[Congressional Record Volume 156, Number 32 (Monday, March 8, 2010)]
[Senate]
[Pages S1247-S1252]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
GRIDLOCK AND RECONCILIATION
Mr. SPECTER. Mr. President, I am now going to speak about the subject
of gridlock which confronts this body and the use of the reconciliation
process to enact comprehensive health care reform.
We have seen an extraordinary display of gridlock, evidenced at the
present time. We have some 30 judicial nominees which are pending, and
I ask unanimous consent to have printed in the Record the list of
nominees following my remarks.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
(See exhibit 1.)
Mr. SPECTER. We have some 64 executive branch nominees who are now
pending, and I ask unanimous consent to have printed in the Record a
list of these nominees following my remarks.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
(See exhibit 2.)
Mr. SPECTER. We have some 13 ambassadorial positions pending, only 1
of which I am advised is controversial, and I ask unanimous consent to
have printed in the Record a list of these 13 positions following my
remarks.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
(See exhibit 3.)
Mr. SPECTER. On many occasions, the majority leader has been
compelled to file a cloture petition, which is well known on this
Senate floor. I don't believe it even has to be explained to C-SPAN
viewers, even though it is technical and arcane, because it has been
used so often. But in case anyone new is watching C-SPAN2--or perhaps I
should say in case anybody is watching C-SPAN2--just a word of
explanation. If a Senator places a hold on a nomination, that is a
signal for a filibuster.
Unfortunately, we don't have filibusters. I have been in the Senate
now since being elected in 1980 and I have been part of only one real
filibuster. Had we utilized that procedure, perhaps there would be
fewer holds and fewer moves toward filibuster. People really had to
stand up here and argue, as Senator Thurman did historically once, for
some 26 hours. But when the majority leader is compelled to file a
cloture petition, cloture is invoked, and then some 30 hours must be
consumed where the Senate can take care of no additional business, the
two lights are on, there is a quorum call, and it is a colossal waste
of time.
I am going to recite the facts in five of these cloture petitions to
demonstrate that there was never really a controversy. Christopher
Hill, Ambassador to the Republic of Iraq, had a cloture vote. Yet his
vote in favor was 73 to 17--hardly controversial. Robert M. Groves, of
Michigan, to be the Director of the Census, the cloture vote was 76 to
15--not really a contest there at all. Nobody seriously contested his
confirmation. David Hamilton to be a judge of the Seventh Circuit, 70
yeas, 29 nays. A cloture petition was filed on Martha N. Johnson to be
Administrator of General Services. The vote was 82 to 16. The
nomination of Barbara Keenan to be a circuit judge in the Fourth
Circuit, 99 to 0.
Mr. President, I ask unanimous consent to have printed in the Record
the details of these cloture motions and confirmations following my
remarks.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
(See exhibit 4.)
Mr. SPECTER. So the stage is now set where we have gridlock on the
issue of comprehensive health care reform. In this situation, we have
had the bills passed by both the House and the Senate, and we are now
looking to use reconciliation, a procedure which has been employed some
22 times in analogous circumstances. Illustrative of the analogous
circumstances are the use of cloture to pass Medicare Advantage and the
passage of COBRA, the passage of SCHIP--health care for children--and
the passage of the welfare reform bill in 1996.
In a learned article in the New England Journal of Medicine, Dr.
Henry J. Aaron, an expert on budgetary matters, had this to say:
[reconciliation] can be used only to implement instructions
contained in the budget resolution relating to taxes or
expenditures. Congress created reconciliation procedures to
deal with precisely this sort of situation. . . .
And he is referring here to what we have with the Senate-passed bill
and the House-passed bill.
Quoting him further:
The 2009 budget resolution instructed both Houses of
Congress to enact health care reform. The House and the
Senate have passed similar but not identical bills. Since
both Houses have acted but some work remains to be done to
align the two bills, using reconciliation to implement the
instructions in the budget resolution follows established
congressional procedure.
I ask unanimous consent to have printed in the Record the full text
of this article following my remarks.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
(See exhibit 5.)
Mr. SPECTER. So what we have here, essentially, is gridlock created
by the composition of the two Houses of Congress. We have a situation
where not one Member on the other side of the aisle voted in favor of
the health care bill. In the House of Representatives, the vote was 176
to 1; that is, among the 177 Republicans voting, only 1 out of 177 in
the House voted in favor. It is hard to see a more precise definition
of ``gridlock'' than what appears here.
It would be my hope that we would be able to resolve the issue
without resorting to reconciliation. If there is any doubt about the
procedure, our institutional integrity would be enhanced without going
in that direction. But if you have to fight fire with fire and since it
is a legitimate means, then we can use it.
Five years ago, in 2005, the Senate faced a somewhat similar
situation when the roles were reversed, when it was the Democrats
filibustering judicial nominees of President Bush. And we find that so
often it depends on whose ox is being gored as to who takes the
position. Some of the most vociferous objectors to the use of
reconciliation on comprehensive health care reform have filled the
Congressional Record with statements in favor of using reconciliation
in analogous circumstances when it helped their cause. But in the year
2000, it was the Democrats stymying Republican judicial nominees.
During the Clinton administration, it was exactly reversed--it was
Republicans stymying Clinton's judicial nominees. Fortunately, in 2005
we were able to work out the controversy. We were able to confirm some
of the judges, some of the judges were withdrawn, and we did not move
for what was called the nuclear option, which would have confirmed
judges by 51 votes.
The procedural integrity of the Senate is very important. Without
going into great detail, it was the Senate that saved the independence
of the Federal judiciary when the Senate acquitted Supreme Court
Justice Chase
[[Page S1248]]
in 1805, and it was the Senate that preserved the power of the
Presidency on the impeachment proceeding of Andrew Johnson in 1868.
Congress sought to have limited the President's power to discharge a
Cabinet officer in the absence of approval by the Senate. Well, the
Senate has to confirm, but the Senate doesn't have standing to stop the
President from terminating the services of a Cabinet officer. And
there, the Senate saved it through the courageous vote of a single
Senator--a Kansan, I like to mention, being one originally myself.
So it would be fine if we could find some way to solve the problem,
but absent that, this Senate reconciliation procedure is entirely
appropriate. We have gotten much more deeply involved in the research
and analysis as this issue has come to the floor on comprehensive
health coverage.
The gridlock that faces the Senate and the country today has profound
implications beyond the legislation itself. It is hard to find
something more important than insuring the millions of Americans now
not covered or to find something more important than stopping the
escalating cost of health insurance, driving many people to be
uninsured and raising the prices for small businesses where it cannot
be afforded. But the fact is, this gridlock is threatening the capacity
in this country to govern--really threatening the capacity to govern.
Secretary of State Hillary Clinton was before the Subcommittee on
Foreign Operations of the Committee on Appropriations, and I asked her
about this issue. I asked her about the President not being able to:
. . . project the kind of stature and power that he did a
year ago because he is being hamstrung by Congress. And it
has an impact on foreign policy which we really ought to do
everything we can not to have partisanship influence.
Secretary of State Clinton replied as follows:
Senator, I think there is certainly a perception that I
encounter in representing our country around the world that
supports your characterization. People don't understand the
way our system operates, they just don't get it. Their view
does color whether the United States is in a position--not
just this President but our country--is in a position going
forward to demonstrate the kind of unity and strength and
effectiveness that I think we have to in this very complex
and dangerous world.
She continued a little later:
We have to be attuned to how the rest of the world sees the
functioning of our Government. Because it's an asset. It may
be an intangible asset, but it's an asset of great importance
and as we sell democracy, and we're the lead democracy in the
world, I want people to know that we have checks and
balances, but we also have the capacity to move too.
So what we find is a diminution of the authority and stature of the
President, a diminution of the authority and stature of the Presidency,
and ultimately a diminution and reduction in the stature of our country
unable to deal with these problems. So it would be my hope we could yet
resolve this issue with a little bipartisanship. It would not take a
whole lot, but at the moment there is none, with 40 Senators voting no,
all those on the other side of the aisle, and 176 out of 177
Republicans in the House voting no. That simply is no way to govern.
EXHIBIT 1--JUDICIAL NOMINEES
----------------------------------------------------------------------------------------------------------------
Days since
Name Court Nomination date nom
----------------------------------------------------------------------------------------------------------------
Black, Timothy S......................... Southern District of Ohio.. 12/24/2009................. 74
Butler, Louis B. Jr...................... Western District of 9/30/2009.................. 159
Wisconsin.
Chatigny, Robert Neil.................... Second Circuit............. 2/24/2010.................. 12
Childs, J. Michelle...................... District of South Carolina. 12/22/2009................. 76
Chin, Denny.............................. Second Circuit............. 10/6/2009.................. 153
Coleman, Sharon Johnson.................. Northern District of 2/24/2010.................. 12
Illinois.
Conley, William M........................ Western District of 10/29/2009................. 130
Wisconsin.
DeGuilio, Jon E.......................... Northern District of 1/20/2010.................. 47
Indiana.
Diaz, Albert............................. Fourth Circuit............. 11/4/2009.................. 124
Feinerman, Gary Scott.................... Northern District of 2/24/2010.................. 12
Illinois.
Fleissig, Audrey Goldstein............... Eastern District of 1/20/2010.................. 47
Missouri.
Foote, Elizabeth Erny.................... Western District of 2/4/2010................... 32
Louisiana.
Freudenthal, Nancy D..................... District of Wyoming........ 12/3/2009.................. 95
Gergel, Richard Mark..................... District of South Carolina. 12/22/2009................. 76
Goldsmith, Mark A........................ Eastern District, Michigan. 2/4/2010................... 32
Goodwin, Liu............................. Ninth Circuit.............. 2/24/2010.................. 12
Jackson, Brian Anthony................... Middle District of 10/29/2009................. 130
Louisiana.
Koh, Lucy Haeran......................... Northern District of 1/20/2010.................. 47
California.
Magnus-Stinson, Jane E................... Southern District of 1/20/2010.................. 47
Indiana.
Marshall, Denzil Price Jr................ Eastern District, Arkansas. 12/3/2009.................. 95
Martinez, William Joseph................. District of Colorado....... 2/24/2010.................. 12
Navarro, Gloria M........................ District of Nevada......... 12/24/2009................. 74
Pearson, Benita Y........................ Northern District of Ohio.. 12/3/2009.................. 95
Stranch, Jane Branstetter................ Sixth Circuit.............. 8/6/2009................... 214
Thompson, Rogeriee....................... First Circuit.............. 10/6/2009.................. 153
Treadwell, Marc T........................ Middle District of Georgia. 2/4/2010................... 32
Tucker, Josephine Staton................. Central District of 2/4/2010................... 32
California.
Vanaskie, Thomas I....................... Third Circuit.............. 8/6/2009................... 215
Walton Pratt, Tanya...................... Southern District of 1/20/2010.................. 47
Indiana.
Wynn, James A. Jr........................ Fourth Circuit............. 11/4/2009.................. 124
----------------------------------------------------------------------------------------------------------------
Exhibit 2
Earl J. Gohl was nominated to be the Federal Co-Chairman of
the Appalachian Regional Commission on Nov. 17, 2009 and has
been waiting 111 days since his nomination.
Michael C. Camunez was nominated to be the Assistant
Secretary for Market Access and Compliance of the Commerce
Department on March 2, 2010 and has been waiting 6 days since
his nomination.
Eric L. Hirschhorn was nominated to be the Under Secretary
for Export Administration of the Commerce Department on Sept.
14, 2009 and has been waiting 175 days since his nomination.
Timothy McGee was nominated to be the Assistant Secretary
for Observation and Prediction on Dec. 21, 2009 and has been
waiting 77 days since his nomination.
Larry Robinson was nominated to be the Assistant Secretary
of Commerce for Conservation and Management, NOAA of the
Commerce Department on Feb. 4, 2010 and has been waiting 32
days since his nomination.
Francisco ``Frank'' J. Sanchez was nominated to be the
Under Secretary for International Trade of the Commerce
Department on April 20, 2009 and has been waiting 322 days
since his nomination.
Sharon E. Burke was nominated to be the Director of
Operational Energy Plans and Programs of the Defense
Department on Dec. 11, 2009 and has been waiting 87 days
since her appointment.
Solomon B, Watson IV was nominated to be the General
Counsel of the Army of the Defense Department on Nov. 20,
2009 and has been waiting 108 days since his nomination.
Joseph F. Bader was nominated to be a member of the Defense
Nuclear Facilities Safety Board on Oct. 16, 2009 and has been
waiting 143 days since his nomination.
Jessie H. Roberon was nominated to be a member of the
Defense Nuclear Facilities Safety Board on Oct. 16, 2009 and
has been waiting 143 days since his nomination.
Peter S. Winokur was nominated to be the Chairman of the
Defense Nuclear Facilities Safety Board on Oct. 16, 2009 and
has been waiting 143 days since his nomination.
Jim R. Esquea was nominated to be the Assistant Secretary
for Legislation of the Department of Health and Human
Services on Aug, 6, 2009 and has been waiting 214 days since
his appointment.
Sherry Glied was nominated to be the Assistant Secretary
for Planning and Evaluation of the Department of Health and
Human Services on July 9, 2009 and has been waiting 119 days
since her appointment.
Nicole Lurie was nominated to be the Assistant Secretary
for Preparedness and Response of the Department of Health and
Human Services on June 1, 2009 and has been waiting for 280
days since her nomination.
Richard Sorian was nominated to be the Assistant Secretary
for Public Affairs of the Department of Health and Human
Services on Oct. 5, 2009 and has been waiting 154 days since
his nomination.
Alan D. Bersin was nominated to be the Commissioner of U.S.
Customs and Border Protection of the Department of Homeland
Security on Sept. 29, 2009 and has been waiting 160 days
since his nomination.
[[Page S1249]]
Rafael Borras was nominated to be the Under Secretary for
Management of the Department of Homeland Security on July 6,
2009 and has been waiting 245 days since his nomination.
Steven Jacques was nominated to be the Assistant Secretary
for Public Affairs of the Department of Housing and Urban
Development on Sept. 29, 2009 and has been waiting 160 days
since his nomination.
Eduardo M. Ochoa was nominated to be the Assistant
Secretary for Postsecondary Education of the Education
Department on Feb. 24, 2009 and has been waiting 377 days
since his nomination.
Kathleen S. Tighe was nominated to be the Inspector General
of the Education Department on Nov. 20, 2009 and has been
waiting 108 days since her nomination.
Donald L. Cook was nominated to be the Deputy Administrator
for Defense Programs, National, Nuclear Security
Administration of the Energy Department on Dec. 3, 2009 and
has been waiting 95 days since his nomination.
Patricia A. Hoffman was nominated to be the Assistant
Secretary for Electricity Delivery and Energy Reliability of
the Energy Department on Dec. 9, 2009 and has been waiting 89
days since her nomination.
Jeffrey A. Lane was nominated to be the Assistant Secretary
for Congressional and Intergovernmental Affairs of the Energy
Department on Feb. 1, 2010 and has been waiting 35 days since
his nomination.
Arthur Elkins, Jr. was nominated to be the Inspector
General of the Environmental Protection Agency on Nov. 18,
2009 and has been waiting 110 days since his nomination.
Jacqueline A. Berrien was nominated to be the Chairman of
the Equal Employment Opportunity Commission on July 16, 2009
and has been waiting 235 days since her nomination.
Chai R. Feldblum was nominated to be the Commissioner of
the Equal Employment Opportunity Commission on Sept. 15, 2009
and has been waiting 174 days since his nomination.
Victoria Lipnic was nominated to be the Commissioner of the
Equal Employment Opportunity Commission on Nov. 3, 2009 and
has been waiting 125 days since her nomination.
David P. Lopez was nominated to be the General Counsel of
the Equal Employment Opportunity Commission on Oct. 26, 2009
and has been waiting 133 days since his nomination.
Jill Long Thompson was nominated to be a member of the Farm
Credit Administration on Oct. 16, 2009 and has been waiting
143 days since her nomination.
Patrick K. Nakamura was nominated to be a member of the
Federal Mine Safety and Health Review Commission on Nov. 30,
2009 and has been waiting 98 days since his nomination.
Beatrice Hanson was nominated to be the Director of the
Office for Victims of Crime for the Justice Department on
Dec. 23, 2009 and has been waiting 75 days since her
nomination.
Dawn E. Johnson was nominated to be the Assistant Attorney
General for Office of Legal Counsel for the Justice
Department on Feb. 11, 2009 and has been waiting 390 days
since her nomination.
John E. Laub was nominated to be the Director of the
National Institute of Justice for the Justice Department on
Oct. 5, 2009 and has been waiting 154 days since his
nomination.
Michele Marie Leonhart was nominated to be the Drug
Enforcement Administrator for the Justice Department on Feb.
2, 2010 and has been waiting 34 days since her nomination.
James P. Lynch was nominated to be the Director of the
Bureau of Justice Statistics for the Justice Department on
Oct. 29, 2009 and has been waiting 130 days since his
nomination.
Christopher H. Schroeder was nominated to be the Assistant
Attorney General for Legal Policy for the Justice Department
on June 4, 2009 and has been waiting 277 days since his
nomination.
Mary L. Smith was nominated to be the Assistant Attorney
General for Tax Division for the Justice Department and has
been waiting 322 days since her nomination.
J. Patricia Wilson Smoot was nominated to be the Parole
Commissioner for the Justice Department on Feb. 1, 2010 and
has been waiting 35 days since her nomination.
James L. Taylor was nominated to be the Chief Financial
Officer for the Labor Department on March 3, 2010 and has
been waiting 5 days since his nomination.
Craig Becker was nominated to be a board member of the
National Labor Relations Board and has been waiting 242 days
since his nomination.
Brian Hayes was nominated to be a board member of the
National Labor Relations Board on July 9, 2009 and has been
waiting 242 days since his nomination.
Mark Pearce was nominated to be a board member of the
National Labor Relations Board on July 9, 2009 and has been
waiting 242 days since his nomination.
Mark R. Rosekind was nominated to be a member of the
National Transportation Safety Board on Oct. 1, 2009 and has
been waiting 158 days since his nomination.
George Apostolakis was nominated to be the Commissioner of
the Nuclear Regulatory Commission on Oct. 13, 2009 and has
been waiting 146 days since his nomination.
William D. Magwood, IV was nominated to be the Commissioner
of the Nuclear Regulatory Commission on Oct. 13, 2009 and has
been waiting 146 days since his nomination.
William C. Ostendorrf was nominated to be the Commissioner
of the Nuclear Regulatory Commission on Dec. 11, 2009 and has
been waiting 87 days since his nomination.
Benjamin Tucker was nominated to be the Deputy Director for
State, Local and Tribal Affairs of the Office of National
Drug Control Policy on Aug. 6, 2009 and has been waiting 214
days since his nomination.
Philip E. Coyle was nominated to be the Associate Director
for National Security and International Affairs of the Office
of Science and Technology Policy on Oct. 27, 2009 and has
been waiting 132 days since his nomination.
Larry Persily nominated to be Federal Coordinator for the
Office of the Federal Coordinator Alaska Natural Gas
Transportation Projects on Dec. 9, 2009, waiting 89 days.
Michael W. Punke nominated to be Deputy United States Trade
Representative for Geneva with the Office of the United
States Trade Representative on Sept. 14, 2009, waiting 175
days.
Islam A. Siddiqui nominated to be Chief Agricultural
Negotiator for the Office of the United States Trade
Representative on Sept. 24, 2009, waiting 165 days.
Elizabeth Littlefield, nominated to be President of the
Overseas Private Investment Corporation on Nov. 20, 2009,
waiting 108 days.
Carrie Hessler Radelet, nominated to be Deputy Director of
the Peace Corps on Nov. 9, 2009, waiting 119 days.
Joshua Gotbaum, nominated to be Director of the Pension
Benefit Guaranty Corporation on Nov. 9, 2009, waiting 119
days.
Marie Collins Johns, nominated to be Deputy Administrator
of the Small Business Administration on Dec. 17, 2009,
waiting 81 days.
Winslow Sargeant, nominated to be Chief Counsel for
Advocacy of the Small Business Administration on June 8,
2009, waiting 273 days.
Robert Blake, nominated to be Assistant Secretary for South
Central Asian Affairs at the State Department on April 27,
2009, waiting 315 days.
Ann Stock, nominated to be Assistant Secretary of
Educational and Cultural Affairs of the State Department on
Dec. 4, 2009, waiting 95 days.
Leocadia I. Zak, nominated to be Director of the Trade and
Development Agency on Nov. 16, 2009, waiting 112 days.
Michael P. Huerta, nominated to be Deputy Administrator of
the Transportation Department on Dec. 8, 2009, waiting 90
days.
David T. Matsuda, nominated to be Administrator of Maritime
Administration of the Transportation Department on Dec. 17,
2009, waiting 81 days.
Lael Brainard, nominated to be Under Secretary for
International Affairs for the Treasury Department on March
23, 2009, waiting 350 days.
Jeffery Goldsteing nominated to be Under Secretary for
Domestic Finance.
Michael F. Mundaca, nominated to be Assistant Secretary for
Tax Policy at the Treasury Department on Oct. 6, 2009,
waiting 153 days.
Exhibit 3
Three other nominations are still awaiting final vote:
Laura E. Kennedy, a Career Member of the Senior Foreign
Service for the rank of Ambassador during her tenure of
service as U.S. Representative to the Conference on
Disarmament. (Reported out of SFRC on Dec 08, 2009).
Eileen Chamberlain Donahoe, for the rank of Ambassador
during her tenure of service as the United States
Representative to the UN Human Rights Council. (Reported out
of SFRC on Dec 08, 2009).
Islam A. Siddiqui, to be Chief Agricultural Negotiator,
Office of the United States Trade Representative (USTR), with
the rank of Ambassador (Reported by Mr. Baucus, Committee on
Finance on Dec 23, 2009).
The Senate Foreign Relations Committee reported the
following 10 nominees out on February 26, 2010. They are
awaiting final vote by the Senate to take up their posts.
Donald E. Booth, to be Ambassador to Ethiopia.
Scott H. DeLisi, to be Ambassador to Nepal.
Beatrice Wilkinson Welters, to be Ambassador to Trinidad
and Tobago.
David Adelman, to be Ambassador to Singapore.
Harry K. Thomas, Jr., to be Ambassador to the Philippines.
Allan J. Katz, to be Ambassador to Portugal.
Ian C. Kelly, to be U.S. Representative to the Organization
for Security and Cooperation in Europe (OSCE), with the rank
of Ambassador.
Brooke D. Anderson, to be Alternate Representative of the
United States of America for Special Political Affairs in the
United Nations, with the rank of Ambassador.
Rosemary Anne DiCarlo, to be the Deputy Representative of
the United States of America to the United Nations, with the
rank and status of Ambassador Extraordinary and
Plenipotentiary, and the Deputy Representative of the United
States of America in the Security Council of the United
Nations.
Judith Ann Stewart Stock, to be an Assistant Secretary of
State (Educational and Cultural Affairs).
Exhibit 4
Question: On the Cloture Motion (Motion to Invoke Cloture
on the Nomination of
[[Page S1250]]
Christopher R. Hill, of R.I. to be Ambassador to the Republic
of Iraq)
Vote Number: 158; Vote Date: April 20, 2009, 06:51 PM;
Required for Majority: 3/5; Vote Result: Cloture Motion
Agreed to; Nomination Number: PN171; Nomination Description:
Christopher R. Hill, of Rhode Island, to be Ambassador to the
Republic of Iraq; Vote Counts: YEAs: 73; NAYs: 17; Not
Voting: 9. AS: Y.
Question: On the Cloture Motion (Motion to Invoke Cloture
on the Nomination of Robert M. Groves, to be Director of the
Census )
Vote Number: 230; Vote Date: July 13, 2009, 05:41 PM;
Required for Majority: 3/5; Vote Result: Cloture Motion
Agreed to; Nomination Number: PN387; Nomination Description:
Robert M. Groves, of Michigan, to be Director of the Census;
Vote Counts: YEAs: 76; NAYs: 15; Not Voting: 9. AS: Y.
Question: On the Motion (Motion to Invoke Cloture on the
Nomination of David F. Hamilton, of Indiana, to be U.S.
Circuit Judge for the Seventh Circuit.)
Vote Number: 349; Vote Date: November 17, 2009, 04:37 PM;
Required for Majority: 3/5; Vote Result: Motion Agreed to;
Nomination Number: PN187; Nomination Description: David F.
Hamilton, of Indiana, to be United States Circuit Judge for
the Seventh Circuit; Vote Counts: YEAs: 70; NAYs: 29; Not
Voting: 1. AS: Y.
Question: On the Cloture Motion (Motion to Invoke Cloture
on the Nomination of Martha A. Johnson to be Administrator of
General Services Administration)
Vote Number: 19; Vote Date: February 4, 2010, 02:47 PM;
Required for Majority: 3/5; Vote Result: Cloture Motion
Agreed to; Nomination Number: PN393; Nomination Description:
Martha N. Johnson, of Maryland, to be Administrator of
General Services; Vote Counts: YEAs: 82; NAYs: 16; Not
Voting: 2. AS: Y.
Question: On the Cloture Motion (Motion to Invoke Cloture
on the Nomination of Barbara Milano Keenan, of VA, to be U.S.
Circuit Judge)
Vote Number: 29; Vote Date: March 2, 2010, 12:15 PM;
Required for Majority: 3/5; Vote Result: Cloture Motion
Agreed to; Nomination Number: PN937; Nomination Description:
Barbara Milano Keenan, of Virginia, to be United States
Circuit Judge for the Fourth Circuit; Vote Counts: YEAs: 99;
NAYs: 0 Not Voting: 1. AS: Y.
Exhibit 5
[From the New England Journal of Medicine]
Forging Ahead--Embracing the ``Reconciliation'' Option for Reform
The course of health care reform in 2009 resembled the
silent movie series ``The Perils of Pauline,'' in which each
episode began with a threat to the heroine's life but ended
with her salvation.
Despite repeated near-death experiences, reform legislation
passed both houses of Congress. After so many obstacles had
been surmounted, the remaining task of reconciling the House
and Senate bills seemed doable.
Then, a political earthquake hit. Republican Scott Brown
won the Massachusetts senatorial seat that had been held for
47 years by the late Senator Edward M. Kennedy, thwarting the
capacity of the remaining 57 Democrats and two independents
to bring anything to a vote in the Senate over the united
opposition of the 41 Republicans. The election also caused
something approaching a panic attack among White House and
congressional Democrats, who called variously for dropping
health care reform, trying to pass one scaled-back bill or
several smaller bills, moving slowly on doing anything,
seeking compromise with Republicans on some (unspecified) new
approach, or having the House pass the Senate bill subject to
modifications, which both houses would pass separately, to
make the Senate bill acceptable to the House. Passing the
fixes in the last of these options hinged on using
``reconciliation,'' a procedure that requires only a majority
vote but that can be used only to implement instructions
contained in the budget resolution relating to taxes or
expenditures. Passage of the modifications would follow House
approval of the Senate-passed bill.
The idea of using reconciliation has raised concern among
some supporters of health care reform. They fear that reform
opponents would consider the use of reconciliation high-
handed. But in fact Congress created reconciliation
procedures to deal with precisely this sort of situation--its
failure to implement provisions of the previous budget
resolution. The 2009 budget resolution instructed both houses
of Congress to enact healt care reform. The House and the
Senate have passed similar but not identical bills. (Since
both houses have acted but some work remains to be done to
align the two bills, using reconciliation to implement the
instructions in the budget resolution follows established
congressional procedure.)
Furthermore, coming from Republicans, objections to the use
of reconciliation on procedural grounds seem more than a
little insincere. A Republican president and a Republican
Congress used reconciliation procedures in 2001 to enact tax
cuts that were supported by fewer than 60 senators. The then-
majority Republicans could use reconciliation only because
they misrepresented the tax cuts as temporary although
everyone understood they were intended to be permanent--but
permanent cuts would have required the support of 60
senators, which they did not have.
The more substantive objection to the use of reconciliation
for passing health care reform derives from the fact that,
according to polls, more Americans oppose than support what
they think is in the reform bills. It is hardly surprising
that people are nervous about health care reform. Most
Americans are insured and are reasonably satisfied with their
coverage. In principle, large-scale reform could upset
current arrangements.
If public perceptions of the intended and expected effects
of the current bills were accurate, democratically elected
representatives might be bound to heed the concerns. Because
the perceptions are inaccurate, reform supporters have a duty
to do a better job of explaining what health care reform will
do. When participants in focus groups are informed about the
bills' actual provisions, their views become much more
positive. The prevailing views have clearly been shaped by
opponents' misrepresentations of the reform plans, which
supporters have done little to rebut. Opponents have
described as a ``government takeover'' plans that would cause
tens of millions of people to buy insurance from private
companies. They have told people that a plan deemed by the
Congressional Budget Office to be a deficit reducer is
actually a budget buster. They have fostered the canard that
end-of-life counseling would mean the creation of ``death
panels'' (a claim that PolitiFact.com labeled ``the lie of
the year''). They have persuaded Americans that their
insurance arrangements would be jeopardized by plans that
would in fact leave most coverage untouched, add coverage for
millions of Americans, and protect millions of others from
cancellation of their coverage and from unaffordable rate
increases in the event of serious illness.
Meanwhile, supporters have spent most of their time on
seemingly endless debates with one another about specific
legislative provisions--whether to include a public option in
the reform legislation, whether to have a single national
insurance exchange or separate state exchanges, how to
enforce a mandate that everyone carry insurance and how much
to spend on subsidies to make that mandate acceptable, how to
enforce a mandate on all but small employers to sponsor and
pay for basic coverage for their workers, and scores of other
complex and bewildering technical provisions.
Health care reformers in the administration and Congress
have a powerful case to make and, on an issue of such
enormous importance, a duty to make it. In addition to
reminding Americans that reform will protect, not jeopardize,
coverage by preventing insurance companies from canceling
coverage or jacking up premiums for the sick, reform
advocates should remind them that the proposed legislation
will bring coverage to tens of millions of currently
uninsured Americans and protect it for scores of millions of
others. Reform advocates should explain the legislation's
legitimate promise of cost control and quality improvement.
President Barack Obama has announced a bipartisan meeting
on moving the reform process forward. It is an opportunity
for all sides to present ideas for improving the bills that
already have been passed by both houses of Congress. If
modifications are identified that will command the support of
simple majorities in both houses, they should be adopted
through reconciliation. Then the House should pass the Senate
bill.
Other strategies, in my view, have no prospect of success.
Abandoning the reform effort is the worst strategy of all--
not only for reform advocates, but for the nation. Reform
advocates are already on record as supporting reform. Voters
who oppose reform will not forget that fact come November,
and those who support it will find little reason to make
campaign contributions to or turn out to vote for lawmakers
who were afraid to use large congressional majorities to
implement legislation that would begin long-overdue efforts
to extend coverage, slow the growth of spending, and improve
the quality of care.
The start-from-scratch and piecemeal-legislation strategies
are invitations to time-consuming failure. The Senate would
need 60-vote majorities for every component of such reforms.
To be sure, lawmakers could craft a different bill that would
extend coverage to fewer people than the current bills do.
But they could not institute serious insurance market
reforms without assuring a balanced enrollee pool--or
assure such a pool without mandating coverage. Nor is it
politically possible or ethically fair to mandate coverage
without offering subsidies for low- and moderate-income
people. And it is not possible to prevent those subsidies
from increasing deficits without tax increases or spending
cuts, which reform opponents won't support and which would
require 60 Senate votes. The call to start anew is naive
at best. At worst, it is a disingenuous siren song, luring
health care reformers into a political swamp.
Reformers' best choice is to embrace the democratic process
and attempt to persuade voters that the current legislation
is in the national interest. They have 10 months to succeed
before the midterm elections.
If would-be reformers retreat in the face of current public
opinion polls, they will be sent packing in November.
Arguably, they will deserve to lose. If they stand up for
their genuinely constructive legislation, they can prevail--
and will deserve to win.
Mr. SPECTER. I yield the floor.
The ACTING PRESIDENT pro tempore. The Senator from Arizona.
Mr. KYL. Mr. President, I opened the newspaper, the New York Times,
on
[[Page S1251]]
Sunday morning and was surprised--shocked--at a full-page advertisement
I saw. It had a big headline that said: ``What will it be, Mr.
President? Change or more of the same?'' Then it had four photographs
or artist's renderings. The first one was of President Barack Obama. It
gradually morphed from Barack Obama into George W. Bush, so the last in
the frame of four was clearly a likeness of President George W. Bush.
This was an advertisement paid for by the American Civil Liberties
Union, the ACLU. I do not know what surprised me more, whether it was
the audacity and the blatant partisanship of the ad or its ignorance
and misrepresentation of the law. Either way, it deserves some comment
today.
The essence of the ad was to obviously try to put some pressure on
President Obama not to change his initial decision to transfer the
trial of Khalid Shaikh Mohammed to the Manhattan Federal district
court, the so-called article III court, back to a military commission
where it had originally been. The ad makes the point that ``Barack
Obama vowed to change Bush-Cheney policies''--I am quoting now--``and
restore America's values of justice and due process.''
Of course, those values didn't exist under the Bush administration,
according to the ACLU. They then say they are ``shocked and concerned''
the President is considering changing the 9/11 defendants' trials from
criminal court back to military commissions. They say that: ``Our
criminal justice system will resolve the cases more quickly and more
credibly than the military commissions.'' That is a matter of dispute,
which I will get back to in a moment, but then there is this sentence:
``Obama can vigorously prosecute terrorists and keep us safe without
violating our Constitution.'' The implication, of course, being if you
go to a military commission, you are violating the Constitution.
If that is what they mean to convey, and it is clear they do, the
writers of this ad are obviously intentionally misrepresenting the law.
The U.S. Supreme Court has upheld military commissions. You can go back
to the 1950s case of Johnson v. Eisentrager, involving German war
prisoners.
The current U.S. Supreme Court in the Hamdan decision made it clear
the President, with authority from Congress, could establish military
commissions to try the very people we are talking about, these Islamic
terrorists. Indeed, the President came to Congress and, with changes
from the administration recommended by the Justice Department, Congress
passed the Military Commissions Act of 2006. That act is available to
try many of these same terrorists. Indeed, the Attorney General has
made it clear there are four categories of these terrorists held at
Gitmo. They want to try to release some of them back to their country
of origin; they believe some of them should be tried in article III
courts--that is like the Federal district court in Manhattan; others of
them should be tried before the military commissions that the ACLU
seems to think would violate due process; and, finally, that they
intend to hold some of them for the duration of the conflict, which is
also authorized.
Here you have one of the, at least I thought, preeminent legal
authorities in the country--granted they always seem to take the side
of the little guy without representation or the person who is not
looked upon with great favor who needs legal representation, frequently
to represent cases that represent different points of view--certainly,
performing a service to our legal community over the years, most people
I think would acknowledge. But now they have turned into a blatant
partisan political entity that I think can have no more credibility in
court for both reasons: First, because of the nature of this, morphing
President Obama's face into President George W. Bush's face and talking
about changing the Bush-Cheney policies, which obviously they believe
do not represent America's values of justice and due process,
contending that you have to go to article III courts to try these
people or else you are violating our Constitution.
The final conclusion: ``The President must decide whether he will
keep his solemn promise to restore our Constitution and due process or
ignore his vow and continue the Bush-Cheney policies,'' which in their
view, I gather, means not having constitutional rights and due process.
Again, this administration helped the Congress write the military
commissions law. That law is in effect today. The administration
intends to try many of these same terrorists before those military
commissions. The constitutionality of military commissions has been
upheld in the past. The constitutionality of the President and the
Congress doing so in the future was acknowledged by the Supreme Court
in the Hamdan case. No court has ruled that the military commissions
that were thus created in the 2006 act would, as the ACLU suggests,
violate our Constitution or due process. So what exactly is the ACLU
talking about?
Moreover, I said I would get back to it, the ad suggests that the
``criminal justice system,'' meaning the article III courts, ``will
resolve these cases more quickly and more credibly than the military
commissions.''
Absolutely false, demonstrably false. Khalid Shaikh Mohammed, the
kind of poster child here, the mastermind of 9/11, was before the
military commission at Guantanamo, and he said he wanted to plead
guilty in the military commission. That case could have been over with
had his guilty plea been accepted.
I cannot think of a quicker and more successful outcome than
accepting the guilty plea of Khalid Shaikh Mohammed.
When the Attorney General came before the Judiciary Committee and
hemmed and hawed about what his reason was for moving this trial to the
Manhattan Federal district court, he basically settled on the
proposition that it would represent a more sure way to gain a
conviction. I asked him: ``Mr. Attorney General, this defendant has
agreed to plead guilty before the military commission. How much surer
of a conviction do you get than that?''
Well, the Attorney General said he wasn't sure he still wanted to
plead. But he also assured us, pursuant to a question one of my
colleagues asked--what would happen if, for some reason, the court
decided to let him go--the Attorney General said: ``Failure of
conviction is not an option.''
In other words, he will be convicted, and both he and the President
have talked about execution. If the ACLU and the administration are so
intent on showing off the great American judicial system which presumes
innocence over guilt--and it is literally unethical for prosecutors to
go out before the public and guarantee the conviction and execution of
a defendant--then it seems to me to be rather odd that this Attorney
General would say: Oh, failure is not an option. He will be convicted
and, by inference, he will be executed by our wonderful article III
courts which, of course, presume innocence.
How the ACLU can say he would be more quickly and more credibly
treated than through military commissions is beyond me, after these
particular statements.
I go back to my original perplexity: As I say, I don't know whether
to be more surprised by the audacity of this organization with a
blatantly partisan political ad, obviously highly critical of the Bush-
Cheney administration, implying it did not believe in America's values
of justice and due process or by the ignorance and misrepresentation of
the law by the ACLU. They have smart lawyers, so I assume it is not
ignorance, but they are clearly misleading anyone who reads this ad in
suggesting both that military commissions would not be pursuant to the
Constitution or due process but would rather be a continuation of Bush-
Cheney policies. Bear in mind, the new Military Commissions Act of 2006
is not a Bush-Cheney military commission, this is a current U.S.
Congress Obama administration military commission law, signed into law
by President Bush.
When the ACLU says prosecuting them in the article III courts would
keep us safe without violating our Constitution, one has to assume they
believe the Military Commissions Act would be violative of the U.S.
Constitution, and that is incorrect.
It is unclear to me what is gained by politicizing this issue. My
colleague, Lindsey Graham, has talked about the idea of some kind of
bipartisan arrangement, whereby the President will acknowledge the will
of the American
[[Page S1252]]
people, which is very strongly against trying these terrorists in the
article III courts and in favor of trying them in military commissions.
It seems to me there is sufficient understanding. The administration
certainly agrees with the Military Commissions Act. It has said it
would use that act to try some of these terrorists. It doesn't believe
that act represents an unconstitutional approach to deal with these
people. According to public opinion surveys, the American public
opinion is very strongly of the view that these cases should be tried
before military commissions.
That being the case, it seems to me there is an opportunity for us
not to try to make this a partisan issue but to try to follow what the
American people believe should be the case; that these cases can and
should be tried before military commissions when appropriate; that
there is also a place for them to be tried before article III courts;
that some of them potentially can be returned to their country of
origin, although that represents a significant danger, considering the
fact that about 20 percent of them return to the battlefield to fight
our forces or that there is a category that cannot be tried in either
article III courts or before military commissions.
It seems to me we can have a legitimate discussion of this; that the
law that the previous President signed into law that represents the
point of view of both Democrats and Republicans, that allows for
military commissions, can be used; that the President would be well
within his rights to use military commissions; that it would comport
with the law as acknowledged by the U.S. Attorney General and would
reflect the views of the American people that it is important these
terrorists be treated, first and foremost, as enemies of the United
States and only if appropriate in article III courts as common
criminals.
Finally, the last point I would make is, to some extent, the location
of the trial is a lot less important than the primary objective when an
enemy terrorist is captured; that is, to get intelligence.
I think this is what upset the American people: when, the first thing
that happened, after 50 minutes of questioning of the so-called
Christmas Day bomber, that he was read his Miranda rights and he
stopped providing intelligence to those who were interrogating him.
Subsequently, that intelligence interrogation has resumed. But we
will never know what kind of real-time intelligence was lost as a
result of the reading of Miranda rights. When we try people in article
III courts, we are going to have to quickly provide these Miranda
rights. That ordinarily will mean we give up important--potentially
give up important intelligence that we could gain by interrogating the
individual.
Now, it is not the case that necessarily we would be foreclosed from
trying the individual in an article III court because we can rely on
something other than the confession of the individual to gain his
conviction. In the case of the would-be bomber on Christmas Day, there
was plenty of physical evidence: he was burned badly, there were
eyewitnesses, and we did not need a confession of the individual.
So the Mirandizing in that case was largely irrelevant; the point
being that what we ought to be doing is getting the intelligence first
and then deciding which is the appropriate court in which to try the
individual. In many cases, that will be military commissions. An
organization which has studied the history of the ACLU should
appreciate the fact that military commissions are constitutional. They
do not violate due process rights. A defendant such as Khalid Sheikh
Mohammed could be tried before a military commission in a perfectly
appropriate and constitutional way, and it takes nothing away from our
article III court system or from President Obama's leadership as
President of the United States to hold those trials of this kind of
individual in the military commissions.
To describe this advertisement, I ask unanimous consent that a Fox
News article dated March 7 be printed in the Record at the conclusion
of my remarks.
There being no objection, the material was ordered to be printed in
the Record, as follows:
ACLU Likens Obama to Bush in Ad Slamming Possible Reversal on KSM Trial
The possibility that President Obama could send the self-
professed mastermind of the Sept. 11 attacks to a military
tribunal has earned him the highest insult from the left--
that he's another George W. Bush.
A full-page ad in Sunday's New York Times left no doubt as
to how the American Civil Liberties Union feels about the
possibility of the president reversing the decision to send
Khalid Sheikh Mohammed and his alleged co-conspirators to
civilian court.
``What will it be Mr. President?'' the ad asks in boldfaced
type. ``Change or more of the Same?''
In the middle of those words are four photos that show
Obama's face morphing into Bush's.
``Many of us are shocked and concerned that right now,
President Obama is considering reversing his attorney
general's decision to try the 9/11 defendants in criminal
court,'' the advertisement continues. ``Our criminal justice
system has successfully handled over 300 terrorism cases
compared to only 3 in the military commissions.''
The ad follows a series of reports that reflect a softening
of the administration's position that the accused Sept. 11
architects must be tried in federal court instead of military
tribunals.
The public softening is part of a test, a source told Fox
News, to gauge how infuriated the left would be by reversing
course. The White House knows Republicans like the idea of
the tribunals being used--and needs their support on other
key national security matters--but a shift on this issue
could poison the waters between the president and the liberal
base, as demonstrated by the ACLU ad.
``As president, Barack Obama must decide whether he will
keep his solemn promise to restore our Constitution and due
process, or ignore his vow and continue the Bush-Cheney
policies,'' the ACLU ad said.
Republican Sen. Lindsey Graham, R-S.C., speaking on CBS'
``Face the Nation,'' said the ACLU ad was out of line.
``The president is getting unholy grief from the left,''
said Graham, who supports moving the defendants to tribunals.
``The ACLU theory of how to manage this war I think is way
off base.''
Some are urging groups like the ACLU to look at the bigger
picture.
Attorney General Eric Holder announced in November that the
defendants would be heading to Manhattan civilian court, but
that move has generated a huge backlash from New Yorkers,
including the mayor and police chief, as well as Republicans
in Congress. The backlash has forced the administration to
reconsider not just the location of the trial but the forum.
``Foreign terrorists ought not to be tried in U.S. courts.
Period,'' Senate Minority Leader Mitch McConnell told Fox
News. ``They ought to be taken to Guantanamo, detained there,
interrogated there and adjudicated there in military
tribunals.''
A source told Fox News that if the administration decides
to send the case back to the commissions, it could be part of
a larger bargain to get support to close the detention center
at Guantanamo Bay and bring those detainees to the U.S.
Congress has barred the transfer of prisoners who don't have
a path to trial--those who appear to be detained
indefinitely--and refused to give the president the money for
a facility to house them on American soil.
Mr. KYL. I yield the floor.
The ACTING PRESIDENT pro tempore. The Senator from Minnesota.
____________________