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President Obama Names Supreme Court Pick; Interview With White House Press Secretary Robert Gibbs; Interview With San Francisco Mayor Gavin Newsom

Aired May 26, 2009 - 22:00   ET


JOHN KING, CNN ANCHOR: Tonight: President Obama names his first Supreme Court pick and history's first Latina. His choice to succeed the retiring and shy David Souter is Sonia Sotomayor. She's a federal appeals court judge with a sterling education, solid credentials, a number of controversial items on her record, and a compelling story to tell.


JUDGE SONIA SOTOMAYOR, SUPREME COURT NOMINEE: I stand on the shoulders of countless people, yet there is one extraordinary person who is my life aspiration. That person is my mother, Celina Sotomayor.



My mother has devoted her life to my brother and me. And as the president mentioned, she worked often two jobs to help support us after dad died. I have often said that I am all I am because of her, and I am only half the woman she is.

Sitting next to her is Omar Lopez, my mom's husband and a man whom I have grown to adore. I thank you for all that you have given me and continue to give me. I love you.


SOTOMAYOR: It is a daunting feeling to be here. Eleven years ago, during my confirmation process for appointment to the Second Circuit, I was given a private tour of the White House. It was an overwhelming experience for a kid from the South Bronx.

Yet, never in my wildest childhood imaginings did I ever envision that moment, let alone did I ever dream that I would live this moment.


KING: As you heard, South Bronx with Puerto Rican roots.

President Obama asking the Senate to confirm her by the August recess. Initial Republican reaction? Lukewarm. In a moment, how the White House intends to get her confirmed, also, what her paper trail says about the kind of judge she's been and what kind of justice she might be, plus, insight and analysis with our legal panel.

First, though, Candy Crowley on the history-making day.


SOTOMAYOR: Those principles...

CANDY CROWLEY, CNN SENIOR POLITICAL CORRESPONDENT (voice-over): The first Hispanic Supreme Court nominee tapped by the first African- American president -- history picks history.

SOTOMAYOR: That I am an ordinary person who has been blessed with extraordinary opportunities and experiences.

CROWLEY: Sonia Sotomayor's experience began in a housing project in the South Bronx, where dreams can be big, but possibilities can seem small.

UNIDENTIFIED MALE: To find out that, you know, somebody's actually made it out here is exciting.

CROWLEY: She was a first-generation American, the daughter of Puerto Rican immigrants, a father with a third-grade education who worked in a factory, a mother who worked as a nurse.

Sotomayor read Nancy Drew and wanted to be a homicide detective, but she was diagnosed with diabetes when she was 8, and told that meant she could not be a cop. A year after the diagnosis, her father died. Left alone to raise two children, Sotomayor's mother worked six days a week.

SOTOMAYOR: I have often said that I am all I am because of her.

CROWLEY: If police work was out, she found an alternative, watching "Perry Mason."


RAYMOND BURR, ACTOR: I'm sorry, Your Honor. I have no further questions.


CROWLEY: Sonia Sotomayor wanted to be a lawyer. She excelled in school, valedictorian in high school. On a scholarship to Princeton, she graduated summa cum laude and Phi Beta Kappa, and then Yale Law, followed by a fearsome career, prosecutor, corporate litigator, appointed by President George H.W. Bush to the U.S. District School in New York, its youngest member, then, in 1998, the first Latina appointed to the U.S. Court of Appeals for the Second Circuit.

Jenny Rivera is a former law clerk.

JENNY RIVERA, FORMER LAW CLERK FOR JUDGE SONIA SOTOMAYOR: She has very high expectations of herself and everyone around her. But she's very caring. She's funny. CROWLEY: Sotomayor often stops by her local bakery for sturgeon toast, bread sticks and a cup of decaf. Neighbors say they talk with her about the building's leaky roof, and she's big on holidays.

UNIDENTIFIED MALE: She does make a -- quite an effort at Halloween, and puts us all to shame at Christmas with her lights on the balcony.

SOTOMAYOR: Thank you again, sir.

CROWLEY: It's a long way from the projects of the South Bronx to the East Room of the White House, but not quite as long as it seemed yesterday.

Candy Crowley, CNN, Washington.


KING: More now on her record. She's had some big cases overturned by the Supreme Court, four of her six -- four of six -- excuse me -- during her time on the Second Circuit. That's not unusual.

According to the Web site SCOTUSblog, about 77 percent of the cases before the high court have been reversed during the current term. She's got one case pending now that's making headlines, as well as out-of-court moment caught on tape that opponents are already latching on to.

The "Raw Politics" from Joe Johns.


JOE JOHNS, CNN SENIOR CORRESPONDENT (voice-over): What's she known for? Being an aggressive questioner from the bench, for one thing.


SOTOMAYOR: No federal agent can conspire with people to torture another human being. Isn't that what you're saying?


JOHNS: This video is from a proceeding last December. Sotomayor was on closed-circuit TV. The case, which is still ongoing, is about a Canadian citizen arrested at Kennedy Airport and secretly sent by U.S. officials to Syria. He was allegedly tortured, interrogated, then released with no charges.

But it's not always what Sotomayor says in court that puts her in conservative crosshairs, like this comment on a law school panel discussion at Duke. It's already being used against her to show she thinks courts do more than simply interpret the law.

(BEGIN VIDEO CLIP, FEBRUARY 25, 2005, DUKE UNIVERSITY) SOTOMAYOR: 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.




JOHNS: Many legal scholars argue, it's Congress and the White House that make policy, not the courts.


SOTOMAYOR: I'm not promoting it, and I'm not advocating it.


JOHNS: In fact, Sotomayor was trying to explain the difference between working on the appeals court and being a federal district judge.

Her defenders claim her remarks are being taken out of context. She's said her cultural background gives her a unique perspective to decide cases, telling a symposium at Berkeley -- quote -- "A wise Latina woman with the richness of her experience would more often than not reach a better conclusion than a white male who hasn't lived that life."

(on camera): Some of Sotomayor's judicial conclusions have dealt with hot issues. On search and seizure, for example, she said the strip search of an emotionally troubled public school student went too far.

(voice-over): And, in an affirmative action case now before the Supreme Court, she sided with the city of New Haven for throwing out results of a promotional exam for firefighters in which 19 whites and one Hispanic scored higher than blacks. The current Supreme Court may overturn Sotomayor again.

BRUCE FEIN, CONSTITUTIONAL LAW EXPERT: The attack will be that discrimination, when it's practiced on the basis of race against the whites, is OK. It's only minorities who are protected by the Constitution's equal protection clause.

JOHNS: Sotomayor will face many other issues that she hasn't had to deal with until now, like same-sex marriage, presidential powers, religious expression, and capital punishment. But these are all areas she will have to think about before she goes to the Senate for her summer grilling.

Joe Johns, CNN, Washington.



KING: More now on how the president made his choice and how he hopes to proceed with the confirmation process.

For that, we're joined by White House press secretary, Robert Gibbs.

Robert, first, peel back the curtain for us. We understand the president didn't settle on Judge Sotomayor until last night.

What was it in that interview that made her ultimately stand out over the others on the short list?

ROBERT GIBBS, WHITE HOUSE PRESS SECRETARY: Well, John, look, I think there were three main factors in Judge Sotomayor's favor.

The first is the richness and diversity of her experience, a prosecutor, a litigator, and a federal judge at two different levels. She will bring more federal judicial experience to this nomination than anybody who's been nominated for the Supreme Court in a century.

Secondly, he was impressed with her application of the law and her application of judging, and -- and, lastly, obviously, the very compelling and impressive personal story that she has, literally bring yourself up from -- by the bootstraps, putting her -- working hard to get into and putting herself through college, and, obviously, all of the acclaim and accolades that have come with her being a judge.

KING: The president won two out of every three Latino votes in the last elections. How much of this is almost a dare to the Republicans; go ahead, stand up and fight this Latino nominee, after you just had it handed to you in the last election?

GIBBS: I think they will look at her record, and I think she will be impressed by what she's accomplished. And I think they will -- most of them will vote to confirm her.

KING: The White House press secretary, Robert Gibbs, on a very big day at the White House -- Robert, thank you.

GIBBS: Thanks, John.


KING: A lot more to come tonight, and, as always, even more at on the pick, the politics, and a look at one controversial case she decided involving a city neighborhood and a hundred nude models.

Again, the address is And, while you're there, join the live chat under way now.

Up next: talking strategy with our panel, senior legal analyst Jeffrey Toobin, along with Charles Ogletree and Wendy Long, for and against the nominee.

Also tonight, a major ruling from California's Supreme Court over same-sex marriage and the protests going on right now.

Then, later, the boy who ran from court-ordered chemotherapy is back home. His cancer is growing, and his time is quickly running out. The latest on his condition and treatment -- tonight on 360.


KING: We're talking tonight about President Obama's first Supreme Court nominee, Judge Sonia Sotomayor, her chances of confirmation, and her potential impact on the court.

First thing to note on the court, past performance is no guarantee of future results. David Souter was thought and pushed by his backers as a reliable conservative. Chief Judge Roberts, according to our senior legal analyst, Jeffrey Toobin, writing in "The New Yorker" magazine is proving to be a lot more of an activist than the umpire he promised to be.

Jeffrey has also written a definitive recent history of the court titled "The Nine." You should read it.


KING: With us, as well, talking strategy, Charles Ogletree of Harvard Law School -- he supports the confirmation -- and Wendy Long, a conservative who is opposed. She is a former claw clerk for Justice Clarence Thomas and currently counsel to -- to the Judicial Confirmation Network.

Professor Ogletree, I want to start with you.

The president is your former student. You say this is a spectacular move. Why? And we talked a couple weeks and you said he would pick somebody -- all's he needs is 51. Many say this is a safe choice. Did he go the safer route?

CHARLES OGLETREE, HARVARD LAW PROFESSOR: It is a safe choice, because it's hard to find anybody out there now with experience as a prosecutor, who cares about victims, someone who's been a -- a partner in a law firm and handled every type of legal case, someone who's been a -- a judge for 19 -- 17 years, and tried every kind of case.

And, if you go through her hundreds -- literally, hundreds -- of opinions, you will see a moderate, careful, smart, independent judge. And I think President Obama appreciated that. And I think Judge Sotomayor will be a -- really a remarkable addition to the court. She will be able to mix it up with everyone in that court starting October 9. I am convinced that she's going to be a terrific judge in her 20, 25 years on the court.

KING: Well, Wendy Long, you just heard professor Ogletree there. You, of course, have a very different opinion.

Here's part of your statement put out by your group earlier today: "Judge Sotomayor is a liberal judicial activist of the first order, who thinks her own personal political agenda is more important than the law as written."

She's already been confirmed twice by the Senate. I want you to be as specific as you can. I don't want these broad-brush statements. "She's an activist. She's a moderate," whatever. Let's be as specific as you can.

If you say she's wrong, why?

WENDY LONG, COUNSEL, JUDICIAL CONFIRMATION NETWORK: She herself has said that she thinks it's appropriate for her to make decisions as a Latina woman, from that perspective, bringing to bear those demographics on her decision-making, and that she thinks, if she applies her personal views and her personal demographics to the case before her, she's going to make a better decision than a white man.

She has said, at Duke Law School: I think the courts of appeals are where policy is made.

All of this is of a piece with the Obama criteria that he wants somebody who's going to play favorites, tilt the law, bring their own personal views and agenda and ideology and feelings to the bench, and that that's how they're going to decide cases, instead of looking at the law as it's written.

KING: Does that put her outside the mainstream, Jeff, or is she just a judge who, in the YouTube, high-technology era, does more of these panels, and she's been more public about some of her thoughts?

JEFFREY TOOBIN, CNN SENIOR ANALYST: She's said a couple of things that she probably would like back.

But the main reason she's nominated is because of this very long record as a court of appeals judge. And that record is a very solid record, with not a -- not any opinions that are outside the legal mainstream.

And, you know, as I thought about this nomination today, I kept thinking about something I always heard from John McCain when I was covering the Alito and Roberts confirmation hearings. He would say -- as he saw the opposition, he would say, you know, elections have consequences.

And this one has. And one of the consequences is, you get to pick who goes on the Supreme Court. And I think Obama is in very strong shape getting this -- getting his nominee through.

LONG: Well, they -- they do have consequences, but this election was not decided based upon what people think of Obama's criteria for the Supreme Court.

In fact, they very much disagree with him. And that's why I think this pick really reflects his own arrogance, simply at the fact that he's riding high in the polls. The American people just don't agree with bringing that baggage and your personal views and deciding cases from the bench that way. They want the law decided straight and the way it's written. And they want the Constitution and the Bill of Rights applied equally to everybody. They don't like this.

KING: Judge Ogletree, let me try a devil's advocate here. Let's say you're a -- sometimes, lawyers are hired to do things they don't want to do. If the opposition hired you, and you had to go through this record and say here's the one thing she should worry most about, what would it be?

OGLETREE: That she's a judge who has written a lot.

But the reality is, if you look at that, what I'm hearing now is laughable. It's laughable. You talk about a speech at Duke, a speech at Berkeley. There are thousands of lines she's written. You can't find anything there. If they can impeach her, disown her, criticize her.

But the reality is that the only thing you can find about her is that she's sincere, she's empathetic, she's independent, she's tough, she's smart. And you know what? She's going to have an impact on the court for a very long time.

The Republicans should be applauding this...


OGLETREE: ... because this is a person who's tough on criminal justice issues, who sides with business frequently, who's not willing to buy a silly argument that makes no difference.

And, even if the Ricci case that Jeff has made reference to, the Supreme Court will probably decide the case 5-4. Now, she's going to be wrong. Maybe she is. But four justices on this court right now will agree with her.

LONG: You know what? She has had plenty...

OGLETREE: So, you -- you can't dismiss her and say that she is someone who doesn't deserve the position. She is the most qualified person possible.


TOOBIN: The Ricci case is the New Haven firefighters case.

KING: Right.


TOOBIN: Just go ahead. I -- I didn't want to interrupted.

LONG: And I think she will be reversed on that, and it will be a big embarrassing reversal at the height of her confirmation proceedings. But, more than that, look at the opinion of Judge Jose Cabranes, fellow Clinton appointee, fellow Hispanic on the Second Circuit. He said that what she did in that case basically amounted to judicial malpractice.

And it's true. She just waved those people out of court without even giving legal consideration to their very serious claims.

OGLETREE: You're -- you're just so wrong here, because you're taking one position and trying to, in a sense, caricature this judge's 19 years of work -- more than 19 years of work, 17 years as a judge.

LONG: Do you agree that she made a mistake in the Ricci case?

OGLETREE: I do not agree she made a mistake in the Ricci case. And neither has the Supreme Court agreed with that.


OGLETREE: And, if they do, it will be by one vote, so don't tell me that she's an egregious liberal progressive.

LONG: She's had plenty of cases, Charles -- she's had plenty of cases overturned unanimously.


OGLETREE: Where are they? Where are they? There are hundreds of cases...


KING: Let me call a time-out here. Let me call a time-out here.

LONG: Where she invented a First Amendment right.


OGLETREE: There are hundreds of cases. Let me let you look at that.


KING: We're going to -- we're going to run out of time here, so let me call a time-out here.

Jeff Toobin, having just heard this, a very spirited debate for and against, the president clearly knew this was coming. He -- his team did this homework. So, knowing that you were going to have this polarization right out of the box, why her?

TOOBIN: Because she is, by any standard, enormously qualified, 17 years as a federal judge, this long, distinguished history.

And, on the political issues, on issues like affirmative action, on abortion, she's with the president. And presidents pick Supreme Court justices to extend their legacies long after they're gone. President Bush did it brilliantly with John Roberts and Samuel Alito.

And I think Sonia Sotomayor will reflect the politics of Barack Obama well into the next decade.

KING: Jeff Toobin, Wendy -- Wendy...



KING: ... and, professor Ogletree, I wish we had more time.

But we do have a couple of months, I believe.



KING: At least a couple months.



TOOBIN: There's more to come.

KING: We will come back to this.

It's a spirited debate worth having. Thank you all very much.

OGLETREE: Thank you.

And just ahead, reaction tonight -- looking there at a live shot -- California's Supreme Court upholding the ban on same-sex marriage. What happens to the 18,000 couples already married in the state?

That and the Army officer, Iraq veteran, and Arabic translator now facing discharge because he stood up against don't ask/don't tell.

Later, he's back home after fleeing court-ordered cancer treatment, ready to start a round of chemo. But, as you will see, side effects may now be the least of his problems.

And Susan Boyle with a new song to sing, but the same hearts to melt, we will show you how she's doing. You won't want to miss it -- when 360 continues.


KING: The California Supreme Court today upheld the state's ban on same-sex marriage, known as Proposition 8. Under the ruling, roughly 18,000 same-sex marriages performed before the ban are still valid.

But, despite that caveat, the decision is a major defeat for supporters of same-sex marriage, including Lieutenant Dan Choi. The West Point graduate and Iraq veteran was at a Prop 8 rally today in Los Angeles.

We first met Lieutenant Choi a couple of weeks ago. Anderson interviewed him shortly after he was discharged from his National Guard unit for violating the military's don't ask/don't tell policy. Take a look.


ANDERSON COOPER, CNN ANCHOR: What is it like being gay in the military?


COOPER: I mean, at West Point, did -- you knew you were gay. Did -- you didn't -- did you tell the people there?


I was -- actually, I was very terrified that anybody was going to find out, looking behind my shoulder, you know, to see, careful and -- and parsing a lot of the words that I said. I never had a relationship myself, like, while I was in the Army.

I lived under don't ask/don't tell for a decade.


KING: In March, Choi came out in the most public way, on national television. And his life hasn't been the same since.

Randi Kaye goes "Up Close."


RANDI KAYE, CNN CORRESPONDENT (voice-over): A combat veteran and Arabic translator who served in Iraq, home now on a mission for equality.

CHOI: When you look at the things that I'm fighting for, the things that I'm standing up for, it's for equality against discrimination, all of the things that I was taught are important as an American.

KAYE: Lieutenant Dan Choi is gay and was discharged from the Army last month after announcing it on national television. The U.S. government's don't ask/don't tell policy forbids anyone who is openly gay from serving. He isn't fighting for gay rights, he says, but for American rights.

CHOI: Love is worth it!


KAYE: His aim to serve again also puts him front and center in the movement to legalize same-sex marriage. He's been rallying all week in California against Proposition 8, the state's ban on same-sex marriage.

CHOI: They're trying to legislate us and our relationships and strip away our right to love each other and be married.

KAYE: Lieutenant Choi was in Los Angeles today when the state Supreme Court announced it is upholding the ban. Choi is disappointed, but now more determined.

CHOI: It's a reminder to everybody that there's a lot that we have to do. Nobody is going to give us rights.

KAYE (on camera): It was Proposition 8, the ban itself, that inspired Lieutenant Choi to come out publicly and to his parents. His father's a Baptist minister -- his mother, he says, even more religious. So, when he told her, he says it was as if he had died, along with all her dreams for him.

CHOI: I have told them now 19 times. They're in huge denial. They condemn homosexuality. When I came out and told them that I'm gay, you know, my mom held my hand and said, "Well, I love you, but gay just doesn't exist."

KAYE (voice-over): This week, Choi packed up his things from his parents' California house, so he could move in with his boyfriend in New York City.

CHOI: They know that I love them. They love me back. And it's just, right now, we do need to have a little bit of space, just to understand each other a little bit more, get over the shock.

KAYE: Choi would like to get married one day, but says it's off the table unless New York legalizes same-sex marriage. Choi will continue to encourage others to tell the truth about who they are, proudly wearing his trademark "Don't Hide" T-shirt.

Lieutenant Choi worries less about himself. He hopes future generations will grow up with the rights and equalities he may never have.

Randi Kaye, CNN, New York.


KING: You can watch Anderson's full interview with Dan Choi on our Web site. Go to

Reaction to today's court ruling continues, rallies happening across the state and the country tonight. Today's decision effectively pushes the battle over same-sex marriage in California back to the voting booth. Same-sex marriage supporters are vowing to pass a ballot initiative to overturn the Prop 8 ban.


KING: California's legal battle over same-sex marriage dates back to February 2004, when San Francisco Mayor Gavin Newsom authorized the city clerk to issue marriage licenses to same-sex couples. Since then, the battle has taken a dizzying number of twists and turns through California's courts.

Last year, the state Supreme Court overturned a voter-approved ban on same-sex marriage. Yes, that's the same court that today upheld Proposition 8.

"Digging Deeper," let's bring in Mayor Gavin Newsom of San Francisco.

Mayor, the court's decision today was 6-1.


KING: The decision last year granting the right to marry was only 4-3. How big of a setback is this to proponents of same-sex marriage?

NEWSOM: I don't know that it's a huge setback.

I mean, candidly, most of the pundits, most of the people I talked to privately, candidly, expected the decision. It, nonetheless, was a very disappointing decision and one that we will have to recover from, because, remember, John, we now no longer have a court we can count on. We can't count on the legislature. We can't count on the executive branch.

At the end of the day, the only people we with count on are ourselves, the voters of California, which means we have to go right back to those same voters that rejected at least our point of view as it relates to marriage equality just last year.

KING: You say right back to those voters. Do you believe you should do that in 2010, or do you need time to get it right this time, in your view?

NEWSOM: Good people can disagree. As Dr. King said -- I will paraphrase -- wait almost always means never. It's always the right time to try to do the right thing.

I think it is the right time. The world has changed dramatically from last November. People's focus is elsewhere. To the extent that this is an emotional issue, it is. But I also think the opportunity to right some of the wrongs of that last campaign and organize a much more effective grassroots campaign is upon us. So, I think next year makes a lot of sense.

KING: Let me read you something from the majority decision today. The court said: "Proposition 8 does not entirely repeal or abrogate the aspect of a same-sex couple's state constitutional right of privacy and due process. Instead, the measure carves out a narrow and limited exception to these state constitutional rights, reserving the official designation of the term marriage for the union of opposite-sex couples as a matter of state constitutional law."

So, some could say the court has left open the possibility of essentially civil unions with just about all the benefits and advantages, just not the term marriage. What would be wrong with that?


NEWSOM: Well, I know who difficult that is. I have family members that say, can't we just call it something else? And I understand that probably a majority of Americans believe that, good people.

At the end of the day, though, it's also the 55th anniversary of Brown vs. the Board of Education. Separate is not equal. Civil unions are civil unions. Marriage is marriage. They're different institutions.

KING: As you prepare to go back at this battle again in California, Iowa has acted. There's a proposal here in New York State.


KING: There's a proposal in New Hampshire. Maine has acted. On this day, when President Obama made his first pick for the United States Supreme Court, lay out for me what you see as the national constitutional issue and how you see this issue.


KING: I assume you agree, someday, and someday soon, probably coming before the nation's highest court.

NEWSOM: Well, I think it's a great question and well-framed.

The history, for example, of interracial marriage began in California in the late 1940s. It ultimately worked its way up to the U.S. Supreme Court in 1967 in the famous Loving vs. the State of Virginia case.

It's inevitable that that's the same narrative of this. So, it is interesting, isn't it, today, when we have a new nominee to that court who most likely will see this case ultimately in her future, if she's finally appointed and confirmed.

KING: Mayor Gavin Newsom, thanks for your time tonight.

NEWSOM: Thank you, John.


KING: Just ahead: A 13-year-old boy with cancer who fled from treatment showed up today in court. His cancer is growing. Coming up, what the judge ordered.

Also ahead, a new twist in a 360 investigation -- why a former Texas DA paid a total of hundreds of thousands of dollars to three secretaries, on top of their salaries. He says he did nothing wrong. We're "Keeping Them Honest."

Plus: Britain's singing sensation, Susan Boyle, returns to the stage. Her latest performance -- when 360 continues.


KING: North Korea testing more missiles. The breaking news ahead. First, though, Erica Hill joins us with "360 Bulletin."

ERICA HILL, CNN ANCHOR: John, the 4-year-old daughter of boxer Mike Tyson died today at a Phoenix hospital. Exodus Tyson was placed on life support yesterday after being injured in a treadmill accident at her home.

In Minnesota, 13-year-old Daniel Hauser back in court today just one week after fleeing the state with his mother to avoid medical treatment. Today a judge ordered Daniel must begin chemotherapy on Thursday. The teen, though, will be allowed to remain with his parents. Meantime, we've learned his tumor has grown and is now pressing against his trachea and chest wall.

And in an appeal filed today with the Nevada Supreme Court, attorneys for O.J. Simpson claim his most recent trial was fundamentally unfair. Simpson was convicted in October on charges including armed robbery and kidnapping and sentenced to up to 33 years, John.

KING: I think every time I'm filling in for Anderson, there's O.J. news.

HILL: There may be. I'm going to go back and look at the tapes for you.

KING: Funny, funny coincidence. All right, Erica. See you in a bit.

Up next, breaking news. North Korea testing more missiles. And that's not all. There's a new report tonight on its nuclear program. Guaranteed to get the world's attention.

Also ahead, in Texas, millions seized by police officers during criminal investigations. A former D.A. paid some of that money to three of his secretaries, on top of their salaries. He says he did nothing wrong. We're "Keeping Them Honest."

Plus, singing sensation Susan Boyle attempting to make it to the next round of "Britain's Got Talent" program. Did she make it? Tonight's "Shot," coming up.


KING: Breaking news out of North Korea. Right now. Reports the rogue nation has tested yet another short-range missile, the third in less than 24 hours. It follows a dramatic nuclear test Sunday night.

In addition a South Korean newspaper now reporting that North Korea's main nuclear plant, seen here, may be operating again. According to the newspaper, U.S. spy satellites have caught sight of steam rising from that facility.

America's U.N. ambassador says North Korea's actions will not be tolerated. Tom Foreman has the latest on that.


TOM FOREMAN, CNN CORRESPONDENT (voice-over): Another nuclear test, more rockets fired, and once again, international outrage. This time even North Korea's closest ally, China, has joined the United States and other countries to say, "Quit rattling the nuclear sword."

BARACK OBAMA, PRESIDENT OF THE UNITED STATES: We will work with our friends and allies to stand up to this behavior.

FOREMAN: But North Korea's reclusive leader, Kim Jong-Il, has proven he can stand up to pressure, too. Despite last year's dramatic destruction of part of a nuclear plant intended to show his willingness to disarm, despite last year's dramatic destruction of part of a nuclear plant, intended to show his willingness to disarm, despite years of sanctions and condemnation.

GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES: And their terrorist allies constitute an axis of evil.

FOREMAN: He has charted his country's nuclear course defiantly. Why?


FOREMAN: But international affairs analysts like Michael O'Hanlon with the nonpartisan policy group the Brookings Institution say Kim Jong-Il may see himself winning a nuclear trifecta.

First, with each test he improves his nation's actual nuclear capability. Second, the stronger his nuclear arsenal, the more he can demand and trade from nations that want him to give it up: food, economic assistance, other forms of aid.

O'HANLON: They wanted to reform their economy, help their people, I believe there would be a lot more aid forthcoming. But they seem to believe that they get more help by essentially blackmailing us.

FOREMAN: And third, by giving his military more power, he secures more of their loyalty, especially important if his health is failing as rapidly as recent photographs suggest.

(on camera) North Korea remains so secretive, even the best guesses about motives are still just guesses. But this we know. Less than three years ago Kim Jong-Il tested his first nuclear weapon. And despite all the international concerns, threats and efforts to shut that program down, he is testing them still.

Tom Foreman, CNN, Washington. (END VIDEOTAPE)

KING: Flexing its military might and testing President Obama. Let's dig deeper.

Chief international correspondent Christiane Amanpour has reported extensively on North Korea for CNN, and she's also one of just a handful of western journalists to have traveled inside the isolated nation. Christiane joins me now.

Let's start with the choices, the options facing President Obama. He has said the United States will stand up to North Korea. His ambassador to the United Nations says Kim Jong-Il's regime will pay a price for this. But what are the options? Sanctions in the past haven't done much.

CHRISTIANE AMANPOUR, CNN CORRESPONDENT: You know, that is the key question: what are the options? President Bush faced this. President Clinton faced this. Everybody thinks that there's no way there's a military option, because they have nuclear devices of some sort.

What about sanctions? There are already sanctions on North Korea. How many more sanctions can be put on this isolated and impoverished nation? What they really need to do is figure out a way to make sure that North Korea does not proliferate, does not sell, does not transfer any of this technology to anyone else.

KING: Testing missiles is one thing. Testing a nuclear weapon, nuclear technology is something more grave and very different. This is the second nuclear test. Does it tell us anything about their ambitions for the program?

AMANPOUR: It tells us that they're moving forward and progressing. It could be North Korea emerging as a potential nuclear state which would mean that the U.S., the rest of the world, has to deal with it, as they had to deal with Pakistan, with India, with Israel, you know, first opposing nuclear capability and then having to deal with it.

The real question is, what is North Korea after? Is it possible to reengage with it? What is it doing? What about the succession struggle? Is this about the military trying to flex its might, the hard-liners in this succession struggle? What is it about?

KING: What is it about, I think, is probably the most fascinating question, because we know so little about this regime. And in the past those people have speculated, Kim Jong-Il trying to get the world's, trying to get Washington's attention. Many think this time maybe he's trying to get his own people's attention because of his health, because of the succession struggle.

How do we -- how do we read this?

AMANPOUR: Well, people are saying precisely that. There's another thing in the ointment there. There's been a report about an interview that a key foreign ministry official gave in the last month to a North Korean newspaper in which he said, "Look, everybody thinks we're doing this because we want dialogue. No, we're doing this to strengthen our own defenses and our own deterrents."

You cannot underestimate the level of paranoia in that hermit kingdom. I was there last year. We went into Pyongyang. We saw that it had been shut down. We saw that it had stopped activity, that it was being dismantled. The negotiations were going on.

We then saw the cooling tower being blown up. And yet, they are still technically at a state of war with the United States. It was only an armistice that ended the Korean War. They still think the U.S. wants to invade and destroy and regime change.

KING: Chief international correspondent Christiane Amanpour, more questions than answers. We'll keep watching. Thank you.

Next on "360," using seized money to pay his secretary, the former district attorney admits it. And he says it's the law. We're "Keeping Them Honest."

And later, Susan Boyle back in the spotlight with a Broadway classic. The performance, the verdict ahead.


KING: There's a controversial law in Texas that some believe has led cops and prosecutors to commit highway robbery. It's a story we've been reporting on for several weeks now. Tonight, a new twist. Our investigation has taken us to a former elected official. He's speaking out about millions of dollars in forfeited money and valuables. He says everything he did with the cash and property was legal.

Gary Tuchman "Keeping Them Honest."


GARY TUCHMAN, CNN CORRESPONDENT (voice-over): It literally paid to be loyal to this man: the former district attorney in Jim Wells County, Texas, who was extremely generous to three of his secretaries, who he says watched his back.

JOE FRANK GARZA, FORMER DISTRICT ATTORNEY: They were my eyes and ears in the community.

TUCHMAN: How generous was Joe Frank Garza? He admits that for years he wrote checks totaling hundreds of thousands of dollars that likely at least doubled their salaries.

Much of that money came from U.S. Highway 281 near Alice, Texas, where very often drug couriers, illegal immigrants and the people transporting them would rather escape into the brush than ever see their vehicles again. And that's just fine with the sheriff's department in Jim Wells County. Deputies bring the vehicles to this lot, auction them off, and the department keeps the money. Oscar Lopez is a longtime county sheriff.

(on camera) If you didn't get that money, what would happen to your department?

SHERIFF OSCAR LOPEZ, JIM WELLS COUNTY, TEXAS: We'd be on bicycles, riding on bicycles. And I'm not saying that in fun. It's the truth.

TUCHMAN (voice-over): Under Texas law cops are permitted to seize certain valuables during investigations of possible serious crimes, and their bosses are then permitted to spend the forfeiture money for law enforcement purposes. As for the D.A., his office also gets a cut of the money.

All of this raises this question: doesn't this create an enormous temptation to seize valuables from citizens who are not suspected of serious crimes?

JUAN HINOJOSA, TEXAS STATE SENATOR: To me, it's just like theft. Highway robbery.

TUCHMAN: Juan Hinojosa is a Texas state senator. He was driving down U.S. 281 in Brooks County not far from the city of Alice. Police gave him a warning, not a ticket, for leaving and having windows too darkly tinted. He said the accusations were untrue.

HINOJOSA: The purpose of the stop was trying to see if they could find cash in my truck. One of the things that they were doing is profiling people.

TUCHMAN: Check out this police videotape. Another Latino man, this one not a state senator, stopped on 281 because his front license plate was on his dashboard, not on the bumper.

UNIDENTIFIED MALE: Large amounts of currency in the car?

TUCHMAN: Javier Gonzalez had about $10,000, most of it, he says, to pay for a funeral and a tombstone for a dying aunt. He was charged with money laundering, and deputies confiscated his cash. His attorney said there was no evidence of such a crime and sued.

MALCOM GREENSTEIN, GONZALEZ'S ATTORNEY: It happened on a highway, and we were robbed. And it just so happened that people had uniforms.

TUCHMAN: The county D.A. decided to settle the case. Gonzalez got his money back and $110,000 in damages. But the sheriff continues to stand by his men.

GARZA: They did everything correctly, sir.

TUCHMAN: So why did the D.A. agree to the settlement?

GARZA: I said, "Look, it's taking too much time. Let's just get rid of it."

TUCHMAN: Even without the money, Garza's office took in hundreds of thousands of dollars a year. He got 30 percent of the county's forfeiture money.

GARZA: When I was there, there wasn't a single item in that office, down to the last pen there, that was paid with county money. It was all forfeiture money.

TUCHMAN: Under the law a D.A. can use his share of the seized assets for, quote, "official purposes." So that's what makes an accusation by this man, who beat Joe Frank Garza in his re-election bid, so notable.

ARMANDO BARRERA, DISTRICT ATTORNEY, JIM WELLS COUNTY: Most of the money that was used by him was for three secretaries.

TUCHMAN (on camera): Most of his forfeiture money?

BARRERA: Most of it. It was approximately $3.8 million.

TUCHMAN (voice-over): Over an eight-year period. It's a strong accusation...

GARZA: I saw nothing wrong with it.

TUCHMAN: ... which the former D.A. doesn't dispute, although he does say he also gave smaller amounts to other employees.

(on camera) The new D.A. tells us that the records show that you gave hundreds of thousands of dollars over eight years to three of your secretaries.

GARZA: Could be.

TUCHMAN: And do you think that's proper?

GARZA: As far as I'm concerned, it was. No. Take it back. As far as I'm concerned, it is.

TUCHMAN (on camera): The secretaries who worked with the old district attorney no longer work in the district attorney's office. The new D.A. has new secretaries. And he says they won't be getting extra pay from the forfeiture fund, no matter how good they are.

(voice-over) We were not able to talk to any of those secretaries on camera. We did ask their old boss if giving them all that money is truly an official purpose as envisioned under state law.

GARZA: There's no definition. Nobody can tell you what an official purpose is.

TUCHMAN: Indeed, even the new D.A. agrees the law is ambiguous, and that's the main reason why there's so much controversy with forfeitures here and elsewhere in the Lone Star State.

Gary Tuchman, CNN, Alice, Texas.


KING: Many of you are talking about this story on the blog. And Gary has much more on the Web site. Read his blog giving new meaning to Texas hold 'em at

Up next, more deaths linked to swine flu. We'll tell you where.

And Susan Boyle with a new song. You'll hear it. Stay right here when "360" continues.


KING: Just ahead, Susan Boyle returns to Britain's Got Talent with a new look. But can she keep her mojo going when the music starts?

First, Erica Hill joins us with a "360 News and Business Bulletin" -- Erica.

HILL: John, two more people in New York City have died after contracting swine flu, bringing the city's death toll now to four. Meantime, about 20 schools reopened today, nine days after an assistant principal at a middle school became the city's first victim of the virus.

The Coast Guard has now called off its search in the Gulf of Mexico for this 18-year-old from Louisiana after no success. Bruce O'Krepki fell overboard on Sunday night. He was on a cruise celebrating his high-school graduation.

On Wall Street today, stocks surging. The Dow added nearly 200 points, while the NASDAQ and S&P 500 both posted double-digit gains.

And in Houston, a police chase caught on tape. The driver fleeing cops didn't seem too concerned when -- look at that -- the hood of his car, as you see there, had crashed into his windshield, but it wasn't enough to stop him. He did finally put the brakes on had police boxed in his car.

He was charged with aggravated assault with a deadly weapon and also drug possession. Apparently, police say they found a crack pipe in his car.

You're still taking that all in, aren't you, John?

KING: I'm watching that hood up like that. I'm starting to teach my son to drive, and I don't think I'm going to -- I'm going to skip this part.

HILL: I think he probably doesn't need to know that, because your son is not going to lead the cops on a chase, John king.

KING: Look at this. Look at this.

HILL: Yes.

KING: Do not try this at home. These are trained professionals, I believe.

HILL: Please don't.

KING: Wow!

HILL: The cops.

KING: Right.

HILL: Not the guy leading them on the chase are trained professionals, right?

KING: And believe -- and believe it or not, that is not "The Shot." That is next. The return of Susan Boyle, singing again. We've got her new number. Is it a showstopper?

And at the top of the hour, President Obama's choice for the high court. Her life, her career and the case that makes her a polarizing choice, for some. That's ahead.


KING: All right, Ms. Hill. For tonight's "Shot," guess who's back?

HILL: Who could it be? Our girl. There she is.

KING: There you go. The Internet sensation, Susan Boyle, has emerged for the semifinals in the reality show "Britain's Got Talent."

HILL: This is very serious.

KING: Boyle belted out "Memory" from "Cats." Listen.




KING: The 48-year-old received a standing ovation for the performance. She also made it to the final round -- Erica.

HILL: Very nice.

Well, you know, there's a little controversy, actually. Because I don't know -- I don't think we saw this part. We have another little bit of tape where it was a little bit of a rocky start for Ms. Boyle. Take a look.



KING: Ouch.

HILL: Let me tell you, Susan Boyle is doing far better than I ever would.

KING: I was going to say, you're playing a little Simon here, though: finding the negative, finding the negative in the whole...

HILL: No, Simon -- and I would like to defend Mr. Cowell. I don't think he finds the negative; I think he finds the reality most of the time.

KING: OK. All right. You're a tough judge.

HILL: I am.

KING: We need tough judges. Tough judges are good. They keep us honest.

HILL: Still, I like Susan Boyle.

KING: You can see all the most recent "Shots" on our Web site, [SIC].

Coming up at the top of the hour, President Obama's historic choice for the Supreme Court. Who is she? Where does she stand? And what her appointment says about the president who picked her.