[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
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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.
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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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