[Congressional Record Volume 151, Number 74 (Tuesday, June 7, 2005)]
[Senate]
[Pages S6143-S6146]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
Role of the Federal Government
Mr. THOMAS. Mr. President, I know it has been a busy day and we are
very much involved, of course, in moving forward with the judge
arrangement, as we should be.
I spent a week in my home State. I guess we always come back with
different ideas. I spent the whole time talking with people and having
town meetings and those kinds of things, and in certainly a little
different atmosphere.
People see a great deal in the news media about what is happening
here, but, of course, what they get is what the media is intending for
them to get, and somehow it is a little bit different. So frankly,
people are a little impatient that we are not moving forward as much as
we might. Certainly, we are working hard here, but the fact is, we have
not moved to many different issues. I believe many of us want to do so.
I think we have spent an awful lot of time on internal kinds of
issues that do not mean a lot to people out in the country. I
understand that. I realize the way things are done here is important to
us, such as changing procedures and all those things. But folks are
talking about energy, folks are interested in a highway bill, people
are interested in health and the cost of health care, such as what you
do in rural areas with health care. There are a lot of these things
that are so very important to people on the ground, and here we are
continuing to talk about how we are going to vote on judges. So they
get a little impatient. I understand that. So I hope we are in the
process of doing something about that.
There is also a great deal of concern, of course, in Government
spending and the deficit. I certainly share that concern. I have been
more and more concerned about it as time has gone by. We have Social
Security before us, about which we need to continue to do something.
Interestingly enough, the issue that came up most often when I was
home in Wyoming is the idea of illegal aliens and illegal immigration
and the great concern about that. I share that concern. Most people
here do. Of course, we are seeking to do something. But perhaps we need
to focus on some of those issues a little more.
I particularly will talk a little bit about spending and about the
deficit. I think that is one of our most important issues. In relation
to that, it seems to me we need to get some sort of an idea of what we
think the role of the Federal Government is. We have kind of gotten in
the position that for anything that is wanted by anyone, why, let's get
the Federal Government to do it. Then we have somebody here on the Hill
who will introduce a bill to do that, and perhaps it has very little
relationship to what we normally think is the role of the Federal
Government.
I think most people would agree with the notion we want to limit the
size of the Federal Government, that we, in fact, want Government to be
as close to the people as can be, and that the things that can be done
at the State level and the county level, the city level, should be done
there, the things that can be done in the private sector should be done
there. I would hope we could come up with some kind of general idea, an
evaluation, of what we think the role of the Federal Government
specifically should be.
The other thing I will comment on a little bit is having some kind of
a system for evaluating programs. We have programs we put into place
when there is a need. Hopefully, there is a need for them. I think it
is also apparent that over a period of time that need may change. But
yet, once a program is in place and people are involved, they build a
constituency around it. It stays in place without a good look at it to
see whether it still belongs there.
These are some of the issues of concern. I think the first step
toward reducing the $400 billion deficit is eliminating waste. Of
course, what is waste to one person may not be waste to another. But
there has to be, again, some definition as to how important things are
relative to our goals and to assess programs that stay in place because
they are there or that are not managed as well as they might be. I
think we have some responsibility to try to ensure that we take a look
at that issue.
There are serious problems facing our Nation today, of course. The
President's budget that he put out proposes eliminating 150 inefficient
and ineffective Government programs. You can imagine what that is going
to mean to people who are involved. ``Something in my town? Something
in my State? We are not going to mess around with that.''
There needs to be some kind of a relatively nonpolitical idea as to
how you do that and what the purposes are. Of course, I see some of
that right now in the military changes that obviously need to be made.
They are difficult to make. So I hope the administration will pursue
this idea of setting up some kind of a program--and I am here to
support it--that evaluates those programs that are in place to see if,
indeed, they are still as important as they were in the beginning.
We have to even go further than that, of course, to curb runaway
spending. I think we can consolidate a number of the duplicative
programs that are out there and save money and make it more efficient
in their services. There are organizations that could manage a number
of programs, each of which now has its own bureaucracy, and to put them
together to make it efficient. I know you will always have people who
say: Well, you are taking away jobs. That is not the purpose of
programs. The purpose of programs is to deliver a service, and to do it
in a way that is as efficient as it can be.
Of course, there are programs that should be eliminated. They have
accomplished what they were there for. We need to have a system. I hope
and I am interested in helping to put together a program that would do
that. There is probably some merit in having a termination to a program
so that after 5 or 10 years, it has to be reevaluated to be extended.
That is one way of doing it. I don't know if it is the only way. That
is something we are going to do, and I would like to do some of that.
The role of the Federal Government, again, if you talk in
generalities, if you talk to people in terms of philosophy, most would
say, we want to keep the Federal Government small. How many times do
you hear people saying: Keep the Federal Government out of my life? Yet
at the same time we have created this kind of culture where whenever
anything is needed or wanted, mostly money, then let's get the Federal
Government to do it.
If we step back and take a look at it and say: Wait a minute, is this
the kind of thing the Federal Government should be involved in or is
this something that could be done more efficiently by a government
closer to the people, I believe we ought to do that.
Some lawmakers here believe the Government is the solution to all of
society's ills. I don't agree with that. I don't believe that. Our role
in the Federal Government is a limited role. Our role is to provide
opportunities, not to provide programs for everything.
Ronald Reagan said: Government is not the solution to our problem.
Government often is the problem. That is true. That doesn't mean there
isn't a role. There is a role, an important role. But we need to help
define that somehow. That vision of limited government has, to a large
extent, been lost. We need to debate. We need to have some discussion,
some idea as to what that role is.
Unfortunately, sometimes the politics of government are are you going
to do everything for everybody because it is good politics. Politics is
not our only goal here. Our goal is to limit government, to provide
services, to provide them efficiently, and to evaluate them as time
goes by.
Unfortunately, when a program gets put into place, it becomes
institutionalized. It is there often without sufficient change. It is a
real challenge. Something we need to do is to develop a plan, a
consistent and organized plan to evaluate programs, to determine
whether they are outdated, to determine whether they are still
necessary, to determine if they could be done in a
[[Page S6144]]
little different way to be more efficient and more effective.
Clearly the Federal Government does have a role. It has a role in
many matters. So our challenge is to determine what the roles are and
then to set it up so that we are as efficient as can be. I know I am
talking in generalities, but I believe these are some things that are
basic to some of the ideas we ought to be talking about and evaluating.
I sense that doesn't happen very much. We sort of are challenged to see
how many programs we can get going. We seem to be challenged to see how
much money we can spend.
I appreciate what the administration is seeking to do to try and
reduce some of the spending. That is very difficult. You can see what
kind of reaction you get cutting back on programs or changing them. Our
budget group is working on doing some of that. We need to be more
involved in that.
As I mentioned, evaluating programs is something we should do. We
have a constitutional obligation to appropriate hard-earned tax dollars
in the most efficient manner we possibly can. New government programs
get institutionalized. They go on forever. So I think there are some
things we could do that would be important, and that we should.
There will be some proposals coming from OMB. I intend to seek to
help put them into place if we can and have a system that deals with
efficiency, a system that deals with identifying what the proper role
of the various levels of government is. We will hear the States saying:
We need more money. That is probably true. But nevertheless, we ought
to have some other definitions besides where the money will go.
I hope we have one where we can review some things. I know these are
general ideas. I have not gotten into the specifics. But from time to
time, I think we have to look at ourselves and say: How do we deal with
some of these issues? Clearly, everyone would agree we have to do
something about spending. We have to do something about the deficit. We
have to look at the future as to how we are going to make this thing
work.
You can take a look at Social Security. In about 10 years, we will
have to take trillions of dollars out of the general fund to put them
back where they belong in the Social Security fund. That is going to be
very difficult. It is a tremendous amount of money. But that is what we
have done, of course, and it is reasonable because that money has to be
drawing interest and it is drawing interest. But those things are going
to be more and more difficult.
We are seeking to try and review and renew the Tax Code so it can be
simpler and more efficient and hopefully provide better opportunities
for the economy to grow and have incentives for growing by being able
to put that money into developing jobs as opposed to coming into the
Federal Government.
These are real challenges, but they are worthwhile: the challenge of
evaluating government programs to see if they are still important, to
see if they are still being done the way they were designed to meet the
needs they were designed to meet when they were first there, to do
something about the idea of controlling spending and the size of the
Federal Government so that doesn't continue to expand into every area
that is open. We ought to take a look at all the programs that are in
place, that we are talking about putting in place, all the bills that
are brought in here, and see what a wide breadth of subjects we talk
about. Some you could make a pretty good case are not within the area
of normal recognition of Federal Government activity.
I hope the role of the Federal Government is something we could talk
about. We ought to talk about it with the State leadership and get a
little clearer idea of how we define these things and get some kind of
a measurement against these roles.
There are lots of challenges. I will be happy when we can move on
through this judicial debate. It is very important, but we should not
be spending all this much time on it in terms of how we do these things
and get on with the things that have an impact on what we are doing out
in the country.
I yield the floor and suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. BROWNBACK. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. BROWNBACK. Mr. President, I want to take up the discussion of
Justice Janice Rogers Brown and her qualifications for serving on the
DC Circuit Court of Appeals and some of the accusations and charges
that have been brought against her. There have been a number that have
been put forth. I had a lengthy discussion earlier about what I think
this is really about, that it is about her being a strict
constructionist, wanting to stay within the confines of the
Constitution and the law and her interpretation rather than an
expansive reading of it. I think that is really what is at the root of
this, but people bring forth all sorts of allegations and charges, and
I want to address some of them.
One of them is on a particular case, the Lochner case. As it might be
described, this is getting into the weeds and details of some items,
but I think it is meritorious to raise. She has been charged by some of
our colleagues that in the Santa Monica Beach v. Superior Court case
that Justice Brown called the demise of the Lochner decision, which was
overruled in 1937, the revolution of 1937, and ``she wants to undo''
this overruling. A couple of my colleagues on the other side of the
aisle said that Justice Brown believes in Lochner and wants the New
Deal undone. That is the charge against Janice Rogers Brown. I want to
talk about that particular charge because the opposite is what is
actually true. This is the opposite of what Justice Brown said, and I
want to go through her words of what she said to refute that particular
case.
They are accusing her of wanting to undo the New Deal and the
legislation that has been in place surrounding and regarding the New
Deal.
In the Santa Monica case, which is the case that is cited for her
opinion that she wants to undo the New Deal legislation of Roosevelt--
FDR--she clearly criticized Lochner as wrongly decided:
[T]he Lochner court was justly criticized for using the due
process clause as though it provided a blank check to alter
the meaning of the Constitution as written.
It was in the very next sentence that Justice Brown mentioned
``revolution of 1937.'' In context, it is clear that Brown felt the end
of Lochner was a good thing, that the end of Lochner was a good thing,
and she says that. Moreover, the ranking member of the Senate Judiciary
Committee flatly asked Justice Brown at the hearing--we are at her
confirmation hearing--this issue has been put forward. This charge has
been made that you want to undo the New Deal legislation, that you want
to overturn FDR, and the legacy of FDR. That is what you want to do.
The ranking member of the Senate Judiciary Committee flatly asked
Justice Brown at her confirmation hearing:
Do you agree with the holding in Lochner?
She answered just as directly, ``No.'' This evidence is out there for
all to see.
Why pretend it is not there is what I would say. She says no, she
does not want to undo the New Deal legislation. She said it in sworn
testimony at the Senate Judiciary Committee. She says that in her
opinion in the Santa Monica Beach case. She does not want to overrule
the case.
Others have attacked Justice Brown's speech to the Federalist Society
when she lamented the demise of the Lochner era, in which the Supreme
Court violated property or other economic rights. That is the
allegation.
Justice Brown's speeches illustrate her personal views. To suggest
that her critique of the Holmes dissent in Lochner is evidence of how
she would rule in a certain case belies the facts. Indeed, Justice
Brown has taken issue with the Lochner decision, criticizing the
Supreme Court's ``usurpation of power,'' stating the Lochner court was
justly criticized for using the due process clause:
. . . as though it were a blank check to alter the meaning
of the Constitution as written.
That is what she actually said.
Discussing the history of the judiciary, which Hamilton stated was to
be
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the branch ``least dangerous to the political rights of the
Constitution,'' Justice Brown has stated her personal views that judges
too often have strayed from this framework and engaged in judicial
activism.
That is something we have talked about a lot, about judicial
activism. She believes that too often judges have strayed from this
framework and engaged in judicial activism. It was in this context that
Justice Brown stated the standards of scrutiny employed by the
judiciary, which are not enumerated in the Constitution, often are used
by judicial activists to reach the results they want.
Justice Brown's record shows she is committed to following precedent,
even when she might personally disagree with it. Partisan attack
groups, lacking evidence that Brown is unable to follow precedent, have
indicated their opposition stems from Justice Brown's supposed
incorporating her personal views into judicial decisionmaking. They
assert she injected her personal views on property rights into judicial
opinions, but nothing could be further from the truth.
The two cases cited by the attack groups in this context deal with
the Takings clause. The groups fail to point out the Supreme Court
itself expressed the view that Justice Brown herself is now accused of
advocating, that property rights were intended to carry the same import
as other rights in the Constitution.
In Dolan v. City of Tigard, the Supreme Court majority wrote:
We see no reason why the Takings Clause of the Fifth
Amendment, as much a part of the Bill of Rights as the First
Amendment or Fourth Amendment, should be relegated to the
status of a poor relation in these comparable circumstances.
That is a 1994 case.
The reason I point these out is I want people to know the factual
setting here, that she does not support an opinion to overrule New Deal
legislation.
She has been attacked on her judicial qualifications, which I covered
in an earlier presentation, but I want to also state here clearly and
for the record, the ABA recently found Justice Brown qualified and
concluded--this is from the ABA, the American Bar Association--that
Justice Brown:
. . . meets the Committee's very high standards with respect
to integrity, professional competence and judicial
temperament and that the Committee believes that the nominee
will be able to perform satisfactorily all of the duties and
responsibilities required by the high office of a federal
judge.
If we are going to consider outside evaluations of judges, I would
think the ABA's assessment that she is fit to serve on the DC Circuit
is far more relevant than any others that might come forward.
I mentioned these to address some of the attacks on her that I think
are based on her more limited strict constructionist view than on what
others are basing their attacks, by trying to piece things together.
Justice Brown is enormously qualified by her set of personal
experiences, public service, good legal mind, good legal temperament,
sound training and abilities to serve on the DC Circuit Court of
Appeals. She will make an outstanding judge on that court of appeals.
Mrs. CLINTON. Mr. President, while I commend my colleagues for the
compromise that momentarily spared this body from the so-called nuclear
option, their agreement did nothing to change the fact that several of
President Bush's judicial nominees fall well outside the mainstream and
the parameters of what is an acceptable jurist. This nominee in
particular, Janice Rogers Brown, has shown a disdain for the rule of
law and precedent and is undeserving of lifetime tenure on the Federal
bench.
The administration's agenda has become evident throughout the course
of the debate over judicial nominees. The President, the Republican
leaders, and their supporters have turned our Federal judiciary into
their own personal political battleground. To satisfy the demands of
their most ardent right wing supporters, the Republicans have not
chosen to appoint capable Federal jurists but rather the political
activists willing to contort the law, precedent, and the Constitution
in order to promote their own conservative political agenda.
Our Federal courts have drifted well to the right in the past two or
three decades. Today's so-called moderates would have been called
conservatives in the 1970s. And while I personally think that this
drift is not in the best interest of our country, I understand and
accept that the President is certainly entitled to nominate
conservatives to the bench. In fact, I have voted for the vast majority
of this President's judicial nominees despite the fact that they
maintain a conservative philosophy and support positions on issues that
I do not necessarily agree with. I have done so because these nominees
have demonstrated a respect for justice and the rule of law.
But even accounting for this drift, some of his nominees, such as
Janice Rogers Brown, are far outside of even today's conservative
mainstream.
Justice Brown is an agenda driven judge who, usually as a lone
dissenter, shows little respect for the considered policy judgments of
legislatures, repeatedly misconstrues precedent and brazenly criticizes
U.S. Supreme Court rulings. She has a record of routinely voting to
strike down property regulations, invalidate worker and consumer
protections and restrict civil rights laws.
What makes Justice Brown particularly ill suited for a lifetime
appointment to District of Columbia Court of Appeals is her disdain for
Government. Among other things, she has long advocated for the demise
of the New Deal. She equates democratic Government with ``slavery,''
claims that the New Deal ``inoculated the federal Constitution with a
kind of collectivist mentality,'' calls Supreme Court decisions
upholding the New Deal ``the triumph of our own socialist revolution,''
accuses social security recipients of ``blithely cannibaliz[ing] their
grandchildren because they have a right to get as much `free' stuff as
the political system permits them to extract,'' and advocates returning
to the widely discredited, early 20th century Lochner era, where the
Supreme Court regularly invalidated economic regulations, like
workplace protections.
``Where government moves in,'' Justice Brown has stated, ``community
retreats, civil society disintegrates, and our ability to control our
own destiny atrophies. The result is: families under siege; war in the
streets; unapologetic expropriation of property; the precipitous
decline of the rule of law; the rapid rise of corruption; the loss of
civility and the triumph of deceit. The result is a debased, debauched
culture which finds moral depravity entertaining and virtue
contemptible.'' Justice Brown's contempt for government runs so deep
that she urges ``conservative'' judges to invalidate legislation that
expands the role of government, saying that it ``inevitably
transform[s] . . . democracy . . . into a kleptocracy.''
Furthermore, Justice Brown takes issue with one of the basic tenets
of our entire judicial system--precedent. When she does not like the
result established case law dictates, Justice Brown tries single-
handedly to change it. In one dissent, she proclaimed, ``(w)e cannot
simply cloak ourselves in the doctrine of stare decisis.''
These and other comments have prompted her colleagues on the
California Supreme Court to criticize her for ``imposing . . . [a]
personal theory of political economy on the people of a democratic
state.'' Her fellow justices have taken her to task for asserting ``an
activist role for the courts.'' They have noted that she ``quarrel[s] .
. . not with our holding in this case, but with this court's previous
decision . . . and, even more fundamentally, with the Legislature
itself.'' And finally, they contend that Justice Brown's brand of
judicial activism, if allowed, would ``permit a court . . . to reweigh
the policy choices that underlay a legislative or quasi-legislative
classification or to reevaluate the efficacy of the legislative
measure.''
Justice Brown's nomination makes clear that we have entered an era in
which conservative politicians are seeking to nominate and confirm
judges who read the Constitution and the law to coincide with the
Republican Party's platform. The expectation is that these judicial
appointees will toe the party line. This politicization of the
judiciary carries disastrous consequences. Because when our judges are
viewed as politicians, it diminishes the influence and the respect
afforded our courts, which is the lifeblood of their efficacy. Our
independent judiciary is the most respected
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in the world, and our courts' ability to reach unpopular but just
decisions is made possible only because of the deep wells of legitimacy
they have dug.
I urge my colleagues to take the longer view for the good of the
American people. Think carefully about what the result to our judiciary
will be if we continue to pack our courts with extremists who ignore
justice and the law. I implore my colleagues to take seriously their
constitutional charge of advice and consent and to reject the
nomination of Janice Rogers Brown.
Mr. JOHNSON. Mr. President, I rise today in opposition to President
Bush's nomination of Janice Rogers Brown to be United States Circuit
Court Judge to the Court of Appeals for the DC. Circuit.
This morning, the Washington Post editorialized against the
nomination of Justice Brown, writing that she ``is that rare nominee
for whom one can draw a direct line between intellectual advocacy of
aggressive judicial behavior and actual conduct as a judge,'' I agree
with this respected newspaper's assessment and ask unanimous consent
that this editorial be printed in the Record at the end of my
statement.
The PRESIDING OFFICER. Without objection, it is so ordered.
(See exhibit 1.)
Mr. JOHNSON. I have several concerns about Justice Brown's ability to
serve on this important court. On the California Supreme Court, Justice
Brown has proven to be an activist judge when it suits her political
agenda. Consistently, and despite precedent to the contrary, Justice
Brown has ruled on the side of corporations. For example, in a
cigarette sales case, she ignored relevant law and protected
corporations in lieu of protecting minors. In other cases she has
placed corporate interests above law that intended to shield consumers
and women.
Justice Brown has also attempted to remove protections for teachers,
and has been hostile to such New Deal era programs as Social Security.
She has called government assistance programs ``[t]he drug of choice
for . . . Midwestern farmers, and militant senior citizens.'' These
views are out of touch with most Americans and South Dakotans.
During today's debate, colleagues argued that because Justice Brown
has been reelected by California voters by a 76 percent margin, she
should not be considered ``out of the mainstream.'' This argument is
misplaced. First, many other judges get reelected at a higher rate. It
should also be noted that her retention reelection took place only 1\1/
2\ years into her tenure on the California Supreme Court, at a time
before her extreme views and activist agenda could have been known by
voters.
Both the American Bar Association and the California Judicial
Commission have questioned Justice Brown qualifications to serve on the
bench. The California Judicial Commission specifically noted questions
about her deviation from precedent and her ``tendency to interject her
political and philosophical views into her opinions.'' We should note
their concerns and seriously consider them.
Justice Brown's views and history of judicial activism is especially
dangerous in the DC Circuit. She is a nominee who is far outside of the
mainstream. For these reasons, I stand in opposition of the
confirmation and lifelong appointment of Janice Rogers Brown.
Reject Justice Brown
[From the Washington Post, June 7, 2005]
The Senate filibuster agreement guaranteeing up-or-down
votes for most judicial nominees creates a test for
conservatives who rail against judicial activism. For
decades, conservative politicians have objected to the use of
the courts to bring about liberal policy results, arguing
that judges should take a restrained view of their role. Now,
with Republicans in control of the presidency and the Senate,
President Bush has nominated a judge to the U.S. Court of
Appeals for the D.C. Circuit who has been more open about her
enthusiasm for judicial adventurism than any nominee of
either party in a long time. But Janice Rogers Brown's
activism comes from the right, not the left; the rights she
would write into the Constitution are economic, not social.
Suddenly, all but a few conservatives seem to have lost their
qualms about judicial activism. Justice Brown, who serves on
the California Supreme Court, will get her vote as early as
tomorrow. No senator who votes for her will have standing any
longer to complain about legislating from the bench.
Justice Brown, in speeches, has openly embraced the
``Lochner'' era of Supreme Court jurisprudence. During this
period a century ago, the court struck down worker protection
laws that, the justices held, violated a right to free
contract they found in the Constitution's due process
protections. There exist few areas of greater agreement in
the study of constitutional law than the disrepute of the
``Lochner'' era, whose very name--taken from the 1905 case of
Lochner v. New York--has become a code word for judicial
overreaching. Justice Brown, however, has dismissed the famed
dissent in Lochner by Justice Oliver Wendell Holmes, saying
it ``annoyed her'' and was ``simply wrong.'' And she has
celebrated the possibility of a revival of ``what might be
called Lochnerism-lite'' using a different provision of the
Constitution--the prohibition against governmental
``takings'' of private property without just compensation.
In the context of her nomination, Justice Brown has
trivialized such statements as merely attempts to be
provocative. But she has not just given provocative speeches;
``Lochnerism-lite'' is a fairly good shorthand for her work
on the bench, where she has sought to use the takings
doctrine aggressively. She began one dissent, in a case
challenging regulation of a hotel, by noting that ``private
property, already an endangered species in California, is now
entirely extinct in San Francisco.'' Her colleagues on the
California Supreme Court certainly got what she was up to. In
response, they quoted Justice Holmes's Lochner dissent and
noted that ``nothing in the law of takings would justify an
appointed judiciary in imposing [any] personal theory of
political economy on the people of a democratic state.''
Justice Brown is that rare nominee for whom one can draw a
direct line between intellectual advocacy of aggressive
judicial behavior and actual conduct as a judge. Time was
when conservatives were wary of judges who openly yearned for
courts, as Justice Brown puts it, ``audacious enough to
invoke higher law''--instead of, say, the laws the people's
elected representatives see fit to pass. That Justice Brown
will now get a vote means that each senator must take a stand
on whether some forms of judicial activism are more
acceptable than others.
Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER (Mr. Alexander). The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. FRIST. Mr. President, I ask unanimous consent the order for the
quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
____________________