[Congressional Record Volume 154, Number 50 (Tuesday, April 1, 2008)]
[Senate]
[Pages S2263-S2268]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                        THE CONFIRMATION PROCESS

  Mr. HATCH. Mr. President, the American people sent us here to get 
things done. One of the most important things we do is consider and 
vote on the President's nominations to the Federal bench and the 
Department of Justice.
  I can put it simply: We are failing to do our duty.
  Let me first address the judicial confirmation process. The 
Constitution gives to the President the authority to nominate and 
appoint Federal judges. The Constitution gives to the Senate the role 
of advice and consent as a check on the President's appointment power.
  The Senate gives the President advice about whether to appoint his 
judicial nominees by giving or withholding our consent. We are supposed 
to do so through up-or-down votes. That is what the Constitution 
assigns us to do and what the American people expect us to do.
  That is what we are failing to do.
  For the record, since I was first elected, I have voted against only 
5 of the more than 1,500 nominees to life-tenured judicial positions 
the Senate has considered on the floor. Some of my Democratic friends, 
including those with far less seniority, have voted against more than 
three times as many nominees of the current President alone.
  I have strongly opposed all filibusters against judicial nominees, 
both Democrats and Republicans. Some of my Democratic friends opposed 
filibusters of Democratic nominees but heartily supported filibusters 
of Republican nominees.
  I have not taken a partisan approach to judicial confirmations. But I 
must say that today this body is failing to do its confirmation duty.
  At both stages in the confirmation process--in the Judiciary 
Committee and on the Senate floor--Democrats are failing to meet not 
only historical standards but their own standards as well. Democrats 
have vowed not to treat President Bush's nominees the way Republicans 
treated President Clinton's nominees. Democrats are keeping that 
promise. Let me refer to this chart.
  In the past 10 months, for example, the Judiciary Committee, under 
Democratic control, has held a hearing on only three appeals court 
nominees. During the same period under President Clinton, the Judiciary 
Committee held a hearing on 12 appeals court nominees--four times as 
many. And by the way, every one of those Clinton nominees was 
confirmed, 11 of them within an average of only 48 days after their 
hearing, and 9 of them without a single negative vote.
  When I chaired the Judiciary Committee under President Clinton, we 
held no less than 10 hearings that included more than 1 appeals court 
nominee--10. While Democrats have controlled this body under President 
Bush, the Judiciary Committee has not held a single one--not one. Ten 
to zero. Democrats are certainly not treating Bush nominees the way 
Republicans treated Clinton nominees.
  The Democrats are not only failing to meet historical standards in 
the Judiciary Committee, they are failing to meet even their own 
standards. When I chaired the committee, Democrats complained about 
every nomination hearing that did not include an appeals court nominee. 
With Democrats in charge under President Bush, the Judiciary Committee 
has held nearly a dozen nomination hearings without a single appeals 
court nominee.
  There has already been one confirmation hearing this year without an 
appeals court nominee, and another one will take place on Thursday.
  The picture is the same on the Senate floor, where Democrats are 
failing to meet either historical standards or their own standards.
  President Bush is the fourth President in a row to face a Senate 
controlled by the other party during his last 2 years in office.
  Under his three predecessors, the Senate confirmed an average of 75 
district court nominees during their last 2 years in office. More than 
half of them were confirmed in the final year.
  Fifteen months into the current 110th Congress, we have confirmed 
only 31--only 31--district court nominees for President Bush.
  Similarly, under the previous three Presidents, the Senate confirmed 
an average of 17 appeals court nominees during the President's final 2 
years in office. So far in the 110th Congress, we have confirmed only 
six appeals court nominees for President Bush.
  Now, to meet the historical average, we will have to confirm 44 
district court and 11 appeals court nominees in the next several 
months. If anyone believes that will happen, I have some oceanfront 
property in the Utah desert I would like to sell them.
  Even if we did the completely unexpected, President Bush would still 
leave office with a much smaller impact on the Federal bench than his 
predecessor.
  President Bush has so far appointed 295 life-tenured Federal judges, 
well behind President Clinton, who appointed 346 at this same point in 
his presidency.
  Now, some around here spin a yarn about a supposed Republican 
blockade against President Clinton's judicial nominees. Some blockade. 
It allowed President Clinton nearly to set the all-time judicial 
appointment record.
  On the Senate floor, Democrats are not only failing to meet 
historical standards, they are also failing to meet even their own 
standards. Eight years ago, when Democrats were in the minority during 
the last year of President Clinton's tenure, they were crystal clear 
about what the judicial confirmation standard should be.
  One senior Democrat on the Judiciary Committee, for example, came to 
this floor often in 2000, insisting over and over that Democrats had 
set the proper standard back in 1992. This is what he said:

       I say let us compare 1992, in which there was a Democrat 
     majority in the Senate and a Republican President. We 
     confirmed 11 court of appeals court nominees . . . and 66 
     judges in all. In fact, we went out in October of that year. 
     We were having hearings in September. We were having people 
     confirmed in October.

  Today, as in 1992, a President Bush is in the White House.
  Today, as in 1992, Democrats control the Senate.
  Today, Democrats do not have to badger the majority to meet their 
judicial confirmation standard. They are in the majority. All they have 
to do is meet their own standard, and thus far they have failed to do 
so.
  After all, if the Judiciary Committee is not holding hearings on 
appeals court nominees now, if the Senate is not confirming nominees 
now, what makes anyone think we are going to be doing so in September 
or October as Democrats once said we should?
  We will no doubt hear any number of rehearsed responses, retorts, and 
rejoinders. We will hear, for example, that the White House has not 
sent us a nominee for every existing judicial vacancy. True, but beside 
the point. Lacking nominees for vacancies X, Y, and Z is no excuse for 
failing to hold hearings and votes on nominees to vacancies A, B, and 
C.

[[Page S2264]]

  We have already heard about the so-called Thurmond rule, supposedly 
justifying grinding the confirmation process to a halt in this 
Presidential election year. The Thurmond rule neither is a rule nor can 
it be attributed to the late Senator Strom Thurmond, a former Judiciary 
Committee chairman.
  Here is what the Democrats said about the so-called Thurmond rule in 
2000, when a Democrat was in the White House:

       We cannot afford--

  The Democrats said--

     to follow the ``Thurmond Rule'' and stop acting on these 
     nominees now in anticipation of the presidential election in 
     November.

  Well, today is only April, but it already looks as if Democrats are 
stopping action on judicial nominees in anticipation of the 
Presidential election.
  Now, that same Democratic leader spoke on the Senate floor on October 
3, 2000, a month before the election. He once again rejected the so-
called Thurmond rule and used 1992 as the judicial confirmation 
standard, even in a Presidential election year. This is what he said:

       Do you know how long the Democrat-controlled Senate was 
     confirming judges for a Republican President [in 1992]? Up to 
     and including the very last day of the session; not up to and 
     including 6 months before the session ended.

  That was then. I wonder how long this Democratic-controlled Senate 
will be confirming judges for this Republican President.
  We will no doubt continue to hear the cute but misleading phrase 
``pocket filibuster,'' a blurb created by the Democratic spin machine 
to somehow blame Republicans for unconfirmed Clinton judicial nominees.
  Our constituents may not know it, but my Democratic colleagues 
certainly do, that every President has nominees who do get confirmed 
for a host of different reasons. But why let the facts get in the way 
of a good sound bite?
  The unconfirmed Clinton nominations include many President Clinton 
himself withdrew or chose not to renominate. They include others who 
were nominated too late in a session to even be processed. They include 
others who did not have the support of their home State Senators.
  The current Judiciary Committee chairman insists he is not 
responsible when nominees lacking support from their home State 
Senators do not get hearings. When he follows this policy, he blames it 
on Senate tradition and senatorial courtesy. When a Republican chairman 
follows this policy, he calls it a pocket filibuster.
  When you sort out the real reasons that Clinton nominees were not 
confirmed, you find this Democratic sound bite has a margin of error of 
about 500 percent.
  One of my Democratic friends was recently quoted as saying that facts 
are stubborn things. They are indeed.
  None of this explains, let alone excuses, Democrats' refusal to 
holding hearings or votes on judicial nominees who do have their home 
State Senators' support.
  The U.S. Court of Appeals for the Fourth Circuit, for example, is 
one-third empty--one of the most important circuit courts in the 
country. President Bush has sent us nominees to four of the five 
vacancies on that court. One of them, Robert Conrad, has the support of 
both home State Senators, our distinguished colleagues from North 
Carolina. He has been nominated to a position that has been open for 14 
years. The Administrative Office of the U.S. Courts has designated it a 
judicial emergency position.
  This body confirmed Robert Conrad to the U.S. district court a few 
years ago without even having a rollcall vote. Yet he has been waiting 
for more than 250 days without a hearing.
  Steven Matthews, likewise, has the support of his home State 
Senators, our distinguished colleagues from South Carolina. He has been 
waiting for more than 200 days without a hearing.
  The American people sent us to do our duty, and that includes giving 
a hearing and a vote on these nominees.
  Mr. President, I ask unanimous consent to have printed in the Record 
a letter, dated February 13, 2008, signed by more than 50 grassroots 
organizations, urging us to do our judicial confirmation duty.
   There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                February 13, 2008.
     Hon. Patrick J. Leahy,
     Hon. Arlen Specter,
      Hon. Joseph R. Biden, Jr.,
     Hon. Sam Brownback,
     Hon. Benjamin L. Cardin,
     Hon. Tom Coburn,
     Hon. John Cornyn,
     Hon. Richard J. Durbin,
     Hon. Russell D. Feingold,
     Hon. Dianne Feinstein,
     Hon. Lindsey Graham,
     Hon. Charles E. Grassley,
     Hon. Orrin G. Hatch,
     Hon. Edward M. Kennedy,
     Hon. Herb Kohl,
     Hon. Jon Kyl,
     Hon. Charles E. Schumer,
     Hon. Jeff Sessions,
     Hon. Sheldon Whitehouse,
     U.S. Senate, U.S. Capitol,
     Washington, DC.
       Dear Senators: We write both to express our deep concern 
     about the lack of progress in 2007 in reporting judicial 
     nominees--particularly circuit court nominees--out of the 
     Judiciary Committee, and to discuss reasonable expectations 
     for progress on this issue in 2008.
        The remarkably low approval ratings for the 110th Congress 
     are a testament to Americans' concern that their 
     representatives are more interested in partisan politics than 
     in serving the people. The American people want you to do 
     your job, and among the most important responsibilities of 
     the Judiciary Committee are processing and voting on the 
     President's judicial nominees.
        The impact of the judges issue on Senate campaigns over 
     the last six years demonstrates that the public is watching. 
     Your constituents may not pay close attention to the details 
     of the confirmation process, but they cannot help but notice 
     the personal attacks on nominees, the emphasis on politics 
     over progress, and the basic unfairness of denying qualified 
     nominees a fair up-or-down vote by the committee and full 
     Senate.
        A year into the 110th Congress, the Judiciary Committee 
     has held hearings for only four appeals court nominees and 
     has voted on only six. As a result, the full Senate has 
     fallen far short of the confirmation pace necessary to meet 
     the historical average of 17 circuit court confirmations 
     during a president's final two years in office--an average 
     maintained during the Reagan, Bush I, and Clinton 
     presidencies despite opposition control of the Senate.
        Instead of seeing progress, the American people are 
     watching judicial nominees stack up in the Judiciary 
     Committee. Ten appeals court nominees--seven of them waiting 
     to fill vacancies declared ``judicial emergencies''--and 
     nearly twenty district court nominees languish in committee. 
     Several nominees have been waiting more than a year and a 
     half.
        Given the long delays in the federal courts, the American 
     people are unsympathetic to the claim that certain nominees 
     cannot even get a hearing because of the Judiciary 
     Committee's arcane ``blue slip'' policy. That policy exposes 
     the Senate at its worst and is rightfully perceived as 
     serving senators rather than the public. Consider the 
     senators whose only reason for blocking two circuit court 
     nominees is a decade-old personal grudge, or the senators who 
     can do no better than argue that the nominee they are 
     blocking is so good at his current job that he should be kept 
     there. In the end, responsibility for the resulting delays 
     lies with the Judiciary Committee, because the ``blue slip'' 
     policy exists entirely at the committee's discretion.
        Fortunately, the new year presents the Judiciary Committee 
     with the opportunity for a fresh start. If you and your 
     colleagues are willing to eschew partisan politics, focus on 
     your constitutional duty, and treat nominees in a dignified 
     manner, the Senate can meet or come close to the historical 
     average of 17 circuit court confirmations.
        Specifically, there are four pending circuit nominees--
     Robert Conrad, Steve Matthews, Catharina Haynes, and Gene 
     Pratter--who have the support of home state senators, which 
     Chairman Leahy has said is key to approval by the Judiciary 
     Committee. Including D.C. Circuit nominee Peter Keisler, that 
     makes five appeals court nominees for whom there is no excuse 
     for denying them a committee vote. And, given the outstanding 
     qualifications of these five nominees, there is no reason why 
     the committee should fail to report them to the full Senate 
     for a fair up-or-down vote.
        Assuming at least two new nominees to the Fourth and Ninth 
     Circuits in the next several months, that leaves seven 
     circuit nominees in addition to the aforementioned five. Even 
     if the Judiciary Committee meets only a very minimal standard 
     by reporting just four of those seven to the full Senate, the 
     Senate will have an opportunity--contingent on Majority 
     Leader Reid scheduling up-or-down votes--to confirm fifteen 
     appeals court nominees in the 110th Congress. Fifteen 
     confirmations would fall short of the historical average, but 
     would match the number of circuit court confirmations in 
     President Clinton's final two years. Anything less and the 
     members of the Judiciary Committee will be remembered for 
     presiding over historic levels of obstruction.
        Lest the individual nominees get lost in a discussion of 
     numbers, we want to draw your attention to the truly 
     exceptional qualifications of D.C. Circuit nominee Peter 
     Keisler,

[[Page S2265]]

     who has inexplicably languished in committee without action 
     since his hearing a year and a half ago. Keisler has been 
     given the American Bar Association's highest rating--
     ``unanimously well-qualified''--and has the enthusiastic 
     support of leading legal scholars and practitioners from 
     across the ideological spectrum, including Yale Law School 
     Dean Anthony Kromnan, Professor Neal Katyal of Georgetown, 
     Professor Akhil Amar of Yale, Carter Phillips of Sidley 
     Austin, former D.C. Bar President George Jones, and several 
     former law clerks of Supreme Court Justices Thurgood Marshall 
     and William Brennan. In addition, both the Washington Post 
     and Los Angeles Times have called for Keisler's confirmation.
        This impressive array of supporters surprises no one 
     familiar with Keisler's unmatched credentials. A graduate of 
     Yale Law School, Keisler served as Associate Counsel to 
     President Reagan and clerked for Supreme Court Justice 
     Anthony Kennedy before joining Sidley Austin. At Sidley, he 
     was quickly promoted to partner and argued cases at every 
     level of the federal court system, including the Supreme 
     Court. In 2002, he left Sidley to serve his country at the 
     U.S. Department of Justice, where he was promoted to 
     Assistant Attorney General for the Civil Division a year 
     later. When Attorney General Alberto Gonzales resigned last 
     year, Keisler postponed his plans to leave government service 
     so that he could see the Department and the nation through a 
     difficult transition period as Acting Attorney General.
        The least the Judiciary Committee can do to thank Peter 
     for his service to the nation is to report him to the full 
     Senate for an up-or-down vote. There is no rational reason 
     why, after a year and a half of waiting, this exceptional 
     nominee should remain on hold. If his nomination is allowed 
     to die in the Judiciary Committee, it will be a loss to both 
     the federal bench and the reputation of the committee. His 
     confirmation is our highest priority, and it should be yours 
     as well.
        President Bush fulfilled his constitutional duty by 
     nominating the men and women who await action in the 
     Judiciary Committee. We respectfully request that you fulfill 
     your responsibility as well, by ensuring that each and every 
     judicial nominee is given a hearing and a vote in committee. 
     If you cannot support a particular nominee, vote him or her 
     out of committee without a positive recommendation, or vote 
     against confirmation on the Senate floor. The full Senate 
     must be allowed to carry out its constitutional duty of 
     advice and consent by providing each nominee with a timely 
     up-or-down confirmation vote, and you should not stand in the 
     way. We ask only that you do your job by putting 
     statesmanship above politics and special interests. The 
     American people expect no less.
        We would be happy to speak with you in person about this 
     critical matter.
           Respectfully,
         Curt Levey, Executive Director, Committee for Justice; 
           James L. Martin, President, 60 Plus Association; Gary 
           L. Bauer, President, American Values; Roger Clegg, 
           President, Center for Equal Opportunity; Jeff Ballabon, 
           President, Center for Jewish Values; Jim Backlin, Vice 
           President for Legislative Affairs, Christian Coalition 
           of America; Paul M. Weyrich, National Chairman, 
           Coalitions for America.
         Kay R. Daly, President, Coalition for a Fair Judiciary; 
           Wendy Wright, President, Concerned Women for America; 
           Kent Ostrander, Executive Director, Family Foundation 
           (Kentucky); Tom McClusky, Vice President of Government 
           Affairs, Family Research Council; Brian Burch, 
           President, Fidelis; Tom Minnery, Senior Vice President 
           of Government and Public Policy, Focus on the Family; 
           Ron Shuping, Executive Vice President of Programming, 
           Inspiration Networks.
         James Bopp, Jr., General Counsel, James Madison Center 
           for Free Speech; Gary Marx, Executive Director, Wendy 
           E. Long, Counsel, Judicial Confirmation Network; Day 
           Gardner, President, National Black Pro-Life Union; 
           Chris Brown, Executive Vice President, National 
           Federation of Republican Assemblies; Raymond J. 
           LaJeunesse, Jr., Vice President and Legal Director, 
           National Right to Work, Legal Defense Foundation; Linda 
           Chavez, President, One Nation Indivisible; Dr. Randy 
           Brinson, Chairman, Redeem the Vote.
         Joyce E. Thomann, President, Republican Women of Anne 
           Arundel County, MD; Dr. Rod D. Martin, Chairman, 
           TheVanguard.Org; Rev. Louis P. Sheldon, Chairman, 
           Traditional Values Coalition; Dr. Keith Wiebe, 
           President, American Association of Christian Schools; 
           Susan A. Carleson, Chairman and CEO, American Civil 
           Rights Union; Donald E. Wildmon, Founder and Chairman, 
           American Family Association; Micah Clark, Executive 
           Director, American Family Association of Indiana.
         Rev. John C. Holmes, Ed.D., Director, Government Affairs 
           Association of Christian Schools International; Larry 
           Cirignano, Founder, CatholicVOTE.org; Jeffrey Mazzella, 
           President, Center for Individual Freedom; Samuel B. 
           Casey, Executive Director and CEO, Christian Legal 
           Society; Tom Shields, Chairman, Coalition for Marriage 
           and Family; Professor Victor Williams, Columbus School 
           of Law, Catholic University of America; Karen 
           Testerman, Executive Director, Cornerstone Policy 
           Research.
         Ron Pearson, President, Council for America; Brad Miller, 
           Director, Family Policy Council Dept., Focus on the 
           Family Action; Bryan Fischer, Executive Director, Idaho 
           Values Alliance; Curt Smith, President, Indiana Family 
           Institute; J. C. Willke, M.D., President, International 
           Right to Life Federation; Phillip Jauregui, President, 
           Judicial Action Group; Anita Staver, President, Liberty 
           Counsel.
         Mr. Kelly Shackelford, Chief Counsel, Liberty Legal 
           Institute; Mathew D. Staver, Dean and Professor of Law, 
           Liberty University School of Law; Dr. Patricia McEwen, 
           Director, Life Coalition International; Bradley Mattes, 
           Executive Director, Life Issues Institute; Steven 
           Ertelt, Editor and CEO, LifeNews.com; Gene Mills, 
           Executive Director, Louisiana Family Forum; Leslee J. 
           Unruh, President and Founder, National Abstinence 
           Clearinghouse.
         Steven W. Fitschen, President, National Legal Foundation; 
           Len Deo, Founder and President, New Jersey Family 
           Policy Council; Fr. Frank Pavone, M.E.V., National 
           Director, Priests for Life; David Crowe, Director, 
           Restore America; Dr. William Greene, President, 
           RightMarch.com; Dane vonBreichenruchardt, President, 
           U.S. Bill of Rights Foundation; Al Laws, Jr., CEO, WIN 
           Family Services, Inc.

  Mr. HATCH. Mr. President, let me briefly turn from the judicial to 
the executive branch and, in particular, to the Department of Justice.
  My Democratic colleagues have helped drive from office several top 
Justice Department officials and yet are now slow-walking confirmation 
of their replacements.
  On March 11, the Judiciary Committee held a hearing on the nomination 
of Grace Chung Becker to be Assistant Attorney General of Civil Rights.
  Grace served as a counsel on my staff when I chaired the Judiciary 
Committee and has been a Deputy Assistant Attorney General in the Civil 
Rights Division for the past 2 years. She currently heads the division 
in an acting capacity.
  My Judiciary Committee colleagues will remember Grace as a talented, 
brilliant, and dedicated lawyer, a person of the highest character and 
integrity--one of the most likable people who ever served on the 
committee, one who served both sides, I think, graciously and well.
  She received her law degree magna cum laude from Georgetown, where 
she was associate editor of the Georgetown Law Journal. That was after 
receiving her B.A. magna cum laude from the University of Pennsylvania 
and her B.S., once again magna cum laude from the Wharton School of 
Finance.
  I think I see a pattern here.
  After clerking for judges on the U.S. District Court and the U.S. 
Court of Appeals in the District of Columbia, Grace spent a year in 
private practice before entering Government service. For the next 
decade, Grace served in such positions as Special Assistant U.S. 
Attorney, Assistant to General Counsel at the U.S. Sentencing 
Commission, Special Adviser to the Assistant Secretary of the Army, and 
Associate Deputy General Counsel of the Defense Department.
  The PRESIDING OFFICER. The Senator's 15 minutes has expired.
  Mr. HATCH. I ask unanimous consent for another 2 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. HATCH. At the Justice Department, Grace has been supervising 
hundreds of lawyers in cases regarding civil rights, housing 
discrimination, religious land use, education, and fair lending 
practices.
  Grace is a special person. She is the child of Korean immigrants 
whose parents and siblings are all entrepreneurs in New York and New 
Jersey. She and her husband Brian have been married for 14 years and 
have 2 wonderful children. Grace is living the American dream and 
making the most of the opportunities she has found in this great 
country. She is dedicated to making these opportunities available to 
others.
  She has served the community on the board of the Korean American 
Coalition and on the Fairfax County School Board's Human Rights 
Advisory Committee.
  She has finally had her hearing, but now I hear disturbing reports 
that she has been given literally hundreds of written questions, many 
about matters occurring long before her tenure or decisions and 
policies she had absolutely nothing to do with.

[[Page S2266]]

  I urge my colleagues to do the right thing, to do our confirmation 
duty, not only for Grace but also for these qualified judicial nominees 
as well. I ask my colleagues to do what the American people sent us 
here to do, and that includes giving timely consideration and up-or-
down votes to the President's nominees for the judiciary and the 
Department of Justice.
  Mr. President, I thank my colleague for allowing me the extra 2 
minutes, and I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Illinois is 
recognized.
  Mr. DURBIN. Mr. President, this Senate is an institution which was 
central to the decision to become a Nation. I have been watching this 
John Adams documentary on HBO--I recommend it to everybody--talking 
about the earliest days of America. This great Constitution which 
guides our Nation almost didn't happen but for a compromise which said 
that even the smallest States would at least have two Senators, the 
same as the largest States. On the Senate floor that tradition 
continued, allowing even minorities, small groups, and even individual 
Senators certain rights which are not afforded to those across the 
Rotunda in the House of Representatives.
  One of these is a filibuster where Senators can take to the floor and 
can hold the floor, objecting to what is going on. It takes an 
extraordinary vote--a large vote, more than a majority in the Senate--
to take the floor back from that single Senator or group of Senators 
and to proceed with business. These filibusters have stopped what are 
so-called ``cloture motions,'' closing down the debate and moving on 
with business. It takes 60 votes for a cloture vote. In other words, 60 
Senators have to agree to stop a filibuster and move forward.
  In the history of the Senate, the record number of filibusters for 
any 2-year period of time has been 62--62 filibusters in a 2-year 
period. Last year, the Republican minority broke that record, smashed 
that record by initiating 62 filibusters in 1 year. Sixty-two times the 
Republican minority stopped our efforts on the floor of the Senate to 
move forward to try to change things in America--62 times.
  The Republican Party is known as the Grand Old Party--the GOP. It 
turns out that when it comes to Senate Republicans, GOP stands for 
Graveyard Of Progress. That is what they are trying to make the Senate.
  On February 28 we brought up a measure here to deal with America's 
housing crisis. Is it a serious issue? Is it something the Senate 
should take the time away from our wonderful patriotic speeches and try 
to address? I think it is. More than 2 million Americans face 
foreclosure. In my home State of Illinois, we are facing record numbers 
of foreclosures. In States such as Nevada and California and all over 
the United States, foreclosures are at record numbers on mortgages of 
homes.
  Is it an important issue for more than 2 million families? It is. 
Because when a home goes into a foreclosure and is sold at lower than 
fair market value, it affects the value of the homes in the 
neighborhood. So when they ask you: What is the value of your home, 
Senator Durbin, in Springfield, IL, you say: Well, let's look and see 
some of the recent sales in his neighborhood--comparable values, as 
they call them. If, around the block, one of my neighbors has lost a 
home in foreclosure, that has a negative impact on the value of my 
home. So 2 million mortgage foreclosures have a ripple effect across 
the housing economy and diminish the value of 44 million homes, 22 
homes for every home in foreclosure. One says: Well, 44 million homes 
in a nation of 300 million people, it is still not that big a deal, is 
it? It is. Forty-four million private residences reflect one-third of 
all of the private residences owned in America. Two million mortgage 
foreclosures and one out of three homeowners who dutifully make their 
mortgage payments every single month without a problem see the value of 
their home go down. In fact, we are seeing a rising number of people in 
America holding a mortgage on their home at a value that is higher than 
the actual value of their home. They are under water, as we say. They 
have a debt, a mortgage, which is greater than the value of their home.
  This has an impact on our overall economy. Over 70 percent of the 
people in America today, when asked if they will buy a home, say no. 
You say: Is that because you can't find a mortgage for your home? They 
say: No, I can find a mortgage. I just don't think it is a good 
investment.
  Think about that statement. For as long as I have been around, a home 
was always your best investment. I can remember when my wife and I 
stretched and squeezed and sacrificed to get our first home, how proud 
we were. We weren't sure we could make those monthly payments. It was a 
stretch to do it. But we knew it was the right thing for our kids, for 
our family, for our neighborhood, and for ourselves, because a home is 
going to go up in value. At least that was the theory until recently. 
Now homes are going down in value and people are not buying. Homes sit 
vacant, not only foreclosed homes but other homes where people are 
trying to sell them to move on to a different location or to a better 
place. You see the signs all over America: For Sale, For Sale. It is a 
reminder that the housing crisis which brought us into this recession 
is still very much an issue today.
  On February 28, the Democratic majority said to our friends on the 
Republican side: Let us act as Senators. Let us deal with an issue that 
has relevance to today's economy and to families all over the Nation. 
We have a plan. We have a proposal, a housing stimulus package, with 
four or five key points in it which I will mention in a moment. We want 
to bring that bill to the floor and we want our friends on the 
Republican side--and even Democratic Senators if they wish--to offer 
amendments about housing so their best ideas can be considered.

  What I have described sounds dangerously like the tradition of a 
deliberative body such as the Senate; we would actually take an 
important American issue, bring it to the floor, debate it, open it to 
amendment, do our best to come up with something that will pass, match 
what the folks do in the House of Representatives, and maybe end up 
with a law--a law that can strengthen our economy. That is the normal 
way we do business--or at least normal until this Republican minority 
came to power.
  What happened on February 28? Well, we needed about nine Republicans 
to join the Democrats so we could move forward in the debate. Only one 
stepped up, so we didn't have enough votes. So the housing stimulus 
package died on February 28. The Republican minority refused to even 
debate it. They wouldn't even bring it up on the floor. Nothing was 
going to stop them from offering relevant amendments to this housing 
package. They didn't even want to have an opportunity to offer those 
amendments. They didn't want the debate.
  I think I know why. They are doing their best to make sure that this 
Congress, under the Democrats, ends up in the same position as the 
previous Congress, under Republicans, of doing nothing about the issues 
that count for America.
  But we are not giving up. We are coming back today. In about 20 
minutes we will break for lunch and after that, we will come back for a 
vote on the floor and we will try to return to this housing stimulus 
package. We will give the Republicans a chance to join us. I say to my 
friends on the Republican side who may be watching this on C-SPAN in 
their offices or other places: Don't be afraid of a debate. Don't be 
afraid of amendments. Isn't that why we ran for office, to address the 
important issues facing America, to debate the merits of a good idea or 
a bad idea, and to take a vote to be on record. If we are going to run 
away from an issue as central to the economy as the housing crisis, we 
are becoming irrelevant. It is little wonder that the approval rating 
of Congress is as low as it is when the Republicans continue to 
filibuster, continue to stop us from even debating something as 
critical as the housing crisis facing America.
  So what does the bill do? The basic bill we are talking about here 
does several things in an attempt to reduce foreclosures. One of the 
first is to make an investment in more counselors. It has to be a scary 
moment when you receive that letter after you have missed your mortgage 
payment that says you

[[Page S2267]]

are now in default. You are facing foreclosure. We can take your home 
away from you. Some people go through a period of denial. They won't 
look at the mail. They won't answer the phone. They hope it will all go 
away. But it won't. It gets worse. Others wisely say: I need to talk to 
somebody. How did I get into this mess? How can I get out of this mess? 
The people available to talk to them are counselors who sit down and 
say: OK, don't panic. Do you have an income? How are you doing 
otherwise? Do you have a lot of debt? Maybe we can call the bank. Maybe 
we can find a way to change the terms of your mortgage so you can stay 
there.
  These counselors are valuable. In fact, they are invaluable to deal 
with this mortgage foreclosure crisis. So one of the first things we do 
is to put more funds into counseling so there are people available to 
help those facing mortgage foreclosures.
  We expand refinancing opportunities so that if you can't make it on 
your old mortgage--let's say you have what is called an ARM, an 
adjustable rate mortgage, and let's say it has hit its reset point--1 
year, 3 years, 5 years--and now you have a new interest rate and your 
monthly payment shot up so high you can't make it. So what are you 
going to do? Well, in this bill we set up some refinancing 
opportunities across the Nation so that people who have an income, who 
are responsible, who want to keep their homes, have a chance.
  We also provide to communities funds through the Community 
Development Block Grant Program to purchase foreclosed properties. 
People ought to see what I have seen repeatedly on the west side of 
Chicago, over by the United Center where the Chicago Bulls play 
basketball. There is a great little area on the west side just getting 
a start that has been rebuilding neighborhoods that have been kind of 
beaten up for a long time with nice homes. Smack dab in the middle of 
these nice homes is this boarded-up home, with trash in what used to be 
a nice front yard. It looks awful. Right next door to it live two 
families who clearly care about their homes, and there sits that 
foreclosed home smack dab in the middle. It is up for auction. When it 
goes up for auction, it is not likely to even get fair market value, 
and it is going to hurt the value of all of the other homes in the 
neighborhood.
  One of the things we try to do is offer communities some funds to 
step in on foreclosures before that house is abandoned and run down in 
value and hurts the whole community. We also expand a carryback period 
for businesses, particularly to help those in the housing industry who 
have had a rough go of it kind of weather the storm so they can 
survive.
  Jack Reed of Rhode Island, my colleague, passed the Truth In Lending 
disclosure requirement for real estate closings.
  If you have ever sat through a real estate closing, you know there 
are a stack of papers like this, and they turn the pages and say: Keep 
signing. And in 20 minutes you walk out the door and say: What the heck 
did I just sign? Senator Jack Reed wants to have a cover sheet that has 
the basics on it so everybody initials it and signs it so they know 
their interest rate, what the term of the loan is, how much they are 
borrowing, if the interest rate can change, what the monthly payment 
is, what it could be--the high and low points--and is there a penalty 
for prepayment--basic things, so they don't walk out in a mystery as to 
what they just signed.
  Then there is a provision I have in there which the mortgage bankers 
hate like the devil hates holy water. Why do mortgage bankers hate this 
provision? First, let me introduce you to this group. The mortgage 
bankers were the industry that brought us this mess of subprime 
mortgages.
  They were the ones who started peddling mortgages that made no sense, 
convincing people who were caught off guard, or deceived, saying: Oh, 
of course you can afford this home; these are interest-only payments. 
Don't worry about it. Just look at the monthly payment, don't worry 
about it. And, listen, when it is supposed to reset and the payment 
goes up, you come back to me and I will refinance it. You know these 
homes will keep going up in value forever.
  A lot of unsuspecting people signed on to these mortgages. Some of 
them were elderly, and most of them were without advanced degrees in 
finance, and some were duped into this by come-on deception 
advertising. But the fact is, they signed on for the so-called subprime 
mortgages.
  Well, those are the folks who are going through trouble now. There 
are about 2.2 million of them. About one-third of them will end up in 
Bankruptcy Court. They will go into chapter 11 where you walk in and 
say to the judge: I am making an income, I am not out of work, but I 
have all these debts. Under chapter 11, the bankruptcy judge can start 
restructuring your debts, try to find a way through the mess so that at 
the end of the day you can get it back together again. About one-third 
of the people facing foreclosure will be in that position.
  Now, let's assume you walk into that bankruptcy court and you have a 
number of things you own. I will give you some examples; some are 
unusual. You own your home, you own a ranch, a vacation condo, and you 
own a yacht. I know most people don't own yachts, but let's use this 
example. Maybe it is just a big boat. What can that bankruptcy judge do 
when it comes to what you owe? Well, he can take your ranch and modify 
the terms of the mortgage. He can take your vacation condo in Florida 
and modify the terms of the mortgage. He can take your yacht, or big 
boat, and modify the terms of what you owe on your yacht.
  What about your home? No way. The law says the bankruptcy court 
cannot modify the terms of your mortgage on your home. It is prohibited 
by law. What is that all about? This is a graphic illustration of a 
yacht--and I don't know any Senator who owns one. But here is a yacht 
and here is a home. The bankruptcy court can renegotiate the terms for 
the yacht but not for the home. My bill says you will have a chance to 
renegotiate the terms of your home, but there are strict limitations.
  First, this doesn't apply to everybody. You have to have an existing 
mortgage, not anything that you could enter into at a future date. 
Second, it has to be a home, not a property you bought for speculation. 
Third, you have to qualify to go into bankruptcy court. Fourth, when 
they modify the mortgage, they cannot lower the principal below the 
fair market value of the home. Many foreclosure proceedings don't end 
up at fair market value. Fifth, the interest rate they can impose on 
the new mortgage cannot be anything less than the prime rate, plus a 
premium for risk. Sixth, if the home you have refinanced goes up in 
value in the next 5 years, the bank, the lender, gets the increase in 
value. You are protecting the lender on both ends--no lower than fair 
market value and any increase in value goes to the lender.
  Now, the mortgage bankers, God bless them, say this is the end of 
Western civilization as we know it. If these people are able to stay in 
their home under these circumstances, interest rates will go up all 
across the country. The Georgetown Law Center said this:

       Taken as a whole, our analysis of the current historical 
     data suggests that permitting bankruptcy modification of 
     mortgages would have no or little impact on mortgage markets.

  I have talked to these bankers. This doesn't make sense. Unregulated, 
unsupervised, without oversight, they dragged us into this mortgage 
crisis with millions of people and their homes on the line, and our 
economy is teetering on recession, the values of homes across America 
are in peril, and now they will not even allow us to help these 
families who will end up in bankruptcy court.
  I would like to have a vote on that. I would like to ask my friends 
on the Republican side of the aisle to, at 2:15 or 2:30, have a vote on 
this issue. If you don't want to fight fires, don't be a firefighter. 
If you don't want to cast a vote on an important issue in America 
today, don't run for the Senate. If you want to be in the Senate and be 
part of this national debate, for goodness sakes, vote to proceed to 
this bill. Let's not litter this graveyard of filibusters with this 
important housing stimulus bill.
  I urge my colleagues to vote for the motion to proceed.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Rhode Island is recognized.

[[Page S2268]]

  Mr. REED. Mr. President, let me first recognize the contribution of 
my colleague from Illinois with respect to the bankruptcy provision. He 
explained it extremely well. What it does is give homeowners a chance 
to get out from underneath a collapsing housing market in the United 
States. It has been well tailored and it is responsible and I think we 
should adopt it quickly in this package that is going forward.
  The whole housing crisis is a reflection of a much deeper economic 
malaise that is gripping the country. We are seeing skyrocketing prices 
in terms of energy and foodstuffs. On the recess I visited two Italian 
bakeries in Rhode Island. They have been family-owned companies for 
over 100 years, and they have never seen the runup in prices of wheat 
they have seen over the last several weeks and months.
  The final thing is that we are losing jobs now. In the last 2 months, 
we have lost many jobs. We lost 63,000 jobs last month. That is the 
largest monthly decline in jobs in 5 years. The national unemployment 
rate is 4.8. In Rhode Island it is 5.8 percent. We are seeing an 
economy sliding into recession. Key to this, in my view, to reconcile 
and try to stop the erosion of economic opportunity in this country is 
to stabilize the housing market. That is what the package of proposals 
that we will vote on this afternoon attempts to do.
  We have a situation in this country where incomes have been flat for 
the last 8 years for most Americans--unless you were extraordinarily 
compensated at the highest levels. But if you are a working man or 
woman, low income, middle income, or even upper middle income, your 
income has been relatively flat. You have seen accelerated costs. The 
last thing people had in their tool kit, if you will, was the value of 
their homes. They could draw on that in emergencies and use it to help 
children go to college. They could use it if there was an unexpected 
expense.
  Now, with declining housing values, American families are being 
squeezed dramatically--job losses, increasing prices, flat incomes, and 
now declining housing values. In fact, it has been estimated that today 
in the United States the value of homes fell below 50 percent of 
equity--the ratio of equity fell below 50 percent for the first time in 
a long time.
  We are also looking at a situation where there is a record number of 
foreclosures. Just this morning, coming into work and listening to the 
radio, I heard in Montgomery County, MD, there is a huge acceleration 
of foreclosures in that suburb. It is also happening across the 
country. In the Providence Journal in Rhode Island, there used to be 
maybe two, three pages of foreclosures on a high number. Now there is a 
whole section devoted to foreclosures.
  This is becoming a problem not just for individual households but for 
communities because the value of a foreclosed home brings down the 
value of the surrounding homes. It is a cascading effect. It ruins 
communities as well as impairs the credit and lives and the 
opportunities of individual families. We have to do much more to stem 
this decline, particularly with respect to housing values.
  Yesterday, I noted that Secretary Paulson announced significant 
steps, he proclaimed, to begin to revise the regulation of financial 
institutions, and part of it is prompted by the subprime mortgage 
crisis, the securitization of these loans. There is nothing in his 
blueprint that dealt with the most important aspect of the problem, and 
that is home values. The administration has been very keen and quick to 
help Wall Street. The reality is we have to help Main Street, 
individual homeowners across this country. If we do I think that will 
provide a surge of confidence to the economy, which is the key factor 
in beginning a recovery from what looks like the beginning of a 
recession, and perhaps a long recession, unless we act promptly.
  I have joined my colleagues to introduce this legislation, the 
Foreclosure Prevention Act of 2008, which builds on the economic 
stimulus package. It is a complement to it. I hope we can move today, 
despite previous opposition by my colleagues on the Republican side, to 
take up this legislation and begin the debate and modify it, if 
necessary, but move forward deliberately and quickly to address the 
issue of housing in the United States.
  This legislation, if enacted, would help families keep their homes by 
providing counseling for foreclosures, by expanding refinancing 
opportunities, and by getting the services and the counselors together 
to attempt to allow people to stay in their homes. One aspect of this, 
as mentioned by my colleague from Illinois, is the Bankruptcy Code 
modification that would allow these residences to be subject to a 
bankruptcy judge's determination of a different workout plan for the 
home. It also helps communities withstand the impact of foreclosures, 
as there is a cascading effect. If one home is foreclosed, the value of 
other homes begins to decline automatically. This would provide 
community development block grants to cities to purchase some of these 
homes. We have to move quickly because one of the other aspects is when 
these homes in urban areas are empty for a matter of weeks, or even, in 
some cases days, they are stripped--the siding is ripped off, or the 
copper plumbing is taken out. Unless there is someone to go in there 
and keep it in use or to board it up and protect it, then these homes 
are going to be a loss not just temporarily but for a longer term.
  This is going to help businesses by expanding the carry-back period 
from 2 to 5 years to utilize losses incurred in 2006 and 2007 and 2008. 
It is going to help, I hope, avoid foreclosure in the future. It will 
deal with the issue of clear disclosure of a maximum amount of a loan 
and maximum monthly payment legislation that I authored. This will give 
a bumper sticker or a big warning label on a mortgage to individual 
borrowers and tell them the maximum amount of money they have liability 
for. So the introductory teaser rate of $1,000 a month might be 
attractive, but if people realize that within a year or 2 years they 
will be paying two or three times that, it will give them the 
information they need to make a better judgment about signing up for 
that loan.
  So this legislation is critical to families, and it is particularly 
critical, I think, to ensure that we begin to work our way out of the 
looming recession and an economy that is deeply troubled. I hope all my 
colleagues will vote to go forward with this measure and, I hope, pass 
this measure.
  I yield the floor.

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