[Congressional Record Volume 155, Number 96 (Wednesday, June 24, 2009)]
[Senate]
[Pages S6971-S6975]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                          Sotomayor nomination

  Mr. SESSIONS. Madam President, the individual right to keep and bear 
arms--I think a fundamental right guaranteed by the explicit text of 
the second amendment of the U.S. Constitution--is at risk today in ways 
a lot of people have not thought about.
  Although the Supreme Court recently held that the second amendment is 
an individual right, which is a very important rule, many significant 
issues remain unresolved, which most people have not thought about.
  The Supreme Court, including whoever will be confirmed to replace 
Justice Souter, will have to decide whether the second amendment has 
any real force or whether, as a practical matter, to allow it to 
eviscerate its guarantees.
  The second amendment says that ``the right of the people to keep and 
bear Arms, shall not be infringed.'' ``[T]he right of the people to 
keep and bear Arms, shall not be infringed.'' I know there is a 
preamble about a well-regulated militia being important to the security 
of the State, but the Supreme Court has ruled on that in Heller and 
said that does not obviate the plain language that the right to keep 
and bear arms is a right that individual Americans have, at least vis-
a-vis the U.S. Government.
  Not all the amendments, I would say, are so clearly a personal right. 
The first amendment, if you will recall, protects freedom of religion 
and freedom of speech. It talks about restricting Congress: Congress 
shall make no law with respect to the establishment of a religion or 
prohibiting the free exercise thereof.
  So some could argue that does not apply to the States. It would apply 
only to the Federal Government because it explicitly referred to it. 
However, the Supreme Court has held it does apply to the States, and 
the right of speech and press and religion are applicable to the States 
and bind the States as well.
  In the case of District of Columbia v. Heller, the Supreme Court 
recently held that the second amendment ``confer[s] an individual right 
to keep and bear arms.'' This is consistent with the Constitution and 
was a welcome and long-overdue holding.
  Despite this holding, however, many important questions remain. For 
example, it is still unsettled whether the second amendment applies 
only to the Federal Government or to the State and local governments as 
well--a pretty big question. This question will determine whether 
individual Americans will truly have the right to keep and bear arms 
because if that is not held in that way, it would allow State and local 
governments--not bound by the second amendment--to pass all sorts of 
restrictions on firearms use and ownership. They may even ban the 
ownership of guns altogether.
  So we are talking about a very important issue. Remember, the 
District of Columbia basically banned firearms. It is a Federal 
enclave, in effect, with Federal law. And the Supreme Court held that 
the Federal Government could not violate the second amendment, was 
bound by the second amendment, and that legislation went too far. But 
they, in a footnote, noted they did not decide whether it applies to 
the States, cities, and counties that could also pass restrictions 
similar to the District of Columbia.
  President Obama, who nominated Judge Sotomayor, has a rather limited 
view of what the second amendment guarantees.
  In 2008, he said that just because you have an individual right does 
not mean the State or local government cannot constrain the exercise of 
that right--exactly the issues the Supreme Court has not resolved yet. 
Can States and localities constrain the exercise of that right in any 
way they would like?
  In 2000, as a State legislator, the President cosponsored a bill that 
would limit the purchase of handguns to one a month.
  In 2001, he voted against allowing the people who are protected by 
domestic violence protective orders--because they felt threatened--he 
voted against legislation that would allow them to carry handguns for 
their protection.
  So there is some uncertainty about his personal views.
  Let's look at Judge Sotomayor, whom the President nominated, and her 
record on the second amendment. That record is fairly scant, but we do 
know that Judge Sotomayor has twice said the second amendment does not 
give you and me and the American people a fundamental right to keep and 
bear arms.
  The opinions she has joined have provided a breathtakingly, I have to 
say, short amount of analysis on such an important question to the U.S. 
Constitution. And the opinions she has written lack any real discussion 
of the importance of these issues, in an odd way.
  Judge Sotomayor has gone from sort of A to Z without going through B, 
C, D, and so forth. For example, in her most recent opinion in January 
of this year--Maloney v. Cuomo--which asked whether the Supreme Court's 
protection of the right to bear arms in DC--the Heller case--would 
apply to the States, she spent only two pages to explain how she 
reached her conclusion. Her conclusion was that it did not.
  The Seventh Circuit dealt with this same question and reached the 
same conclusion, but they gave the issue the respect it deserved and 
had eight pages discussing this issue, at a time when Judge Sotomayor 
only spent about two pages on it and not very much discussion at all.
  The Ninth Circuit reached a different opinion. They say the second 
amendment does apply to individual Americans and does bar the cities of 
Los Angeles or New York or Philadelphia from barring all hand guns 
because you have an individual constitutional right to keep and bear 
arms. So the Ninth Circuit disagreed, and they had 33 pages in 
discussing this important issue.
  Further, in deciding that the second amendment applies to the people, 
the majority in the Supreme Court dedicated, in Heller, 64 pages to 
this important issue. Including dissents and concurrences on that 
decision, the entire Court generated 157 pages of opinion. Judge 
Sotomayor wrote only two pages in a very important case as important as 
Heller. Judge Sotomayor's lack of attention and analysis is troubling.
  These truncated opinions also suggest a tendency to avoid or casually 
dismiss constitutional issues of exceptional importance. Other examples 
might include the New Haven firefighters case, Ricci v. DeStefano, 
which is currently pending before the Supreme Court on review, and the 
fifth amendment case of Didden v. Village of Port Chester, which was 
recently discussed in the New York Times. It dealt with condemnation of 
a private individual's property. All those were serious constitutional 
cases. They had the most brief analysis by the court, which is odd.
  I do not think it is right for us to demand that we know how a judge 
will rule on a case in the Supreme Court. I am not going to ask her to 
make any assurances about how she might rule. But I do think it will be 
fair and reasonable to ask her how she reached the conclusions she 
reached and perhaps why she spent so little time discussing cases of 
fundamental constitutional importance.
  I am not the only one who has been troubled by the second amendment 
jurisprudence of Judge Sotomayor. As I mentioned previously, the Ninth 
Circuit disagreed with her opinion and held that the second amendment 
is a fundamental right applicable to the States and localities.
  Additionally, in a June 10 editorial, the Los Angeles Times--a 
liberal newspaper--disagreed with her view in Maloney as to whether the 
second amendment applies against States and localities.
  Moreover, in a June 10 op-ed in the Washington Times, a leading 
academic argued that the decision in Maloney was flawed.
  So these are critical questions that will determine whether the 
people of the United States have a fundamental right guaranteed by the 
Constitution to keep and bear arms. So I think it is important and it 
is more than reasonable for the Senators to analyze the opinions on 
this question and to inquire as to how the judge reached her decisions 
and what principles she used in doing so.
  I would say we are moving forward with this confirmation process. It 
is a

[[Page S6972]]

difficult time for us in terms of time. There are now only eight 
legislative days before the hearings start. There is a lot of work to 
be done, a lot of records that have not yet been received. So our team 
and Senators are working very hard, and we will do our best to make 
sure we have the best hearings we have ever had for a Supreme Court 
nominee.
  I see my colleague, Senator Hatch, in the Chamber, who is a fabulous 
constitutional lawyer and former chairman of this Judiciary Committee. 
I was honored to work for him, serve under him, when he was our leader. 
I know whatever he says on these subjects is something the American 
people need to listen to because he loves this country, he loves our 
Constitution, and he understands it.
  I thank the Chair and yield the floor.
  The PRESIDING OFFICER (Mr. Udall of New Mexico). The Senator from 
Utah is recognized.
  Mr. HATCH. Mr. President, I thank my colleague for his comments. He 
knows how deeply I respect him and how proud I am that he is the 
Republican leader on the Judiciary Committee. He will do a terrific 
job, and has been doing a terrific job, ever since he took over.
  Considering a Supreme Court nominee is one of this body's most 
important responsibilities. I come at this wanting to support whomever 
the President nominates. The President has the right to nominate and 
appoint, and we have a right, it seems to me, to vote up or down one 
way or the other and determine whether we will consent to the 
nomination. We can also give advice during this time.
  Only 110 men and women have so far served on our Nation's highest 
Court, and President Obama has now nominated Judge Sonia Sotomayor to 
replace Justice David Souter. Our constitutional rule of advise and 
consent requires us to determine whether she is qualified for this 
position by looking at her experience and, more importantly, her 
judicial philosophy.
  President Obama has already described his understanding of the power 
and role of judges in our system of government. He has said he will 
appoint judges who have empathy for certain groups and that personal 
empathy is an essential ingredient for making judicial decisions. Right 
off the bat, President Obama's vision of judges deciding cases based on 
their personal feelings and priorities is at odds with what most 
Americans believe. A recent national poll found that by more than three 
to one, Americans reject the notion that judges may go beyond the law 
as written and take their personal views and feelings into account.
  Judge Sotomayor appears to have endorsed this subjective view of 
judging. In one speech she gave several times over nearly a decade, she 
endorsed the view that there is actually no objectivity or neutrality 
in judging, but merely a series of perspectives. She questioned whether 
judges should even try to set aside their personal sympathies and 
prejudices in deciding cases, a view that seems in conflict with the 
oath of judicial office which instead requires impartiality.
  We must examine Judge Sotomayor's entire record for clues about her 
judicial philosophy. She was, after all, a Federal district court judge 
for 6 years and has been a Federal appeals court judge for nearly 11 
more. While we were told that this is the largest Federal judicial 
record of any Supreme Court nominee in a century, we are being allowed 
the shortest time in recent memory to consider it. The 48 days from the 
announcement to the hearing for Judge Sotomayor is more than 3 weeks--
more than 30 percent--shorter than the time for considering Justice 
Samuel Alito's comparable judicial record. There was no legitimate 
reason for this stunted and rushed timetable, but that is what the 
majority has imposed on us and that is where we are today.
  I wish to take a few minutes this afternoon to look at Judge 
Sotomayor's judicial record on a very important issue to me and, I 
think, many others in this body: the right to keep and bear arms 
protected by the second amendment to the Constitution.
  Some can be quite selective about constitutional rights--prizing 
some, while ignoring others. Some even trumpet rights that are not in 
the Constitution at all as more important than those that are right 
there on the page. It appears that Judge Sotomayor has taken a somewhat 
dim view of the second amendment. Two issues related to the scope and 
vitality of the right to keep and bear arms are whether it is a 
fundamental right and whether the amendment applies to the States as 
well as to the Federal Government. On each of these issues, Judge 
Sotomayor has chosen the side that served to limit, confine, and 
minimize the second amendment. She has done so without analysis, when 
it was unnecessary to decide the case before her, and even when it 
conflicted with Supreme Court precedent or her own arguments.
  In a 2004 case, for example, a Second Circuit panel including Judge 
Sotomayor issued a short summary order affirming an illegal alien's 
conviction for drug distribution and possession of a firearm. The case 
summary and headnotes supplied by Lexis take up more space than the 
three short paragraphs proffered by the court. Judge Sotomayor's court 
rejected a second amendment challenge to New York's ban on gun 
possession in a single sentence relegated to a footnote with no 
discussion, let alone any analysis of the issue whatsoever. In fact, 
the court neither described the appellant's argument nor indicated how 
the district court had addressed this constitutional issue, but merely 
cited a Second Circuit precedent for the proposition that the right to 
possess a gun is ``clearly not a fundamental right.''
  That is pretty short shrift for a constitutional claim. Last year, in 
the District of Columbia v. Heller, the Supreme Court held that the 
second amendment right to keep and bear arms is an individual rather 
than a collective right. But the Court also noted that by the time of 
America's founding, the right to have arms was indeed fundamental, and 
that the second amendment codified this preexisting fundamental right. 
Several months later, a Second Circuit panel including Judge Sotomayor 
affirmed a conviction under State law for possessing a weapon. Citing a 
1886 Supreme Court precedent, the Second Circuit held that under the 
Constitution's privileges and immunities clause, the second amendment 
applies only to the Federal Government, not to the States. Whether 
correct or not, that holding was obviously enough to decide the issue 
in that particular case. Judge Sotomayor's court, however, went beyond 
what was necessary to further minimize the second amendment by once 
again characterizing it as something less than a fundamental right. The 
court said that there need be only a so-called rational basis to 
justify a law banning such weapons, a legal standard it said applies 
where there is no fundamental right involved. The court simply ignored 
and actually contradicted the Supreme Court's decision in Heller by 
treating the second amendment as protecting less than a fundamental 
right. In fact, the very 1886 precedent Judge Sotomayor's court cited 
to hold that the second amendment limits only the Federal Government 
recognized the preconstitutional nature of the right to bear arms. Her 
court never addressed these contradictions.
  The Seventh Circuit has since also held that under the privileges and 
immunities clause, the second amendment limits only the Federal 
Government. But the Ninth Circuit last month held that under the 
Constitution's due process clause, the second amendment does indeed 
apply to the States. These courts gave this issue much more analysis 
than did Judge Sotomayor's court and neither found it necessary to 
address whether the right to keep and bear arms is fundamental. I wish 
Judge Sotomayor's court had shown similar restraint.
  It appears that Judge Sotomayor has consistently and even 
gratuitously opted for the most limiting, the most minimizing view of 
the second amendment. No matter how distasteful, this result would be 
legitimate if it followed adequate analysis, if it properly applied 
precedent, and if it was necessary to decide the cases before her. In 
that event, it would not like it but probably could not quarrel with 
it. But as I have indicated here, this is not the case. There was 
virtually no analysis, her conclusion conflicted with precedent, and 
was unnecessary to decide the cases before her. This is not the picture 
of a restrained judge who has set aside personal views and is focusing 
on applying the law rather than on

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reaching politically correct results. These are serious and troubling 
issues which go to the very heart of the role judges play in our system 
of government. These are elements not from her speeches but from her 
cases that give shape to her judicial philosophy. We have a written 
Constitution which is supposed to limit government, including the 
judiciary. We have the separation of government power under which the 
legislative branch may employ empathy to make the law, but the judicial 
branch must impartially interpret and apply the law. We have a system 
of self-government in which the people and their elected 
representatives make the law and define the culture. It is no wonder 
that most Americans believe that judges must take the law as it is, not 
as judges would like it to be, and decide cases impartially. That is 
exactly what judges are supposed to do if our system of ordered liberty 
based on the rule of law is to survive.
  President George Washington said that the right to keep and bear arms 
is ``the most effectual means of preserving peace.''
  Justice Joseph Story, in his legendary commentaries on the 
Constitution, called this right the ``palladium of the liberties of a 
republic.''
  I, for one, am glad that our Founders did not give short shrift to 
this fundamental individual right.
  Let me close my remarks this afternoon by saying that these are some 
of the questions that need answers, issues that need clarification, and 
concerns that need to be satisfied as the Senate examines Judge 
Sotomayor's record. Perhaps such answers, clarification, and 
satisfaction exist. My mind is open, and I look forward to the hearing 
in which these and many other matters no doubt will be raised. These 
are important issues that can't be shunted aside as though they are 
unimportant, and Judge Sotomayor needs to answer some of these issues 
and questions that we are raising as we go along.
  I told her that we will ask some very tough questions and that she is 
going to have to answer them. She understands that, and I appreciate 
that.
  With that, I yield the floor.
  The PRESIDING OFFICER. The Senator from South Dakota is recognized.
  Mr. THUNE. Mr. President, I rise today to follow up on some of the 
comments made by my colleagues who had come to the floor to talk about 
the nomination of Judge Sotomayor to the Supreme Court of the United 
States.
  Any confirmation the Senate considers is important but none more so 
than a lifetime appointment to the most distinguished judicial office 
in our Nation.
  Now that the President has nominated Judge Sotomayor, it is the 
Senate's job to give advice and consent. As Alexander Hamilton told the 
Constitutional Convention:

       Senators cannot themselves choose--they can only ratify or 
     reject the choice of the President.

  I take this role very seriously, as do all of my Senate colleagues. 
In fact, just 3\1/2\ years ago, on this very floor, one of our 
colleagues in the Senate at the time rose and gave the following views 
on a then-pending Supreme Court nomination. I will quote for you what 
he said:

       There are some who believe that the President, having won 
     the election, should have complete authority to appoint his 
     nominee and the Senate should only examine whether the 
     Justice is intellectually capable and an all-around good 
     person; that once you get beyond intellect and personal 
     character, there should be no further question as to whether 
     the judge should be confirmed. I disagree with this view. I 
     believe firmly that the Constitution calls for the Senate to 
     advise and consent. I believe it calls for meaningful advice 
     and consent and that includes an examination of the judge's 
     philosophy, ideology, and record.

  The Senator who made those remarks was then-Senator Obama. He spoke 
those words in January 2006 on this floor when the Senate was debating 
the confirmation of now-Supreme Court Justice Samuel Alito.
  I, like the President, believe it is the Senate's constitutional duty 
to thoroughly review all nominees to the Federal bench, especially 
those who will have a lifetime appointment to the highest Court in our 
Nation. This review should be thorough and fair and cover a nominee's 
background, judicial record, and adherence to the Constitution. This is 
especially true with the voluminous judicial record Judge Sotomayor has 
compiled, with over 3,600 Federal district and appellate level 
decisions. The Senate must also work to ensure that the nominee will 
decide cases based upon the bedrock rule of law as opposed to their own 
personal feelings and political views.
  As part of this confirmation process, I had the opportunity this 
morning to meet with Judge Sotomayor. Like many in this body, I agree 
that she has an impressive background, as well as a compelling personal 
story. But what we have to do is examine and look at her record when it 
comes to her understanding of the Constitution, especially as it 
relates to the second amendment right to bear arms, and that is an area 
where I have significant concerns.
  While sitting on the Second Circuit Court of Appeals, Judge Sotomayor 
consistently advanced a narrow view of the second amendment and did so 
with little explanation or reasoning. For example, twice, Judge 
Sotomayor has ruled that the second amendment is not a ``fundamental 
right.'' The first time she did so with a one-sentence footnote, and 
most recently it was simply stated as fact without any explanation or 
reasoning being provided. Judge Sotomayor's views on whether the second 
amendment right to bear arms is a fundamental right are so important 
because the Supreme Court has made this determination a key element in 
deciding whether to apply parts of the Bill of Rights, such as the 
second amendment, to State and local governments.
  This question, also known as incorporation, is likely to be the next 
second amendment issue the Supreme Court will consider because the 
circuit courts of appeal are split, and the Supreme Court specifically 
noted that they were not deciding this issue in the landmark District 
of Columbia v. Heller decision, which was decided last year.
  What is most troubling to me, though, is that these second amendment 
cases point out a disturbing trend that legal experts have expressed 
about Judge Sotomayor: That she has a record of avoiding or casually 
dismissing difficult and important constitutional issues. It doesn't 
take an attorney to notice that Judge Sotomayor's discussion of 
incorporation, a challenging and constitutionally significant issue, 
consists of just a few paragraphs. In contrast, the opinions for both 
the Ninth Circuit and the Seventh Circuit discuss the issue at length 
and, in doing so, give this important issue the attention and analysis 
it deserves. While I understand that writing styles can and do vary, 
even in the writing of judicial opinions, I am still concerned about 
the apparent lack of thoughtfulness and thorough reasoning in her 
decisions.
  Another example of a Judge Sotomayor opinion that appears to be 
unnecessarily short and inadequately reasoned is the Ricci v. DeStefano 
case, or more popularly known as the New Haven firefighter promotion 
case. In this case, a three-judge panel, which included Judge 
Sotomayor, published an unusually short and unsigned opinion that 
simply adopted the lower district court's ruling without adding any 
original analysis. Even one of Judge Sotomayor's own mentors, Judge 
Jose Cabranes, commented that the Ricci opinion ``contains no reference 
whatsoever to the constitutional claims at the core of this case'' and 
that the ``perfunctory disposition [of the case] rests uneasily with 
the weighty issues presented by this appeal.'' Without careful 
reasoning being provided, critics and supporters alike have been left 
to wonder on what basis these decisions have been made. I am left with 
concerns about these rulings and whether they are based upon personal 
views and feelings rather than the rule of law.
  My short meeting with Judge Sotomayor this morning did not provide 
either of us with enough time to address these issues and these 
concerns at length, and that is why, like many colleagues, I will be 
monitoring closely the confirmation hearings that are set to occur next 
month. During those hearings, it is my hope that the members of the 
Judiciary Committee will take the necessary time to explore and 
thoroughly examine her positions and legal reasoning, especially on the 
second amendment, in greater detail.
  I, like many of my colleagues, am anxious to see this process move 
forward. We also understand the weight that is attached to the 
constitutional role of the Senate when it comes to advice and consent. 
When you consider a

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lifetime appointment to the highest Court in the land, you better make 
sure that you do your homework and that you thoroughly and completely 
and fairly examine the record.
  I hope the Judiciary Committee--and I know they will--will conduct 
this in a way which is consistent with the tone that ought to be a part 
of this. It ought to be a civil discussion. It also needs to be 
thorough because we are talking about a lifetime appointment to the 
Supreme Court. Whoever ends up on that Court will be faced with a great 
many issues, all of which have lasting consequences for this great 
Republic.
  In my view, it is important that we have judges who are put on the 
Supreme Court who understand that the role of the judiciary in our 
democracy is not to play or take sides; it is to be the referee, the 
umpire, to be someone who applies the Constitution, the laws of the 
land, fairly to the facts in front of them in the cases they will hear. 
I certainly hope that, as we have an opportunity to more thoroughly 
review the record of this nominee, the members of the Judiciary 
Committee and all of the Members of the Senate will take that 
responsibility very seriously. That will be the criteria and the filter 
by which I look at this nominee--whether or not, in my view, she 
exercises an appropriate level of judicial restraint and doesn't view 
the role of a judge in our judiciary system in this country to be that 
of an activist, someone who expresses personal feelings or tries to 
advance a particular political agenda, but someone who, in terms of 
philosophy and temperament, is committed to that fundamental principle 
of judicial restraint, which is a hallmark of our democracy and has 
been for well over 200 years.
  I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. THUNE. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. THUNE. Mr. President, I didn't have an opportunity to address the 
Koh nomination this morning. We had a cloture vote on the nomination of 
Harold Koh to be the next State Department Legal Adviser. I wish to 
express some of the views and concerns I have. Obviously, cloture was 
invoked this morning, and my guess is that he will ultimately be 
confirmed. We have an opportunity in a postcloture period to talk a 
little bit about this nominee.
  I have to say this is an important position. If confirmed, Mr. Koh 
would be the top lawyer at the State Department and would be involved 
in the negotiation, the drafting, and the interpretation of treaties 
and U.N. Security Council resolutions. He would also represent the 
United States in other international negotiations, at international 
organizations, and before the International Court of Justice. To put it 
simply, he would be viewed as the top legal authority for the United 
States by the international community.
  Similar to Judge Sotomayor, Mr. Koh highlights an alarming trend 
which I think we see in some of President Obama's nominees. They have 
impressive backgrounds, but when their records are examined in detail, 
there are substantive questions about their understanding of the 
Constitution. For example, Mr. Koh has said repeatedly, including at 
his confirmation hearing, that he believes the congressionally 
authorized 2003 U.S. invasion of Iraq ``violated international law'' 
because the United States had not received ``explicit United Nations 
authorization'' beforehand. He also said that the U.S. Supreme Court 
should ``tip more decisively toward a transnationalist jurisprudence'' 
as opposed to basing decisions on the U.S. Constitution and laws made 
pursuant to it.
  His views on the second amendment are also extremely worrisome. In a 
speech called ``A World Drowning in Guns,'' which was given at Fordham 
University Law School in 2002 and later published in the Law Review, he 
explains why he believed there should be a global gun control regime 
and admits that ``we are a long way from persuading government to 
accept a flat ban on the trade of legal arms.''
  He concludes his speech with this statement:

       When I left the government several years ago, my major 
     feeling was of too much work left undone. I wrote for myself 
     a list of issues on which I needed to do more. One of those 
     issues was the global regulation of small arms.

  Given, again, that Mr. Koh will be the top legal adviser at the State 
Department on both domestic and international issues, I have concerns, 
because of statements such as these, that he could place his own 
personal agenda ahead of the needs of our country and the Constitution.
  So we will have an opportunity probably--we have had the cloture vote 
on the nomination, but I wanted to express for the record my concerns 
about this nominee and the types of statements he has made in the past, 
the type of agenda he has expressed support for, and how, in my view, 
it contradicts many of the basic constitutional freedoms and rights--
the second amendment being one--that I would raise as a major concern 
but also this notion that transnational jurisprudence--that the Supreme 
Court ought to tip more decisively in that direction. That is a cause 
for great concern.
  I hope that on final disposition of this nominee, the Senate will 
vote to reject this nomination. It is, in my view, dangerous to the 
national security interests of the United States and some of our basic 
constitutional freedoms when he rules in the way he has in the past and 
continues to issue statements that, in my view, are very troublesome. I 
will be opposing this nomination, and I hope my colleagues will as 
well.
  I yield the floor.
  Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. DURBIN. Mr. President, I ask unanimous consent the order for the 
quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Merkley). Without objection, it is so 
ordered.
  Mr. DURBIN. It is my understanding we are postcloture, speaking on 
the nomination of Harold Koh to be Legal Adviser for the Department of 
State; is that correct?
  The PRESIDING OFFICER. That is correct.
  Mr. DURBIN. Mr. President, earlier today the Senate voted to invoke 
cloture and move forward with this nomination. Sixty-five Senators 
recognized the extraordinary qualifications that Mr. Koh will bring to 
the State Department. Yet in the last few weeks, some Senators on the 
other side of the aisle have done everything they can to slow down the 
work of the Senate, even going so far as to delay the consideration of 
a bill to promote tourism in America. That is a noncontroversial bill 
with 11 Republican cosponsors but a bill that could only get two 
Republican Senators to support it when we asked to move it forward.
  Unfortunately, the same thing is happening with the nomination of Mr. 
Koh. This is a nomination which is not controversial for most Members 
of the Senate--65 supported going forward. Yet the Republicans are 
insisting, as they have the right to do under Senate rules, that we 
delay for maybe up to 30 hours before we actually get to the vote. If 
we are going to waste that much time on a noncontroversial nomination 
for a person to become Legal Adviser to the State Department, the 
people of this country have a right to ask what is the goal of the 
Republicans in doing this?
  There is a lot we need to do in the Senate. There is a lot the 
American people are counting on us to do, measures we should be 
considering. I have a bipartisan measure on food safety. I have been 
working on this for over 10 years. There is not a week that goes by 
that there is not some new press report about something dangerous: pet 
food, cookie dough--you name it. All of these things have been in the 
headlines over the last several years, and we can do a better job 
making sure the items we purchase at our local stores for our families, 
for our pets, are safe; making sure the things we import from other 
countries are safe. But we cannot even get to that measure because 
there is a strategy on the Republican side of the aisle to stop us, to 
delay as much as possible to try to make sure the Senate does as little 
as possible.

[[Page S6975]]

  In the last election, the people of this country said: We think it is 
time for change in this town of Washington. We are sick and tired of 
this partisan bickering and this waste of time and Democrats banging 
heads with Republicans. Why don't you all just roll up your sleeves and 
be Americans for a change and try to solve the problems? You may not 
get it completely right, but do your best and work at it. Spend some 
time on it.
  Look at what we have, an empty Chamber. This Senate Chamber should be 
filled with debate on critical issues, but it is not because, 
unfortunately, this is a procedural strategy on the other side of the 
aisle which is slowing us down.
  This man whose nomination is before us should have just skated 
through here. This is an extraordinarily talented man. Mr. Harold Koh 
has a long and distinguished history of serving his country and the 
legal profession. During the Reagan administration, a Republican 
President's administration, he was a career lawyer in the Office of 
Legal Counsel at the Department of Justice; in 1998, unanimously 
confirmed as the U.S. Assistant Secretary of State for Democracy, Human 
Rights and Labor, a bureau in the State Department that champions many 
of our country's most cherished values around the world.
  Mr. Koh's academic credentials are amazing--a Marshall Scholar at 
Oxford, graduate of Harvard Law School, editor of the Harvard Law 
Review, and he went on to be a clerk at the Supreme Court across the 
street, which is about as good as it gets coming out of law school.
  Since the year 2004, Harold Koh has served as dean of the Yale Law 
School. Mr. Koh was a Marshall Scholar at Oxford. He has been awarded 
11 honorary degrees and 30 human rights awards.
  I don't know that you could present a stronger resume for a man who 
wants to serve our country, to be involved in public service and step 
out of his professional life as a lawyer in the private sector, with 
law schools. He has been endorsed by leaders, legal scholars from both 
political parties, including the former Solicitor General, Ted 
Olson, former Independent Counsel Ken Starr, former Bush Chief of Staff 
Josh Bolton, seven former Department of State Legal Advisers, including 
three Republicans, more than 100 law school deans, and 600 law school 
professors from around the country. What more do we ask for someone who 
wants to serve this country?

  Several retired high-ranking military lawyers have written: If the 
U.S. follows Koh's advice, as State Department Legal Adviser:
  [It] will once again be the shining example of a Nation committed to 
advancing human rights that we want other countries to emulate.
  Here is an excerpt from a recent letter for support Ken Starr sent to 
Senators Kerry and Lugar. I have had my differences with Ken Starr. 
Politically we are kind of on opposite sides. Here is what he said of 
Dean Koh, who is being considered by this empty Senate Chamber as we 
burn off 30 hours. He wrote:

       My recommendation for Harold comes from a deep, and long-
     standing, first-hand knowledge. We have been vigorous 
     adversaries in litigation. We embrace different perspectives 
     about a variety of different substantive issues. As citizens, 
     we no doubt vote quite differently. But based on my two 
     decades of interaction with Harold, I am firmly convinced 
     that Harold is extraordinarily well qualified, to serve with 
     great distinction in the post of legal adviser. . . . 
     Harold's background is, of course, the very essence of the 
     American dream. . . . Harold embraces, deeply, a vision of 
     the goodness of America, and the ideals of a nation, ruled, 
     abidingly, by law.

  There is overwhelmingly bipartisan support for Harold Koh. Usually 
these nominations are done routinely late at night when there are few 
people on the floor, and when we are going through a long series of 
things to do. Someone with this kind of background does not even slow 
down as they move through the Senate on to public service.
  But, unfortunately, the strategy on the other side of the aisle is to 
slow things down, do as little as possible this week. I sincerely hope 
that when the time comes, when the 30 hours have run, when the 
Republicans have finally decided they do not want to delay the Senate 
any longer, they will bring Mr. Koh's nomination to a vote.
  I enthusiastically support his nomination and encourage my colleagues 
to join me in voting him out of the Senate quickly so he can continue 
his record of public service.