BOB SCHIEFFER: And good morning again. Senator Leahy, the chairman of the Judiciary Committee and the committee's ranking Republican, Senator Jeff Sessions , are in the studio with us this morning. And we invited them here, of course, to preview the hearings that open tomorrow on the nomination of Sonia Sotomayor to the Supreme Court. And we will get to that.

But first, gentlemen, to the top of the news. Two big stories this morning. One in the New York Times that says Vice President Cheney ordered the CIA not to tell Congress about certain still-secret programs. That would be against the law. And that the administration is now considering appointing a special prosecutor to investigate allegations of torture during the previous administration. Attorney General Eric Holder now said to be leaning toward doing that, even though President Obama has said he didn't want to go there, that he wanted to look forward, not backward.

So let's start with you, Senator Leahy. What about this? Should a special prosecutor be appointed?

LEAHY: I've always preferred my idea of a commission of inquiry to look at all these issues, whether people broke the law or whether, as some feel, some in the past administration actually wrote memos telling people that they could break the law, that somehow they were above the law. They got the (inaudible)...

SCHIEFFER: But what about -- that's different than appointing a special prosecutor.

LEAHY: Yes, but here's the point. The inquiry would go into everything. A special prosecutor is said to be very narrowly focused. We have one now looking into the destruction of the CIA tapes, but this would be, at least as I read the stories, very specific and focused.

Obviously, Eric Holder is a superb attorney general. He's going to make up his mind what is the best thing to do. I just don't want to see an instance where if the higher-ups gave the order to break the law, that the ones who get punished are the people basically on the front line, the lower-level troops.

SCHIEFFER: So what does that mean? Does that mean you're for a special prosecutor or you're rather -- not?

LEAHY: No, I'm not going to interfere with the special prosecutor. That's entirely up to the attorney general.

SCHIEFFER: Would you advise him to do that?

LEAHY: I would love to see -- my advice to him is -- I keep private. Therefore, it's usually more worthwhile. But I will -- I would like to see the inquiry -- I think they may have some problems doing both, because the commission of inquiry I talked about would have given immunity to go into all this. Obviously we are not going to want to do that if there's criminal prosecutions being looked at. Maybe some of the people who were opposed to the commission of inquiry, now, facing the possibility of criminal prosecution, may find it a more acceptable idea.

SCHIEFFER: All right. Well, Senator Sessions, what about you? A special prosecutor?

SESSIONS: Bob, I don't know. We've had probably in my committees -- the Judiciary and Armed Services -- 30 or more hearings on this. The Intelligence Committee has had great numbers of hearings and written reports on it. The military has done a series of independent reports.

And I believe that that is sufficient. I don't believe a special commission is necessary. And I would hate it, and it would be so sad to me that if the attorney general felt he had to do a special prosecutor.

The president said-- there's no doubt about it-- he said I want to use every power I have to defend the American people. The American people said, yes. And these soldiers, these intelligence officers all over the world -- I met one who, a year after 9/11, he said at 8:00 at night for dinner, that's the earliest he had left work in the entire year. They were in a dangerous personal circumstance. So we were facing some real challenges. Now people try to do the best they could. And I don't think I see the evidence yet to justify any prosecution.

LEAHY: But that somewhat begs the question, because it's -- I have a great deal of admiration for the CIA agents who are out there working hard on the front line. And like Jeff, I've talked to them, I've met with them in Afghanistan, in Iraq and elsewhere, as well as our soldiers.

But remember what happened at Abu Ghraib. We made a big inquiry, and who gets punished? Mostly the corporals and the lower echelon, not the people who condoned that.

If, as the New York Times says, we have the vice president of the United States telling people to break the law, that's a pretty serious matter.

Either he did or he didn't. If he did, that's something we ought to know, because I've been here with six administrations. Usually if something is done wrong by one and it's exposed, the next one tends to behave themselves.

(CROSSTALK)

SESSIONS: I would just say on that Abu Ghraib, there was no evidence that the higher-ups participated in any way. In fact one of those defendants that was tried and convicted and went to jail said that, no, they didn't know. And if they had, there would have been hell to pay.

In other words, it wouldn't have happened. It was an unusual event. And the military did the right thing and prosecuted the people who were responsible.

SCHIEFFER: Well, what about this whole idea though, Senator Sessions, that the vice president is now -- people are saying -- I mean, sources are saying that he told the CIA not to tell the Congress about it? Now that's pretty serious stuff.

SESSIONS: Well, sources, sources. I mean, we've had so much allegation...

SCHIEFFER: But shouldn't that be looked into?

SESSIONS: Well, I'm sure it will be. But I would just say that sometimes leaked stories from unnamed sources don't turn out to be quite what they appear to be. Maybe they don't know the full facts and so forth in these matters.

Some of the Intelligence Committee people are pushing back on those stories. I don't know what the facts are. But I believe that Vice President Cheney served his country with as much fidelity as he could possibly give to it. And he tried to serve us in an effective way. And I hope that nothing like this would impact on his outstanding record.

SCHIEFFER: So what about that though, Senator? Should we just leave that lay or do you think...

(CROSSTALK)

LEAHY: Well, I think it's impossible to just leave it lay when you have something like this. It's either true or it's not true. I'd like to know if it's true or not. I mean, nobody in this country is above the law. If you don't like what the law says, then get the law changed.

But you can't have somebody say, well, if you're vice president, you don't have to obey the law. But if you're the soldier out this in the field or if you're a civilian, you had better obey the law. You can't do that. Democracy can't do that.

SCHIEFFER: All right. Well, let's turn to the hearings that open tomorrow on the nomination of Sonia Sotomayor. She has visited now with over 89 senators over these past weeks. There is also an overwhelming Democratic majority. And there's an overwhelming Democratic majority on the committee that you chair, Senator Leahy.

Some people are saying it's already a done deal. That she's going to be confirmed and that's there's nothing Senator Sessions and other -- and the Republicans can do about it. Is she going to be confirmed?

LEAHY: I suspect she will be confirmed. But you know, I would hope that it does not turn into a partisan fight for the good of the courts and for the good of the Supreme Court. Now Chief Justice Roberts is not somebody I would have recommended as a nominee to President Obama. But I voted for him when he was nominated by President Bush because I felt chief justice of the United States should not be on a party-line vote.

I just want to read something about -- there's a profile today of Judge Sotomayor. Says she was inspired by the ideal of neutrality. She said: "I'm not going to be playing for the Hispanic team, the Democratic team, the Republican team. I'm going to be playing for the Constitution team."

I don't know what more you could ask of a judge. And here is...

SCHIEFFER: OK.

LEAHY: And here she is, she has been a judge longer than anybody who has gone on the Supreme Court in almost 100 years.

SCHIEFFER: Well, let's ask Senator Sessions. What more can you ask?

SESSIONS: Well, I wish she had been saying that in her speeches over the last 10 years than what she has been saying. It's absolutely critical that whoever sits on the bench -- and no one should sit on the federal bench who is not committed to the principles of the oath, which is that you should be impartial and do equal justice to the rich and poor alike, and not respect persons but do justice every day.

And in her -- a number of her speeches, for example, she has advocated a view that suggests that your personal experiences, even prejudices -- she uses that word, it's expected that they would influence a decision you make, which is a blow, I think, at the very ideal of American justice.

Every judge must be committed every day to not let their personal politics, their ethnic background, their biases, sympathies, influence the nature of their decision- making process. It's the core of the American system.

LEAHY: Well, that's...

SCHIEFFER: So would you oppose her because of that?

SESSIONS: Well, I think she's going to have to answer that. Because this is a mature judicial philosophy that she has stated. She has criticized the idea that a woman and a man would reach the same result. She expects them to reach different results. I think that's philosophically incompatible with the American system.

LEAHY: I totally disagree with that.

SESSIONS: Well, I've read her speeches in great depth. And I am convinced that's what she said. And it wasn't just the one line: a wise Latina will do a better job than a white male.

SCHIEFFER: Well, she has used that in five different speeches I think, Senator Leahy.

LEAHY: That's grasping at straws and I'll tell you why. Here's a woman who is a mainstream judge. She deserves respect as a judge. During her time actually for the days that she was a very tough prosecutor to her days as a trial judge to a court of appeals judge, that's what we base it on. She has a track record. She has shown to be a mainstream judge. You don't have to guess what kind of a judge she's going to be.

I've asked her about her speeches. And she said ultimately and completely, the law controls. And as a judge, she's shown over and over again that ultimately and completely, the law controls. We've had a lot of judicial nominees of both Republicans and Democrats talk about the background, how that has influenced them. Former President Bush talked about empathy when he nominated a Republican to the Supreme Court. You know, the fact is her answers are these. Ultimately and completely, the law controls. And she has the experience and the cases to be a mainstream judge. Anything else is nitpicking.

SCHIEFFER: Nitpicking?

LEAHY: And it gives the impression that a lot of people were going to oppose anybody, anybody that President Obama came up with.

SESSIONS: I am really flabbergasted by the depth and consistency of her philosophical critique of the ideal of impartial justice. I think that's a real expression of hers. And I think it does not show up as much on the lower court where you're supervised by your circuit in the Supreme Court. It can show up much more on the Supreme Court. She's advocated international law, criticized to the ACLU in April of this year Justice Scalia and Thomas for expressing concern about judges citing foreign law. And praises Justice Ruth Bader Ginsburg for doing so. On issue after issue, she indicates an advocacy position or her position in the firefighters' case was consistent with her series of rulings of lawsuits filed when she was ...

SCHIEFFER: Let me just bring up something about the firefighters' case. This was the case where she ruled against the firefighters who claimed they were discriminated against because they didn't get a promotion up here in Connecticut because minorities did not score high enough on the same test and the whole test was thrown out. Now the Supreme Court reversed her on that case. But People For The American Way, which is a liberal group that supports Sonia Sotomayor, is calling attention to what they call Frank Ricci. He's the central character in this, his litigious and background. And they say, they point out that that he has been fired from another fire department, that he claimed discrimination because he was dyslexic. Did they have a point here?

SESSIONS: No. That's just typical of the personal attacks of People For The American Way and the hard left that is supporting this nomination. These were 18 firefighters who filed this lawsuit, not just Frank Ricci, his name was the first one on the case but 18 of them.

And when you show empathy for one party, Bob, you unnecessarily show a bias against another group. And this is the thing -- I just want to say I think Pat and I would agree on this. We need to think through how we handle these cases today. And do it in a way that is effective legally and her opinion was rejected by the Supreme Court. It was a very important opinion.

SCHIEFFER: Will you try to stop this nomination or will you just use this as what some have said will be an educational moment?

SESSIONS: I hope it is an educational moment because I think we are moving at a cross roads in American jurisprudence. Are we going to adhere to the classical view of the role of a judge as a neutral arbitrator not out to promote an agenda on ideology or are we going to have a restrained judge who follows the law in case after case?

SCHIEFFER: I'm sorry. We're going to have to end it here.

LEAHY: She simply followed what the Supreme Court rulings were at that point. Five members of the court changed their position afterwards. She did what a judge is supposed to do. She followed the court.

SESSIONS: All nine reversed the opinion.

LEAHY: No, five did.

SESSIONS: All nine.

LEAHY: 5-4 decision.