. >> barack obama got kagan on the supreme court, sotomayor, they're on the left side of the ideological spectrum but had to be confirmed by the u.s. senate. imagine who he will nominate if he doesn't think he has to get them past republicans basically at all. who will we wind up with? >> the president said he wants to remake the federal judiciary and you can imagine the image of that to be remade and looking at kagan and sotomayor, i suspect they'll look moderate compared to the judicial nominees will be and i think that the supreme court is not going to be immune from this change in the rules. i think they're going to use it at the supreme court if they have to and the republicans better toughen up too and when they're back in power and the senate's controlled by republicans, a republican in the white house and there will be, the fact of the matter is they need to play tough, too. this is not one way. >> play the chuck grassley sound bite. listen here. >> yep. >> the democrats are bent on changing the rules, then i say go ahead. there are a lot more scalias and thomases out there that

would say five justices not just judge sotomayor but alito's view that there is a new threat to privacy presented by thing a investigation of all this information that we make available to the public in some sense or third parties and i think there's five justices in jones who are basically saying that the mere fact that you release or surrender your information to somebody else or even the mere fact that you surrender your information to the public doesn't mean that the government can aggregate all that information, analyze it without worrying the fourth amendment will be implicated at all. i think the judge -- those five justices endorse that and that the fourth amendment is not indifferent to that kind of analysis. what that means for the fourth amendment to have been implemented by that is still i think an open question and something i think the lower courts are going to have to deal with and a question i think we will have to deal with in this case. because the constitutional question here is whether the government -- i know bob doesn't like the world but dragnet analysis in this e

these were debates we followed and also these two women, justices sotomayor and kagen very qualified. justice sotomayor, when the vote was held, more than 75% of the senators voted against her confirmation on the supreme court. elena kagan, 88% voted against her nomination to be on the supreme court. we could look at courts that aren't the two highest in the land and see that there have been more appointments of women judges, and that's a good thing and i hope there are more still. when you get to the d.c. circuit and the supreme court it seems like there is a double standard. it seems like this phantom workload issue gets raised when it suits one side and then immediately dropped a couple months later only to be raised again to block women candidates, and i think that is a very, very serious concern. congress set the law that there is 11 judges on this court. the president is trying to comply with the mandate of congress in putting well-qualified women before this body, and we should debate their qualifications, and if folks have concerns about those, well, then, let's have that deba

and justice sotomayor pointed out that data they are collecting from our cellphones reveals personal, sexual, professional and other connections. it can tell if we are meeting with a lover or competitive employer. it is all sensitive information. >> professor lori andrews. "i know who you are and i saw what you did" is the name of the book. you tell the story of a kodak theme in your book. what is that? >> this privacy issue is nothing new. you get people saying privacy is dead now there is social network. but every technology back to 125 years people said the samethi. so in 1888, the kodak theme was the first portable camera. you would have to go into a studio and pose if you wanted your picture taken before that. but when the portable came out in 1888, there were opt-eds all over saying watching out for the kodak theme. it is like tagging on facebook where your friends put up an unflattering photo. but the law caught up and the law said you have a right to not have your privacy invaded by someone coming on your property and taking your photos or doing ads with your photo. when wiret

justice sotomayor wrote a concurrence that stressed the limit of the opinion. one limit being that the report, as to which there was no live witness for, was never -- was introduced in to evidence. the obvious question then becomes what if it's not introduced in to evidence? and that is the williams case. in williams, a state lab shipped having having vaginal swabs off to a lab in maryland. it deduced a rate of profiled. it's not always a trivial matter, by the way, and requires judgment. mixed samples are issuing -- especially low quantity of dna. anyway, they deduced the profile, wrote a report, and accident back. an analyst from illinois punched in the profile to the computer, which searched the illinois data base, got a hit to mr. williams, and she also used another software program called pop stats too come up with a probability even lower than the ones we heard this morning. one in for an un-related person sharing picked at random having the same types. .. >> it is not a confrontation issue because the laboratory was not accused. but five justices said wh

you see that not only what's described as a shadow majority in jones, the concurrence of sotomayor and alitos, but it's in kagen and the dog-smith case to bridge the republican expectation of privacy doctrine with the physical trespass doctrine familiar to justice scalia. i think the court is anticipating, in fact, there will be a change. personally, i worked on this on the amendments to the wiretap act back in 1986. we were well awar of the smith decision and the pen register and trap and traition division came from an issue of statute to overturn smith versus maryland. it's quite odd to me 25 years later to see this tangible records provision within fisa being usedded effectively as an end run around congress, what congress thought it had addressed in 1986, but here's my last point, and i think to just pull a couple key issues together. i think in our modern digital age and noting the value that this information does have to the government and the conduct of surveillance, our wiretap act is almost upside down. we protect the content of communications for historical reasons. we give t

and you see the shadow majority in jones which is the concurrence of sotomayor and alito opinion but you also see in it in the dog smith case where she actually tries toe fwridge reasonable expectation of deprive cri doctrine with the -- i think the court is anticipating that there will in fact be a change. i worked on the amendments to the wiretap act back in 1986, we were well aware of the smith decision and the plates the pin register and trap and plates to overturn smith v maryland so it's actually odd to me 25 years late tore see this tangible records provision with fisa being used effectively to run what congress thought it had addressed in 1986, but here's my point to pull a couple key issues together i think in our modern digital age and knowing the value this information does have to the government and the conduct of surveils, a wiretap act the almost upside down. we protect the content of communications for historical reasons. we give the transactional data associated with communications minimal -- but the content is not as easily processed. it doesn't show the timing and c

. >> justice sotomayor i think it gets down to the difference between raache and lopez which this court is held as a classic and rational way to regulate commerce to basically prohibit certain items from congress. >> there is no dispute that these chemicals were transported along interstate lines. that's not even disputed in this case. >> i don't think it was disputed and lopez that the firearm would have had to cross-state lines but the problem and lopez was the federal statute was not sure it should in a way that had jurisdictional nexus that made the statute applicable. >> we could take this case to decide the commerce clause issue did it? it asserts it now but as we take the case the issue is whether the treaty supported the laws. >> that's right justice scalia and we think the government like a private party can weigh the constitutional argument. on the other hand i would say we are not particularly concerned about the commerce clause argument because we think the argument has the same basic effect is the treaty power argument. >> do you think mr. clement and this goes back to just

laycock, would you >> justice sotomayor. >> assuming -- you hear the 0 resistance of some members of the court to sitting as arbiters of what's sectarian and nonsectarian, and i join some skepticism as to knowing exactly where to join that line. assuming you accept that, what would be the test that you would proffer, taking out your preferred announcement that this prayer has to be nonsectarian? >> well, the test that we have proffered is the test from the mccreary dissent, points on which believers are known to disagree. so you don't have to be a theologian. points on which people are commonly known to disagree, and the fourth circuit has had no difficulty administering this rule. the cases that come to it are clearly sectarian or clearly nonsectarian. >> it just seems to me that enforcing that standard and the standard i suggested involves the state very heavily in the censorship and and the approval or disapproval of prayers. >> but it's not censorship when it's the governmental >> that may play ultimately in your position if we say that that's why there shouldn't be any prayer at

sonja sotomayor confirmed with republican support. elaina kagan to the united states of the supreme court. confirm with republican support. and again, the record is very clear. there have been only 42 of more than 1,500 overall appointees that failed to get confirmed by the senate. this is a red herring and i do believe what senator mcconnell said today is absolutely correct. this is an attempt to change the subject from the disastrous roll youft obama care. what has plunged democratic approval ratings to new lows. it won't help grid lock. it will make grid lock that much worse and i think it is a dark day for the senate. >> first off, mel watt is a haley qualified ten-year member of the house committee. >> i would agree. >> they're blocking him for political reasons. one of the thing that i think pushed this over the edge is that mitch mcconnell has publicly said if and when the republicans take control of the senate, they will repeal the filibuster. senator mcconnell has said that. and i think democrats take him at his word. >> i li

he had to turn against sonia sotomayor and against the dream act and every other form of immigration reform. he tried to softly jump toward immigration reform and got shellacked. she's now on the sidelines just wishing he could be chris christie's friend. if he doesn't want to be marco rubio, he's going to have to not an apostate ever again. he has to go way to the right just goet the base on his side. >> there is way out for chris christie? he hopes for a circular firing squad with cruz, rubio, rand paul, they all can sort of divide up the base. he gets through to new hampshire, and he's ready-made as a republican in the primary in places like pennsylvania, ohio, you know, california, maybe even florida. i mean, in the right -- given the right set of circumstances, coming across as a brash guy who can sort of still tout conservative credentials, he's not out of the picture. now, i think in a one-to-one race with a tea party guy, anybody probably loses given where the base of the party is, but there may be a way to thread a needle. i know when we're talking about chris christie, thre

justice sotomayor seemed to hint that she would like to take a look at the fact that now third party surveillance, so if someone wells remotely turns on my -- someone else remotely turns on my laptop camera, police can use those pictures. she's thinking we need to reconsider this third party doctrine that if the police get it from somebody else's surveillance, they can use it. i think we may see a case about that. but i think we'll see some cases where people have actually had financial losses based on information collected about them that may, in fact, not have been true. i mean, just because i shop at a bargain web site doesn't mean i'm going to be someone who doesn't pay off her credit card bills. the problem has been that most people don't even realize this is occurring, and so they haven't been able to come forth to say i was harmed in this way. i lost a mortgage as a result, i lost a job as a result. but i think we'll ultimately see people who are a little more tech-savvy finding out the cause and those cases going to court. >> in your book "i know who you are and i saw what yo

remember, republican senators more than 75% of them voted against both sonia sotomayor and elena kagan to go to the supreme court and now they're using a preconnectal argument to block caitlin and pattie millett that was nowhere to be found when we approved shree a few months ago. i have a little bit of a concern there is also a double standard with respect to women candidates on this second highest court in the land. >> hi, senator. this is evan mcmorris-santoro from buzzfeed. i saw that in your statement about women nominees. are you really saying that republicans do not want women on the bench? >> you know, again, i've only been here ten months, but i'm just really struck in ten months we had three d.c. circuit appointments, in other courts that are thought to be lower courts, we have in a bipartisan way approved women candidates. but at the supreme court, sotomayor and kagan, more than 75% of republicans voted against both of them, and on this court, just in ten months we had a woman candidate up, caitlin haligan, the work load is not sufficient, we're going to have to block her. s

eric holder, susan rice, van jones, sonja sotomayor and tom perez, it sounds -- something about each of those names to give me a picture in my head. what am i thinking, e.j.? >> i can't possibly read your mind, karen. i mean, you have to tell us. but i think, look. i don't want to charge racism here. you need proof for that. s if true that eric holder is the first african-american attorney general. it is not surprising that people ask that question. but the fact is i think his highest crime in their eyes is that he doesn't agree with them. in particular, which is not a crime. which is not against the law. >> right. >> as last i checked. thank goodness. and i think one of the things they really do hold against him, it's striking on that list of congressman to impeach him, there are a bunch of names, republicans of texas. >> yep. >> eric holder has been very clear that he is going to enforce the voting rights act even though the supreme court knocked down part of it. and he's trying to use other parts of the voting rights act to knock down some of these voter suppression laws that have

justice ginsburg, justice breyer, sotomayor, and kagan. the other justices that sided with scalia were clarence thomas and samuel alito. and even though they did not sign the ruling that the other two justices on the court, justice roberts and justice kennedy also sided with scalia on this ruling. so this was the two sides in this really important texas abortion ruling this week. but look at this breakdown. the side voting to keep the clinics open in texas, those judges were appointed by prp prm, president obama, president clinton, president clinton. the side that voted to shut down the clinics, those justices were appointed by george w. bush, george w. bush, george h.w. bush, ronald reagan, ronald reagan. notice a trend? notice any pattern here? presidents appoint judges. this is one of the fundamental things that presidents do. if you boil presidents down, this is one of the last things left in the pot of gelatinous down there. it is one of the most fundamental and consequential things that american presidents do. it is part and parcel o

and justice sotomayor asked, not just mr. hunger supporting the up to, but the obama administration came in on the side of the town, and she asked the deputy solicitor general, whwho would not stand up if a minister said stand and bow your head in prayer before a local government body that was going to vote on your petition. >> brown: now what about the argument by the lawyer representing the two wim we saw? >> the two women were represented by eye well-known religion clause scholar, douglas lacot of the virginia school of law. he was saying there was coercion here. he disagreed with the other lawyers that the prayer here was separated in time from actions by the town board or things like zoning petitions, so there was coercion. but he also said that he was not saying there can never be prayer at legislative meetings. >> brown: they're not going that far. >> so, he said what they are arguing is you cannot have sectarian prayers. you have to have nonsectarian prayers. >> brown: and then the definition of sectarian became an is

justice sotomayor raised concerns about syria saying this is now at the forefront of our foreign policy and what you're arguing could really hamper the united states in future negotiations. >> ifill: and the united states would have its sovereignty compromised by this international treaty. >> exactly. and some of the justices, for example justice kagan, pointed out that the backup argument by mr. clement would force judges to get into line drawing about what conduct is covered and what isn't and in essence force them into the minds of treaty makers. >> ifill: justice alito made reference to trick-or-treating. you guys were all over the map today. >> (laughs) absolutely. the government was represented by the solicitor general of the united states, donald verrilli, and justice alito in order to show, i think, how he feels this law can cover such broad conduct said to him "well, what would you say if i told you la that last week-- which was halloween-- my wife and i handed out a chemical that is dangerous under this convention to animals. the convention prohibits the harming or the killing

laycock, would you >> justice sotomayor. >> assuming -- you hear the 0 resistance of some members of the court to sitting as arbiters of what's sectarian and nonsectarian, and i join some skepticism as to knowing exactly where to join that line. assuming you accept that, what would be the test that you would proffer, taking out your preferred announcement that this prayer has to be nonsectarian? >> well, the test that we have proffered is the test from the mccreary dissent, points on which believers are known to disagree. so you don't have to be a theologian. points on which people are commonly known to disagree, and the fourth circuit has had no difficulty administering this rule. the cases that come to it are clearly sectarian or clearly nonsectarian. >> it just seems to me that enforcing that standard and the standard i suggested involves the state very heavily in the censorship and and the approval or disapproval of prayers. >> but it's not censorship when it's the governmental >> that may play ultimately in your position if we say that that's why there shouldn't be any prayer at

justice sotomayor or stressed the limits of the opinion. , aslimited being the report to which there is no live nevers for, was introduced into evidence. the question becomes what if it is not introduced into evidence? that is the williams case. in williams, this is off to a firm in maryland. the firm deduced the rapist's profile that often requires a judgment, mixed samples, or producing real issues. especially when there are low quantities of dna. they wrote a report and sent it back to the state. an analyst from illinois punched in the profile to the computer which search the database, that a hit and she also use another to come up with a probability even lower than the ones we heard this morning. this is 12 zeros for an picked atperson random. not attemptte did to introduce the report. instant it called the illinois analyst to describe her database. there is noor said confrontation because i am not getting what another lab did. the prosecutor referred to the male dna profile found in the semen which the analyst had no direct involvement either. i am going to go through the main t

my colleagues, justice sotomayor your, i think she did 92. 81 senators, i went to them one by one to each of their offices. some of them would just be kind of meeting great, 10 minutes, you take a picture and say hi, you go your merry way. others of them were extremely substantive and interest in serious conversations. senators would try to figure out what you were all about. and what your approach to the law might be. and for the most part, i enjoyed all of those conversations enormously. there were rules about you what you -- rules about what you couldn't could not say. sometimes it was difficult to figure out what the boundaries were. it was a little bit of a challenge. but for the most part, these were called courtesy visits for a reason. everyone was very gracious. people knew that they were going to vote for me. people knew that they were going to vote against me. there were relatively few people who were undecided. i enjoyed them. i enjoyed putting names to faces and seeing what these people were like. i enjoy conversing with them. that was pretty much it. then you get to the

my colleagues, justice sotomayor, i think she did 92. 81 senators, i went to them one by one to each of their offices. some of them would just be kind of meeting great, 10 minutes, you take a picture and say hi, you go your merry way. others of them were extremely substantive and interest in serious conversations. senators would try to figure out what you were all about. and what your approach to the law might be. and for the most part, i enjoyed all of those conversations enormously. there were rules about what you could and could not say. sometimes it was difficult to figure out what the boundaries were. it was a little bit of a challenge. but for the most part, these were called courtesy visits for a reason. everyone was very gracious. people knew that they were going to vote for me. people knew that they were going to vote against me. there were relatively few people who were undecided. i enjoyed them. i enjoyed putting names to faces and seeing what these people were like. i enjoy conversing with them. that was pretty much it. then you get to the hearings themselves, and i have

once we got an injunction before then-judge sotomayor, now justice, the players returned to the field. the owners accepted them, and the parties negotiated a comprehensive collective bargaining agreement. and there has been peace in baseball. and i dare say a good deal of prosperity ever since that period. so this book really comes from all of these perspectives; as an observer, as a player and someone who's been involved both as an arbitrator and a government official. >> host: how did we get to the point where your national labor relations board had to intervene? what occurred up to 1994? >> guest: well, until 1994 we had what i call in the book a 30 years' war really resulting principally out of a decision by an arbitrator in 1975, peter sykes, which created free agency for baseball players. many people, many of your viewers and many others throughout the country will know of a man named kurt flood who was an outfielder for the st. louis cardinals who brought an antitrust action which went to the supreme court. he lost, but others -- andy messersmith and dave mcnally -- won before

initiative the employer wanted to see past is not illegal per se peter: did a great pause to justice sonia sotomayor saying it had the feel that it could potentially be a bribe what justices have to focus on is the other side of the equation whether the employer illegally give something of value to the union by providing the union with employee contact information by giving access to employees at the workplace and pgreeing to stay neutral on organizing. and injustices indicated use those items as quote makes things of value as the law says the the union's attorney says if so, unions and employers will lose the opportunity to sit down, trade things either side really wants and hand wrapped their agreements in friendly fashion. >> i have been in all kinds of collective bargaining. collective bargaining that occurs after a union gets recognized without a knockdown drag out fight are much better. anybody with experience in negotiations would recognize it is easier to deal with someone you are getting along with an somebody who comes in feeling they have just been in a life-and-death struggle. >> experts

my colleagues, justice sotomayor your, i think she did 92. 81 senators, i went to them one by one to each of their offices. some of them would just be kind of meeting great, 10 minutes, you take a picture and say hi, you go your merry way. others of them were extremely substantive and interest in serious conversations. senators would try to figure out what you were all about. and what your approach to the law might be. enjoyedthe most part, i all of those conversations enormously. there were rules about you what you -- rules about what you couldn't could not say. sometimes it was difficult to figure out what the boundaries were. it was a little bit of a challenge. part, thesemost were called courtesy visits for a reason. everyone was very gracious. people knew that they were going to vote for me. people knew that they were going to vote against me. there were relatively few people who were undecided. i enjoyed them. i enjoyed putting names to faces and seeing what these people were like. i enjoy conversing with them. that was pretty much it. then you get to the hearings to admits, an

. >> justice sotomayor echo club points. generally you might be right that the criminal law takes objects that are otherwise innocent and are used in a malicious way but most of that work is done by state and local criminal law but at the federal level you need something else. you need a jurisdictional element something that has a distinct federal concern. as to the concerns about, the treaty power, i don't think when there's this much of a disconnect between what the treaty power destin with the statute does which is the treaty again does not regulate at all individual conduct. it's regulated by nation-state conduct. with all due respect i don't think nation-states poison -- so when individuals do those things i think it's hard to draw an analogy to what's forbid into a nation-state in the individual action. but any work that is done in a statute by drawing that analogy is done by the statute and not by the conviction -- convention. >> what if the terrorists took these chemicals and put them on every doorknob in boston. tha

laycock, would you -- >> justice sotomayor. >> assuming you hear the resistance of some members of the court to city as arbiters of what sector in nonsectarian, and i joined some skepticism as to knowing exactly where to join that line. assuming you accept that, what would be the test that you would proffer, taking out your preferred announcement that this prayer has to be nonsectarian? >> well, the test that we have proffered is the test from the mccreary dissent, points on which believers are known to disagree. so you don't have to be a theologian. points on which people are commonly known to disagree, and the fourth circuit has had no difficulty administering israel. the cases that come to our clergy sectarian or clearly not sectarian. >> it just seems to me that enforcing that standard and the standard i suggested and false the state very heavily in the censorship and the approval or disapproval of prayers. >> but it's not censorship when it's the governmental -- >> that may play ultimate in your position if we say that that's why there shouldn't be any prayer at all. but then you

look at the history here, the last two women that were put on to the supreme court -- sonia society -- sotomayor and elena kagan, 75% of the senate voted against them. you have that history compared with the women who have been denied here. it's very troublesome to me to see that. i don't know. i think we're supposed to wrap up. i don't know if you have any closing comments to do that. mr. merkley: i thank my colleague from new mexico for his leadership in trying to restore this senate so it will work, work on legislation, work on executive nominations, work on judicial nominations. the country has a low opinion of the function of our chamber, and we certainly do not deserve a high opinion when we're captured by this level of partisan paralysis. so i look forward to continuing to work together to help restore this body as a great deliberative body that can fulfill its responsibilities under our constitution. thank you, mr. president. a senator: mr. president? the presiding officer: the senator from nebraska. mr. johanns: mr. president, i come to the floor today to discuss the reports i've heard

my colleagues, justice sotomayor your, i think she did 92. 81 senators, i went to them one by one to each of their offices. some of them would just be kind of meeting great, 10 minutes, you take a picture and say hi, you go your merry way. others of them were extremely substantive and interest in serious conversations. senators would try to figure out what you were all about. and what your approach to the law might be. and for the most part, i enjoyed all of those conversations enormously. there were rules about you what you -- rules about what you couldn't could not say. sometimes it was difficult to figure out what the boundaries were. it was a little bit of a challenge. but for the most part, these were called courtesy visits for a reason. everyone was very gracious. people knew that they were going to vote for me. people knew that they were going to vote against me. there were relatively few people who were undecided. i enjoyed them. i enjoyed putting names to faces and seeing what these people were like. i enjoy conversing with them. that was pretty much it. then you get to the

laycock, would you >> justice sotomayor. >> assuming -- you hear the 0 resistance of some members of the court to sitting as arbiters of what's sectarian and nonsectarian, and i join some skepticism as to knowing exactly where to join that line. assuming you accept that, what would be the test that you would proffer, taking out your preferred announcement that this prayer has to be nonsectarian? >> well, the test that we have proffered is the test from the mccreary dissent, points on which believers are known to disagree. so you don't have to be a theologian. points on which people are commonly known to disagree, and the fourth circuit has had no difficulty administering this rule. the cases that come to it are clearly sectarian or clearly nonsectarian. >> it just see to me that enforcing that standard and the standard i suggested involves the state very heavily in the censorship and and the approval or disapproval of prayers. >> but it's not censorship when it's the governmental >> that may play ultimately in your position if we say that that's why there shouldn't be any prayer at a

you know that i would say five justices and jones it's not just justice sotomayor but justice alito's opinion recognizing that there is a new threat to privacy presented by the aggregation of all of this information that we make available either to the public in some sense or third parties and i think there are five justices in jones who are basically saying that the mere fact that you release information that you surrender your information to somebody else or even the mere fact that you surrender your information to the public doesn't mean that the government can aggregate all that information, analyze it without worrying that the fourth amendment will be vindicated at all. i think jones stands for the proposition. those five justices endorsed the proposition that the fourth amendment is not indifferent to that kind of aggregation and analysis. now what that means in practice and what it means for the fourth amendment to have been implicated with that kind of aggregation and analysis is an open question and something to lower courts are going to have to deal with and it's a question