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Day 3 of Questions for Sotomayor; Mom Pushes for Government-Run Health Insurance; Obama to Address NAACP on 100th Anniversary
Aired July 16, 2009 - 09:00 ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
HEIDI COLLINS, CNN ANCHOR: Good morning, everybody. I'm Heidi Collins. It is July 16th and you are in the CNN NEWSROOM.
An awful lot going on this morning. In fact, more on the killing that shocked the country. New details and another arrest. We're going to have the very latest on the murders of the Florida couple who adopted several children with special needs.
Also, interstate inferno. Look at these pictures here. It's a crash that ignited this massive fire ball. As you can see, it caused the entire overpass to collapse and this morning, everybody is talking about what didn't happen.
Also this morning, the political dance on Capitol Hill. Could it be called the Supreme Court sidestep? Sonia Sotomayor facing big questions. In fact, some say she is offering little in return.
But first this morning, new details in the killing of a prominent Florida couple. Police now say they are going to interview two more people very shortly. Investigators stress these are not suspects, but do say one of them may be tied to the crime.
This comes after the arrest of an eighth suspect yesterday. Police found Pamela Long Wiggins in Alabama. She is being charged for being an accessory after the fact.
Seven men are charged with the murder in the deaths of Byrd and Melanie Billings. Police have said robbery was a motive in the crime. A safe and other items are missing from the home. And earlier, the sheriff appeared on CNN's "AMERICAN MORNING" to talk about the progress of the investigation.
(BEGIN VIDEO CLIP)
SHERIFF DAVID MORGAN, ESCAMBIA COUNTY, FLORIDA: We have at least two additional persons of interest that we'll be interviewing very shortly. And I want to emphasize at this juncture, they are persons of interest. Of the two, we think one possibly could have a tie to the case, but again, we've got extensive interviews to conduct, both with this individual and those that had association with them.
Hopefully, we can get this conclude fairly quickly. We believe -- again, we believe that this case has had so many odd twists and turns, that this may be the last piece of our puzzle.
To put this in a little better perspective, I think, for the community at large and for the national that's been following this, we're talking about a case that is so complex that the only one that I can recall in my studies and the time in law enforcement would be back in late 1969 and 1970 with the Tate/LaBianca murders that occurred in California and the number of participants they had in those murders. And we're up to eight now and we could possibly go to nine or 10.
(END VIDEO CLIP)
COLLINS: Boy, what a story. We will have more information about the case when the sheriff's office holds a news conference. It's going to be happening at 11:00 Eastern this morning.
(BEGIN VIDEO CLIP)
UNIDENTIFIED FEMALE: (INAUDIBLE) plane go up, and when I was at the red light, it just went up in flames and then I just -- I just left my car and I took off running.
(END VIDEO CLIP)
COLLINS: A massive blast shaking the ground near Detroit. The explosion and fire destroying an overpass, causing it to crash down on several vehicles on the road below. It happened on I-75 in Hazel Park, Michigan, about 10 miles outside of Detroit.
Three drivers under that overpass escaped with only minor injuries, if you can believe it, and luckily no one was on the overpass at the time.
A collision involving a fuel truck and a car triggered the explosion. Another truck was also crushed under the concrete and steel reinforcements. Today, now, around 160,000 drivers are looking for a new route. Department of Transportation investigators are checking the damages at the highway this morning. They say repairs could take several weeks.
The U.S. military now asking for help in an effort to find a missing soldier in Afghanistan. The U.S. military now asking civilians for help in an effort to find a soldier who is missing there. They are dropping fliers in eastern Afghanistan and offering a reward.
The Taliban have claimed responsibility for the kidnapping of the soldier June 30th. It's believed he was being held by a prominent warlord in the area and that he has now been moved across the border into Pakistan.
Judging Sonia Sotomayor. Just a few minutes from now, the Supreme Court nominee begins her third and final day of questioning before a Senate committee. So far, the issues have ranged from the volatile to the frivolous.
CNN congressional correspondent Brianna Keilar explains.
(BEGIN VIDEOTAPE) BRIANNA KEILAR, CNN CONGRESSIONAL CORRESPONDENT (voice-over): Republican Senator and abortion opponent John Cornyn asked Sonia Sotomayor whether abortion came up during conversations with President Obama during her selection process.
JUDGE SONIA SOTOMAYOR, SUPREME COURT NOMINEE: I was asked no question by anyone including the president about my views on any specific legal issue.
KEILAR: But members of the Judiciary Committee certainly tried to pin her down on the topic, first, Republicans, to no avail.
SEN. TOM COBURN (R), OKLAHOMA: Let's say I'm 38 weeks pregnant and we discover a small spina bifida sack on the lower sacrum. Would it be legal in this country to terminate that child's life?
SOTOMAYOR: I can't answer your hypothetical because I can't look at it as an abstract without knowing what state laws exist on this issue or not.
KEILAR: Democrats, including newly sworn in senator, Al Franken also wanted to know her position on the issue.
SEN. AL FRANKEN (D), MINNESOTA: Do you believe this right to privacy includes the right to have an abortion?
SOTOMAYOR: The court has said in many cases that there is a right to privacy that women have with respect to the termination of their pregnancies in certain situations.
KEILAR: Republicans persisted with questions about Sotomayor's "wise Latina" comment. And she gave her most emphatic response yet.
SOTOMAYOR: My rhetorical device failed. It was a bad choice of words by me.
KEILAR: But it wasn't all serious. There was a lighter moment when former comedian Franken asked her about a subject they both loved: The 1960s legal drama, "Perry Mason."
FRANKEN: What was the one case in Perry Mason that Burger won?
SOTOMAYOR: I just was always struck that there was only one case where his client was actually guilty. And...
FRANKEN: And you don't remember that case?
SOTOMAYOR: I know that I should remember the name of it, but I haven't looked at the episode.
FRANKEN: Didn't the White House prepare you for that?
(LAUGHTER)
SOTOMAYOR: You're right, but I was spending a lot of time on reviewing cases. (END VIDEOTAPE)
COLLINS: And Brianna Keilar is joining us now live from Capitol Hill with more on what we can expect today. Obviously, Brianna, we are going to hear more about this New Haven firefighters case today, right?
KEILAR: No, we -- we expect to hear more about that, we expect more about the "wise Latina" comment. What we're going to see is Sonia Sotomayor asking -- or pardon me, answering questions for another few hours because these senators on the Senate Judiciary Committee are in their second round of questions.
And then we're actually going to hear some testimony against her. That's going to include two of these firefighters.
COLLINS: Right.
KEILAR: These New Haven, Connecticut firefighters. They're the ones who claimed discrimination when the city threw out a promotional exam that no African-American firefighters passed.
This case, of course, went up the chain. When it came to Sotomayor's three-judge appeals panel, they upheld a lower court ruling against white firefighter and one Hispanic firefighter. And ultimately, the Supreme Court overturned that decision.
Republicans, as you know, Heidi, say this shows perhaps that Sonia Sotomayor will show bias in some of her decisions. It's going to be really interesting to hear from the people, Frank Ricci and Ben Vargas, two of these firefighters who are behind this case that we have heard so much about...
COLLINS: Yes.
KEILAR: ... over the last few days.
COLLINS: Yes. Is there any word yet, Brianna? I think there'd been some discussion about whether Judge Sotomayor will be in the room when that's happening?
KEILAR: As we understand it, she does not need to be in the room, so we're not expecting that she will be, Heidi.
COLLINS: OK. Very good. Brianna Keilar for us on Capitol Hill this morning. Thanks, Brianna.
And of course, we will have live coverage of the Sonia Sotomayor hearing on Capitol Hill. It will begin at the bottom of the hour right here on CNN.
Today is a big day in the president's effort to get health care reform passed. Three key House committees are meeting to discuss the Democrats' $1.5 trillion plan. We are expecting to see votes today in two of those committees. In the Senate, the powerful budget committee meets today. And the health committee approved its legislation yesterday. President Obama is taking a personal approach. He's meeting today with a couple of key senators who could swing the vote.
So far, the battle over health care is divided along party lines, but one woman is hoping her story cuts through the partisan bickering.
CNN's Jim Acosta has more.
(BEGIN VIDEOTAPE)
JIM ACOSTA, CNN CORRESPONDENT (voice-over): Before Washington takes another step on health care reform, Hilda Sarkisyan wants the politicians to hear her story.
HILDA SARKISYAN, MOTHER OF CANCER VICTIM: If we don't change this now, my story is going to be their story.
ACOSTA: Sarkisyan's 17-year-old cancer stricken daughter, Nataline, made national headlines when the family's health insurance company denied coverage for a liver transplant in late 2007. The Sarkisyans raised a ruckus and the company reversed its decision. The moment caught on camera.
SARKISYAN: You got it?
ACOSTA: But it was too late. That same evening, Nataline died.
SARKISYAN: Now she's in heaven.
ACOSTA: Sarkisyan was brought to Washington by Democratic activists pushing for a reform bill that would give Americans the option of joining a government-run program to compete with private insurers. The option, they say, will keep the industry honest.
SARKISYAN: This is my message to everyone. Insurance companies cannot decide who's going to live and who's going to die.
ACOSTA: But she will have to win over an army of skeptics from Republicans who are nervous about the price tag.
SEN. ORRIN HATCH (R), UTAH: They're spending too much, they're taxing too much to get us there, and they're writing legislation that is totally partisan that isn't going to work.
ACOSTA: To special interest groups. Beverage companies are running an ad opposing one congressional proposal that would pay for reform in part with a soft drink tax.
(BEGIN VIDEO CLIP)
UNIDENTIFIED MALE: This is no time for Congress to be adding taxes on the simple pleasures we all enjoy, like juice drinks and soda.
(END VIDEO CLIP)
ACOSTA: The president is ready to play hardball.
BARACK OBAMA, PRESIDENT OF THE UNITED STATES: And those who would oppose our efforts should take a hard look at just what it is that they're defending.
ACOSTA: The Democratic Party has a new ad out aimed at its own senators who are wavering on reform.
(BEGIN VIDEO CLIP)
UNIDENTIFIED MALE: It's time.
UNIDENTIFIED FEMALE: It's time for health care reform.
(END VIDEO CLIP)
ACOSTA: And the message war over health care, Hilda Sarkisyan vows no surrender.
SARKISYAN: I know I'm going to face Congress, and I know I'm going to meet the president, eye to eye, and I'm going to tell me, he's got the responsibility to become a president and we're proud of it. But guess what, we need something in return.
ACOSTA (on camera): The president says he wants both the House and the Senate to wrap up their work on health care reform before lawmakers take their long August break. The halls of Congress may get crowded as supporters of reform plan to flood those hallways with more people like Hilda Sarkisyan.
Jim Acosta, CNN, Washington.
(END VIDEOTAPE)
COLLINS: Take a look at these pictures now out of Minnesota. It's actually what's left after a tornado touches down. We'll have your weather forecast coming up next.
(COMMERCIAL BREAK)
COLLINS: Want to take you over to the severe weather center now, where Reynolds Wolf is standing by.
Boy, look at those pictures out of Minnesota. We were talking about it yesterday, too. A lot of destruction there from...
REYNOLDS WOLF, CNN METEOROLOGIST: No, question about it. I mean they just got pummeled yesterday. I mean, you know, it came down as a sack of hammers yesterday. I mean widespread destruction. You see the video right here, take a look at it and you can see just widespread damage.
Some locations, looks like it may have been caused by straight line winds. Other places like this looks like it definitely has tornado marks on it. They're going to be having Ariel Reconnaissance tape from the local national weather service office. They'll give as much a better idea of what caused this. But again, just from what I have seen, looks like a tornado.
(WEATHER REPORT)
COLLINS: Boy, that's for sure. Very much.
WOLF: Absolutely.
COLLINS: All right. Reynolds, thank you.
Endeavour finally in space this morning.
(BEGIN VIDEO CLIP)
UNIDENTIFIED MALE: Four, three, two, one. Booster ignition and liftoff of Endeavour.
(END VIDEO CLIP)
COLLINS: All right. The shuttle launch was actually delayed six times. But finally, there you see it. It was delayed by weather and a hydrogen leak, too. The liftoff was yesterday and almost picture- perfect gorgeous shot there.
We did see some debris coming off the external fuel tanks during the launch, but NASA says it was foam insulation. Well the astronauts did get the wakeup calls about an hours ago this morning, and today, they're going to be using the shuttle's cameras to check for damage.
They're also expected to reach the International Space Station by tomorrow. We will check their progress.
President Obama at a speech 100 years in the making. Tonight, the nation's first black president appears before the country's oldest civil rights group.
(COMMERCIAL BREAK)
COLLINS: The NAACP turns 100 and takes stock. One striking measure appears in the flesh tonight. The nation's oldest civil- rights group will hear from the country's first African-American president, and the focus will be on the future.
We get the details now from CNN White House correspondent Suzanne Malveaux.
(BEGIN VIDEOTAPE)
SUZANNE MALVEAUX, CNN WHITE HOUSE CORRESPONDENT (voice-over): One hundred years after the birth of the NAACP, a major address by the first African-American president.
OBAMA: You know, it is always humbling to speak before the NAACP. Because it's powerful reminder of the debt that we all owe to those who marched for us and fought for us and stood up on our behalf.
MALVEAUX: Just last year as a candidate, Barack Obama was both deferential and defiant before the civil-rights group.
OBAMA: I know there are some who've been said I've been too tough talking about responsibility.
NAACP, I'm here to report, I'm not going to stop talking about it.
MALVEAUX: Taking on some of his African-American critics, Mr. Obama delivered a message of tough love echoed just last weekend in Ghana.
OBAMA: We all know that the future of Africa is in the hands of Africa.
MALVEAUX: The historic election of the United States' first African-American president highlights the NAACP's role in fighting for equality and opportunity.
BEN JEALOUS, PRESIDENT, NAACP: This is a big step that we've taken, having a black family in the White House, ending that 233-year- old color barrier. But there's a lot more work that needs to be done.
MALVEAUX: This after former President Bush kept the NAACP at arm's length, declining their invitations to address them for five years.
GEORGE W. BUSH, THEN-PRESIDENT OF THE UNITED STATES: Thank you very much. Bruce, thanks for the introduction. Bruce is a polite guy. I thought what he was going to say, it's about time you showed up. And I'm glad I did.
MALVEAUX: Now, a new president, a new dynamic.
CLARENCE PAGE, "CHICAGO TRIBUNE": I think his challenge now is going to be in talking to them about issues that have concerned him in the past like problems with teen pregnancy and black on black crime. That the NAACP hasn't been that eager to deal with.
MALVEAUX (on camera): In talking to members of the NAACP, they readily admit that the organization is redefining its mission, trying to bring in more young members, more members. And it's something they believe that President Obama can help them do.
Suzanne Malveaux, CNN, the White House.
(END VIDEOTAPE)
COLLINS: I'm Heidi Collins. Live pictures from Capitol Hill where day four of hearings for Supreme Court nominee, Sonia Sotomayor will continue in just a few minutes. Wolf Blitzer joins my you after the break.
(COMMERCIAL BREAK) WOLF BLITZER, CNN ANCHOR: Welcome to Washington. This is day four of the confirmation hearings for Sonia Sotomayor to become the Supreme Court justice. The Senate Judiciary Committee is getting ready to continue questioning her. She hasn't yet entered the room. They're expected to come in momentarily.
The hearings are resuming now. You see her mother, Sonia Sotomayor's mom coming in right her husband right now, with their friends and family members. They've been sitting behind her ever since the start of these hearings day one on Monday when there were opening statements. The formal questioning began on Tuesday.
They continued yesterday, and supposedly they're going to wind up today, and then there'll be some outside witnesses that will be brought in both for and against her confirmation.
We want to welcome our viewers in the United States and around the world. I'm Wolf Blitzer reporting here in Washington together with the best political on television.
Let's set the stage right now for what we might be able to learn today. Dana Bash, our senior congressional correspondent is in that Senate judiciary committee, Hearing Room, the center heart office building.
Dana, tell us what we can expect this morning.
DANA BASH, CNN SENIOR CONGRESSIONAL CORRESPONDENT: Well, we expect that the 20-minute round of question to continue. There are still 12 senators who could possibly take up to 20 minutes in this round. And we are going to begin with John Kyl, one of the members of the Republican leadership in the Senate.
You know, Democrats were hoping that that would pretty much be it in terms of questioning the witness, Judge Sotomayor. But I got word this morning from Republicans that they are going to try to ask for even more time, another round of shorter questions.
So it could go into the afternoon, this questioning of the judge, the third day of questioning. And you know, Wolf, you might ask, why are Republicans asking for more time when you talk to Republican sources, pretty much everyone admits, very candidly, that they have no chance at stopping this nomination right now.
Well, the answer in talking to Republican strategist on and off the Hill is that they do see this as an opportunity to raise political issues that might make some Democrats uncomfortable. Political issues, as we hard yesterday, we will hear it today. Things like gun control, things like abortion and privacy rights.
These are issues that they hope will be politically potent, perhaps politically tough for some Democrats who are up for re- election in conservative states. And -- but there is some other -- another reason why we are going to be listening very carefully this morning. And that is to some of the Republicans who may, in fact, vote for Judge Sotomayor. Republicans like Lindsey Graham. He is somebody who has suggested that if he does get some answers he's looking for, in his second round, which we'll hear this morning, perhaps and he and just like some other Republicans may vote for her. And that's a ratio that Democrats want to get up big time.
BLITZER: Yes. Orrin Hatch is another Republicans, maybe even Chuck Grassley of Iowa. They've been mooted as possible, Republicans, who might in the end vote for her confirmation.
Let's bring in some of our analysts and reporters to assess what else we should expect. Gloria Borger is here. John King is here. Maria Echaveste, a Democratic strategist, former Clinton White House official. Bill Bennett will be joining us shortly. Our CNN contributor, Candy Crowley, of course, is here as is Jeff Toobin.
Gloria, when we look at today, specifically, the Republicans who are going to be asking questions starting with Kyl, later Lindsey Graham, John Cornyn, Tom Coburn, so far, they haven't scored a whole lot of points in terms of undermining her credibility.
GLORIA BORGER, CNN SENIOR POLITICAL ANALYST: No. They haven't. She's done very well in terms of not answering directly. Lots of questions upon which she might rule as a Supreme Court justice. But what they're trying to do now is draw the lines in the sand about what's acceptable, what's not acceptable, for them as Republicans.
Not only now but in the future because this is a president who's probably going to have other Supreme Court nominations. And as Dana Bash just said, on issues like gun control, affirmative action, land rights, abortion, and also on this big question of empathy.
The president has said he wants a judge with empathy and in their questioning, these senators sort of forced her to say empathy is not a basis upon which you judge. You judge because of precedent, not empathy. And so that's putting the president on notice.
BLITZER: And there's John Kyl together with Lindsey Graham. Kyl will be asking the questions. First the Republican senator from Arizona, where there's a large, very large, Hispanic population as all of our viewers know.
So, John, a lot of these Republicans, they have to be really sensitive to the fact that this is history, potentially, unfolding. The first Hispanic on the U.S. Supreme Court, only the third woman ever potentially to be on the Supreme Court.
JOHN KING, CNN CHIEF NATIONAL CORRESPODENT: Which is why this has been a very polite. Pointed questions on abortion, property rights, gun control. Gloria and Dana both raised those. But it has been very polite. Judge Sotomayor, to her credit, she's a pretty good politician.
A lot were talked about her legal record, just about every break, she goes around to the back and spends some time -- more time with the Republicans than the Democrats. So she's viewing this as a political opportunity as well.
It's interesting to watch the political environment, Wolf. The Republicans are being careful. I talked to our outside conservative strategists today who said their goal is to try to get her hopefully on camera, but to talk a little bit more about her views on gun control, property rights, abortion. Issues, they hope, they can use against red and purple state Democrats, they said, in 2010.
Interesting, in this age where we get constant e-mails and all these electronic communications, the Republican National Committee this week during these hearings has not once issued a press release about Judge Sotomayor. They are focused almost exclusively on jobs and the economy and the cost of the health care reform debate. The role of government and the health care debate.
So, from a big picture, the Republicans know that is where the battle is shifting. That is where they think they are on stronger political footing. This is a fate to comply unless -- as Lindsay Graham said it best the first day, unless there's a major meltdown and we have not seen that.
WOLF BLITZER, CNN ANCHOR: We haven't seen it by any means. There's Patrick Leahy. You see him with his back to the cameras, talking to Dianne Feinstein, the Democratic senator from California. She's also a member of the Judiciary Committee. She's also the chair of the Senate Intelligence Committee. She has her hands full, no doubt, over there, as well.
He's going to be sitting down, momentarily, in fact, probably right now, but they were waiting for Sonia Sotomayor to walk in. And now, she has walked in. She's standing right behind Lindsey Graham, speaking with Jon Kyl. He'll begin questioning Sonia Sotomayor. Still, if you'll notice, she's hobbling a little bit. She has a cast on her ankle, which she fractured only a week after President Obama nominated her to become a Supreme Court Associate Justice. And when she sits down, you'll see she has a little -- you won't see it because the desk is draped, but she has a little stool in there so she can elevate her ankle so that the pain is alleviated.
She's saying hi to her mom. Other family members and friends. They've been very, very supportive throughout all of these hearings. Sitting there behind her and obviously basking in the pride.
As she sits down and gets her foot elevated on that little stool, she's looking for it right now.
Maria Echaveste, this is a source of great pride to a lot of Latinos, Hispanics out there.
MARIA ECHAVESTE, DEMOCRATIC CONSULTANT: Absolutely. And I do want to underscore, John, it's been very polite inside the room. But one of the things our viewers may not know is that all the waves, the broadcast waves, there are ads running, accusing her of supporting Puerto Rican terrorists. So, there is some ugly stuff out there, which I think a lot of Latinos are not going to forget. It may not be the RNC, but there are some very nasty conservative voices out there attacking her.
BLITZER: And the Republicans had been doing well. I say had.
Candy, going into this most resent election cycle, maybe 2006, then things began to crumble for the Republicans among Hispanic voters.
CANDY CROWLEY, CNN SENIOR POLITICAL CORRESPONDENT: Yes. And the fact of the matter is they know they have to do better, but they don't think it's going to come down to this hearing. It really has to do with outreach in the communities, in the state. They understand that, and there has to be a way.
And putting, of course, their Latino members out there to try to bring others on board. So they don't think it boils down to this, but they were very, very careful to make it sure they didn't look like a bunch of mean white guy Republicans.
BLITZER: And before Patrick Leahy hits the gavel -- Jeff Toobin, is there anything specific you're looking for this morning?
JEFFREY TOOBIN, CNN SENIOR LEGAL ANALYST: Well, you know, the thing that has struck me throughout these hearings is the Republicans have picked issues that they think are electoral winners. And they're not necessarily what you might assume. It's very much a focus on affirmative action and gun control, and less of a focus on abortion and same-sex marriage, which has been all but invisible.
BLITZER: Let's go to the chairman, Patrick Leahy, of Vermont.
SEN. PATRICK LEAHY (D-VT), CHAIRMAN, JUDICIARY COMMITTEE: Yesterday we completed the extended first round of questions for an additional eight senators, and approximately halfway through a follow- up round. This morning we can continue, and hopefully conclude.
Senator Kyl is recognized next for 20 minutes. And -- or as I say with hope springing eternal -- I keep saying up to 20 minutes. Nobody is required to use the full 20 minutes, but they -- I would hasten to add if everybody is certainly entitled to it.
Senator Kyl?
SEN. JON KYL (R), ARIZONA: Mr. Chairman, before I begin, for those who are watching this on television, I would just note that I don't think we put Judge Sotomayor on the hot seat with our questions, but we certainly did with the temperature in this room yesterday.
(LAUGHTER)
And for that, I apologize. And I note that it could get a little steamy this morning, too. I know it's cold back there, but it's not at all cool where we are.
LEAHY: If I can respond to...
KYL: If there's ever a question about Judge Sotomayor's stamina in a very hot room, that question has been dispelled without any doubt whatsoever.
(LAUGHTER)
LEAHY: If I might -- and I'll have to set the clock back for 20 minutes so this doesn't go into your time -- but it is really an interesting thing because anybody that's gone up where the press are, it's like an icebox up there. And I'm hoping we can get this -- at least the microphone is working. I want to thank Senator Sessions for offering me his microphone yesterday, but that didn't work.
And I want to thank Senator Franken for letting me use his. So, if we start the clock back over so I don't take this out of Senator Kyl's time.
Senator Kyl, please go ahead.
KYL: Thank you, and good morning, Judge.
SOTOMAYOR: Good morning.
KYL: In response to one of Senator Sessions's questions on Tuesday about the Ricci case, you stated that your actions in the case where controlled by established Supreme Court precedent. You also said that a variety of different judges on the appellate court were looking at the case in light of stabled Supreme Court and Second Circuit precedent.
And you said that the Supreme Court was the only body that had the discretion and the power to decide how these tough issues should be decided. Those are all quotations from you.
Now, I've carefully reviewed the decision, and I think the reality is different. No Supreme Court case had decided whether rejecting an employment test because of its racial results would violate the civil-rights laws.
Neither the Supreme Court's majority in Ricci nor the four dissenting judges discussed or even cited any cases that addressed the question. In fact, the court, in its opinion, even noted -- and I'm quoting here -- that this action presents two provisions of Title 7 to be interpreted and reconciled with few, if any, precedents in the court of appeals discussing the issue.
KYL: In other words, not only did the Supreme Court not identify any Supreme Court cases that were on point, it found few, if any, lower court opinions that even addressed the issue.
Isn't it true that you were incorrect in your earlier statement that you were bound by established Supreme Court and Second Circuit precedent when you voted each time to reject the firefighters' civil rights complaint?
SOTOMAYOR: Senator, I was -- let me place the Ricci decision back in context. The issue was whether or not employees who had -- were a member of a disparately impacted group had a right under existing precedent to bring a lawsuit, that they have a right to bring a lawsuit on the basis of a prima facie case, and what would that consist of?
That was established Second Circuit precedent and had been -- at least up to that point -- been concluded from Supreme Court precedents describing the initial burden that employees had.
KYL: Well...
SOTOMAYOR: That was...
KYL: Are you speaking here now -- I mean, you said the right to bring the lawsuit. It's not a question of standing. There was a question of summary judgment.
SOTOMAYOR: Exactly. Of -- exactly, which is when you speak about a right to bring a lawsuit, I mean, what's the minimum amount of good-faith evidence do they have to actually file the complaint?
An established precedent said, you can make out an employee a prima facie case of a violation of Title VII under just merely by -- not merely -- that's denigrating it -- by showing a disparate impact. Then, the city was faced with the choice of, OK, we're now facing two claims, one...
KYL: If I could just interrupt, we only have 20 minutes here, and I'm aware of the facts of the case. I know what the claims were. The question I asked was very simple. You said that you were bound by Supreme Court and Second Circuit precedent. What was it? There is no Supreme Court precedent. And as the court itself noted, they could find few, if any, Second Circuit precedents.
SOTOMAYOR: The question was, the precedent that existed and whether viewing it, one would view this as the city discriminating on the basis of race or the city concluding that because it was unsure that its test actually avoided disparate impact, but still tested for necessary qualifications, was it discriminating on the basis of race by not certifying the test?
KYL: Well, so you disagree with the Supreme Court's characterization of the precedents available to decide the case?
SOTOMAYOR: It's not that I disagree. The question was a more focused one that the court was looking at, which was saying -- not more focused. It was a different look.
It was saying, OK, you got these precedents. It says employees can sue the city. The city -- the city is now facing liability. It's unsure whether it can defeat that liability. It's -- and so it decides not to certify the test and see if it could come up with one that would still measure the necessary qualifications.
KYL: Let me interrupt again, because you're not getting to the point of my question. And I know, as a good judge, if I were arguing a case before you, you would say, "That's all fine and dandy, counsel, but answer my question."
Isn't it true that -- two things -- first, the result of your decision was to grant summary judgment against these parties? In other words, it wasn't just a question of whether they had the right to sue; you actually granted a summary judgment against the parties.
KYL: And, secondly, that there was no Supreme Court precedent that required that result. And I'm not sure what the 2nd Circuit precedent is. The Supreme Court said few, if any. And I -- I -- I don't know what the precedent would be. I mean, I'm not necessarily going to ask you to cite the case. But was there a case? And if so, what is it?
SOTOMAYOR: It was the ones that we discussed yesterday, the bushy line of cases that talked about the prima facie case and the obligations of the city in terms of defending lawsuits claiming disparate impact. And so, the question then became how do you view the city's action. Was it a -- and that's what the district court had done in its 78-page opinion to say you've got a city facing liability...
KYL: OK, all right. So you contend that there was 2nd Circuit precedent. Now, on the en banc review, of course, the question there is different because you're not bound by any three- judge panel decision in your circuit. So what precedent would have bound -- and yet, you took the same position in the en banc review.
For those who aren't familiar, a three-judge court decides the case in the first instance. In some situations, if the case is important enough, judges on -- the other judges on the circuit -- there may be nine or 10 or 20. I think in the 9th Circuit, there are like 28 judges in the circuit. And you can request an en banc review. The entire circuit would sit.
And in that case, of course, they're not bound by a three-judge decision because it's the entire circuit sitting of 10 or 12 or 20 judges. So, what precedent then would have bound in -- bound the court in the en banc review?
SOTOMAYOR: The panel acted in accordance with its views by setting forth and incorporating the district court's analysis of the case. Those who disagreed with the opinion made their arguments. Those who agreed that en banc certification wasn't necessary voted their way. And the majority of the court decided not to hear the case en banc.
I can't speak for why the others did or did not take the positions they did. They -- some of them have issued opinions. Others joined opinions.
KYL: But you felt you were bound by precedent?
SOTOMAYOR: That was what we did in terms of the decision, which was to accept the rule -- the -- not accept, but incorporate the district court's decision analyzing the case and saying we agreed with it.
KYL: Understood. But the district court's decision is not binding on the circuit court. And the en banc review means that the court should look at it in light of precedents that are stronger than a three-judge decision. So, I'm still baffled as to what precedent you're speaking of.
SOTOMAYOR: Perhaps it's -- just one bit of background needs to be explained. When a court incorporates as we did in a per curiam, a district court decision below, it does become the court's precedent. And, in fact, the...
KYL: The three judges?
SOTOMAYOR: Yes, but when I was on the district court, I issued also a lengthy decision on an issue, a constitutional issue, direct constitutional issue that the circuit had not addressed and very other few courts had addressed on the question of whether etbus (ph) statute of limitations on habeas (ph)...
KYL: OK. If you excuse me, we're -- I apologize for interrupting, but I've now used half of my time. And you -- you will not acknowledge that even though the Supreme Court said there was no precedent, even though the district court judgment and a three-judge panel judgment cannot be considered precedent binding the en banc panel of the court, you still insist that somehow there was precedent there that you were bound by.
SOTOMAYOR: As I explained, when the circuit court incorporated the district court's opinion, that became the court's holding.
KYL: Of course.
SOTOMAYOR: So, it did become circuit holding. With respect...
KYL: By three judges.
SOTOMAYOR: With respect -- yes, sir. I'm sorry.
With respect to the question of precedent, it must be remembered that what the Supreme Court did in Ricci was say, "There isn't much law on how to approach this should we adopt a standard different than the circuit did," because it is a question that we must decide how to approach this issue to ensure that two provisions of Title VII are consistent with each other.
That argument of adopting a different test was not the one that was raised before us, but that was raised clearly before the Supreme Court. And so, that approach is different than saying that the outcome that we came to was not based on our understanding of what it make out a prima facie case.
BLITZER: All right, they're having a significant, but rather technical discussion on her decision on that firefighters case in New Haven, Connecticut. By the way, later today, some of those firefighters will themselves be testifying against her confirmation.
They didn't like the fact that she ruled against them on that test that caused all that controversy. We're going to continue our coverage of these historic confirmation hearings. It's day four before the Senate Judiciary Committee here in Washington.
Remember, cnn.com is where we're streaming these hearings uninterrupted. If you want to watch on your laptop, that's a good idea as well. Our coverage with the Best Political Team on Television. We will continue after this.
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BLITZER: United States Supreme Court, that's the destination. We think, for Sonia Sotomayor. She's continuing her confirmation hearings today. Day four before the Senate Judiciary Committee. We also think this is the last day she will be answering questions before this panel.
I want to point out our sister network CNN Espanol is televising these hearings wall-to-wall, uninterrupted with translation into Spanish. In fact, listen in for a second. I want you to see how our sister network is translating this.
(BEGIN VIDEO CLIP)
SEN. JON KYL (R), ARIZONA (through translator): (SPEAKING SPANISH)
SOTOMAYOR (through translator): (SPEAKING SPANISH)
(END VIDEO CLIP)
BLITZER: All right. So there you see it. We're translating it into Spanish, CNN Espanol. If you want to hear it in Spanish, that's a good idea. If you want to hear it on English, good idea to watch it right here on CNN.
Jon Kyl, the Republican from Arizona, continuing his questioning of Sonia Sotomayor.
SOTOMAYOR: We have good faith for believing that we should not certify. Now the Supreme Court has made clear what standard they should apply. That those are different issues.
KYL: Well, I'm just quoting from the Supreme Court about the rule that was, that you endorsed in your decision and, again, it said, the Supreme Court said about your rule that such a rule would amount to a de facto quota system in which a focus on statistics could put undue pressure on employers to make decisions on the basis of race, even worse, an employer could disregard test results or other employment practices with the intent of obtaining employer's preferred racial balance. I guess we both agree that that is not a good result.
Let me ask you about a comment you made about the descent in the case. A lot of legal commentators have noted that while the basic decision was 5-4, that all nine of the justices disagreed with your panel's decision to grant summary judgment, that all nine of the judges believed that the court should have been, that the district court should have found the facts in the case that would allow it to apply a test. Your panel had one test. The Supreme Court had a different test. The descent had yet a different test. But in any case, whatever the test was, all nine of the justices believed that the lower court should have heard the facts of the case before summary judgment was granted.
I heard you to say that you disagreed with that assessment. Do you agree that the way I stated it is essentially correct?
It's difficult because there were a lot of opinions in that case. But the engagement among the judges was varied on different levels. And the first engagement that the descent did with the majority was saying if you're going to apply this new test, this new standard, then you should give the circuit court an opportunity to evaluate the evidence.
KYL: Judge, I have to interrupt you there. The court didn't say if you're going to apply a new standard, you need to send it back. All nine justices said that summary judgment was inappropriate, that the case should have been decided on the facts. There were three different tests -- the tests from your court, the tests of the majority of the Supreme Court and the test of the descent. Irrespective of what test it was, they said that the case should not have been decided on summary justice.
All nine justices agreed with that, did they not?
SOTOMAYOR: I don't believe that's how I read the descent. It may have to speak for itself, but, I -- Justice Ginsburg took the position that the Second Circuit's panel opinion should be affirmed, and she took it by saying that no matter how you looked at this case, it should be affirmed. And so, I don't believe that that was my conclusion reading the descent, but, obviously, it will speak for itself.
KYL: Well, it will. And I guess commentators can opine on it. I could read commentary from people like Stewart Taylor, for example, who have an opinion different from yours. But let me ask you one final question in the minute and a half that I have remaining.
I was struck by your response to a question that Senator Hatch asked you about with another speech that you gave, in which you made the distinction between the justice of a district court and a justice of a circuit court saying that the district court provides justice for the parties, the circuit court provides justice for society.
Now, for a couple of days here, you testified to us that you believe that not only do district court and Circuit courts have to follow precedent, but that the Supreme Court should follow precedent. So, it's striking to me that you would suggest, and this goes back to another comment you made, perhaps flippantly about the Courts of Appeals making law, but it would lead one to believe that you think that the Circuit court has some higher calling to create precedent for society.
In all of my experience, you have Smith versus Jones in the district court, the court says, the way we read the law, Smith wins. It goes to the Court of Appeals. The court has only one job to decide. Does Smith win or does Jones win?
It doesn't matter what the effect of the case is on society. That's for legislatures to decide. You have one job, who wins, Smith or Jones, based on the law. And you decide -- yes, lower court was right, Smith wins.
You're applying precedent and you're deciding the case between those parties. You're not creating justice for society, except in the most indirect sense that any court that follows precedent and follows the rule of law helps to build on this country's reliance on the rule of law.
SOTOMAYOR: I think we're in full agreement. When precedent is set, it follows the rule of law. And in all of the speeches where I've discussed this issue, I've described the differences between the two courts as one where precedents are set. That those precedents have policy ramifications but not in the meaning that the legislature gives to it. The legislature gives it a meaning in terms of making law. When I'm using that term, it's very clear that I'm talking about having a holding, it becomes precedent and it finds other courts. You're following the rule of law when you're doing that.
KYL: Mr. Chairman, I'm over the time, but just a final follow-up question, if I could.
You, yourself, noted that you have created precedent as a district court judge. Both district courts and circuit court create precedents simply by deciding a case, but they're both required to follow precedent, isn't that correct?
SOTOMAYOR: Yes.
LEAHY: Only because the senator went over, I would note the district court in that case did cite the Reeves case, which 2000 Supreme Court, the year 2000 supreme case as, as precedent, and binding second circuit court case, the Hayden case as precedent. And as the judge has noted...
BLITZER: All right. We're going to continue our coverage. We'll take a little break. They're going to move on to the next Democratic senator to start asking questions. I believe that will be Sheldon Whitehouse, Democrat of Rhode Island. And he'll be followed by Lindsey Graham, the Republican senator from South Carolina.
His earlier questioning in the first round was a dramatic highlight of these hearings. Our coverage continues after this.
