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Lou Dobbs Tonight

Judging Sotomayor; Showdown over CIA; Murder Mystery; Michael Jackson Investigation

Aired July 13, 2009 - 19:00   ET

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

LOU DOBBS, CNN ANCHOR: Good evening, everybody. Judge Sonia Sotomayor facing her critics on a deeply divided Senate committee on her first day of confirmation hearings -- we'll tell you what the judge had to say. Some of the country's best legal and political analysts join me to access her performance and that of the judiciary committee.

Also the Obama administration may appoint a criminal prosecutor to investigate some of the former Bush administration's anti-terrorism policies and officials -- Republicans accusing Democrats of trying to politicize intelligence and threatening our national security.

Important new developments tonight in the hunt for the suspected killers of a Florida couple who had 16 children. As many as eight people may have been involved in their murder. We'll have the very latest for you.

First tonight Supreme Court Judge-nominee Sonia Sotomayor pledged fidelity to the law. On day one of her confirmation hearings, she declared the task of a judge is not to make the law. It is to apply the law, a direct response to her critics who have accused Judge Sotomayor of being what they call an activist judge. The judge, however, did not address the controversy over her previous assertions that a, quote, "wise Latina woman would make better judgments than a white male." Candy Crowley reports now from Washington.

(BEGIN VIDEOTAPE)

UNIDENTIFIED MALE: So help you God.

UNIDENTIFIED FEMALE: I do.

CANDY CROWLEY, CNN SR. POLITICAL CORRESPONDENT (voice-over): Her turn, Sotomayor on Sotomayor.

JUDGE SONIA SOTOMAYOR, SUPREME COURT NOMINEE: Many senators have asked me about my judicial philosophy. Simple -- fidelity to the law. The task of a judge is not to make law. It is to apply the law.

CROWLEY: It is the crux of the matter. How does the judge, judge?

SEN. ORRIN HATCH (R), UTAH: But there must be a vigorous debate about the kind of judge America needs because nothing less than our liberty is at stake. Must judges set aside or may judges consider their personal feelings in deciding cases? Is judicial impartiality a duty or an option?

SOTOMAYOR: I want to make...

CROWLEY: The legal and political framework for the week was set off the bat when every senator on the 19-member Judiciary Committee broke roughly along party lines -- Republicans suspicious that the words and some decisions are telltale signs of a liberal activist judge.

SEN. JEFF SESSIONS (R), ALABAMA: Call it empathy, call it prejudice or call it sympathy, but whatever it is, it's not law. In truth, it's more akin to politics and politics has no place in the courtroom.

CROWLEY: And it is clear Democrats intend to defend the judge with heavy credentials and a record they say is mainstream.

SEN. PATRICK LEAHY (D), VERMONT: She understands there's not one law for one race or another. There's not one law for one color or another. There's not one law for rich and a different one for poor. There's only one law.

CROWLEY: The Democrats were solicitous of her background and credentials, the Republicans tough but polite. The nominee took it all in with her best poker face judge look and then laid the groundwork for Tuesday. Her allegiance is to the law, she says, her background helps make her good at what she does.

SOTOMAYOR: My personal and professional experiences help me to listen and understand with the law always commanding the result in every case.

CROWLEY: The week promises to be a fairly high minded discourse on judicial philosophy, but everybody on that panel understands the strong undertow of politics which may crump up. They also understand the reality of what's ahead.

UNIDENTIFIED MALE: Unless you have a complete meltdown, you're going to get confirmed. And I don't think you will, but, you know, the drama that's being created here is interesting.

(END VIDEOTAPE)

CROWLEY: Though Senator Graham said he has some questions about whether Sotomayor's judicial decisions are colored by her background, both Graham and fellow Republican Orrin Hatch signal they are at least inclined to believe if a nominee is qualified, the president should get the person he picks. Lou?

DOBBS: Well, after listening to 20 senators who sit on the Judiciary Committee speak for 10 minutes each, Judge Sotomayor responded eight minutes. How -- I'm sorry, I missed the drama here. Could you sort that out for us? As Senator Graham suggested, would that have dominated?

CROWLEY: I think probably -- you know, first the drama was that we hadn't heard Sotomayor defend herself, albeit for eight minutes. We will hear a lot more of it. I think at the end we may be sitting around wondering what Republicans are going to vote for. But, you know again, when you know what the end is, it's -- you know a little tough to get through the middle.

DOBBS: I'm going to pretend I understood that -- the last part of your analysis. Thank you very much, Candy Crowley, for all of it.

CROWLEY: Sure.

DOBBS: Democrats tonight are intensifying demands for an inquiry into the anti-terrorism policies of President George W. Bush's administration. The Obama administration is considering whether to appoint a criminal prosecutor to investigate some of those policies and former officials. Many Democrats say the CIA lied to Congress about a secret program, never implemented to capture or kill al Qaeda leaders.

We know no more than that because it remains highly classified. One of those Democrats, Senate Intelligence Committee Chairwoman Dianne Feinstein suggested the Bush administration broke the law.

(BEGIN VIDEO CLIP)

SEN. DIANNE FEINSTEIN (D), CALIFORNIA: Well, it is pretty clear that the law provides that the Congress should be briefed before any sensitive operation and that is usually the case. We were not briefed here and people can deduce for themselves whether the law was broken or not.

(END VIDEO CLIP)

DOBBS: Republicans accusing Democrats of putting partisan politics ahead of national security. One Republican, Senator John Cornyn of Texas, said Senator Feinstein's assertion looks like an effort to provide what he called political cover for House Speaker Nancy Pelosi. Speaker Pelosi accused the CIA of lying about waterboarding, an accusation the CIA has denied.

Joining me now for more on the CIA controversy and Judge Sotomayor's confirmation hearing our senior legal analyst Jeffrey Toobin, who is also the author of the book "The Nine: Inside the Secret World of the Supreme Court" (ph). Jeffrey, let's turn first to the CIA controversy with all of the experience that proceeds from the Nixon administration, the church commission, what is driving here the possibility of an investigation?

JEFFREY TOOBIN, CNN SR. LEGAL ANALYST: Well, one thing that has been a constant of every Washington scandal starting with Watergate through Iran-Contra and on into the '90s has been the issue of was Congress misled? Were false statements made to Congress? That's perhaps not the most important crime in the world but it is one that Congress cares about a great deal and that creates pressure to appoint a prosecutor to determine whether it took place.

DOBBS: Is there a specific requirement that a program considered but not implemented would be shared with Congress?

TOOBIN: Well, here is where I'm going to make like a Supreme Court nominee and duck your question because it's very hard to make a judgment about a circumstance like this when we're dealing entirely from leaks and without knowing what the program was, what was told to Congress. This is a very fact specific inquiry. The legitimate fact...

DOBBS: And we unfortunately are absent those facts.

TOOBIN: Exactly and so anyone who is speaking with great certainty about whether a prosecutor should or shouldn't be appointed I think is acting irresponsibly here.

DOBBS: Then the suggestion that there would be one how would you -- how would you describe that on the part of the Obama administration?

TOOBIN: Well the Obama administration hasn't even called for one yet. There have been members of the Democrats in the House and Senate have called for one but I -- Eric Holder, who has the authority, he hasn't called for one yet. Let's see what factual basis they have to do it.

DOBBS: Eric Holder, however, did as you know Jeffrey say that no one should be concerned about it because he will not prosecute the innocent. That suggested that he would be going -- carrying on an investigation, does it not?

TOOBIN: I'm not sure you can draw much from that. I think every prosecutor...

DOBBS: Then I won't. I'm not going to -- I'm not going to fail to follow your counsel, counselor.

TOOBIN: Every prosecutor should be concerned about not prosecuting the innocent. That's certainly a good goal.

DOBBS: I thought the attorney general was on solid ground there myself -- turning to Judge Sotomayor who is, it seems at this point at least, after watching as I was saying earlier with Candy Crowley, watching 20 U.S. senators talk for 10 minutes about I'm not sure what in every instance certainly, this looks like a foregone conclusion that she is Justice Sotomayor.

TOOBIN: It certainly looks that way but that doesn't mean it's without value. And I thought there was something very interesting today. There was no mention of what we usually think of as the hot button Supreme Court issues, almost no mention of abortion, no mention at all of same sex marriage.

DOBBS: Right.

TOOBIN: The pressure point is identity politics. The pressure point here is Sotomayor's alleged accused undue sympathy for plaintiffs in discrimination cases. And that's significant. I think that's where she's going to have her hardest time.

DOBBS: Hardest time but is it sufficiently high obstacle to even begin to contemplate the possibility of her not being confirmed?

TOOBIN: Well I think Lindsey Graham had it about right. She'd have to have some sort of meltdown in order to lose...

DOBBS: Yes.

TOOBIN: ... but there is the question of how many Republican votes she gets. There are 12 Democrats and seven Republicans on this committee. Can she get any of those Republican votes? I don't know. And it also -- it shapes our political dialogue and I don't think that's trivial. I think you know...

(CROSSTALK)

TOOBIN: ... better than anyone. I doubt any politics is an important thing.

DOBBS: Well not better than anyone, but certainly as an observer I know a bit and one questions whether or not the most productive use of the senators' time and that of Judge Sotomayor is to listen to 20 senators for 200 minutes while she speaks for eight. It seems possible that we could do better than that, but I will defer to the august (ph) wisdom of the United States Senate...

TOOBIN: Tomorrow...

DOBBS: ... and Jeffrey Toobin. Thank you very much, Jeffrey.

Turning now to the war in Afghanistan -- insurgents have killed two more of our troops. U.S. Marines killed by a roadside bomb in the southern province of Helmand (ph). Seventeen of our troops have been killed in Afghanistan so far this month; 647 of our troops have been killed in Afghanistan since the beginning of this war; 3,161 of our troops have been wounded; more than 2,000 of them seriously. These latest casualties come as U.S. Marines were stepping up their offensive against insurgence in the Helmand (ph) province. Four thousand Marines are involved in the offensive.

Up next here, we'll have much more on Judge Sotomayor's remarks to the Senate Judiciary Committee.

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE: The task of a judge is not to make law. It is to apply the law.

(END VIDEO CLIP)

DOBBS: Is Judge Sotomayor a born again jurist? Is this a confirmation conversion? We'll have the latest. And police giving new details of their investigation into the murder of a Florida couple with 16 children.

(COMMERCIAL BREAK)

DOBBS: A sheriff in Florida now says as many as eight people were involved in the murder of a well-known Florida couple. Byrd and Melanie Billings were known in their area as a generous couple. They had 17 children, four of their own, 13 adopted, and many of the children had special needs. A home invasion ended with both Byrd and Melanie murdered, each shot a number of times.

Excuse me -- eight children were in the home at the time of their killings. None of the kids were injured. Police are still trying to determine exactly what happened and exactly who is involved, but they do know one thing for certain, it was all well planned. David Mattingly has the latest for us now from Pensacola. David, what have you learned?

DAVID MATTINGLY, CNN CORRESPONDENT: Well, Lou, authorities are calling this crime shocking and chilling, much because of the precision in which this crime was carried out. They say there seemed to be a lot of practice as two teens of assailants entered the home at the same time. We have surveillance video to show you. This was taken at the family's home.

You can see men entering the home. They are dressed in black. They are wearing masks. They entered the property at the same time. They went into the house and they were only inside the house a matter of minutes, only four minutes to go inside the house, a presumed motive of robbery. Now possibly other motives -- they have not been determined yet, but they were only inside the house four minutes to do what they needed to do and kill that couple. Now listen to what the sheriff is saying as he's looking at this video.

(BEGIN VIDEO CLIP)

SHERIFF DAVID MORGAN, ESCAMBIA COUNTY: We have verified that three individuals dressed in black and masks entered the Billings' home from the east side. An additional fourth individual remained in the vehicle.

(END VIDEO CLIP)

MATTINGLY: They have arrested three people so far, two men are charged with murder, the home invasion and the murders. They also are now talking to persons of interest; some more arrests may result from that. And they are looking for others associated with this case.

As you said before, six to eight people believed to be involved in the assault on this home. As far as the children go, the family assures everyone that they are being well taken care of. They are being kept together as a family and they will be cared for by family, that there were plans in place in case something happened to the parents and those plans are being carried out. Lou?

DOBBS: David do -- is there any further information on possible motive in this murder?

MATTINGLY: That's why we are paying so much attention to this case, everyone asking that question, why would this couple possibly be targeted by someone like this? So far the sheriff has only said the only motive that they can report is robbery when the people went in and forcibly entered the home. They cannot say if they had plans to murder this couple before they went into the home.

They cannot say why at the moment this couple was murdered, but they have three people in custody, two of them charged with this murder, one of them, they say, was the possible ringleader. So they hope that as they continue to bring more people into custody they will get more answers to these very perplexing questions.

DOBBS: David, thank you very much. David Mattingly reporting from Pensacola.

In our "Law & Order" segment tonight police in Brazil say former boxing champion Arturo Gatti was killed by his wife. They say Rodriguez strangled Gatti with a strap from her purse while he slept, but Gatti's wife, 23-year-old Amanda Rodriguez (ph) said she woke up Saturday morning, she found Gatti dead in their apartment. Police, however, say there is no sign of a forced entry, that it was impossible for someone to enter that apartment.

Prosecutors in Germany charging former Nazi prison guard John Demanjik (ph) with nearly 28,000 counts of accessory to murder. Prosecutors accusing the 89-year-old of serving as a Nazi prison guard in Poland in 1943. Authorities say some 250,000 people were murdered there over a period of less than two years. Demanjik (ph) was deported from the United States in May.

Police in Michigan have captured one of three escaped prisoners. Those prisoners escaped Sunday from a maximum security prison just across state lines in Indiana. The captured prisoner was a convicted murderer. One of the prisoners still at-large is also a convicted killer -- the other a convicted rapist.

Up next here, Judge Sotomayor tells senators it's not her job to make the law. It's her job to apply the law. Sotomayor giving every impression she is something of a born-again jurist and has undergone perhaps a confirmation conversion.

And how did Michael Jackson die? Was he murdered? That is the new bombshell charge from his sister.

(COMMERCIAL BREAK)

DOBBS: Updating you now on the investigation into the death of Michael Jackson. Jackson's sister, Latoya, now claims her brother was murdered. Jackson's father is also claiming that possibility. For the very latest Brian Todd joins us now from Washington -- Brian.

BRIAN TODD, CNN CORRESPONDENT: Well Lou, Latoya Jackson has told two British newspapers that, indeed, she believes Michael Jackson was murdered. She told paper "The Daily Mail" that her brother was worth more than $1 billion and said, quote, "He was surrounded by people who didn't have his best interests at heart." Another quote from that same interview, "he was worth more dead than alive." But Latoya Jackson never mentions who she thought was behind Michael Jackson's death or who would benefit from it. CNN has also learned that Latoya Jackson was paid for at least one of those interviews. The actual amount of money paid was not disclosed, Lou.

DOBBS: All right, Brian, thank you very much -- Brian Todd from Washington with the latest. I'll have a few thoughts on this, all the week's news. Please join me on the radio Monday through Friday for "The Lou Dobbs Show" 2:00 to 4:00 p.m. each afternoon on WOR 710 radio in New York. Go to loudobbs.com to get the local listings in your area for "The Lou Dobbs Show". And you can follow me on Twitter @loudobbsnews. Please do so.

And up next, a Republican senator predicting that Judge Sotomayor will be confirmed by the Senate.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: Unless you have a complete meltdown, you're going to get confirmed.

(END VIDEO CLIP)

DOBBS: And is Senator Lindsey Graham correct and how could he not be? New questions about the Obama administration's economic policies and whether there should be a second stimulus package.

(COMMERCIAL BREAK)

DOBBS: More now on the partisan divide over the confirmation of Judge Sonia Sotomayor, two members of the House Judiciary Committee joining me now, Congressman Steve King -- he's a Republican -- and Congressman Jerrold Nadler, a Democrat -- gentlemen, good to have you with us.

UNIDENTIFIED MALE: Thank you Lou.

DOBBS: Today we watched those 20 senators and if it had an "R" or "D" under their names it was pretty predictable as to which way they were going to go almost to the point that it was highly predictable what they were going to say. Congressman King, what is -- what is the partisan interest in doing this?

REP. STEVE KING (R), IOWA: Well there's -- there are two completely different views that are playing out on the Senate Judiciary Committee in today's and in the following days' hearings with justice Sotomayor. And that is the one view that is the judicial activism view that believes that the Constitution is a living, breathing document that can be shaped and molded by, let me say, a wise Latina woman or some other wise person on the Supreme Court if they can get four others to agree with them.

And the other view is a view that was expressed by ranking member Jeff Sessions this morning at the opening of the hearings that the other side of it that the Constitution is not a living, breathing document but a document that constrains the judges and they are bound by the language in the Constitution. DOBBS: Let's listen to...

KING: Sure.

DOBBS: ... what Senator Sessions said as I turn to you, Congressman Nadler. This is what Senator Sessions had to say about empathy -- well, I'm told now that we don't have that sound bite. We -- I'm sorry -- we do have it now, so we're going to listen to what President Obama had to say about empathy and Senator Sessions' response to the issue of empathy versus prejudice.

(BEGIN VIDEO CLIP)

UNIDENTIFIED MALE: (INAUDIBLE) Judge Sotomayor's empathy for one group of firefighters turned out to be prejudiced against another. That is, of course, the logical flaw in the empathy standard. Empathy for one party is always prejudiced against another.

(END VIDEO CLIP)

DOBBS: Congressman Nadler, your reaction?

REP. JERROLD NADLER (D), NEW YORK: It's nonsense. There is no empathy standard. I hope that everybody has empathy for everybody else. And what you had in that case, of course, was the conflict between two different points, a disparate impact and the disparate treatment points of the law and of course her opinion or her participation opinion in that case was well within the mainstream of where the nine Supreme Court justices agreed with her.

And I have to comment on what Steve King said about judicial activism. This judicial activism is an old sore that is used by conservatives against any Democratic or moderate or liberal candidate. The fact is it's been the conservatives on the Supreme Court, the so- called conservatives, who have been much more activist, if you define activism as substituting their judgments for the judgment of the elected representatives.

They've overturned more laws passed by Congress and by state legislators than most courts in the past. In fact every time the court has had an opinion from Brown vs. Board of Education (ph) that they didn't like they yelled judicial activism.

DOBBS: Let me -- let me do this. Let's listen to Judge Sotomayor at Duke University four years ago and what she said about applying law or making law or policy.

(BEGIN VIDEO CLIP)

UNIDENTIFIED FEMALE: Court of appeals is where policy is made, and I know and I know this is on tape and I should never say that because we don't make law, I know. OK I know. I'm not promoting it. I'm not advocating it. I'm, you know. OK -- having said that, the court of appeals...

(END VIDEO CLIP) DOBBS: Well having said that today this is what Judge Sotomayor had to say at her confirmation hearing.

(BEGIN VIDEO CLIP)

SOTOMAYOR: In the past month many senators have asked me about my judicial philosophy. Simple -- fidelity to the law. The task of a judge is not to make law. It is to apply the law.

(END VIDEO CLIP)

DOBBS: Are you in any way -- do you feel a little better, Congressman King, or is this a confirmation conversion?

KING: Well, I would say I don't feel the need to rebut Mr. Nadler because it seems to me that the language at Duke University has already done so. I would point out to the people of this country that Judge Sotomayor has had nine cases before the Supreme Court that she has decided upon and of those nine only one has been affirmed, seven have been reversed, and one of them was vacated. So she's batting one for 9 before the Supreme Court and, by the way, this Supreme Court is the Supreme Court that is there, that's the backup if mistakes are made at the lower court level. There's nobody to back up a Supreme Court justice other than the other eight and this is a high test situation that's going on. I would also point out that justice Sotomayor does not seem to understand that the constitution has to be there to protect the rights of individuals in a rigid fashion. I don't think she understands that.

DOBBS: Congressman Nadler?

NADLER: Well, she obviously does understand that and I don't know about the statistic I just heard, I've never heard it from Congressman King. I've never heard it before, but she has participated in thousands of decisions. She's been on the court for 17 years and she has a very good ratio of reversals, one of the best ratios in terms of percentage of case that is have not been reversed of any judge on the court. And the fact --

DOBBS: Is there any doubt in your mind, Congressman Nadler, that she will be confirmed?

NADLER: None.

DOBBS: All right. How about yours, Congressman King?

KING: I think there's an outside chance if she should contradict herself in a stark way in the hearings there's an outside chance but mostly this is make the case for what the constitution means and if the constitution doesn't mean what it says.

DOBBS: I apologize. We're just out of time. Congressman King, thank you very much. Congressman Nadler, thank you very much.

KING: Thank you. DOBBS: Still ahead, will the judge's personal background overshadow her professional experience? That's the topic of our face- off tonight. And Republican senators raising questions about the president's motive in choosing judge Sotomayor.

UNIDENTIFIED MALE: President Obama clearly believes you measure up to his empathy standards. That worries me.

DOBBS: Up next, Senator Tom Coburn joins me with his view on the judge.

(COMMERCIAL BREAK)

DOBBS: In today's Supreme Court nominee hearings, a recurring theme, appreciation of the judge's experience, concern about her ability to be objective. Joining me now Senator Tom Coburn, Republican member of the Senate Judiciary Committee, and it is good to have you with us.

SEN. TOM COBURN (R), OKLAHOMA: Lou, good to be with you.

DOBBS: The divide seems very clear. Focus on what appears to be politics, perhaps the suggestion of personal preference on the part of the judge, and the Democrats find her narrative and her record to be absolutely exemplary and also external to the committee and the hearings the ADA saying she is well qualified to be a Supreme Court justice. Are we going to see that assertion made by the Republicans as well, or will there be contention tomorrow?

COBURN: I think we have to wait and see. We have finished the statement, then you'll start hearing the questioning. The thing that is concerning is both district court judges and appellate court judges have what they're guided by. The Supreme Court is not. They get a change precedent. And so even though she's had a long history on the bench at the appellate and district court level, what she says outside of her rulings bears a significant responsibility onto us for how we assess her capability to handle that precedent. And so precedent is important and she has the ability to change that being on the court.

DOBBS: And I assume there will be forgiveness on stare decesis?

COBURN: As precedence changes. Whatever is precedent today could be changed tomorrow by the court and so that's why what she has said and spoken and given in speeches is very apropos that we consider that in terms of judging her qualifications to just follow the constitution, the statutes and the treaty and just the fact of the case not what her feelings may be.

DOBBS: Is there anything in her professional record as a judge that troubles you, any sort of favoritism you detected that has not been discovered anywhere else? Do you feel a great sense of who she is as a jurist?

COBURN: I think there's nothing personal in her record and there's nothing in her jury decisions other than she has missed the mark about 80 percent of the time when she'd been reviewed by the Supreme Court. And so that is concerning especially second amendment cases. Her contention that foreign law is fine to use when in fact the constitution says she won't. There are some issues I think you will see covered very vigorously tomorrow and very thoroughly.

DOBBS: To what degree, Senator, as we have been reporting, 20 senators, ten minutes of time to speak today. We learned almost nothing from the nominee. And, frankly, a lot of people were bored to death by the senators. Is there a way in which to improve this so it becomes truly a hearing rather than a presentation?

COBURN: Well, I think that will depend on whether or not she will truly answers the questions. I'm going to inquire on second amendment, on life issues, on foreign law. If she'll answer the questions, we'll have a real hearing. If she won't answer the question, then we won't have a real hearing and Americans will either know that she either is hiding something or refuses to answer.

DOBBS: Senator Tom Coburn, we thank you for being here.

COBURN: You're welcome, Lou. Good to be with you.

DOBBS: Up next, Democrats demanding an investigation of the Bush administration's national security policies. The CIA front and center. Republicans say partisan politics trumping national security.

And Judge Sotomayor defending her record on the bench. We will have an analysis of her record in our face off debate here next.

(COMMERCIAL BREAK)

DOBBS: Judge Sotomayor today defended her record in brief remarks on the first day of her confirmation. In fact, I'm told it is the briefest of remarks ever by a Supreme Court nominee. The judge will face questions from senators tomorrow and the topic of our face- off debate tonight should Judge Sonia Sotomayor be confirmed as the next justice of the Supreme Court? Joining me now Wendy Long. Great to have you with us, leading constitutional attorney Floyd Abrams. Great to have you with us.

Let's begin with what appears to be a confirmation conversion on the issue of either making law or applying law. How do you -- how do you react?

FLOYD ABRAMS, CONSTITUTIONAL ATTORNEY: I don't think there's any conversion at all.

DOBBS: Entirely consistent.

ABRAMS: Entirely consistent. She's ruled in thousands of cases when the Supreme Court doesn't take a case it's because they either don't think it's important enough or for some other reason. When they take it it's generally the reverse. And they reverse in about 65 percent, 70 percent of the cases they get.

DOBBS: So in the instance of a Supreme Court hearing, it's an honor you'd just as soon forego. ABRAMS: Yes.

DOBBS: Wendy Long?

WENDY LONG, COUNSEL, JUDICIAL CONFIRMATION NETWORK: Well, I think it was absolutely a confirmation conversion. She said as little as possible as we've noted and she tried to sound as much like John Roberts, Sam Alito and Clarence Thomas as possible. It all boils down to what is the law. Basically all she said is a judge's duty is fidelity to the law. But that begs the question what is the law? Is the law what's written in the constitution and our laws or is the law as the president thinks what's in the deepest recesses of your heart and Sonia Sotomayor's empathy and her personal gender and ethnicity and her views and what her personal notions of justice? What is the law? That begs the question. She didn't really say anything.

ABRAMS: Having listened to John Roberts' eight-minute presentation and Justice Alito's brief presentation, it's not a little thing to get up and to define what is the law. Everybody thinks that the law is what the constitution says it is. People disagree on what the constitution means. That's why we have 5-4 votes.

LONG: She didn't say it's what the constitution -- what's written in the constitution and the history, she said fidelity to the law. And that, as I said, is a meaningless statement.

ABRAMS: Would she have persuaded you if she said what I really care about is the constitution? Are those the words you want?

LONG: No, Floyd, with the record she's got, there's little to persuade me. The things she's already said for decades and years and, yes, her judicial decisions, too. She's ignored things that are in the text of the constitution and made up things that aren't there.

ABRAMS: Wendy, I'm glad you're not on the court to decide what the constitution means. I mean, in the cases she's had, she's had, what, 83 percent of the cases she's had in which people claimed a race violation, she's voted against them. 94 percent of the cases in which criminal defendants appealed, she voted for the government. I mean, this is not some wild liberal record.

DOBBS: Go ahead, Wendy.

LONG: Those percentages are meaningless unless you compare them to averages or norms of other judges. Meaningless standing alone.

ABRAMS: She voted with her conservative brethren 95 percent of the time.

LONG: And what -- Lou, just one second, what did the president say that in 95 percent of the time a Justice Scalia and Ginsberg -- I think he was wrong by that but by his own standard that's the 5 percent of cases the president thinks really matters.

ABRAMS: Your program? DOBBS: Well, it's our program. The idea, though, is with those percentages, why in the world would a liberal president appoint such a conservative nominee?

ABRAMS: I'm not saying she's conservative. She is middle of the road. She votes as most judges vote on most cases and she does it in the very cases that people who are trying to blemish her record or say she's not trustworthy wouldn't trust her on. That's why I cite race cases. If you go to immigration, 83 percent of the cases in which immigrants appealed, she voted against them. It's not because she's anti-immigrant. It's because they had bad cases. That's what a good judge does.

DOBBS: Let's turn to the Democratic majority in the Senate. Wendy, this, as you both know, this is all the Ginsberg work today where you have 20 senators speaking for ten minutes each learning nothing from the nominee, the constraints all agreed upon, and the American people are nothing but the senators are intent on not learning anything. Is it time to change the way in which we conduct these hearings? Wendy?

LONG: Well, I think that the hearing is not at all as meaningful as her record and as long as Americans get a chance to know about her record by whatever means, and it may not be through the hearings, I think that's what's really important. But I hope that her record will be illuminated by the hearing and we will learn something.

ABRAMS: Look, I would like it if people up for confirmation would be more candid. They are told, all of them, Democrats and Republicans, they have handlers. They know what gets people in trouble and they know what doesn't get them in trouble. And answer that is are general tend to be better off, the people are better served. Not the public but the candidates are. I mean, that's just the way the political world is.

DOBBS: Is it another instance Washington politics, the public be damned, and please go about your political theater, Wendy? Is there some point in which lawyers, attorneys, the ABA, left and right, liberal and conservatives say, please, we still are a nation that needs to be governed openly, honestly, transparently and if we're going to put big boys and girls on the Supreme Court of the United States they should have the intelligence to handle the caldron of a confirmation hearing. Wendy?

LONG: Absolutely. She's got to answer certain questions all the more so --

DOBBS: I didn't mean just she. I meant everyone.

LONG: Yes, well, of course. I think Senator Sessions today did an excellent job explaining in detail what the problem is with her philosophy. He contrasted it with the opposing philosophy. What we hear from her is trying to mix up the issues and the White House is trying to make her sound like a proponent of judicial restraint.

ABRAMS: But the reality is that people who are up for confirmation are not as candid as they should be. I think she will be candid but if you cite anyone for confirmation, since Robert Bork, they have been reticent, quick answers. They've stayed out of trouble and I don't blame them but, yes, I think we'd be a lot better off if senators would say, I won't vote for an individual up for confirmation unless they give straight answers, albeit ones which don't answer how will you vote in this case or that case that would be a great improvement.

DOBBS: Just to reiterate what -- sitting on the judiciary committee, you shouldn't support a nominee who will not answer a direct question.

ABRAMS: Of both parties.

DOBBS: Absolutely. Thank you very much. Wendy, thank you very much. We appreciate you both being here, Wendy Long, Floyd Abrams.

The federal deficit soaring to a record high. There's talk of another stimulus package. Wow. What's it been, 4 1/2 months? Just about. Stay with us.

(COMMERCIAL BREAK)

DOBBS: Well, joining me now, Ron Christie, former adviser to President Bush and vice president Cheney. President of Christy's strategy and Mark Halperin, he's editor at large, senior political analyst for "Time" magazine, Democratic strategist, CNN contributor, Robert Zimmerman. Thank you for being here.

Well, what do you make, Ron, of these hearings today? Sort of like watching paint dry? Was there a great narrative being developed?

RON CHRISTIE, PRESIDENT, CHRISTIE STRATEGIES: I think I'm going to go with the paint drying narrative. I think really the senators were more posturing I think to the American people and given their philosophy of how they see this hearing coming out. Tomorrow is where we're going to get into the meats and the nuts and bolts into what's going on with Sonia Sotomayor.

DOBBS: Any reason she should not be confirmed in your judgment?

CHRISTIE: I'm very concerned. I think we've seen a political conversion. We've seen the wise Latino comments that she made. You've seen the comments that she made at Duke University in 2005 about how we don't make the law. Now she's saying her whole responsibility is fidelity to the law. It seems like a judicial conversion.

ROBERT ZIMMERMAN, DEMOCRATIC STRATEGIST: Seems like a lot of talking points, Ron. The reality is --

DOBBS: Share it with us.

ZIMMERMAN: I knew I couldn't get away with that. I thought I'd try. There was a narrative emerging from the hearings today. Although I think it gave paint drying a bad name, frankly. The narrative is the idea that the president's sitting Supreme Court represents mainstream philosophy as opposed to right wing activism and hopefully Judge Sotomayor, soon to be -- I tuned into the radio show.

DOBBS: I think personally you could call her Justice Sotomayor. Nothing but a big rubber stamp.

ZIMMERMAN: Hopefully she'll be able to restraint the right wing activist court that would rather write the laws than interpret them.

DOBBS: Nasty brutish people. Right wing activism is not good, left wing activism is good?

ZIMMERMAN: Judicial interpretation is what counts.

MARK HALPERIN, SR. POLITICAL ANALYST, 'TIME MAGAZINE': Three things today I think matter. Tomorrow matters more. One is the Republicans showed they understand there was a danger here if they'd gone after her hard. They could damage themselves politically with Latinos with women. They showed they met, talked it over, they didn't mess that up. Two, I think she handled herself well. Limited fashion, she introduced her family. She gave her opening statement. We had not heard her speak, really most of us except her one appearance with the president. She did that fine. Finally, most important, we now know for sure that Al Franken wants to be considered less funny than Tom Coburn. He's got to keep up the notion that he's a serious sober new senator and not crack a smile or tell a joke.

DOBBS: So far, it's so good. It is not so good for the country. $1 trillion budget deficit for the first time in our history at this time, cap and trade. Not law. Health care reform, not law. There's a host of initiatives this administration had wanted to pursue almost as quickly as in the first five months of the administration. How can any of those be passed now, given the recession, given this spending levels that are -- I mean, we're literally on the verge of break this nation's bank.

ZIMMERMAN: One of the real challenges for Barack Obama, as president, for the administration, is to tie the initiatives together with economic recovery, with job creation. I think the message has become too diffused. That's been a problem. I think the reality is I think there's a real expectation we can get health care done by the end of this year. There's a bipartisan recognition it has to be done.

DOBBS: Mark?

HALPERIN: The country in many ways is in crisis. It's in crisis on health care. It has been for years. It's on crisis on the debt level. We're still at a potential financial crisis. We're certainly in an unemployment crisis. The president, though, because he's got to balance these things is not acting like we're in crisis. He's on a foreign trip which we must do. He's dealing with other issues which we must do. Until and unless I believe he convinces the country and the Congress these are crises that are interconnected and must be dealt with this year, I can't imagine how they'll be dealt with.

CHRISTIE: I absolutely agree with that. If you look at the polls that are out now, the American people are more concerned with the jobs issue and the economics issues. What is the president focusing on? The president is focusing on cap and trade and health care. I think there's a serious disconnect betweens what's going on in Washington --

ZIMMERMAN: The disconnect is not the fact these aren't related to economic recovery. The message has become --

CHRISTIE: I absolutely disagree with you on that.

DOBBS: OK. So noted. Let me turn quickly to the CIA and the apparent interest on the part of the Congressional leadership, certainly, and, perhaps, the Obama administration, to opening an investigation that it had decided not to conduct earlier. Do you think we're going to see this with the CIA, are we going to see another church commission?

ZIMMERMAN: I think we're going toward a church commission but I quite clearly the attorney general of the United States has an obligation to uphold the rule of law and can't ignore, in fact, a very clear example of violations of the law and can't overlook the fact George Bush and Dick Cheney in office violated the integrity of the CIA and put that agency in harm's way. By the way, held them back.

CHRISTIE: I don't think we'll have the CIA investigation. The administration doesn't want it. The American people don't want it. I find it fascinating -- excuse me, I didn't interrupt you. The moral clarity have is George Bush and Dick Cheney have done something wrong. I think it's interesting -- actually the point was that Congress was briefed on this June 24th. There was a big discussion going on.

ZIMMERMAN: After it was upheld by Dick Cheney.

CHRISTIE: A program that had never been initiated. Democrats are saying this is a full-blown --

DOBBS: Mark Halperin will be adjudicating.

HALPERIN: There's two separate issues. We raised them both there. One is the question of whether the attorney general wants to look at the interrogation techniques. The other is the new report from over the weekend whether there was a program or beginning of the program that the vice president may have been involved in saying Congress should not be briefed. It goes back as a political matter to the question does the president want to be using capital and the bandwidth to look back.

ZIMMERMAN: Mark, this is not a political matter. This is the matter of upholding the rule of law.

HALPERIN: I applaud, irrespective of this matter, I applaud any attorney general who shows independence from the White House.

ZIMMERMAN: I applaud Congress for conducting an investigation into why Dick Cheney --

DOBBS: Are you suggesting if Eric Holder chooses not to investigate, that will be a demonstration of independence?

HALPERIN: As long as he does it based on the fact -- just the mere fact he's proceeding on something the White House doesn't want him to do, again, not in this particular case, but the concept is good for the country.

DOBBS: We should take the public statements as sincere statements.

HALPERIN: Absolutely.

DOBBS: All right. Thank you very much. Ron, great to have you with us. Mark, good to see you. Thank you very much, Robert.

And a reminder to join me on the radio Mondays through Fridays for the Lou Dobbs Show in New York, 2:00 to 4:00 p.m. each afternoon on WOR 710 radio. Go to loudobbs.com to get the local listings in your area for the show.

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Thank you for being with us. For all of us here, we thank you for watching. Good night from New York.

Now Campbell Brown.