Army Maj. Nidal Malik Hasan

Jeffrey Toobin | Bio
CNN Senior Legal Analyst
New Yorker Columnist

Cabinet members may end up negotiating which legal system will try Army Maj. Nidal Malik Hasan, the suspect in last week's mass shooting at Fort Hood in Texas, CNN senior legal analyst Jeffrey Toobin said Tuesday.

Thirteen people - 12 of them soldiers - were killed and 42 wounded Thursday when a gunman opened fire at the post's Soldier Readiness Center. A police officer shot Hasan, the only suspect, ending the carnage.

Hasan remains in intensive care at Brooke Army Medical Center in San Antonio, Texas, but is breathing on his own and talking, hospital spokesman Dewey Mitchell said.

Toobin addressed questions about the case Tuesday morning.

CNN: In which legal system will Hasan be tried?

Jeffrey Toobin: We know for certain it will not be in state court. There's exclusive federal jurisdiction on an Army base. They will have to decide whether they want to do it as a court-martial or as a federal prosecution in United States District Court.

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Program Note: Tune in tonight for more from Jeffrey Toobin on Sen. Kennedy's influence on the Supreme Court. AC360° 10 p.m. ET.

Jeffrey Toobin | Bio
CNN Senior Legal Analyst
New Yorker Columnist

The vote to confirm Sonia Sotomayor last month was sixty-eight to thirty-one—but the one senator who was missing may have had more influence over the Supreme Court than any in history. Edward M. Kennedy won election in 1962, voted on every nominee from Abe Fortas in 1965 to Samuel A. Alito, Jr., in 2005, and to an unprecedented extent shaped the composition of the Court itself.

Early in his tenure, in 1969 and 1970, Kennedy helped lead the fight to defeat two of President Nixon’s nominees, Clement Haynsworth and Harrold Carswell, both of whom lost by narrow margins. In 1971, Kennedy was one of only twenty-six senators to oppose the nomination of William H. Rehnquist as an associate justice. (Kennedy voted against Rehnquist for Chief Justice, too, in 1986).

Still, the summit of Kennedy’s influence on the Court—and perhaps his career as a senator—was his role in the fight over Robert H. Bork’s nomination in 1987. Kennedy was fifty-five at the time, his dreams of the Presidency having been put away for good nearly a decade earlier. At the time, Kennedy had little to gain politically by leading the opposition to Bork, but he did it nonetheless, and he did it with a passion that has defined Supreme Court fights ever since.

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Sonia Sotomayor appears to view the Constitution much like retired Justice David Souter did.

Jeffrey Toobin
CNN Senior Analyst

One of the enduring myths about Supreme Court justices is that they often turn out to "surprise" the presidents who appoint them. Sure-thing conservatives, it is said, turn out to be liberals, ­and vice versa. In fact, the evidence is almost entirely the opposite: that with justices, as in life, what you see is what you get.

The question, then, is this: What do you see when you look at Sonia Sotomayor, who begins her confirmation hearings as a strong favorite for confirmation?

She is, above all, a veteran judge ­who has 18 years on the federal bench: six as a trial judge (appointed by President George H.W. Bush) and the rest on the court of appeals (appointed by President Clinton). The question of competence is closed. Sotomayor can do the job. It's no surprise that she received a unanimous rating of well-qualified from the American Bar Association screening committee.

But what would she stand for as a Supreme Court justice? She is, it seems, a liberal,­ but a liberal in the cautious and careful mode of her likely future colleagues Ruth Bader Ginsburg and Stephen Breyer.

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AC360°

Erica and Anderson have been reminiscing about their first concerts. Anderson couldn’t remember if his was Grandmaster Flash, the Furious Five or Elvis Costello. Erica admitted she saw Peter, Paul, and Mary with her dad.

That got all of us thinking about our own first concerts. What was yours?

We asked you to guess the first concerts of AC360° Contributors.

Here are some answers.

David Gergen: "That was a long time ago - maybe the late 50s - and I can't remember whether it was Perry Como or Bo Diddley - or whether I was wearing white shoes or a bomber jacket."

Tom Foreman: "My first real concert was a whopper: Elvis Presley when I was 16 years old." Read Tom Foreman's post on his experience here.

Jeffrey Toobin: "I went to a Chicago concert at Madison Square Garden. At the end of the concert, everyone lit matches and held them in the air. I thought this was evidence that this was the greatest concert ever. (I didn't realize this was done at every concert, all the time.)"

Gloria Borger: "I remember my fist concert. It was Livingston Taylor, and I went with my (now) husband while we were in college. Too bad I was really disappointed because I thought he was taking me to see James Taylor, his brother. It turned out to be fine, although the only song I can remember now is "Carolina Day," which I would swear is a James Taylor song. But it's not; I looked it up. The next concert event was much better: The Chambers Brothers. I recall the only song they played was "Time Has Come Today." In fact, I think the set isn't over yet!"

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Judge Sonia Sotomayor would be the first Hispanic woman to serve on the Supreme Court.

Jeffrey Toobin | Bio
CNN Senior Legal Analyst
New Yorker Columnist

Sixth Catholic. Second woman. Third New Yorker. (First from the Bronx. Ruth Bader Ginsburg hails from Brooklyn, Antonin Scalia from Queens.) First Hispanic. It’s understandable and appropriate to examine Sonia Sotomayor’s nomination to the Supreme Court according to the customary demographic designations. And it’s interesting, too, to learn (as we will at great length) about her remarkable personal story. (Raised in a single-parent home, in a housing project; summa cum laude at Princeton; Yale Law School; prosecutor under Robert Morgenthau.)

But it’s worth noting that the things we talk about now, during the confirmation process, tend to mean little down the road, when it really counts. John Paul Stevens had the opposite of a hard-luck story. (Raised in a luxury hotel in Chicago—the Stevens Hotel.) The question about Anthony Kennedy was whether he had resigned at the appropriate time from a restricted club. The National Organization for Women put out a leaflet that said, “Stop Souter—Or Women Will Die.” All of this was either irrelevant or (as with Souter) simply wrong. Only on rare occasions do we learn things of real importance—as we did, in 1991, about Clarence Thomas.

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Anderson Cooper talks with his panel about a Gitmo detainee coming to the United States for trial.

Program Note: Tune in tonight to hear more from Jeffrey Toobin tonight on AC360° at 10 p.m. ET.

Jeffrey Toobin
CNN Senior Legal Analyst

Today the House gave Sen. Tom Coburn (R-Okla.) his way when it passed the gun measure he attached to the credit card bill. (The Senate passed it Tuesday.) The provision allows visitors to national parks to carry loaded weapons if the weapons would be legal in the rest of the state. Bottom line: Both plastic-carrying and pistol-packing Americans get new protections under the legislation headed to President Obama’s desk.

In a written statement, Sen. Coburn said he wanted park visitors to be able to defend themselves against crime. We’ll have to take him at his word, but we can’t help noting that National Parks have some of the lowest crime rates in the United States.

Supporters of the gun provision also argued the amendment eliminates confusion about where gun owners can carry their weapons. Here’s what they’re talking about: Starting in the 80s, park visitors were allowed to bring guns inside parks only if they were dismantled or unloaded and stored in a car trunk. That federal rule applied even in states where people could carry a loaded gun in other public places. In January, just before leaving office, President Bush overturned the ban on loaded weapons in national parks. But in March, a district judge struck down his move, pending a required environmental impact study. Today, the tables turned again, producing a high-five moment for President Bush and gun lobbyists.

So does this open the door for the gun lobby to push for even greater gains? Will hospitals and schools remain off-limits to loaded guns? It’s an open question. In a well-known case from 1994, the U.S. Supreme Court struck down the federal law barring guns within a certain distance of schools. The conservative majority said these kinds of laws were a state issue, not a federal issue.

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Editor's Note: A Minnesota judge issued an arrest warrant Tuesday for the mother of Daniel Hauser, a 13-year-old boy who is refusing treatment for his cancer, after neither she nor the boy showed up for a court appearance.

Doctors say Daniel Hauser's lymphoma responded well to a first round of chemotherapy in February.

Anderson Cooper spoke with CNN Senior Legal Analyst Jeffrey Toobin and Arthur Caplan, Chairman of the Department of Medical Ethics at the University of Pennsylvania.

Cooper: Dr. Caplan, is this a tough call for you?

Dr. Caplan: It's not a tough call for me, Anderson. When you compel treatment, it has to be something that's well established and proven. This is. The chemotherapy success rate for the cancer that this boy has, if we can get it going soon, is about 95%. It's very, very good. You wouldn't push as hard if you had an experimental treatment or something that was iffy. Other facts, if you look at the situation with the chemotherapy, the alternative the parents proposed is well known to have a success rate of zero. So sometimes you can say, well, you know, the parents prefer surgery. We prefer chemo. Let's go with what they want first. you've got to move to save this child's life. Parental rights are strong, but they do have a limit when you're basically sacrificing your child for a religious belief that they themselves can't articulate.

Cooper: Dr. Caplan, though, it may be tough to actually give this boy treatment. He's saying he's going to kick and refuse, you know, and make it difficult for doctors to put any needles in him. How do you deal with that?

Dr. Caplan: Well, I'll tell you, I've seen these cases. What happens is, you've got the dad who's already started to come around and say maybe chemo. They'll work with a psychologist. They will try very hard to bring the boy around. And I will tell you, Anderson, there's a lot of success in sort of swaying people once they understand and see one of their parents start to waver. I've never seen a case where you actually had to strap a child down and sedate them and administer chemotherapy that way. Could happen, but most of the time when parents begin to sort of change their minds and the dad is here, you get the kid to come on, too.

Cooper: Art, are you surprised to hear that maybe the dad is starting to change his mind, or you say that's what often happens in these cases?

Dr. Caplan: It often happens that way. When you're really up against it and you start to realize the doctors are saying this is the cure and you've got to go with it, pretty soon, or you're going to miss the opportunity, one or both parents usually begin to waver. One other point, Anderson, you can sometimes get a parent who holds out to work with you, saying you pray, you do the ceremonies, healing ceremonies you want, we'll do the chemo, we can work together. That sometimes brings them around, too.

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