Return to Transcripts main page


Sotomayor Confirmation Hearing and Discussion

Aired July 14, 2009 - 15:55   ET


WOLF BLITZER, CNN ANCHOR: Senator Chuck Schumer of New York has started asking questions, let's listen in.


JUDGE SONIA SOTOMAYOR, SUPREME COURT NOMINEE: ... I can make and have made for 17 years.

SEN. CHUCK SCHUMER, (D) NEW YORK: OK, well, good. Let's turn to that record. I think your record shows extremely clearly that even when you might have sympathy for the litigants in front of you, as a judge, your fidelity is first and foremost to the rule of law.

Because, as you know, in the courtroom of a judge who ruled based on empathy, not law, one would expect that the most sympathetic plaintiffs would always win. But that's clearly not the case in your courtroom.

For example, in -- and I'm going to take a few cases here and go over them with you. For example, in Inray air crash off Long Island, sort of a tragic but interesting name for a case, you heard the case of families of the 213 victims of the tragic TWA crash, which we all know about in New York.

The relatives of the victims sued manufacturers of the airplane, which spontaneously combusted in midair, in order to get some modicum relief, though, of course, nothing a court could do would make up for the loss of the loved ones.

Did you have sympathy for those families?

SOTOMAYOR: All of America did. That was a loss of life that was traumatizing for New York State, because it happened off the shores of Long Island. And I know, Senator, that you were heavily involved in ministering to the families --


SOTOMAYOR: -- during that case.


SOTOMAYOR: Everyone had sympathy for their loss. It was absolutely tragic.

SCHUMER: And many of them were poor families, many of them from your borough in the Bronx. I met with them. But, ultimately, you ruled against them, didn't you?

SOTOMAYOR: I didn't author the majority opinion in that case. I dissented from the majority's conclusion. But my dissent suggested that the court should have followed what I viewed as existing law and reject their claims --


SOTOMAYOR: -- or at least a portion of their claim.

SCHUMER: Right. Your dissent said that, "The appropriate remedial scheme for deaths occurring off the United States coast is clearly a legislative policy choice, which should not be made by the courts." Is that correct?

SOTOMAYOR: Yes, sir.

SCHUMER: And that's exactly, I think the point that my colleague from Arizona and others were making about how a judge should rule.

How did you feel ruling against individuals who had clearly suffered a profound personal loss and tragedy and were looking to the courts and to you for a sense of justice?

SOTOMAYOR: One in a tragic, tragic, horrible, horrible situation like that can't feel anything but a personal sense of regret. But those personal senses can't command the result in a case.

As a judge, I served the greater interest. And that greater interest is what the rule of law supplies.

As I mentioned in that case, it was fortuitous that there was a remedy and that remedy, as I noted in my case, was Congress.

And in fact, very shortly after the second circuit's opinion, Congress amended the law, giving the victims the remedies that they had sought before the court. And my dissent was just pointing out that, despite the great tragedy, that the rule of law commanded a different result.

SCHUMER: And it was probably very hard, but you had to do it.

Here's another case. Washington versus County of Rockland -- Rockland is a county, a suburb of New York -- which was a case involving black corrections officers who claimed that they were retaliated against after filing discrimination claims. Remember that case?


SCHUMER: Did you have sympathy for the officers filing that case?

SOTOMAYOR: Well, to the extent that any office -- that anyone believes that they have been discriminated on the basis of race, that not only violates the law, but it -- one would have -- I wouldn't use the word "sympathy," but one would have a sense that this claim is of some importance and one that the court should very seriously consider.

SEN. CHARLES SCHUMER (D), NEW YORK: Right, because I'm sure, like Judge Alito said and others, you had suffered discrimination in your life as well, so you could understand how they might feel, whether they were right or wrong in the outcome, in the filing.

SOTOMAYOR: I have been more fortunate than most. The discrimination that I have felt has not been as life-altering as it has for others. But I certainly do understand it because it is a part of life that I'm familiar with and have seen others suffer so much with, as I have in my situation.

SCHUMER: Now, let me ask you again, how did you feel ruling against law enforcement officers, the kind of people you have told us repeatedly you've spent your career working with, the D.A.'s office and elsewhere, and for whom you have tremendous respect?

SOTOMAYOR: As with all cases where I might have a feeling of some identification with because of background or because of experiences, one feels a sense of understanding what they have experienced. But in that case, as in the TWA case, the ruling that I endorsed against them was required by law.

SCHUMER: Here's another one. It was called Boykin v. KeyCorp. It was a case in which an African-American woman filed suit after being denied a home equity loan even after her loan application was conditionally approved based on her credit report.

She claimed that she was denied the opportunity to own a home because of her race, her sex, and the fact that her prospective home was in a minority-concentrated neighborhood. She didn't even have a lawyer or anyone else to interpret the procedural rules for her. She filed the suit on her own.

Did you have sympathy for the woman seeking a home loan from the bank?

SOTOMAYOR: Clearly, everyone has sympathy for an individual who wants to own their own home. That's the typical dream and aspiration, I think, of most Americans. And if someone is denied that chance for a reason that they believe is improper, one would recognize and understand their feelings.

SCHUMER: Right. And in fact, you ruled that her claim wasn't timely. Rather than overlooking the procedural problems with the case, you held fast to the complicated rules that keep our system working efficiently, even if it meant that claims of discrimination could not be heard. We never got to whether she was actually discriminated against because she didn't file in a timely manner.

Is my summation there accurate? Do you want to elaborate?

SOTOMAYOR: Yes, in terms of the part of the claim that we held was barred by the statute of limitations. In my -- in a response to the earlier question, to an earlier question, I indicated that the law requires some finality. And that's why Congress passes or state legislature passes statutes of limitations that require people to bring their claims within certain time frames. Those are statutes and they must be followed if the situation -- if they apply to a particular situation.

Finally, let's look at a case that cuts the other way with a pretty repugnant litigant. This is the case called Pappas v. Giuliani. And you considered claims of a police employee who was fired for distributing terribly bigoted and racist materials.

First, what did you think of the speech in question that this officer was distributing?

SOTOMAYOR: Nobody, including the police officer, was claiming that the speech wasn't offensive, racist and insulting. There was a question about what his purpose was in sending the letter, but my opinion, dissent in that case, pointed out offensiveness and racism to of the letter but I issued a dissent from the majority's affirmance of his dismissal from the police department because of those letters.

SCHUMER: Right. As I understand it, you wrote that what the actual literature that the police officer was distributing was "patently offensive, hateful and insulting," but you also noted that -- and this is your words in a dissent, where the majority was on the other side -- "Three decades of jurisprudence and the centrality of First Amendment freedoms in our lives" -- that's your quote -- "the employee's right to speech had to be respected."

SOTOMAYOR: In the situation of that case, that was the position that I took because that's what I believed the law commanded.

SCHUMER: Even though, obviously, you wouldn't have much sympathy or empathy for this officer or his actions. Is that correct?

SOTOMAYOR: I don't think anyone has sympathy for what was undisputedly a racist statement, but the First Amendment commands that we respect people's rights to engage in hateful speech.


Now, I'm just going to go to a group of cases here rather than one individual case. We could go -- we could do this all day long, where sympathy, empathy would be on one side, but you found rule of law on the other side and you sided with rule of law.

And so, you know, again, to me, analyzing a speech and taking words maybe out of context doesn't come close to analyzing the cases as to what kind of judge you'll be. And that's what I'm trying to do here.

Now, this one, my office conducted an analysis of your record in immigration cases, as well as the record of your colleagues. And in conducting this analysis, I came across a case entitled Chen (ph) v. Board of Immigration Appeals, where your colleague said something very interesting. This was judge Jon Newman. He's a very respected judge on your circuit. He said something very interesting when discussing asylum cases. Specifically, he said the following -- this is Judge Newman -- "We know of no way to apply precise calibers to all asylum cases so that any particular finding would be viewed of any three of the 23 judges of this court as either sustainable or not sustainable. Panels will have to do what judges always do in similar circumstances, apply their best judgment, guided by the statutory standard governing review and the holdings of our precedents, to the administrative decision and the record assembled to support it."

In effect, what Judge Newman is saying is these cases would entertain more subjectivity, let's say, because as he said, you could cite many of them as sustainable or not sustainable. So, given the subjectivity that exists in the asylum cases, it's clear that if you wanted to be "an activist judge," you could certainly have found ways to rule in favor of sympathetic asylum seekers, even when the rule of law might have been more murky and not dictated an exact result.

Yet, in the nearly 850 cases you have decided in the Second Circuit, you ruled in favor of the government -- that is against the petitioner seeking asylum, immigrants seeking asylum -- 83 percent of the time. That happens to be the exact statistical median rate for your court. It's not one way or the other.

This means that with regard to immigration, you were neither more liberal nor more conservative than your colleague, you simply did what Judge Newman said. You applied your best judgment to the record at hand.

Now, can you discuss your approach to immigration cases, explain to this panel and the American people the flexibility that judges have in this context and your use of this flexibility in a very moderate manner?

SOTOMAYOR: Reasonable judges look at the same set of facts and may disagree on what those facts should result in. It harkens back to the question of wise men and wise women being judges.

Reasonable people disagree. That was my understanding of Judge Newman's comment in the quotation you made.

In immigration cases, we have a different level of review because it's not the judge making the decision whether to grant or not grant asylum, it's an administrative body. And I know that I will -- I'm being a little inexact, but I think using old terminology is better than using new terminology. And by that, I mean the agency that most people know as the "Bureau of Immigration" has a new name now, but that it's more descriptive than its new name.

SCHUMER: Some people think the new name's descriptive, but that's all right.


SOTOMAYOR: In immigration cases, an asylum seeker has an opportunity to present his or case before an immigration judge. They then can appeal to the Bureau of Immigration and argue that there was some procedural default (INAUDIBLE), or that the immigration judge or the bureau itself has committed some error of law. They then are entitled by law to appeal directly to the Second Circuit.

In those cases, because they are administrative decisions, we are required under the Chevron doctrine and other tests of administrative law to give deference to those decisions. But like with all processes, there are occasions when processes are not followed and an appellate court has to ensure that the rights of the asylum seeker have been -- whatever those rights may be -- have been given.

There are other situations in which an administrative body hasn't adequately explained its reasoning. There are other situations where administrative bodies have actually applied erroneous law.

No institution is perfect. And so that accounts for why, given the deference -- and I'm assuming your statistic is right, Senator, because I don't add up the numbers, OK?


SOTOMAYOR: But I do know that in immigration cases, the vast majority of the Bureau of Investigation cases are -- the petitions for review are denied. So that means that...

SCHUMER: Right. The only point I'm making here, if some are seeking to suggest that your empathy or sympathy overrules rule of law, this is a pretty good body of law to look at. A, it's a lot of cases, 850. B, one would think -- I'm not going to ask you to state it -- that you will have sympathy for immigrants and immigration.

WOLF BLITZER, CNN ANCHOR: All right. Chuck Schumer asking questions designed to show that Sonia Sotomayor actually went against her ethnic heritage, went against her gender in making decisions while on the U.S. federal court.

We're going to continue our coverage. These historic hearings will resume right after this.


BLITZER: Welcome back.

We're watching these confirmation hearings before the Senate Judiciary Committee. Sonia Sotomayor is answering questions being posed by one of her closest allies, if not her closest ally on the committee, Senator Chuck Schumer, Democrat of her home state of New York. They're talking about lots of stuff that's going on, but one of the subtexts certainly is a Democratic desire to get some Republicans on board.

John King is here with us.

And we have been saying, there are seven Republicans on this committee and, potentially, three of them might, in fact, vote to confirm. JOHN KING, CNN SR. NATIONAL CORRESPONDENT: The White House hopes that, Wolf. And I'm going to walk over to the wall as we continue the conversation.

They go into this, the White House, preparing potentially for a party line vote, and that would be enough. There are 12 Democrats on the committee, and they believe they will get all 12 of those votes and send Judge Sotomayor to the floor with the support of the committee. But they do think it's possible, and, of course, the would prefer some bipartisan support.

I'm going to start with Senator Orrin Hatch. We heard him this morning.

First elected 1976, re-elected. He's on this committee. He is safe.

Let's look at his background here, in the sense he was the former chairman of this committee, as you noted earlier. Served on the committee now for more than 20 years. He has been an attorney for some time.

Let's bring up his more recent history, if we can get this to cooperate. He's voted on 11 Supreme Court nominees and he has supported all of them since joining the Senate.

That is one reason the White House believes that even though he disagrees with Judge Sotomayor on some issues, he will say the president get his pick as long as she is qualified. There is one they believe they can get right there.

Another one they believe they can get is Senator Lindsey Graham. He has only had two votes before on Supreme Court nominations. He has supported Chief Justice Roberts and Justice Alito.

Now, he has said he is troubled by her "wise Latina" comments that they have spent so much time on today. But another thing Lindsey Graham has said, he has said nobody worked harder for John McCain than he did in the past election, but elections have consequences, President Obama won. The Democrats believe -- they don't have it yet, but they believe they can get Lindsey Graham's vote.

And the last one is Senator Chuck Grassley, who was very tough in his questioning earlier about property rights. He has said he is troubled by some of her remarks as well. And Chuck Grassley opposed Judge Sotomayor back in 1998 when she was up for the Appeals Court.

Why do they think it's possible to perhaps get Senator Grassley's vote? They think because of this -- he was re-elected with 70 percent in 2004, but his seat is up in 2010. Barack Obama carried Obama (sic) handily, it is trending to be a more Democratic state. They think -- Iowa, excuse me.

They think there is a possibility Senator Grassley might find some pressure at home to support this nominee, so they believe they might be able to get Grassley, might be able to get Graham, and think they are likely to get Senator Hatch, Wolf, unless something happens there. Our Peter Hamby talked to Senator Hatch during one of the last breaks and said, "Are you going to vote for her?" He said, "I didn't say that."

He did say that he thought she answered some of his questions well, others not so well. The hearings will continue.

Again, the Democrats don't need any Republican votes, but they think it would send a big signal to the full Senate, Wolf, if they could get two or three. And those are the ones they think are good possibilities.

BLITZER: I know that Senator Hatch voted to confirm the Democratic nominee, Stephen Breyer, and Ruth Bader Ginsburg during the Bill Clinton administration.

Did Chuck Grassley vote to confirm both of those Democratic nominees? Do we know?

KING: I have these votes right here, and we can see, he has supported all Senate -- all Supreme Court nominees since joining the Senate. And that's one of the wonders of having the Magic Wall and all that data at your disposal.

He did oppose, remember, Judge Sotomayor at the lower level, but he has supported all Supreme Court picks again. Again, he is one of the older, traditional senators who say a president wins the election, a president gets his choice unless the judge is unqualified. Because of this, he might say he can't support her now, but the White House, in private conversations with him, believes it's possible.

BLITZER: Yes, that's very interesting stuff.

Candy Crowley, the next questioner is going to be Lindsey Graham, Republican of South Carolina. And he, yesterday, made the point no one supported John McCain more aggressively, more enthusiastically than he did. And John McCain lost, Barack Obama won, and elections have consequences.

CANDY CROWLEY, CNN SR. POLITICAL CORRESPONDENT: Absolutely. And one could make a case while Orrin Hatch has been head of the Judiciary Committee, that -- and while Chuck Grassley also respected on the Senate side, that Lindsey Graham would be a pretty important get and a pretty important signal to the Senate.

He is a conservative southerner and, as he mentioned, very visible during the McCain campaign. His decision -- he has had some very skeptical questions, but his decision to move forward, if he does it, and support Sotomayor out of committee sends -- does send a really strong signal.

BLITZER: And Gloria, there doesn't seem to be any wavering among those 60 Democrats, 58 Democrats, two Independents who vote with the Democratic, caucus with them. They all seem to be on board, which is more than enough to get her confirmed.

GLORIA BORGER, CNN SR. POLITICAL ANALYST: Yes. This maybe the only issue in which there is unanimity among the Democrats these days, but I think there is. The interesting thing about Senator Grassley is that in 1998, he did vote against Sotomayor.

BLITZER: When she was up for the Court of Appeals.

BORGER: When she was up for the Court of Appeals. And Hatch did vote for her at that time. So, that can also give you an indication.

Another thing about...

BLITZER: And she was unanimously -- she was voted without opposition when she originally went to District Court.

BORGER: Right. Exactly.

And another interesting thing about Chuck Grassley -- and maybe you could speak to this, Alex -- is that he is so important to the Democrats these days because of health care reform as well. He has really become this key senator from a state that's a very important presidential state, a very important state to Barack Obama, sort of launched his candidacy. And he finds himself sort of at the center of every big fight now that the administration is waging.

ALEX CASTELLANOS, CNN CONTRIBUTOR: Senator Grassley is a key player in the health care debate, but that's why the tone of these hearings is as important as the substance. And so far, they have been very civilized. There have been respectful differences. We haven't seen anything here that a would, you know, rupture relationships that are important for other issues.

But on the Lindsey Graham issue, he, yes, also, I thought yesterday, was incredibly civil and supportive of the old standard that a president should get his nominee. But he also said, I'm concerned about your speeches. I'm concerned about some of the things you've said, and we're going to talk about -- as a matter of fact, at one point he said, "If I said something like you said, I would be drummed out of the Senate."

So -- and he said we would talk about that tomorrow. So, that's going to be interesting coming up.

BLITZER: Meaning if he would have said that a wise white man can make a better decision than a Latina woman, that would have been a career- ender for him?

CASTELLANOS: I'm surprised that no senator has yet asked this nominee, Judge Sotomayor, if you were sitting here where I am, and I would be sitting where you were, and I said exactly that, Wolf, that a wise white man would reach a better -- male would reach a better decision, would you vote for me?

BLITZER: Well, we'll see if he raises that issue, because he has...

BORGER: I know what her answer will be -- context.

BLITZER: He has made that point. And we're getting ready to hear from Lindsey Graham, and this is certainly going to be one of the highlights of this confirmation process.

He is next in line to start asking questions, 30 minutes of uninterrupted questioning by Lindsey Graham. That's coming up.


BLITZER: All right. This is a highlight right now. Republican Senator Lindsey Graham, one of the most outspoken members of the Judiciary Committee, is now questioning Sonia Sotomayor and trying to pin her down to find out where she stands on issues involving the Supreme Court.


SOTOMAYOR: The Constitution has not changed except by amendment. It is a process -- an amendment process that is set forth in the document. It doesn't live, other than to be timeless, by the expression of what it says.

What changes is society. What changes is what facts a judge may get...

SEN. LINDSEY GRAHAM (R), SOUTH CAROLINA: What is the best way for society to change, generally speaking? What's the most legitimate way for a society to change?

SOTOMAYOR: I don't know if I can use the word "change." Society changes because there's been new developments in technology, medicine, in society growing. There's...

GRAHAM: Do you think judges have changed society by some of the landmark decisions in the last 40 years?

SOTOMAYOR: Well, in the last few years?

GRAHAM: Forty years.

SOTOMAYOR: I'm sorry, you said...

GRAHAM: Forty. I'm sorry, 40 -- 4-0.

Do you think Rowe v. Wade changed American society?

SOTOMAYOR: Roe v. Wade looked at the Constitution and decided that the Constitution is applied -- to a claims right, applied.

GRAHAM: Is there anything in the Constitution that says a state legislator of the Congress cannot regulate abortion or the definition of life in the first trimester?

SOTOMAYOR: The holding of the court as...

GRAHAM: I'm asking the Constitution. Does the Constitution as written prohibit a legislative body at the state or federal level from defining life or regulating the rights of the unborn or protecting the rights of the unborn in the first trimester? SOTOMAYOR: The Constitution in the 14th Amendment has a...

GRAHAM: Is there anything in the document written about abortion?

SOTOMAYOR: The word "abortion" is not used in the Constitution, but the Constitution does have a broad provision concerning a liberty provision under the due process.

GRAHAM: And that gets us to the speeches. That broad provision of the Constitution has taken us from no written prohibition protecting the unborn, no written statement that you can't voluntarily pray in school, and on and on and on and on. And that's what drives us here, quite frankly. That's my concern.

And when we talk about balls and strikes, maybe that is not the right way to talk about it, but a lot of us feel that the best way to change society is to go to the ballot box, elect someone, and if they are not doing it right, get rid of them in the electoral process. And a lot of us are concerned from the left and the right that unelected judges are very quick to change society in a way that's disturbing.

Can you understand how people may feel that way?

SOTOMAYOR: Certainly, sir.

GRAHAM: OK. Now, let's talk about you. I like you, by the way, for whatever that matters. Since I may vote for you that ought to matter to you.

One thing that stood out about your record is that when you look at the almanac of the federal judiciary, lawyers anonymously rate judges in terms of temperament. And here's what they said about you.

She's a terror on the bench. She's temperamental, excitable, she seems angry. She's overall aggressive, not very judicial. She does not have a very good temperament. She abuses lawyers. She really lacks judicial temperament. She believes in an out -- she behaves in an out-of-control manner. She makes inappropriate outbursts. She's nasty to lawyers. She will attack lawyers for making an argument she does not like. She can be a bit of a bully.

When you look at the evaluation of the judges on the Second Circuit, you stand out like a sore thumb in terms of your temperament. What is your answer to these criticisms?

SOTOMAYOR: I do ask tough questions at oral arguments.

GRAHAM: Are you the only one that asks tough questions in oral arguments?

SOTOMAYOR: No, sir. No, not at all.

I can only explain what I'm doing which is when I ask lawyers tough questions, it's to give them an opportunity to explain their positions on both sides and to persuade me that they're right. I do know that, in the Second Circuit, because we only give litigants 10 minutes of oral argument each, that the processes in the second circuit are different than in most other circuits across the country. And that some lawyers do find that our court, which is not just me, but our court generally, is described as a hoc bench, it's term that lawyers use. It means that they're peppered with questions.

Lots of lawyers who are unfamiliar with the process in the second circuit find that tough bench difficult and challenging.

GRAHAM: If I may interject, judge, they find you difficult and challenging more than your colleagues. And the only reason I mention this is that it stands out. When you -- there are many positive things about you and these hearings are designed to talk about the good and the bad and I never liked appearing before a judge that I thought was a bully. It's hard enough being a lawyer, having your client there to begin with, without the judge just beating you up for no good reason. Do you think you have a temperament problem?

SOTOMAYOR: No, sir. I can only talk about what I know about my relationship with the judges of my court and with the lawyers who appear regularly from our circuit. And I believe that my reputation is stuck as such that I ask the hard questions, but I do it evenly for both sides.

GRAHAM: And in fairness to you, there are plenty of statements in the record in support of you as a person, that do not go down this line.

But I will just suggest to you, for what it's worth, judge, as you go forward here, that these statements about you are striking. They're not about your colleagues. The ten-minute rule applies to everybody and that obviously you've accomplished a lot in your life, but maybe these hearings are time for self-reflection. This is pretty tough stuff that you don't see from -- about other judges on the second circuit.

Let's talk about the wise Latino comment, yet again. And the only reason I want to talk about it yet again is that I think what you said -- let me just put my vices on the table here. One of the things that I constantly say when I talk about the war on terror is that one of the missing ingredients in the Mid-East is the rule of law that Senator Schumer talked about. That the hope for the Mid-East, Iraq and Afghanistan is that there'll be a courtroom one day that if you find yourself in that court, it would be about what you allegedly did, not who you are.

It won't be about whether you're a Sunni, Shia, a Kurd or a Pashtun, it will be about what you did. And that's the hope of the world, really, that our legal system, even though we fail at times, will spread. And I hope one day that there will be more women serving in elected office and judicial offices in the Mid-East because I can tell you this, from my point of view. One of the biggest problems in Iraq and Afghanistan is the mother's voice is seldom heard about the fate of her children.

And if you wanted to change Iraq, apply the rule of law and have more women involved and having a say about Iraq. And I believe that about Afghanistan. And I think that's true here.

GRAHAM: I think, for a long time, a lot of talented women were asked, can you type? And were trying to get beyond that and improve as a nation.

So when it comes to the idea that we should consciously try to include more people in the legal process and the judicial process, from different backgrounds, count me in.

But your speeches don't really say that to me. They -- along the lines of what Senator Kyl was saying -- they kind of represent the idea, there's a day coming when there'll be more of us -- women and minorities -- and we're going to change the law.

And what I hope we'll take away from this hearing is there need to be more women and minorities in the law to make a better America. And the law needs to be there for all of us, if and when we need it.

And the one thing that I have tried to impress upon you through jokes and being serious, is the consequences of these words in the world in which we live in. You know, we're talking about putting you on the Supreme Court and judging your fellow citizens.

And one of the things that I need to be assured of is that you understand the world as it pretty much really is. And we've got a long way to go in this country, and I can't find the quote, but I will find it here in a moment -- the wise Latino quote.

Well, do you remember it?



GRAHAM: OK. Say it to me.

Can you recite it from memory?

I have got it.


All right.

"I would hope that a wise Latino (sic) woman, with the richness of her experience, would more often than not reach a better conclusion than a white male."

And the only reason I keep talking about this is that I'm in politics. And you've got to watch what you say, because, one, you don't want to offend people you're trying to represent.

But do you understand, ma'am, that if I had said anything like that, and my reasoning was that I'm trying to inspire somebody, they would have had my head? Do you understand that?

SOTOMAYOR: I do understand how those words could be taken that way, particularly if read in isolation.

GRAHAM: Well, I don't know how else you could take that. If Lindsey Graham said that I will make a better senator than X, because of my experience as a Caucasian male makes me better able to represent the people of South Carolina, and my opponent was a minority, it would make national news, and it should.

Having said that, I am not going to judge you by that one statement. I just hope you'll appreciate the world in which we live in, that you can say those things, meaning to inspire somebody, and still have a chance to get on the Supreme Court.

Others could not remotely come close to that statement and survive. Whether that's right or wrong, I think that's a fact.

GRAHAM: Does that make sense to you?

SOTOMAYOR: It does. And I would hope that we've come in America to the place where we can look at a statement that could be misunderstood, and consider it in the context of the person's life.


GRAHAM: You know what? If that comes of this hearing, the hearing has been worth it all, that some people deserve a second chance when they misspeak and you would look at the entire life story to determine whether this is an aberration or just a reflection of your real soul. If that comes from this hearing, then we've probably done the country some good.

Now, let's talk about the times in which we live in. You're from New York. So you've grown up in New York all your life?

SOTOMAYOR: My entire life.

GRAHAM: What did September the 11th, 2001, mean to you?

SOTOMAYOR: It was the most horrific experience of my personal life and the most horrific experience in imagining the pain of the families of victims of that tragedy.

GRAHAM: Do you know anything about the group that planned this attack, who they are and what they believe? Have you read anything about them?

SOTOMAYOR: I have followed the newspaper accounts. I have read some books in the area, so I believe I have an understanding of that...


GRAHAM: What would a woman's life be in their world, if they can control a government or a part of the world? What do they have in store for women?

SOTOMAYOR: I understand that some of them have indicated that women are not equal to men.

GRAHAM: I think that's a very charitable statement. Do you believe that we're at war?

SOTOMAYOR: We are, sir. We have -- we have tens and thousands of soldiers on the battlefields of Afghanistan and Iraq. We are at war.

GRAHAM: Are you familiar with military law much at all? And if you're not, that's OK.


SOTOMAYOR: No, no, no, no. I'm thinking, because I have never practiced in the area. I have only read the Supreme Court decisions in this area.

GRAHAM: Right.

SOTOMAYOR: I have obviously examined by referencing cases some of the procedures involved in military law, but I'm not personally familiar with military law. I haven't participated.

GRAHAM: I understand. From what you read and what you understand about the enemy that this country faces, do you believe there are people out there right now plotting our destruction?

SOTOMAYOR: Given the announcements of certain groups and the messages that have been sent with videotapes, et cetera, announcing that intent, then the answer would be on -- based on that, yes.

GRAHAM: Under the law of armed conflict -- and this is where I may differ a bit with my colleagues -- it is an international concept, the law of armed conflict.

Under the law of armed conflict, do you agree with the following statement, that if a person is detained who is properly identified to accepted legal procedures under the law of armed conflict as a part of the enemy force, there is not requirement based on a length of time that they be returned to the battle or released?

In other words, if you capture a member of the enemy force, is it your understanding of the law that you have to, at some period of time, let them go back to the fight?

SOTOMAYOR: I -- it's difficult to answer that question in the abstract for the reason that I indicated later. I have not been a student of the law of war, other than to...

GRAHAM: We'll have another round. I know you'll have a lot of things to do, but try to-- try to look at that. Look at that general legal concept.

And the legal concept I'm espousing is that under the law of war, Article 5 specifically of the Geneva Convention, requires the detaining authority to allow an impartial decision maker to determine the question of status. Whether or not you're a member of the enemy force.

And see if I'm right about the law, but it that determination is properly had, there is no requirement, under the law of armed conflict, to release a member of the enemy force that still presents a threat. I would like you to look at that.

Now let's talk about...


GRAHAM: Thank you.

Let's talk about your time as a lawyer. The Puerto Rican Legal Defense Fund, is that right? Is that the name of the organization?

SOTOMAYOR: It was then. I think you'd -- I know it has changed names recently.


How long were you a member of that organization?

SOTOMAYOR: Nearly 12 years.


SOTOMAYOR: If not 12 years.

GRAHAM: Right.

During that time, you were involved in litigation matters, is that correct?

SOTOMAYOR: The fund was involved in litigations, I was a board member of the fund.


Are you familiar with the position that the fund took regarding taxpayer-funded abortion? The briefs they filed?

SOTOMAYOR: No, I never reviewed those briefs.

GRAHAM: Well, in their briefs, they argued, and I will submit the quotes to you, that if you deny a low-income woman Medicaid funding, taxpayer funds, to have an abortion, if you deny her that, that's a form of slavery. And I can get the quotes.

Do you agree with that?

SOTOMAYOR: I wasn't aware of what was said in those briefs. Perhaps it might be helpful if I explained what the function of a board member is and what the function of the staff would be in an organization like the fund.

GRAHAM: OK. SOTOMAYOR: In a small organization as the Puerto Rican Legal Defense Fund was back then, it wasn't the size of other legal defense funds, like the NAACP Legal Defense Fund, or the Mexican-American Legal Defense Fund, which are organizations that undertook very similar work to PRLDEF.

In an organization like PRLDEF, a board member's main responsible is to fund-raise. And I'm sure that a review of the board meetings would show that that's what we spent most of our time on. To the extent that we looked at the organization's legal work, it was to ensure that it was consistent with the broad mission statement of the fund.

GRAHAM: Did the mission statement of the fund to include taxpayer-funded abortion?

SOTOMAYOR: Our mission...

GRAHAM: Was that one of the goals?

SOTOMAYOR: Our mission statement was broad, like the Constitution.


SOTOMAYOR: Which meant that its focus was on promoting the equal opportunities of Hispanics in the United States.

GRAHAM: Well, Judge, I have got -- and I will share them with you, and we'll talk about this more, a host of briefs for a 12-year period, where the fund is advocating to the state court and the federal courts, that to deny a woman taxpayer funds, a low-income woman taxpayer assistance in having an abortion, is a form of slavery, it's an unspeakable cruelty to the life and health of a poor woman.

Was it or was it not the position of the fund to advocate taxpayer-funded abortions to low-income women?

SOTOMAYOR: I wasn't -- and I didn't, as a board member, review those briefs. Our lawyers were charged...

GRAHAM: Would it bother you if that's what they did?

SOTOMAYOR: Well, I know that the fund, during the years I was there, was involved in public health issues as it affected the Latino community. It was involved...

GRAHAM: Is abortion a public health issue?

SOTOMAYOR: Well, it was certainly viewed that way generally by a number of...

GRAHAM: Do you...

SOTOMAYOR: ... civil rights organizations at the time.

GRAHAM: Do you personally view it that way?

SOTOMAYOR: It wasn't a question of whether I personally viewed it that way or not. The issue was whether the law was settled on what issues the fund was advocating on behalf of the community it represented.


GRAHAM: Well, the fund -- oh, I'm sorry. Go ahead.

SOTOMAYOR: And so, the question would become, was there a good faith basis for whatever arguments they were making, as the fund's lawyers were lawyers...

GRAHAM: Well, yes...

SOTOMAYOR: ... who had an ethical obligation...

GRAHAM: And quite frankly, that's, you know -- lawyers are lawyers. And people who have causes that they believe in have every right to pursue those causes.

And the fund, when you look -- you may have been a board member, but I am here to tell you, that file briefs constantly for the idea that taxpayer-funded abortion was necessary, and to deny it would be a form of slavery, challenged parental consent as being cruel.

And I can go down a list of issues that the fund got involved in, that the death penalty should be stricken, because it has -- it's a form of racial discrimination.

What's your view of the death penalty, in terms of personally?

SOTOMAYOR: The issue for me with respect to the death penalty is that the Supreme Court, since Gregg, has determined that the death penalty is constitutional under certain situations.

GRAHAM: Right.

SOTOMAYOR: I have rejected challenges to the federal law and its application in the one case I handled as a district court judge, but it's a reflection of what my views are on...

GRAHAM: As an advocate...

SOTOMAYOR: ... the law.

GRAHAM: As an advocate, did you challenge the death penalty as being an inappropriate punishment, because of the effect it has on race?

SOTOMAYOR: I never litigated a death penalty case personally. The fund...

GRAHAM: Did you ever sign a memorandum saying that? SOTOMAYOR: I signed the memorandum for the board to take under consideration, what position on behalf of the Latino community the fund should take on New York State reinstating the death penalty in the state.

It's hard to remember, because so much time has passed...

GRAHAM: Yes, well...

SOTOMAYOR: ... in the 30 years since...

GRAHAM: We'll give you a chance to look at some of the things I'm talking about, because I want you to be aware of what I'm talking about.

Let me ask you this. I have got 30 seconds left. If a lawyer on the on the other side filed a brief in support of the idea that abortion is the unnecessary and unlawful taking of an innocent life and public money should never be used for such a heinous purpose, would that disqualify them, in your opinion, from being a judge?

SOTOMAYOR: An advocate advocates on behalf of the client they have. And so that's a different situation than how a judge has acted in the cases before him or her.


And the only reason I mention this, Judge, is that the positions you took or this fund took, I think, like the speeches, tell us some things. And we'll have a chance to talk more about your full life, but I appreciate the opportunity to talk with you.

SOTOMAYOR: Thank you, sir.


Senator Durbin?

SEN. RICHARD DURBIN (D), ILLINOIS: Thank you, Mr. Chairman.

Judge, good to see you again.

BLITZER: All right so, there he is.

That was certainly one of the highlights, if not the highlight, so far, the questioning of Sonia Sotomayor by the Republican Senator Lindsey Graham, especially that very, very dramatic moment when she concurred that, if he would have said something along the lines if he, as a white man, as a Caucasian, felt that a wise white man would make better decisions than a Latino, for example, he would have been over with. His career would have ended.

He confronted her with that. And she concurred, basically. It was a very, very dramatic moment. Lots to digest. We are going to assess what we just heard from Lindsey Graham and Sonia Sotomayor, as our coverage of these historic hearings continues.


BLITZER: The focus of activity, the U.S. Capitol right now.

Inside the Senate Hart Office Building, the hearings are continuing for Sonia Sotomayor to become a Supreme Court justice.

There was an incredibly important exchange that just occurred between Lindsey Graham, the Republican senator from South Carolina, a key member of this panel, and Sonia Sotomayor.

I'm going to play this clip, and then we will discuss.


GRAHAM: Do you understand, ma'am, that, if I had said anything like that, and my reasoning was that I'm trying to inspire somebody, they would have had my head?

Do you understand that?

SOTOMAYOR: I do understand how those words could be taken that way, particularly if read in isolation.

GRAHAM: Well, I don't know how else you could take that.

If Lindsey Graham said that "I will make a better senator than X because of my experience as a Caucasian male, makes me better able to represent the people of South Carolina," and my opponent was a minority, it would make national news. And it should.


BLITZER: At issue, the comments that she made, specifically -- specifically this, on October 26, 2001, at Berkeley, U.C. Berkeley School of Law from 2001: "I would hope that 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."

She today clarified, insisting that she was really engaged in rhetorical flourish, she was trying to inspire a new generation of young Latinas, that they could reach for the stars and achieve what she has achieved.

But, clearly, the tough questioning from Lindsey Graham underscored how sensitive this is -- this is. This would have been a career-ender for him if he would have said something along those lines.

Maria Echaveste is -- is here with us. You teach at U.C. Berkeley.


BLITZER: You know, you were listening to Lindsey Graham. He was very skilled as an inquisitor.

MARIA ECHAVESTE, FORMER CLINTON DEPUTY WHITE HOUSE CHIEF OF STAFF: I think did he a great service to the country. And I hope a lot of people watched how he questioned and how he raised the issue, because he concluded by saying: I would hope that people would recognize a second chance, that, sometimes, you might say something, that we are moving to a place in which that kind of blanket assertion of one group's superiority over another is unacceptable.