bear arms is at least in the Constitution. He was saying the word abortion never appears and that is a legal right. That was one of the inquiries where he was trying to get Judge Sotomayor to express herself more openly. And she was very, very careful, as we have seen throughout these hearings.

BLITZER: Yes. Yesterday she made the point that one of her family members is a member of the NRA and she believes in the right to bear arms and hunting and all of that.

Candy Crowley, this is not just a sensitive issue for Republicans. There are plenty of moderate, or conservative Democrats out there who see this as a key issue for them as well.

CANDY CROWLEY, SENIOR POLITICAL CORRESPONDENT: Absolutely. The interior west, in the south. Many up north. There's lots of hunters who always fear when some gun issue comes up that they are coming after their shotguns, their rifles, whatever it is they're hunting with.

So, it is. The problem, of course, is, once again, we are -- we are stuck with the same answer, as we were, by the way, on abortion, which is, well I can't really talk about how I feel about those issues.

BORGER (ph): But, you know, guns is an issue that plays with both parties. It plays with conservative Democrats. It plays with Republicans. It's in red states. It's in purple states. And Alex is nodding here, but this is clearly an issue that you can see being used in the midterm elections. Look at all these people who voted for a justice who does not support the right to bear arms, right?

CASTELLANOS: It is a big issue. There's a reason John Kerry goes and buys the brand new hunting jacket and goes hunting in a presidential election. Some people think it's one of the reasons Al Gore's not president is because he -- concerns about his support of the right to bear arms. So it's a powerful, political issue in the heartland, in swing states. I think for Democratic senators up in 2010.

TOOBIN: Yesterday, Russ Feingold, who is a liberal Democrat on almost all issues, was pressing Sotomayor from the right on gun control, because he's from a swing state with a lot of hunters.

BLITZER: Wisconsin.

TOOBIN: Wisconsin. And he believes in -- in strong Second Amendment protections.

CASTELLANOS: And since the Heller decision, I believe this is correct, that the only federal court that has ruled that the fundamental right is not implicated is Sotomayor's court. So there's . . .

TOOBIN: No, no, the seventh circuit of Chicago has agreed with her.

CASTELLANOS: The seventh circuit has done the same?

BLITZER: He knows those circuit courts. You've got to always . . .

CASTELLANOS: I'm not a lawyer and I can't play one on TV.

BLITZER: Study the circuit courts, all of the seventh and whatever.

All right, guys, stand by because we're going to continue our coverage. History unfolding in Washington, D.C., right now. The Senate Judiciary Committee hearings continuing. Remember, cnn.com, you can see all of this, uninterrupted.

We're standing by. Later today, Al Franken, the new junior senator from Minnesota, he's going to have a chance to ask the nominee his questions. Our coverage continues after this.

(COMMERCIAL BREAK)

BLITZER: We're continuing our coverage of the Senate Judiciary Committee hearings for the confirmation of Sonia Sotomayor to become an associate justice of the United States Supreme Court. The questioning is continuing -- by the way, Al Franken is going to be asking questions later in the day when our coverage of that, that's coming up.

The president of the United States, meanwhile, he's getting ready to deliver a statement over in the Rose Harden at the White House on health care, his major domestic priority right now. That's coming up. We'll have live coverage of the president in the Rose Garden.

Let's check in, though, once again with Tony Harris. He's monitoring some other important stories unfolding right now.

What's the latest, Tony?

TONY HARRIS, CNN CORRESPONDENT: Hey, good to see you, Wolf. We'll get it back to you in just a second. Here's what's happening in the news right now.

An Iranian airliner has crashed, killing all 168 people on board. The Caspian Airlines jet was flying from Tehran to Armenia when it went down. An area commander says the Russian-made plane simply disintegrated. A huge crater, you see it here, scattered with charred pieces of the plane, marks the spot where it slammed into the ground. Military forces are searching for the flight data and cockpit recorders to help determine the cause of the crash.

We should learn more in the next hour about the shooting deaths of a Florida couple known for adopting special needs children. The sheriff has scheduled a news conference for 1:00 p.m. Eastern Time. Sheriffs 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 families loss.

(BEGIN VIDEO CLIP)

ASHLEY MARKHAM, DAUGHTER: We are 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, in the last couple of 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.

Secretary of State Hillary Clinton steps back into the foreign policy spotlight today. She delivers what aides are calling a major policy speech at the top of the hour. Clinton, as you know, has been sidelined by a fractured elbow and there's been speculation about whether her influence has diminished. Her speech expected to focus on combing defense, diplomacy and development, as well as the threats posed by Iran and North Korea.

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 Japan's Kibo science lab to the International Space Station. The launch is set for 6:03 p.m. Eastern, weather permitting.

Let's send you back now to Wolf Blitzer and CNN's special coverage of the Sonia Sotomayor confirmation hearings.

Wolf, back to you.

BLITZER: All right, thanks, Tony. Let's see if the sixth time is a charm for the launch of the shuttle Endeavour. If it does go off at 6:03 p.m. Eastern, we'll have live coverage in THE SITUATION ROOM.

We're watching what's happening over at the Senate Judiciary Committee. They're getting ready to take a lunch break. Dana Bash, our senior congressional correspondent, is inside that room right now.

Walk us through the sort of schedule that we can anticipate for the rest of today and then tomorrow, Dana.

DANA BASH, CNN CORRESPONDENT: Well, right now, Wolf, Ted Kaufman, the sort of caretaker, a Democratic senator from Delaware, who took over that seat when Joe Biden became vice president, he's wrapping up his questioning of Judge Sotomayor in the last few minutes. And what they're going to do is take a lunch break, but also then go into closed session. We won't see them for about an hour, maybe more, but they will be questioning and talking to Judge Sotomayor and they'll be talking about her background check, her FBI background check. They're going to do that because some of it has -- you know, there's security issues, so that's why they won't be in public.

But when they come back, there will be two more Democrats to watch who will be questioning the judge. One is Al Franken. We heard him just a couple of days ago for the very first time really as a United States senator when he gave his opening statement.

And it was very interesting to hear the fact that he said he's not a lawyer. He's obviously a brand (AUDIO GAP) the past couple of days, it's been noteworthy that he hasn't been doing much at all except watching intently. Watching the judge. Watching the other senators, the why they question, and really trying to take it all in. Even -- well, he's not spending a lot of time taking notes and thinking about the questions that he'd like to ask, like many of the other senators are doing.

And one other person that's going to be interesting, and that is Arlen Specter. He, of course, is the Republican turned Democrat. He, at one time, was the chairman of this committee. Even chaired the Alito hearings back during George Bush's days.

And he is going to be second to last in the questioning because he became a Democrat. I think we can expect some -- perhaps some arcane questioning from Arlen Specter, as he is known to do, and maybe -- maybe we'll get a sense of the reputation he did gain on this committee, snarling Arlen, but we'll see what he comes through with. He is certainly somebody who likes to give us surprises. So that could be interesting.

BLITZER: He's not always predictable. Arlen Specter once was the chairman of the Judiciary Committee. Now he's one of the junior members, the second most junior member of this committee. Only Al Franken, who was sworn in only a few days ago as a United States senator, more junior than Arlen Specter.

So we'll have coverage of both of those senators asking questions from Sonia Sotomayor.

Dana, stand by. We're going to get back to you.

There was an interesting question that John Cornyn, the Republican senator from Texas, asked Sonia Sotomayor a little while ago. Let me play this exchange.

(BEGIN VIDEO CLIP)

SEN. JOHN CORNYN, (R) TEXAS: Do you agree with his statement that you have liberal (ph) instincts (ph)?

JUDGE SONIA SOTOMAYOR, SUPREME COURT NOMINEE: If he was talking about the fact that I served on a particular board that promoted equal opportunity for people, the Puerto Rican Legal Defense and Education Fund, then you could talk about that being a liberal instinct in the sense that I promote equal opportunity in America and the attempts to ensure that. But he has not read my jurisprudence for 17 years, I can assure you. He's a corporate litigator. And my experience with corporate litigators is that they only look at the law when it affects the case before them.

(END VIDEO CLIP)

BLITZER: The "he" in this case referring to one of her former partners when she was in private practice at a law firm in New York. He had been quoted in one of the news accounts saying that she had generally liberal instincts. And Senator Cornyn wanted to press her on that.

Alex Castellanos, what's wrong, if anything, if she has generally liberal instincts? No one really thought the president of the United States would nominate a conservative or even necessarily a moderate to the United States Supreme Court.

CASTELLANOS: Well, that's the man we haven't really talked about much in these hearings at all, and that's President Barack Obama. This is his nominee. You would expect, of course, his nominee to reflect his political instincts. And -- but that's what we seem to be all denying in these hearings, why there are no political instincts here at all . . .

BLITZER: Because there's plenty of Republicans who have pointed out, like Senator Lindsey Graham, you know, if President Bush were president or if John McCain had been elected, no one doubts they would have nominated someone with generally conservative instincts.

CASTELLANOS: You -- you would have thought that's the case. But we're all acting here as if somehow President Obama has nominated Justice Roberts. I think the questioning we're trying to reveal that, but we haven't seen that. Maybe in the FBI hearings they'll find the other Sonia Sotomayor. The one that sounds more like President Obama.

KING: You know what's really interesting, Wolf, we have here, you know, summaries that we've been given by our great research staff of all her speeches, all her cases. And what you don't hear to this point is if -- you don't hear them saying, you're an activist, you've proved it in this case. You're a liberal, you proved it in this case. You know, you went beyond the reach of the law, you proved it in this case.

The Republicans -- 17 years on the bench and they've been focusing mostly on the Ricci case and the gun-control case that we've discussed. But what you don't hear, either from the Democrats or Republicans, is much specifics about all these cases. I think there are 3,000 cases she's been involved in over the years. And that's surprising to the sense that if they could find a thematic point to make, a connect-the-dots theory in her legal rulings, you would think you would hear it case by case in these hearings.

BLITZER: Let me let Maria Echaveste, a former Clinton White House official, deputy chief of staff, weigh in.

MARIA ECHAVESTE, SENOR FELLOW, CENTER FOR AMERICAN PROGRESS: I'm -- her record as research service has shown, is that she's consistent, moderate. They only focused on those two cases, plus speeches, because there's nothing else.

CASTELLANOS: No, there are other cases.

ECHAVESTE: And we've . . .

CASTELLANOS: We've talked about her -- she supported the right of felons who are currently in prison, including murders, for example, to vote.

ECHAVESTE: No.

CASTELLANOS: She's . . .

ECHAVESTE: If there really were those cases, those senators would have been using them, but they haven't. They've focused on the speeches, because there's nothing else there. And . . .

CASTELLANOS: There's the properties rights case where, again, what is the public interest versus that.

ECHAVESTE: Right. And we talked about those.

CASTELLANOS: So, yes, there are other cases. It's not solely those cases that you're mentioning here.

BLITZER: All right, hold your thoughts. Hold your thoughts for a moment because I want to take another quick break.

The president of the United States is getting ready to speak over at the White House on health care reform. We'll have live coverage of that. And we'll continue our coverage of the Senate Judiciary Committee's confirmation hearings of Sonia Sotomayor right after this.

(COMMERCIAL BREAK)

BLITZER: All right, they've just recessed for lunch. There you see Sonia Sotomayor. She's walking around in the Senate Judiciary Committee. I think that's Amy Klobuchar she's speaking with, the senator from Minnesota, right now.

They're going to take a one-hour break. The chairman, Patrick Leahy, just announced they'll have a one-hour lunch break. 2:00 p.m. Eastern they'll be coming back. And there will be two more senators who will have a chance to ask questions. Arlen Specter, the Republican turned Democrat, the former chairman of this committee. He'll have 30 minutes to ask his questions. And the final senator asking questions will be the newest senator, Al Franken. He's only been a senator for about a week. Al Franken, the Democratic senator from Minnesota.

After that, after those two senators ask their questions, they're then going to take another break. They're going to go into closed- door session to get the review from the FBI, the vetting process, her background checks and all of that. And then after that, they'll resume questioning -- a second round of questioning from the senators.

There's the chairman. He's getting ready to go out to lunch.

We'll continue our coverage of these historic Judiciary committee hearings in one hour. But let's check in with CNN's Kyra Phillips right now. She's got a whole lot of other news coming up, including the president of the United States -- Kyra.