not playing with the kids? not on these legs. poor leg circulation. doctor says it's p.a.d. peripheral artery disease? hmmm. more than doubles your risk for a heart attack or stroke. so i hear. better ask your doctor about plavix. plavix can help protect you from a heart attack or stroke. plavix helps keep blood platelets from sticking together and forming clots, the cause of most heart attacks and strokes. my cousin the m.d. call your doctor about plavix. (male announcer) if you have a stomach ulcer or other condition that causes bleeding, you should not use plavix. when taking plavix alone or with some other medicines including aspirin, the risk of bleeding may increase so tell your doctor before planning surgery. and, always talk to your doctor before taking aspirin or other medicines with plavix, especially if you've had a stroke. if you develop fever, unexplained weakness or confusion, tell your doctor promptly as these may be signs of a rare but potentially life-threatening condition called ttp, which has been reported rarely, sometimes in less than two weeks after starting therapy. other rare but serious side effects may occur. we will continue the hearings with russ feingold. just asked sonya sotomayor about the internment of japanese american citizens during world war ii. >> some of the great justices in the history of our country were involved in that decision. how does a judge resist those kind of fears? >> one hopes by having "the wiz" dom of a harlan and pleccy, by the wisdom of understanding always no matter what the situation is that our constitution has held us in good stead for over 200 years and that our is your prifl depends on upholding it. >> thank you very much, senator feingold. what i was going to do is go to senator kyl, senator schumer and then we will take a break. senator kyl? >> thank you, mr. chairman. judge, could i return to a series of questions that senator feingold asked at the beginning relating to the maloney decision and the second amendment. >> sure. >> good afternoon, by the way. >> yes, good afternoon. you had indicateded that if that case were to become before the court, you would recuse yourself from participating in that decision. >> yes, in that case. >> you are aware that or maybe you are not, there are two other decisions dealing with the same issue of incorporation, the ninth circuit and the seventh circuit. the ninth circuit decided it differently than yours. if the court should take all three -- let's assume the ninth circuit stays with its decision so you do have the conflict among the circuits, and the court were to take all three decisions at the same time, i take it the recusal issue would be the same, you would recuse yourself in that situation? >> i hadn't actually been responding to that question. i think you are right for posing it. i clearly understand that recusing myself from maloney would be appropriate. the impact of a joint hearing by the court would suggest that i would have to apply the same principle. as i indicated, issues of recusal are left to the discretion of justices because of their participation in cases is so important. it is something that i would discuss with my colleagues and follow their practices with respect to a question like this. >> i appreciate that. i agree with your reading of the law, 28 usc, section 455, provides among other things, any justice, magistrate of the united states shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned, end of quote. that raises the judge's desire to consult with others and ensure that impartiality is not questioned. i would think and i would want your response. i would think that there would be no difference in the maloney case is decided on its own or if it is decided as one of two or three other cases all considered by the court at the same time. >> as i said, that's an issue that's different than the question that was posed earlier. >> would you not be willing to make an unequivocal commitment at this time. >> it is impossible to say. i will recuse myself on any case involving maloney. how the other cert is granted and whether joint argument is presented or not, i would have to wait to see what happened. >> suppose that the other two cases are considered by the court, your circuit is not involved or that the court takes either the seventh or ninth circuit and decides the question of incorporation of the second amendment. i gather you would consider yourself bound by that precedent or you would consider that could be the decision of the court on the incorporation question? >> absolutely. the decision of the court in heller is -- it's holding has recognized an individual right to bear arms as applied to the federal government. >> that was the matter before your circuit. if, as a result of the fact that the court decided one of the other or both of the other two circuit court cases and resolved that issue so that the same matter would have been before the court, would it not also make sense for you to indicate to this committee now that should that same matter come before the court and you are on the court, that you wouldn't necessarily recuse yourself from its consideration? >> i didn't quite follow the start of your question. i twoont answer presigsly. >> cow agree with me that if the court considered the seventh or ninth circuit or both decisions and decided the issue of incorporation racial of the second amendment to make it applicable to the states, would you consider that binding of the court that was the issue in maloney. as a result, since it's the same matter that you resolved in maloney, wouldn't you have to in order to comply with the statute, recuse yourself if either or both or all three of those cases came to the court? >> senator, as i indicated, clearly the statue would reach maloney. how i would respond to the court taking certificate shi ari in what case and whether it took certificate shiary in one or all three, is a question i would have to wait to decide what the court decides to do and what issues it addresses in its grant of certiary. there is the point that whatever comes before the court will be on the basis of a particular state statute which might involve other questions. it is hard to speak about recusal in the abstract, because there are so many different questions that one has to look at. >> i appreciate that and i appreciate you should not xhicot yourself to the decision. if the issue is the same, it is simply the question of in core porpgs. that is a very specific question of law. it doesn't depend upon the facts. it didn't matter that in your case you were dealing with a very dangerous arm but not a firearm, for example. you still considered the question of incorporation. well, let me just try to help you along here. both justice roberts and justice alito made firm commitments to this committee. let me tell you what justice roberts said. he said he would recuse himself, and i'm quoting, from matters which he participated while a judge on the court of appeals matters. since you did acknowledge that the incorporation decision was the issue in your second circuit case and the question i asked was if that is the issue from the ninth and seventh circuits, you would consider yourself bound by that, it would seem to me that you should be willing to make the same kind of commitments that justice roberts and justice alito did. >> i didn't understand their commitment to be broader than what i have just said, that they would recuse themselves from any matter. i understood it to mean any case that they had been involved in as a circuit judge. if their practice was to recuse themselves more broadly, then obviously i would take counsel from what they did. but i believe, if my memory is serving me correctly, and it may not be but i think so, that justice alito, as a supreme court justice, has heard issues that were similar to ones that he considered as a circuit court judge. so, as i've indicated, i will take counsel from whatever the practices of the justices are with the broader question of what -- >> i appreciate that. issues which are similar is different from an issue, which is the same. i would just suggest that there would be an appearance of improprity if you have already decided the issue of incorporation one way, that's the same issue that comes before the court and then you, in effect, review your own decision. that, to me, would be a matter of inappropriate and perhaps you would recruise yourseluse yours. i understand your answer. let me ask you about what the president said, whether you agree with him. he talked once about the 25 miles, the first 25 miles of a 26-mile marathon. then, he also said in 95% of the cases, the law will give you the answer in the last five percent legal process will not lead you to the rule of decision. the critical ingredient in those cases is supplied by what is in the judge's heart. do you agree with him that the law only takes you the first 25 miles of the marathon and that that last mile has to be decided by what's in the judge's heart? >> no, sir. i wouldn't approach the issue of judging in the way the president does. he has to explain what he meant by judging. i can only explain what i think judges should do, which is, judges can rely on what's in their heart. they don't determine the law. congress makes the laws. the job of a judge is to apply the law so it's not the heart th that compels conclusions in cases. it is the law. the judge applies the law to the facts before that judge. >> appreciate that. has it been your experience that every case, no matter how tenuous it has been and every lawyer, no matter how good their quality of advocacy, that in every case, every lawyer has had a legal argument of some quality to make, some precedent that he cited, might not be the supreme court or the court of appeals. it might be a trial court somewhere. it might not even be a court precedent. it may be a law review article or something but have you ever been in a situation where a lawyer said, i don't have any legal argument to make, judge, please go with your heart on this or your gut. >> well, i've actually say lawyers say something very similar to that. i have had lawyers where questions have been raised about the legal basis of their argument and i asked one lawyer to put up his hands and say, but it is just not right. but it is just not right is not what judges consider. what judges consider is what the law says. >> you've always been able to find a legal basis for every decision that you have rendered as a judge. >> well, to the extent that every legal decision has -- it's what i do in approaching legal questions. i look at the law that's being cited. i look at how precedent informs it. i try to determine what those principles are of precedents that apply to the facts in the case before me. and then do that. so that is a process. you use -- >> all i'm asking. this is not a trick question. i can't imagine that the answer would be otherwise then. yes, you've always found some legal basis for ruling one way or the other? some precedent, some reading of the statute, the constitution or whatever it might be? you haven't ever had to throw up your arms and say, i can't find any legal basis for this opinion, so i'm going to base it on some other factor? >> when you use the words some legal basis, it suggests that a judge is coming to the process by saying, i think the result should be here and so i'm going to use something to get there. >> no, i'm not trying to infer that any of your decisions have been incorrect or that you have used an inappropriate basis. i am simply confirming what you first said in response to my question about the president, that, in every case, the judge is able to find a basis in law for deciding the case? sometimes there aren't cases directly on point. that's true. sometimes it may not be a case from your circuit. sometimes it may be somewhat tenuous and you may have to rely upon authority like scholarly opinions and law reviews or whatever. but my question was really very simple to you, have you always been able to have a legal basis for the decisions that you have rendered and not have to rely upon some extra legal concept such as empathy or some other concept other than a legal interpretation or precedent? >> exactly, sir, we apply laws to fact. we don't apply feelings to fact. >> thank you for that. let me go back to the beginning. i raised this issue about the president's interpretation because he clearly is going to seek nominees to this court and other courts that he is comfortable with. that would imply who have some commonality with his view of the law in judging. it's a concept that i also disagree with but in this respect, it is the speeches that you have given and some of the writings that you've engaged in have raised questions, because they appear to fit into what the president has described as this group of cases in which the legal process or the law simply doesn't give you the answer. and it's in that context that people have read these speeches and have concluded that you believe that gender and ethnicity are an appropriate way for judges to make decisions in cases. that's my characterization. i want to go back through the -- i have read your speeches and i have read all of them several times. the one i happened to mark up here is the seton hall speech but it ways virtually identical to the one at berkley. you said this morning that the point of those speeches was to inspire young people. i think there is some in your speeches that certainly is inspiring. in fact, it is more than that. i commend you on several of the things that you talked about, including your own background, as a way of inspiring young people. whether they are minority or not and regardless of their gender. you said some very inspirational things to them i take it that, therefore, it, in some sense, your speech was inspirational to them. in reading these speeches, it is in escapable that your purpose was to discuss a different issue, that it was to discuss, let me put it in your words. you said, i intend to talk to you about my latino identity, where it came from and the influence i perceive gender, race, and national origin representation will have on the development of the law and then after some preliminary and sometimes inspirational comments, you got back to the theme and said, the focus of my speech tonight, however, is not about the struggle to get us where we are and where we need to go but instead to discuss what it will mean to have more women and people of color on the bench. you said, no one can or should ignore asking and pondering what it will mean or not mean in the development of the law. you talked -- you cited some people who had a different point of view than yours. then, you came back to it and said, because i accept the proposition that as professor resnik explains, to judge is an exercise of power and as professor martha minow of harvard law explains, there is no objective stance, only a series of perspectives, no neutrality, no escape from choice in judging. i further accept that our experiences as women and people of color will in some way affect our decisions. now, you are deep into the argument here. you have agreed with resnik that there is no objective stance, only a series of per speck sives, no neutrality, which seems to me is relativeism run amuck. then, you say, what professor minnow's quote means to me is that not all women and people of color or in all cases or circumstances but enough women and people of color in enough cases will make a difference in the process of judging. you are talking about different outcomes in cases. you go on to substantiate your case by, first of all, citing a minnesota case in which three women judges ruled different than two male judges in a father's visitation case. you cited two excellent studies which tended to demonstrate differences between women and men in making decisions in cases. you said, as recognized by legal psychological lars, whatever the cause is, not one woman or person of color in any one position, but as a group, we will have an effect on the development of law and on judging. you developed the theme and substantiated it with some evidence to substantiate your point of view. up to that point, you had simply made the case, i think, that judges could certainly reach different results and make a difference in judging depending upon their gender or ethnicity. you hadn't rendered a judgment about whether they would be better judgments or not. but then you did. you quoted justice o'connor to say that a wise old woman and a wise old man would make the same decisions. you said, i'm not sure i agree with that statement and that's when you made the statement that's now relatively famous, i would hope that a wise latino woman with the richness of her experience would more often than not reach a better conclusion. here, you are making a judgment that not only will it make a differences but that it should make a difference and you went on and this is the last thing i will quote here. you said, in short -- i think this is important. you note that some of the old white guys make some pretty good decisions eventually oliver wendell holmes, kardoza and others and you acknowledge they made a big difference in discrimination cases but it took a long time. to understand takes time and effort. then, you concluded, in short, i accept the proposition that difference will be maig made by the presence of women and people of color on the bench and that my experiences will accept the facts that i choose to see. i don't know what the difference will be in my judging but i accept that there will be some based on gender and my latino heritage. you said in your response to senator sessions that you weren't encouraging that but you talked about how we need to set that aside but you didn't in your speech say this is not good, we need to set this aside. instead, you seemed to be celebrating it. the clear inference is, it is a good thing that this is happening. so that's why some of us are concerned, first, with the president's elucidation of his point of view here about judging and then these speeches, several of them, including speeches that were included in law review articles that you edited that all say the same thing. it would certainly lead one to a conclusion that, a, you understand it will make a difference and, b, not only are you not saying anything negative but that but you seem to embrace that difference in concluding that you will make better decisions? that's the basis of concern that a lot of people have. please take the time you need to respond to my question. >> thank you. i have a record for 17 years, decision after decision, decision after decision. it is very clear that i don't base my judgments on my personal experiences or my feelings or my biases. all of my decisions show my respect for the rule of law. the fact that regardless of whether i can identify a feeling about a case, which was part of what that speech did talk about. there are situations where one has reactions to speeches -- to activities. . it is not surprising that in some cases the loss of a victim is very tragic. a judge deals with those situations in acknowledging that there is a hardship to someone. it doesn't mean the law commands the result. i have any number of cases where i have acknowledged the particular difficulty to a party or disapproval of a party's actions and said, no, but the law requires this. so my views are demonstrated by what i do as a judge. i'm grateful that you took notice that much of my speech, if not all of it, was intended to inspire. my whole message, that's the very end of what i have said to them, i hope i see you in the courtroom someday. i often end my speeches with saying, and i hope someday you are sitting on the bench with me. and so the intent of the speech, its structure, was to inspire them to believe as i do, as i think everyone does, that life experiences enrich the legal system. i use the words process of judging. that experience that you look for in choosing a judge, whether it's the aba rule that says the judge has to be a lawyer for x number of years or it is the experience that your committee looks for in terms of what's the background of the judge, have they undertaken serious consideration of constitutional questions. all of those experiences are valued because our system is enriched by a variety of experiences. i don't think that anybody quarrels with the fact that diversity on the bench is good for america. it is good for america, because we are the land of opportunity. to the extent that we are pursuing that all groups can be lawyers and judges, that's reflecting the values of our society. >> to me, it's the okay. it shows these young people that you are talking to, that with a little hard work, it doesn't matter where you came from -- >> they are having a serious discussion on the whole issue of empathy and whether her brak background should have any impact on the decisions she makes ace supreme court justice. if you're taking 8 extra-strength tylenol... a day on the days that you have arthritis pain, you could end up taking 4 times the number... of pills compared to aleve. choose aleve and you could start taking fewer pills. just 2 aleve have the strength... to relieve arthritis pain all day. with special savings on select fabrics on all frames you choose the fabric we custom make it it's more affordable than you think. ethan allen offer ends july 31st. a beautiful day here in washington, d.c. not very far away up on capitol hill, the confirmation hearings are continuing for sonya sotomayor as the next justice of the united states supreme court. tough questions over the past several moments from jon kyl, republican senator of arizona. jeff toobin, he is trying to win her down on precisely where her ethnic background, her gender background, what role, if any, that should have on a united states supreme court justice? >> that's been a theme of the republicans. it has been their attempt to pull together some of the bill of particulars that they have against her. her decision in the richi case where she ruled in favor of the city and against the white firefighters. i think they are talking in circles with each other, because judge sotomayor has said repeatedly, she is very proud about of her background. she thinks it informs her experience but it does not dictate the outcome of any cases. although, in her speeches, the influence seems to have been greater than she is acknowledges. >> in her speefs but althere ha been studies that it doesn't have an impact on her decisions. many would go against these sensitive issues. >> not necessarily, wolf. when you look at the richi case, the affirmative action, was that a case where her own personal biases may have influenced her? we don't know. certainly, there are two sides that can be litigated. some of her decisions, she d dismissed them with a couple of paragraphs. i don't think it is fair to say without question her record proves that she was not influenced by what she said repeatedly, time and time again, in all of these speeches. she actually believed, that her experiences really did determine her choices. are we not to believe anything this woman said for all these years. >> maria, go ahead. i guess there is one record of what she said off the bench. another of what she has done on the bench. >> that's the point. the fact we are focusing so much on ricchie, is because there are not other cases in which favoring minorities can be shown. >> she was a prosecutor. when she was a judge, there was a wage case. she intervened trying to force a settlement. she gave the plaintiff -- she gave the employee's side some information that she didn't give the employer. she put her finger on the scale. even she says that was an ethical de ethical dill limb ma. >> that have been studies that showed that she rejected race based claims on a rate of 5-1. this would show you she has not ruled that way. >> on the ricci case -- there are thousands of banks in america. the ones i don't rab i don't get read i for but the ones i do. >> on the ricci case, alex, with all due respect, keeps saying, she made this decision. there were three judges and a full group that desided and said the decision was fied. >> it is as least fair to acknowledge there was a debate and a question about why she ruled the way she did. >> this is the paradox of sonya sotomayor. in her speeches, she has said, there will be a difference if you have more minorities and more lat tee knows. there should be a difference, she has said. she has circled back and said, the chal len for anyone, including myself, is to put these biases aside. we are all parents at the table. you have that moment where you have to say to your children, do as i say, not as i do. what she seems to be saying in this hearing is, judge me not on what i have said but how i have ruled. >> she has also said that diversity is a good thing to have on the bench, not because it governs your eventual opinion. she said, you just have to understand the way you feel as a judge and set them asichltd it is a good thing to have diversefy on the bench. if gives everyone a sense that we live in the land of opportunity. >> candy, it doesn't look at least so far that a whole lot of minds are being changed. >> they are ships in the night. they are just passing each other. you know that old saying about the senate is that everything that needs to be said has been said but not everyone has said it. everybody is moving toward another set of questions. they are not going to get her to say, well, actually, i do think that we make better decisions. they are not going to get her to explain how she would vote on a case that hasn't yet gone before the supreme court. at this point, these are senators whose job it is to advice and consent, have every right to take 12 weeks, if they want to, to do this, to go ahead and question her and see how far they can put her. so far, she hasn't pushed well. >> is more about them than her. >> they have just gone into recess, a brief recess, the senate judiciary committee. we will take a recess, very short recess, and continue our coverage. there she is, sonya sotomayor. she is leading the judiciary committee hearing room for a few moments. she will be back, as well senator chuck schumer of new york, he is next in line to start asking some questions. he is arguably been the most supportive of all the united states senators given the fact that he represents her home state of new york. our coverage continues right after this. who can give you the financial advice you need? where will you find the stability and resources to keep you ahead of this rapidly evolving world? these are tough questions. that's why we brought together two of the most powerful names in the industry. introducing morgan stanley smith barney. here to rethink wealth management. here to answer... your questions. morgan stanley smith barney. a new wealth management firm with over 130 years of experience. if you're like a lot of people, you have high blood pressure... and you have high cholesterol. you've taken steps to try and lower both your 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to become an associate justice offer the u.s. supreme court, they are in a brief recess right now. they are taking a break. they real sum the hearings moment tearily. chuck schumer, the democratic senator from new york, he is next in line. he will start asking some questions of sonya sotomayor. we will take a break from these hearings and check in with betty nguyen. she is monitoring a lot of other news happening outside of these hearings. betty, what's going on? i am at the cnn world headquarters in atlanta. rick sanchez is on assignment. a total of seven people are in custody for the gorilla style slaying of a couple northwest of florida. the escambia sheriff hugged a daughter of one of the victims and announced the search for suspects is over. the break turned out to be the red van seen on surveillance video at the home where bird and melanie billings lived with at least nine of their 16 children. most of those children adopted and many with special needs. masked men are seen in the video raiding the home where the couple's bodies were found. authorities said a safe at the home was taken and robbery was the motive. well, contrary to published reports, there is no deal between debbie rowe and the family of michael jackson, according to a lawyer for rowe. the "new york post" says she has agreed not to seek krus stowed rights in turn for $4 million but rowe's attorney sis no agreement has been reached yet. the newspaper report, she says, is completely false. disgraced financier, bernie madoff has been transferred to a prison in north carolina. he arrived at the butner federal correctional complex north of raleigh. it is not clear whether that will be his permanent stop. the 71-year-old madoff is serving a 150-year prison sentence for running a ponzi scheme. listen to this. the white house is corrected an earlier report that michelle obama's father was buried in the burr oaks cemetery outside of chicago. the historic black cemetery has been in the news after reports that hundreds of bodies were dug up so the graves could be resold. well, earlier today, the first lady's communications director told cnn that the first lady's father was buried there. she now says that information was wrong. meanwhile, president obama visited a community college in warren, michigan, today, to make a pitch for a new education funding program. the president wants to spend $12 billion over ten years to help community colleges train more americans for jobs in the future. doing that, he says, can help boost the u.s. economy. about 6 million americans currently attend two-year colleges, including some students that cannot pay to go to four-year schools. the obama administration wants to expand community college enrollment by another 5 million by 2020. now, back to washington with live coverage of the sonya sotomayor confirmation hearing with wolf blitzer. this is day two of these confirmation hearings. the first day of actual questioning of sonya sotomayor. yesterday was all opening statements by the 19 senators following by her opening statement, which was rather brief but not today. they are going into substantive detail on a whole bunch of sensitive issues. we will take a quick break. we will resume our coverage right after this. one word turns innovative design into revolutionary performance. one word makes the difference between defining the mission and accomplishing the mission. one word makes the difference in defending our nation and the cause of freedom. how... is the word that makes all the difference. getting up early, packing lunches and running for the bus. and we're ready for it. because we took all our lists and we went to walmart. since walmart checks other store's prices... i didn't have to. that means we got home in time... for just a little more summer -- and for one last night of lightning bugs. back to school costs less at walmart. save money. live better. walmart. i think i'll go with the preferred package. good choice. only meineke lets you choose the brake service that's right for you. and save 50% on pads and shoes. meineke. we are continuing coverage of historic confirmation hearings. the senate judiciary committee in a brief recess taking a little break from the testimony, the questions and answers of sonya sotomayor. a few moments ago, while they were still in session, we saw the chairman of the judiciary committee, patrick lahey, get up from his chair and do what is his real passion in life, that is, being a photographer e is taking shots of sonya sotomayor and others. he had joked he always wanted to be a photographer. having known senator lahey for many years, i know he always walks around with a camera and likes to take a lot of pictures. he is doing just that. there are dozens of photographers inside. for this moment, our cameras has caught up with him being what he would like to be, a photographer. obviously enjoys being a united states senator but enjoys being a photographer. on a much more serious note, senator jon kyl, republican of arizona, grilled the supreme court justice nominee for some time on this whole issue of whether she makes decisions from the bench based on what is in her heart rather than simply the law of the land. listen to her response. >> the words i chose, taking the rhetorical floor, a bad idea. i do understand that there are some who have read this differently. i understand why they might have concerns. i have repeated more than once and i will repeat throughout, if you look at my history on the bench, you will know that i do not believe that any ethnic gender or race group has an advantage in sound judging. >> clear statement from sonya sotomayor in the aftermath of all the uproar over that wise latino comment she made. >> she may have to back away from it some more. we have some republicans that are going to talk. this is clearly the one thing that they are trying to wrap around some of these court decisions, saying, well, you know, what about this? doesn't that show that you voted your background, that you voted your ethnicity? the fact of the matter is that i am not sure -- what judges really know why they made their decisions? it is impossible to know what's in the heart of anybody and how judges judge? again, we are spinning wheels here. i think she has desided what cie is going to say and the republicans what they are going to ask and here we go. >> we have a clip involving the former president, george w. bush. i want alex to respond to that. let's make hur we hasure we hav cued up. this was back in 1991, july 1st, 1991. when then president george h. bush nominated clarence thomas his supreme court nominee. and he was over in kennebunkport at his summer home, making the announcement. and he used the e-word. listen to this. >> i have followed this man's career for some time, and he has excelled in everything he has attempted. he is a delightful and warm and intelligent person who has great empathy and a wonderful sense of humor. he is also a fiercely independent thinker with an excellent legal mind who believes passionately in equal opportunity for all americans. >> all right, alex, great empathy. empathy. that is a big word, we have heard a lot about, but the first president bush used that word in making the case for clarence thomas. >> he is an empathetic guy, the former president. i think the point the president was making, all these attributes, intelligence, experience, empathy, ability to understand, all those are greats but are they ultimately the precursor to the final step which is rule of law? are you going to make that the final determine nant? >> which is what judge sotto mayor is saying now. >> unfortunately for judge sotomayor is the opposite of that. what she said before is that her -- her ethnicity and her gender will force her to choose some different facts. >> republicans, they are getting -- getting sonia sotomayor a really hard time on this whole issue of empathy. even president obama is the one who raised the issue of empathy, but here we see the first president bush, talking about empathy as well, making the case for clarence thomas. >> what i am also struck, sort of if you are a minority and our conservative, you are independent minded, if you are a minority, to the left some house, you are going to be biassed in favor of minorities, but there is a double standard here and that is ultimately what's problematic about this. the fact is would we be asking about her bias in the richie case if she were anything but a minority? >> all right. all right. guys i want you to hold those thoughts. we are going to take another quick break. when we come back, the hearings will resume and our courage will as well. you're you. aarp understands that. that's why they endorse products from top companies... so people 50 plus can choose health coverage options... as unique as they are. aarphealthnow.com... call or visit for free information that let you select the coverage you 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about potentially to become the first hispanic on the united states supreme court. only the third woman ever to become a member of the united states supreme court. senator chuck schumer of new york has started asking questions, let's listen in. >> i can make and have made for 17 years. >> okay, good, well, 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, be 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 mid air, in order to get some mod couple of belief, though, of course, nothing a court could do could make up for the loss of the loved ones. did you have sympathy for those families? >> all of america did. that was a loss of life that was dramatizing 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. >> i was. >> during that case. >> right. >> everyone had sympathy for their loss. it was absolutely tragic. >> 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? >> 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. >> yeah. >> or at least a portion of their claim. >> 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? >> yes, sir. >> 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 cheerily suffered a profound personal loss and tragedy and were looking to the courts, and to you, for a sense of justice? nch>> one in a tragic horrible, horrible situation like that can't feel anything but personal sense of regret, but those personal senses can't command the result in a case. as a judge, i serve 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 a