[Congressional Record Volume 156, Number 117 (Wednesday, August 4, 2010)]
[Senate]
[Pages S6741-S6749]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




   NOMINATION OF ELENA KAGAN TO BE ASSOCIATE JUSTICE OF THE SUPREME 
                            COURT--Continued

  Mr. BROWNBACK. Mr. President, I rise to discuss the nomination of 
Solicitor General Elena Kagan to the U.S. Supreme Court. Just over a 
year ago, the Senate considered the nomination of Judge Sonia Sotomayor 
to the Supreme Court and today we continue the debate on Solicitor 
General Kagan's. Then, as now, I think it is fully appropriate for us 
to discuss the judicial philosophy of the nominees being put forward 
because of the increasing intrusion of the Supreme Court into very 
contentious issues within the society. If that is the case, then I 
think judicial philosophy needs to be discussed, and I think that is 
one that we need to consider in this nominee in Solicitor General 
Kagan.
  The debate and discussion of Solicitor General Kagan's nomination 
followed a different path from the Sotomayor nomination, but it has led 
me to the same result: I have too many questions about the nominee's 
judicial philosophy to permit me to support the nomination to a 
lifetime appointment to the Supreme Court of the United States.
  As I said last year, a nominee's judicial philosophy is a key concern 
at the heart of the Supreme Court confirmation process. For me, the 
question is whether a nominee to the Court supports an activist 
judicial philosophy that would invite the judiciary into all sorts of 
areas of American life where it has not intruded before, or whether 
they hold a more deferential view of the Constitution that would limit 
the role of the courts. It is really that view, of what is the 
appropriate role of the courts under the Constitution that I think is 
key, given the more activist role the Court has taken in this society 
in recent years.
  As I noted during the Sotomayor debate, in my view, democracy is 
wounded when Justices on the high Court, who are unelected, invent 
constitutional rights and alter the balance of governmental powers in 
ways that find no support in the text, structure, or history of the 
Constitution. Unfortunately, in recent years the courts have assumed a 
more aggressive political role.
  In last year's confirmation debate, we talked a lot about whether a 
nominee's life story and experiences should be a significant factor in 
assessing that nominee. Whatever the merits of that debate, Judge 
Sotomayor was nominated as a Federal judge with a judicial background 
that offered some clues as to her judicial philosophy. With this 
nominee, we have comparatively little of written record to evaluate.
  Solicitor General Kagan has no previous experience on the bench. If 
confirmed, she would be the first Supreme Court Justice without prior 
experience on the bench in almost 40 years. In order to hire anyone for 
any job, an employer looks at an applicant's past employment history. 
That is true for private sector jobs and public sector jobs. It is true 
for the staffs we maintain in the Senate and it is certainly true for 
Supreme Court nominees. I think most Americans would agree that prior 
judicial experience would be a good thing for a nominee to the Supreme 
Court to have. It is not a prerequisite for confirmation. Certainly, we 
have had Justices in the past who did not have any prior judicial 
experience. But I would suggest that since Solicitor General Kagan 
lacks prior experience on the bench, we have an obligation to look even 
more closely at the professional experience she does have.
  There is no question she has an outstanding resume. Few people in 
America can say that they have her academic credentials, including an 
Ivy League law degree, as well as experience teaching at the University 
of Chicago and as the dean of Harvard Law School. And she has terrific 
political credentials, including working on the Dukakis for President 
campaign and as a policy adviser in the Clinton administration. 
Unfortunately, very little of her resume pertains to formal legal 
practice, let alone time on the bench.
  So Solicitor General Kagan's experience is not necessarily the 
experience we would prefer, but it is the experience that we have to go 
on. And as I look through this professional experience, I see plenty of 
reasons to be concerned about the philosophy that she would bring to 
the bench.
  In particular, I want to highlight her experience as a policy 
adviser. From the Presidential campaign trail in 1988 to the Senate 
Judiciary Committee to the Clinton White House, she has spent a great 
deal of time working on tough, highly contentious issues. In each of 
those cases, I think it is clear that she favors the kind of judicial 
activism that has concerned me throughout my time in the Senate. Her 
views, and the policies she has supported, endorse a role for the 
courts that I find very troubling. And let me be clear, whether or not 
I agree with her views on any particular issue, I am most concerned 
about the way those views will shape her still-emerging judicial 
philosophy.
  For example, let's take a look at the life issue. As an adviser in 
the Clinton White House, Ms. Kagan led efforts to preserve partial-
birth abortion. Obviously, I disagree with that position, as do most 
Americans, but that is the role that advisers often play inside the 
White House. Unfortunately in this case, however, the evidence shows 
Ms.

[[Page S6742]]

Kagan manipulated arguments about the need for a partial-birth abortion 
ban and whether such a ban is constitutional. When a draft scientific 
statement from a medical association threatened to undermine the policy 
she supported, Ms. Kagan seems to have rewritten that statement in a 
way that did not reflect the considered medical judgment of the 
association but was more in line with the policy she supported. Her 
explanation that she was merely helping the association state its own 
views more accurately does not bear scrutiny. This should be a red flag 
for Senators considering confirmation of someone to the Supreme Court. 
Without a judicial track record to evaluate, I am concerned about how 
she would apply her personally held views on similar matters if she is 
confirmed.
  To turn to another example, as many of my colleagues have pointed 
out, the scandal over military recruitment at Harvard also shows 
evidence of politically held views coloring the nominee's legal 
judgment. Ms. Kagan opposed military recruiting on campus as part of a 
protest against the military's don't ask, don't tell policy, even 
during a time of war, denying the military access to Harvard's on-
campus recruiting program while the university was receiving Federal 
money. It was apparent at the time that she was openly defying the 
intent of the Solomon Amendment, but she felt comfortable defying the 
law in the ``hope'' that the Defense Department would simply fail to 
enforce it. Her argument that law schools could take such steps despite 
the plain intent of the Solomon Amendment was, again, primarily a 
political argument with very little, if any, legal standing. The 
Supreme Court unanimously disagreed with her.
  Based on other statements she has made about issues ranging from 
military tribunals for detainees in the war on terrorism to political 
speech under the first amendment, there are numerous reasons to be 
concerned about how Solicitor General Kagan might apply the law as an 
Associate Justice of the Supreme Court.
  It is worth asking whether the solicitor general has ever argued that 
the law should be applied contrary to her political views. Perhaps I 
would not have to ask that question if we could assess extensive legal 
writings or a history of judicial rulings. But since this nominee lacks 
such experience, I am left to question how Ms. Kagan would let her 
political views shape her judicial philosophy. The weight of the 
available evidence clearly suggests political motivations for her legal 
views.
  I have long believed that the judicial branch helps itself through 
refraining from action on political questions. This concept was perhaps 
best expressed by Justice Felix Frankfurter, a steadfast Democrat 
appointed by President Franklin Roosevelt.
  Justice Frankfurter said this:

       Courts are not representative bodies. They are not designed 
     to be a good reflex of a democratic society. Their judgment 
     is best informed, and therefore most dependable, within 
     narrow limits. Their essential quality is detachment, founded 
     on independence. History teaches that the independence of the 
     judiciary is jeopardized when courts become embroiled in the 
     passions of the day and assume primary responsibility in 
     choosing between competing political, economic and social 
     pressures. Primary responsibility for adjusting the interests 
     which compete in the situation before us of necessity belongs 
     to the Congress.

  I would add, not to the court.
  When the courts improperly assume the power to decide issues more 
political than legal in nature, the People naturally focus less on the 
law and more on the lawyers who are chosen to administer it. Some are 
keen to impose their policy agendas through the judicial process. 
Others want judges who will stick to interpreting the law, rather than 
making it. It is beyond dispute that the Constitution and its Framers 
intended for judges to satisfy the latter criteria.
  I know that many of my colleagues on the other side of the aisle have 
underscored Ms. Kagan's strong intellect and outstanding academic 
background as evidence that she would rule fairly if confirmed to the 
Court. Perhaps they are right. But we ought not be operating in the 
realm of ``perhaps'' when it comes to a Supreme Court appointment. 
Advise and consent is a serious matter and we have to do better than 
``maybe.'' As I read about Ms. Kagan's experience and background and 
look for clues to her judicial philosophy, I believe it is far more 
likely than not that she will rely on a set of political views to guide 
her decisions rather than a strict construction of the Constitution. 
After many weeks of public debate, hearings and discussion, I cannot 
escape the conclusion that this nomination would only perpetuate 
judicial activism on the Nation's highest Court. I opposed the 
confirmation of Judge Sotomayor on that basis, and I will oppose Ms. 
Kagan's confirmation on those grounds also. I yield the floor.
  The PRESIDING OFFICER. The Senator from Idaho.
  Mr. CRAPO. Mr. President, I also rise to discuss President Obama's 
nomination of Elena Kagan, Solicitor General, to serve on the U.S. 
Supreme Court. I agree very strongly with the remarks made by my 
colleague who has just indicated there is a strong concern about the 
continuation of a pattern of increasing judicial activism in our 
country, which we definitely do not need to perpetuate on the highest 
Court of our land.
  I appreciate the work that has been done by my colleagues on the 
Senate Judiciary Committee to examine this nomination and to hold 
thorough hearings. There is no doubt that Ms. Kagan's educational 
resume is impressive, with a degree from Princeton and from Harvard Law 
School. It is unfortunate that the Senate confirmation process has 
reached the point, though, where nominees are no longer comfortable 
candidly discussing their judicial philosophy and views on key issues, 
especially when the nominee herself decries this development prior to 
being nominated.
  To date, I have received more than 1,500 letters and e-mails and 
phone calls from my Idaho constituents, overwhelmingly in opposition to 
Elena Kagan's nomination. Many of the concerns raised in the 
correspondence I have received mirror concerns I also have about her 
nomination. It was my hope, through the committee hearings and 
questionnaires and in my own personal meeting with Ms. Kagan, that my 
concerns and those of my constituents could be resolved. As Ms. Kagan 
stated in her committee testimony, because she has not had prior 
experience as a judge, my Senate colleagues and I must assess her 
nomination based on her other career experiences. Therefore, we must 
evaluate a career that has been focused largely in her role as a policy 
advocate and political adviser and whether she would carry this 
political advocacy with her to the Court. I would like to discuss, in 
that context, some of my areas of concern--first of all, the broad area 
of judicial activism.
  I am concerned about Ms. Kagan's background in political advocacy and 
activism and how her previous statements suggest her willingness to 
bring that activism to the bench. Rather than pursuing a path of 
judicial restraint, carrying out a limited role in interpreting the 
Constitution, Ms. Kagan's writings and testimony suggest that she sees 
the Supreme Court as a body that must lead the Nation and have the 
freedom to change the law in response to ``new conditions and new 
circumstances.''
  As dean of the Harvard Law School, Ms. Kagan used her position to 
lead the school in a direction not based on the law but based on her 
own personal policy preferences when she denied military recruiters 
equal access to the students at Harvard Law School, complying with the 
law only when forced to do so by the Court.
  It seems that Ms. Kagan has an extremely broad view of the powers of 
all branches of the Federal Government and does not seem to respect the 
traditional limits the Constitution places on each of those branches. 
If the Constitution requires that a certain outcome can only be 
achieved through the actions of the legislative branch and if the 
legislative branch fails to take those actions, it does not mean the 
executive or judicial branch can then have the opportunity to 
independently take those actions or achieve those policy objectives. I 
am not convinced Ms. Kagan respects that constitutional separation of 
power.
  She has gone so far as to cite Israeli Chief Justice Aharon Barak as 
her ``judicial hero,'' even though Judge Barak is widely regarded as 
one of the most activist judges in the world.
  The Framers of the Constitution wisely, clearly, and intentionally 
set

[[Page S6743]]

limits on the powers of the Federal Government. The Framers also set 
forth a method with an appropriately high threshold for expanding or 
curtailing those powers. That method for expanding or curtailing the 
powers of the government is the constitutional amendment process. 
Judges must respect the limits placed on the government by our 
Constitution and must not try to circumvent the constitutional 
amendment process by seeking other opportunities to expand the powers 
of the Federal Government to meet their own personal policy 
preferences. I am not convinced Ms. Kagan respects that limit in our 
Constitution and the responsibility to have limited judicial activism 
and interpret our Constitution as it was intended.
  I also have a very specific concern on a specific issue. In fact, 
this is the same concern I had when we were presented with the 
President's nomination of the last nominee, Sonia Sotomayor, to our 
Court; that is, the second amendment right to bear arms--a specific 
provision in the U.S. Constitution which has been a very controversial 
and debated provision in recent years in the United States.
  On June 26, 2008, the Supreme Court of the United States affirmed, in 
the District of Columbia v. Heller, that the second amendment to the 
Constitution guaranteed an individual's right to keep and bear arms for 
self-defense purposes. This landmark ruling finally established that 
the right to bear arms in the second amendment is an individual right 
but left open the question of whether this right in the second 
amendment applies to the States rather than just to Federal enclaves 
such as the District of Columbia.
  For those of us who believe in the right to law-abiding citizens to 
protect themselves, the Court's ruling in Heller marked a new 
beginning, especially for those who believe the second amendment to our 
Constitution gives Americans an individual right to bear arms. For too 
long, many law-abiding Americans were told by their elected 
representatives and by some courts that the Constitution did not 
necessarily guarantee an individual's right to own a firearm, denying 
citizens the right to protect themselves, their property, and their 
families.
  Soon thereafter, though, a case entitled McDonald v. Chicago made its 
way through the court system, in which a Federal district court and a 
circuit court of appeals ruled that the very severe restrictions on 
second amendment rights in two Illinois municipalities were 
constitutional because Heller only applied to the rights of those 
living in Federal enclaves such as Washington, DC.
  On June 28, 2010, the Supreme Court also overturned that decision, 
affirming that the 2nd amendment, like most of the provisions of the 
Bill of Rights, is applicable to the States via incorporation 
principles derived from the 14th amendment. The Court affirmed that 
individual rights established in Heller did not just apply to those 
living in Federal enclaves such as Washington, DC; they ruled they also 
apply to all law-abiding Americans who wish to keep and bear arms for 
self-defense. It is now firmly established by these two rulings from 
our highest Court that our Constitution guarantees an individual right 
to keep and bear arms for self-defense purposes no matter where you 
live.
  All of this brings us to our nominee, Ms. Kagan, and the question 
before the Senate with regard to her nomination. Those of us who 
believe in an individual's right to keep and bear arms have a 
responsibility to ensure that hostility to the second amendment does 
not find home in the hands of the Supreme Court.
  With no judicial record to review, Ms. Kagan invited Senators to 
glean what we can from the body of her work, her statements, her 
academic life, and the policies for which she has actively advocated 
during her career, including her Supreme Court clerkship and her later 
career in political activism.
  We took her at her invitation to see how her past reflected her views 
on the issue of second amendment rights. After discussing this issue 
with her personally, fully reviewing her past actions in relation to 
the second amendment, and evaluating her statements before the 
Judiciary Committee, I am convinced she does not believe the second 
amendment reserves to all Americans a strong and broad right to bear 
arms.
  To cite some well-known examples, as a Supreme Court law clerk, Ms. 
Kagan wrote that she was ``not sympathetic'' to a challenge to 
Washington, DC's, ban on firearms. After the Supreme Court struck down 
certain provisions of the Brady law in Printz v. United States, Ms. 
Kagan, who was then serving on President Clinton's staff, worked to 
reimpose those unconstitutional provisions by Executive order, without 
the approval of Congress and contrary to the ruling of the Court. When 
the McDonald case came before the Supreme Court, Ms. Kagan, who was 
then the Solicitor General of the United States, did not even see it 
necessary to file a brief in support of the second amendment.
  When asked about her position, Ms. Kagan has stated that she accepts 
the Heller and McDonald cases as settled law. But she has also made it 
clear that in her opinion these two cases leave much of the detail as 
to what this right entails to future court interpretation. This is very 
similar to what now Justice Sotomayor said when she was before the U.S. 
Senate for confirmation.
  As a judge on the Second Circuit Court of Appeals, then-Judge 
Sotomayor ruled on a case that was very similar to and, in fact, was 
later incorporated into the Chicago case, Maloney v. Cuomo. In that 
ruling, then-Judge Sotomayor ruled that Heller only guaranteed an 
individual right to keep and bear arms for residents of Federal 
enclaves. Her explanation was that Heller answered ``a different 
question'' than Maloney and relied on a precedent from 1886 to do so.
  Pressed about Heller at her Senate hearings, Judge Sotomayor stated 
that she accepted that Heller was now ``settled law.'' Yet when the 
McDonald case came before the Supreme Court, Justice Sotomayor voted 
against it, joining with the dissenting opinion, stating that ``in sum, 
the framers did not write the Second Amendment in order to protect a 
private right of self defense.''
  The Supreme Court's decisions in Heller and McDonald were important 
milestones for establishing the second amendment right to bear arms, 
but they were long overdue. Countless law-abiding Americans were denied 
their constitutional rights to keep and bear arms for way too long. It 
is imperative that the next Supreme Court Justice fully understand and 
accept and support these rights. I am not convinced that Ms. Kagan 
does, and that causes me great concern.
  Similar to now Justice Sotomayor, Ms. Kagan has stated that she 
accepts Heller and McDonald as settled law. But that does not mean she 
would not vote to overrule them if an opportunity presented itself. As 
she herself has said, that also does not define the scope and breadth 
of this right, which will fall to future Court decisions. A Supreme 
Court hostile to the Heller and McDonald decisions or a Supreme Court 
with a narrow view of the right to bear arms protected by the second 
amendment could severely limit or restrict that right. As I have said, 
I do not believe Ms. Kagan believes in the strong and broad right to 
bear arms that I do or that the majority of Idahoans do.
  These concerns have also been expressed by our ranking member on the 
Senate Judiciary Committee, Senator Sessions, who noted:

       Ms. Kagan's record regarding the Second Amendment leaves 
     little doubt that she will be hostile to the rights of law-
     abiding citizens to own and possess firearms.

  For these reasons--her activist philosophy and her position that I 
expect we will see on the second amendment right to bear arms--I cannot 
vote to confirm her to the highest Court of our land.
  Mr. President, I take the responsibility of confirming Supreme Court 
Justices very seriously, and my decision was not reached lightly. 
Judges take an oath to ``administer justice without respect to persons, 
and do equal right to the poor and to the rich.''
  My review of Ms. Kagan's record gives me reason to question whether 
she will abide by that standard. Her statements, actions, and writings 
throughout her public life suggest a vision for the Court that is not 
restrained by the Constitution but that has a responsibility in being 
activist in

[[Page S6744]]

reaching policy goals. As such, I must vote against her nomination to 
sit on the highest Court in our country.
  Thank you, Mr. President.
  The PRESIDING OFFICER. The Senator from Alabama.
  Mr. SESSIONS. Mr. President, I thank the Senator from Idaho for his 
comments. He is one of the most capable lawyers in the Senate. He is a 
practicing lawyer, clerked on the court of appeals, and is scholarly 
and careful in what he says. I believe he has raised some very 
troubling points about this nomination that should be considered.
  I say to Senator Crapo, I notice today that a single sitting Federal 
judge in California has just wiped out proposition 8 that was passed by 
a majority of the people in California. I guess there were millions 
voting on that, which simply said a marriage should be defined as being 
between a man and a woman.
  This judge struck down proposition 8 and, obviously, at some point, 
this will get to the Supreme Court of the United States, as the Senator 
well knows. It will go first to the Ninth Circuit, on which the Senator 
clerked, and then it will go to the Supreme Court probably. We will 
have the nominee who is before us today who has already demonstrated at 
Harvard that her views about don't ask, don't tell and similar social 
and marriage issues involve such strong feelings on her part that she 
has not been able to follow the law. I am worried about that. I think 
the American people are worried about that, and I think they have a 
right to be.
  Let me talk a little bit about today's decision by a Federal judge in 
California that was replete, in my view, with results-oriented liberal 
judicial activism. I think that is what it is, as the court explained 
in substituting its judgment, the judge's judgment and opinion, for the 
judgment of the people of California expressed in a full statewide 
referendum. Now this is a powerful thing.
  Was there some clear statement in the Constitution or law that would 
invalidate the people's expression of what a marriage should be in the 
State of California? I submit not. This is what the judge said.

       [W]hat remains of proponents' case is an inference, amply 
     supported by evidence in the record, that Proposition [8] was 
     premised on the belief that same-sex couples simply are not 
     as good as opposite-sex couples. Whether that belief is based 
     on moral disapproval of homosexuality, animus towards gays 
     and lesbians or simply a belief that a relationship between a 
     man and a woman is inherently better than a relationship 
     between two men or two women, this belief is not a proper 
     basis on which to legislate.

  So the judge just declared that laws that are on the books in 
virtually every State in America--and certainly by referendum in 
California--are improper. States cannot legislate in this area. It is 
not ``a proper basis'' on which to legislate.
  That is what activism is. It is a judge replacing the people's views 
with his views.
  President Obama has made similar statements. He said that judges 
should decide cases based on ``one's deepest values, one's core 
concerns, one's broader perspectives on how the world works, and the 
depth and breadth of one's empathy.''
  This was in a floor speech in the Senate delivered from right over 
there from his desk in which he opposed Chief Justice John Robert's 
confirmation to the Supreme Court--one of the finest nominees ever to 
be brought before this body.
  This is the kind of rationale, the kind of empowerment that many 
judges feel. Well, they can just use their broader perspective on how 
the world works or the depth and breadth of their empathy or their 
deepest values or core concerns. Whose core concerns? The judge's core 
concerns. What does this have to do with law, I ask?
  Indeed, I would suggest that this whole litany of matters raised by 
President Obama is not law. These are invitations for judges to allow 
their bias to influence how they decide cases, an encouragement for 
judges to use their power of defining the words of our laws and 
Constitution to promote their agenda. This is an unacceptable view. It 
is contrary to the great heritage of law this country is based on and 
should not be tolerated by the judiciary.
  When Justice Stevens announced his retirement, whom Ms. Kagan would 
replace--he served 38 years; he served until age 88--if Ms. Kagan were 
to serve till that age, she would serve 38 years on the Supreme Court 
without ever having to answer once to the American people. She has 
never tried a case. We have no judicial history. She has never really 
practiced law in any serious way. She has been a political lawyer most 
of her life. She has been an advocate for a lot of leftwing views and 
that is all right.
  You can have a view that the military's don't ask, don't tell 
policy--law passed by Congress; it is a law not a policy--you can 
oppose that. That is fine. That should not disqualify you from serving 
on the bench. You can be against the death penalty and serve as a good 
judge if you understand that if the law requires the death penalty, you 
should have to apply it. You cannot obstruct the law because you do not 
agree with it. This is basic to the understanding of the American 
jurisprudence system.
  When Justice Stevens announced his retirement, President Obama 
rephrased his empathy standard that took a lot of criticism and, 
indeed, was renounced by Justice Sotomayor in her confirmation hearings 
last year. He said he wanted a nominee with a ``keen understanding of 
how the law affects the daily lives of the American people.''
  Well, I think that is what Congress is supposed to do. We are 
supposed to be monitoring how the laws affect the daily lives of the 
American people. If we do not think, as a matter of policy, it is doing 
it correctly, we should fix the law, change it, eliminate it, and do 
whatever is appropriate. That is not the judge's responsibility. The 
judge's responsibility is to enforce the law, to follow the law, or 
else he is a lawmaker instead of a judge.
  When the President announced Elena Kagan's nomination, he said: ``She 
has often referred to . . . Justice Thurgood Marshall, for whom she 
clerked, as her hero'' and ``credits him with reminding her that, as 
she put it, `behind law there are stories--stories of people's lives.' 
''
  Well, there are stories, and a judge should certainly be very aware 
of the facts in a case. Judges should not deny relevant evidence. But 
in the end, the judge must find the true facts, and then apply that 
truly to the law as it is whether they like it or not. Activism arises 
when a judge allows their personal values, even deepest values, core 
concerns, broader perspectives on how the world works, and the depth 
and breadth of their empathy to influence decisions. Isn't that bias? 
Who knows what these judges believe--they have a lifetime appointment 
and they get to impose their core concerns on us? No. This is a serious 
matter.

  I think the American people understand it because when you empower a 
judge to do these kinds of things, you have given him control over you. 
You have given him the power to redefine marriage when the people of 
the State don't want to. And you have no recourse. They have a lifetime 
appointment. Some people say nine judges can do that. Only five, 
really. It only takes five. They meet and have tea and they go to the 
great salons of Europe, and they get these ideas about how to make 
America a better place, and they want to come back and get itching to 
write it into some opinion somewhere.
  I would say that no drafter of the Constitution or any of the 
provisions in it at any point that those amendments were adopted would 
ever have imagined a Federal judge in California would declare that the 
people of California's decision to define marriage as it has been since 
the founding of the Republic as between a man and a woman is 
unconstitutional. Make no mistake. When a judge says something is 
unconstitutional, this is not a little bitty matter. The American 
people have no recourse, except to pass a constitutional amendment. It 
takes two-thirds of both the House and the Senate and three-fourths of 
the State. They make it so because they say it is so. There is nothing 
in the Constitution that defines marriage. If it is defined--the most 
logical argument is that when it was written, if they had wanted to 
change the definition of marriage, they would have put it in there, 
because every State in America at the time the Constitution was drafted 
and every amendment to it defined marriage as between a man and a 
woman.
  That is what we get. Right now we have had battles over those kinds 
of

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issues. They are the cause celebre of the day, but they become further 
issues in the future. Do we think maybe in the future it comes down to 
whether a judge can require the State to raise taxes? Will it require a 
State to provide insurance to everyone or the Federal Government to do 
so because the Constitution somewhere said that everybody should have 
equal protection of the law? Does that mean everybody should have 
health insurance?
  We have one nominee President Obama has submitted, Mr. Liu, who says 
everybody in America is entitled to constitutional welfare rights. 
Presumably, if you file a lawsuit in front of him, he would order the 
State to provide welfare to everybody, whether we can afford it or 
whether the legislature decided that is the right thing. This is what 
activism is. It is a serious matter.
  I wanted to speak of a few additional points for discussion that 
relate to matters that have been raised in the last day or so about 
this nomination. I am trying to be correct in what I say. I want to be 
correct and fair. This nominee deserves fair treatment and accuracy, 
and we should try to achieve that in the Senate. If I have said 
anything before or say anything now that is in error, I hope my 
colleagues will call that to my attention and I will be pleased to 
admit that I made an error, if I have, and correct it. Likewise, I am 
beginning to wonder--I have said this before--since nobody has 
corrected any significant matter I have stated, they must be agreeing 
to it.
  One of our Senators defended Ms. Kagan by insisting that any 
arguments she made as Solicitor General were made on behalf of her 
client, the United States, and should not be held against her. They 
suggest that her actions as Solicitor General should, therefore, be 
immune from criticism. In other words, she didn't necessarily do what 
she thought ought to be done, but she had a duty to defend the law.
  It misses the point about the Witt case, the important case I talked 
about in which I criticized her decisions as Solicitor General. The 
problem with Ms. Kagan's actions in the Witt case is she did not make 
all appropriate arguments in defense of her client, the United States. 
She declined to effectively represent her client, the United States. I 
went into some length about that today. We are not saying that she must 
agree with every argument she made as Solicitor General in terms of 
policy. Solicitors General are required by their duty to defend the 
laws Congress passes. They don't have to agree with the law, but they 
have a duty to defend it if it is challenged as being unconstitutional 
or in some other fashion improper.
  What is most important about this is that in the Witt case, it dealt 
with the military's don't ask, don't tell policy. People can disagree 
on that, as I indicated, but it was the law passed by Congress and 
signed by President Clinton. She spent 5 years in the Clinton White 
House. She never complained to him about the law, to my knowledge. She 
didn't protest or quit working for him. She goes to Harvard, however, 
and bars the military from being able to enter the Career Services 
Office and recruit students because she didn't like the law Congress 
passed and her former boss signed. She punished the military officers 
who were there on campus to recruit Harvard students to be JAG officers 
in the military. Maybe those officers just got back from Iraq and 
Afghanistan--we were in two wars at the time--yet they were treated as 
second-class citizens, not allowed to enter the career services office.
  Oh, they could call the little veterans group on campus and they 
could ask them and they could help them. One officer wrote in a memo 
that was produced by the Defense Department: We were relegated to 
wandering the halls hoping somebody would stop and speak to us. They 
weren't able to recruit properly on the Harvard campus. Her suggestion 
that this was nothing she was doing and unimportant is not accurate. It 
was a misrepresentation of the grave circumstances that occurred at 
Harvard when she was dean. She led this effort. She personally led the 
effort to reverse Harvard's policy and deny the military the right to 
enter the Career Services Office. They said, Well, it is OK, they can 
call the veterans groups. They were offended by it. They sent out an e-
mail and said we are not able to arrange for these kinds of meetings. 
We are law students here who happen to be veterans. We can't do what 
the career services can do to provide assistance to the military. It 
was plainly against the Solomon amendment which was in effect at all 
times when she reversed Harvard's policy and began to bar the military 
from coming on campus.
  When she came up for confirmation last year to be Solicitor General 
of the United States and there were cases filed around the country 
challenging the constitutionality of don't ask, don't tell, it was 
clear it might fall to her duty to defend that law, and she was asked 
in committee about it. She was asked: Will you defend the law? She 
said: Absolutely, she would. She committed to it. Generally she would 
commit to defending all laws of the United States and, specifically, in 
answer to a written question, she committed to defending don't ask, 
don't tell.
  What I wish to say is that my colleagues were in error in their 
statements about this because it wasn't that she made arguments to the 
Court that she didn't believe in and that somehow we are unfairly 
criticizing her for doing that. What I am saying is there were 
arguments she did not make that she was duty bound to make to defend 
the law and actions that she was duty bound to take.
  It has been said by one of our colleagues that it is ``Lawyer 101'' 
that an attorney will take positions on behalf of the client even when 
the lawyer disagrees with it. Well, that is exactly right. An attorney 
does have an obligation to vigorously defend his or her client, but Ms. 
Kagan refused to do that. Her client was the United States of America. 
When the Solicitor General of the United States stands before the U.S. 
Supreme Court or any lawyer--as I had the privilege to do for 15 
years--in the Department of Justice stands up in a Federal court, do 
you know what they say? The first thing they are asked is, Counsel, the 
judge will say, is the government ready? And the lawyer says, The 
United States is ready, Your Honor. The United States is ready. That is 
who the lawyer's client is: the United States of America. It is not her 
personal view of don't ask, don't tell. It is not President Obama's 
interests or idea of what should be don't ask, don't tell; not his 
views. It is the United States of America. And what is the position she 
was defending? The lawfully passed statutes of this Congress signed by 
her former boss, President Clinton, passing the law don't ask, don't 
tell that was being challenged.

  I am of the view that in failing to properly defend that case, as I 
said earlier, she violated a direct, specific commitment she made to 
the Congress and violated her duty even if she hadn't made that 
commitment as Solicitor General to defend the laws of the United 
States.
  One of my colleagues made reference to Justice Souter, saying:

       Justice Souter pointed out in a recent commencement address 
     recently [that] different aspects of the Constitution point 
     in different directions toward different results, and they 
     need to be reconciled.

  Judges do have to do that.

       Acknowledging these inherent tensions is not only Main 
     Street, it is as old as the Constitution.

  Well, there is some truth to that, but Justice Souter's speech and 
others in his philosophical mold are very troubling. In fact, Justice 
Souter's speech intellectually followed on to Justice Brennan's 1985 
Georgetown speech which is clearly the playbook for judicial activism. 
In it, Justice Brennan, former Justice of the U.S. Supreme Court, 
stated:

       For the genius of the Constitution rests not in any static 
     meaning it might have had in a world now dead and gone, but 
     in the adaptability of its great principles to cope with 
     current problems and current needs. What the constitutional 
     fundamentals meant to the wisdom of other times cannot be 
     their measure to the vision of our time.

  So if the Constitution's drafters decided that every American from 
time immemorial, unless the Constitution was specifically amended, had 
a right to keep and bear arms, Justice Brennan would say, Well, we can 
look at that. We need to see what the vision for our time is. Maybe we 
need to consult the Europeans as they did in this recent case, the 
dissenters in a 5-to-4 vote that narrowly upheld the right to keep and 
bear arms.

[[Page S6746]]

  Allowing judges to determine the vision of our time is a recipe for 
legislating by unelected judges. What is the vision of our time is 
decidedly in the eye of the beholder. It is the job of the elected 
branches of government to make these calls in our constitutional 
system, not the unelected judiciary. The job of the judiciary is to 
interpret the law, not make the law. That is so basic. Don't we all 
know that?
  As Professor John Baker of LSU put it:

       The choice is between two distinct modes of decision-
     making.
       Legislators make laws; they do not write opinions. 
     Legislators can legitimately make laws to govern future 
     conduct only. . . . Legitimate judging, on the other hand, 
     concerns the existing law. Interpretation of the existing 
     law, contrary to lawmaking, focuses on the past. Legitimate 
     interpretation of existing law explains the result in a well-
     reasoned opinion.

  I think that was nicely said. Judges are not empowered to amend laws, 
to promote their vision. They are not empowered to alter the meaning of 
the words of laws or the Constitution to promote their core values.
  What is Ms. Kagan's view about that? She wrote a law review article 
entitled ``Confirmation Messes, Old and New.'' It is kind of 
interesting. She has said nominees should be far more forthcoming when 
they testify. Most people think she failed to meet the standard in her 
own law review article. She also quoted Stephen Carter's book, with 
approval, saying:

       In every exercise of interpretive judgment, there comes a 
     crucial moment when the [judge's] own experience and values 
     become the most important data.

  The judge's own experience and values become the most important data? 
That is not law. I don't know what that is, but it is not law.
  In a 2004 interview in Metropolitan Corporate Counsel, she said:

       The attitudes and views that a person brings to the bench 
     make a difference in how they reach those decisions.

  Is that not biased? Is that not an affirmation that a judge can bring 
to the bench their attitudes and views, instead of being a neutral 
umpire, putting on that black robe to symbolize impartiality? I think 
it is. This is a philosophy of law that is afoot in many of our law 
schools. There is no doubt about it. It is out there. People advocate 
it. She wrote about and advocated it. Many judges are adhering to this, 
and it is wrong. They are not empowered to do these kinds of things.
  In one interview in a magazine, in 2004, she said:

       There should be a range of opinions on the [Supreme] Court; 
     it should not just be about lawyerly qualifications.

  The opinions we need on the Court are that a judge should identify 
the law and then follow it. That is what the view should be.
  Mr. President, people are still asserting things about the Harvard 
issue that I don't think are quite accurate. I do not believe she 
handled the Harvard military question in any way that is defensible. I 
have looked at it very carefully. I have laid it out in some detail. 
And now I wish to respond to some of the statements that have been 
made.
  One their efforts has been to point out and to assert that Elena 
Kagan treated veterans at Harvard Law School with great respect, 
hosting them for private dinners in her home, publicly recognizing them 
and thanking them for their service to our country. She has been 
praised by several law school veterans who have said Ms. Kagan is not 
antimilitary. Those things have some truth to them, and Senator Leahy 
has introduced some letters.
  But, for the most part, Dean Kagan's outreach to Harvard Law veterans 
began after all this brouhaha and the resistance to military recruiting 
occurred on campus and things got tense.
  It was not such a pleasant time. The military veterans were not 
comfortable. She talked about other students being uncomfortable with 
the military on campus. She said that herself. So the annual veterans 
dinner I referred to began in 2006, after the university president, 
Larry Summers, had instructed the law school to restore equal access to 
military recruiters and after the Supreme Court had rejected her 
argument that the Solomon Amendment, which Congress passed to make sure 
these law schools either admitted the military or ceased getting 
Federal money--her argument that the Solomon amendment did not require 
Harvard to give the military access to the career services office was 
rejected by the U.S. Supreme Court 8 to 0.
  According to the military veterans who attended Harvard Law School 
during this period, 2004 to 2006, the dinners were actually initiated 
at the suggestion of the school--the university's dean of students, 
Ellen Cosgrove, to whom the military veterans had expressed their 
concerns about the hostile campus environment toward the military. In 
other words, they had gone to Dean Cosgrove and complained about the 
hostile environment on campus toward the military, and she started some 
of these dinners. It was only later that Dean Kagan--who was speaking 
at one time to a protest rally while the military recruiter was in the 
next building trying to recruit students--she was out there speaking to 
a protest rally about the military being on campus, saying how wrong 
she thought the military was.
  Most law school veterans who have praised Dean Kagan were either not 
present at the law school during the height of the controversy or were 
not then even in the military. Almost all of them were more recent 
graduates or current students at Harvard, people who liked her outreach 
efforts at that time. But that was after she was forced to let the 
recruiters back on campus by the President of the school and by the 
Supreme Court. None of the individuals who have written and said 
positive things were members of the student veterans association that 
she tried to conscript to take care of the needs of the military 
recruiters. None of them wrote any such letter.
  I wished to share a few of those thoughts and again challenge my 
colleagues to be as accurate as they can in what they say, either for 
or against this nominee. She is entitled to fair treatment, but these 
matters are very serious. The American people want judges who are 
committed to their oath, and their oath says they are to be impartial, 
that they are to do equal justice to the poor and the rich, and that 
they are to serve under the Constitution and laws of the United States, 
not above it. That is the commitment they must have.
  We, the Senate, should never vote to confirm any judge--liberal 
activist or conservative activist--who, once they put on that robe, 
will not be impartial or provide equal justice but will allow personal 
biases, core beliefs, prejudices or politics to influence how they 
decide cases. That is a disqualifying factor.
  We must know that any nominee is committed to the ideal of impartial 
justice. I don't believe this nominee has ever demonstrated that she 
would be unbiased in these situations, and, indeed, the record 
indicates she has consistently allowed her personal feelings to 
override the law and her duties. Therefore, I will oppose the 
nomination.
  I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. DURBIN. 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. DURBIN. Mr. President, I ask unanimous consent to speak as in 
morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                             The DREAM Act

  Mr. DURBIN. Mr. President, I rise to speak about S. 729, known as the 
DREAM Act. This is bipartisan immigration legislation that I have 
introduced with Republican Senator Dick Lugar of Indiana.
  Immigration is a controversial issue, but I hope there is one aspect 
of this debate that does not divide us: Innocent children should not be 
victims of our broken immigration system.
  That is why I introduced the DREAM Act almost 10 years ago. The DREAM 
Act would give a select group of immigrant students the chance to earn 
legal status if they grew up in the United States, have good moral 
character, and attend college or enlist in the military of our country.
  The DREAM Act has broad, bipartisan support. The last time the Senate 
considered the DREAM Act, it received 52 votes, including 11 
Republicans, but

[[Page S6747]]

we needed 60 votes under the Senate rules. It is clear, though, that a 
bipartisan majority in the Senate supports the DREAM Act.
  Since then, support for the DREAM Act has only grown, and the bill 
now has 40 cosponsors. The DREAM Act also is the only immigration bill 
that the Obama administration has officially and publicly endorsed. 
Just this month, President Obama said:

       We should stop punishing innocent young people for the 
     actions of their parents by denying them the chance to stay 
     here and earn an education and contribute their talents to 
     build the country where they have grown up. The DREAM Act 
     would do this, and that is why I supported this bill as a 
     State legislator, as a U.S. Senator, and I continue to 
     support it as President.

  The DREAM Act is also supported by a broad coalition of education, 
labor, business, civil rights, and religious leaders, including the 
AFL-CIO, the American Jewish Committee, the Leadership Conference on 
Civil Rights, the National PTA, and the U.S. Conference of Catholic 
Bishops.
  It also has the support of the CEOs of Fortune 500 companies, such as 
Microsoft and Pfizer, and dozens of colleges and universities.
  The DREAM Act also has broad support from the American people. 
According to a recent poll by Opinion Research Corporation, 70 percent 
of likely voters favored the DREAM Act, including 60 percent of the 
likely Republican voters.
  Here is how it works. A student would have the chance to qualify only 
if he or she meets the following requirements: came to the United 
States as a child; has lived here for more than 5 years; has good moral 
character; has not engaged in criminal activity; does not pose any 
threat to national security; passes a thorough background check; and 
graduates from an American high school. If a student fulfills all of 
these requirements, he or she would receive temporary legal status. 
Next, they would be required to serve in the military or attend a 
college for at least 2 years. After 6 years, if this requirement is 
completed, the student could apply for permanent legal status. If this 
requirement is not completed, that student would lose their legal 
status and be subject to deportation.
  Students who obtain conditional legal status under the DREAM Act 
would not be eligible for Pell grants. They also would be subject to 
tough criminal penalties for fraud. The DREAM Act would not allow what 
is known as chain migration. In fact, DREAM Act students would have 
very limited ability to sponsor family members for legal status.
  Let me tell you why I first introduced the DREAM Act almost a decade 
ago. I was contacted in my office by a Korean woman living in Chicago. 
She told me she had several children. Her oldest daughter turned out to 
be an accomplished classical pianist. Her daughter finished high school 
and was accepted to the Juilliard music school in New York. It is 
amazing because so few are accepted there--several hundred each year. 
She was so proud of her daughter.
  She said when they were completing the form for Juilliard, there was 
a question about her daughter's nationality or citizenship. Her 
daughter turned to her mother and said: American, right?
  Her mom said: We brought you here at the age of 2, but we never filed 
any papers.
  The girl said: What should we do?
  The mother said: Let's call Durbin.
  They called my office. It is the first time I can ever recall ever 
facing something quite like this. My staff said: Let's look into it and 
find out what the legal situation is.
  After telling the facts to the immigration agency of our government, 
we were informed that the girl's choice was obvious. She had to return 
to Korea, a place she had never been for 16 years, with a language she 
did not speak. The rest of her family--her mother, all of her 
siblings--were American citizens. She was not. Her parents failed to 
file the paperwork.
  She had made a choice about her career and knew that she was 
ineligible for a lot of the student assistance available to those who 
are legal residents of the United States.
  I thought to myself: That is fundamentally unfair. I reflected on my 
own story. My mother was brought to this country at the age of 2 as an 
immigrant. Her mother came from Lithuania. She came in her mother's 
arms and arrived in 1911 with a brother and a sister. They made it to 
East St. Louis, IL, where other Lithuanians were waiting, as well as my 
grandfather. My mother did not have any vote in that family decision to 
get on the boat and come to America. I am glad she did because her son 
now gets to serve as a Senator from the State of Illinois, where they 
emigrated.
  I thought of this poor little girl, 2 years of age, brought to this 
country from Korea, now being told at age 18: Go back to Korea.
  That is what the laws of America say, and that is why I introduced 
the DREAM Act.
  When I first introduced the DREAM Act, I started telling the story 
about the Korean girl, and I noticed something interesting was 
happening as I told the story: there would be young people waiting 
after the speech asking if they could speak to me privately. Many of 
them were Hispanic, some were Polish. They were from all over. They 
would take me aside, look around to make sure no one was there, and 
say: I was one of those kids. I was brought here illegally by my 
parents who were legal at the time, and I am illegal today. But this is 
the only country I have ever known, gone to school here, this is where 
my friends are, this is where my future is. Help me. That is what the 
DREAM Act is all about.
  Over the years, these people who used to wait nervously in the 
shadows have started coming out of the shadows and telling their 
stories. They are student council presidents, they are valedictorians, 
they are junior ROTC leaders, star athletes. They are tomorrow's 
scientists, soldiers, and teachers in America. They were brought to the 
United States when they were so young that they did not understand what 
was going on. They grew up here. It is the only home they ever knew.
  The fundamental premise of the DREAM Act is that we should not punish 
the children for the parents' actions. That is not what America is 
about. Instead, the DREAM Act says to these students: America will give 
you a chance with strict requirements, but we will give you a chance.
  Nine years after I introduced this legislation, I have noticed the 
DREAM Act students are not whispering in the shadows anymore. Recently, 
I met with four young people who would qualify for the DREAM Act: 
Felipe Matos, Carlos Roa, Gaby Pacheco, and Carlos Rodriguez. These 
four students walked from Miami, FL, to Washington, DC--1,500 miles--in 
order to build support for the DREAM Act. Along the way, they were 
joined by hundreds of supporters, young students and young people in 
the same situation they were in but other young people who understood 
the injustice that is being perpetrated on these people. They called 
this trip, this long 1,500-mile hike, ``the trail of dreams.''
  I also would like to update the Senate on two DREAM Act students 
about whom I have spoken in the past.
  This is Tam Tran. Tam was born in Germany and was brought to the 
United States by her parents when she was 6 years old. Tam's parents 
are refugees who fled Vietnam as boat people at the end of the Vietnam 
war. They moved to Germany, and then they came to the United States to 
join relatives. An immigration court ruled that Tam and her family 
could not be deported to Vietnam because they would be persecuted by 
the Communist government. The German Government refused to accept them. 
Tam literally had nowhere else to go, so she grew up in America. She 
graduated with honors from UCLA with a degree in American literature 
and culture. She was studying for a Ph.D. in American civilization at 
Brown University. But 2 months ago, Tam was tragically killed in an 
automobile accident.
  Three years ago, Tam was one of the first ``dreamers''--that is what 
I call these students--to speak out when she testified before a House 
Judiciary Committee. This is what she said:

       I was born in Germany, my parents are Vietnamese, but I 
     have been American raised and educated for the past 18 years. 
     . . .Without the DREAM Act, I have no prospect of overcoming 
     my state of immigration limbo; I'll forever be a perpetual 
     foreigner in a country where I've always considered myself an 
     American.

  Tam was sitting right up here in the gallery when the DREAM Act 
received

[[Page S6748]]

52 votes on the Senate floor. After the vote, I met with Tam and 
several other DREAM Act students. Tam was hopeful, even though we lost 
the vote. She knew we had 52 and realized we needed 60, but she would 
not give up hope. She talked about the need to pass the DREAM Act so 
she would have a chance to contribute more fully to this country--the 
country she loved so much.
  I wish to use this moment to offer my condolences to Tam Tran's 
family and friends and assure them I will do everything I can to honor 
her memory by working to pass the DREAM Act.
  Let me tell you about another DREAM Act student. This is Oscar 
Vasquez. Oscar was brought to Phoenix, AZ, by his parents when he was a 
small child. He spent his high school years in Junior ROTC and dreamed 
of enlisting in the military. But at the end of his junior year, a 
recruiting officer told Oscar he was ineligible for military 
service because he was undocumented.

  Oscar found another outlet. He entered a robot competition sponsored 
by NASA. Oscar and three other DREAM Act students worked for months in 
a storage room in their high school. They were competing against 
students from MIT and other top universities, but Oscar's team won 
first place.
  The story does not end there. Last year, Oscar graduated from Arizona 
State University with a degree in mechanical engineering. Oscar was one 
of only three Arizona State University students who were honored during 
President Obama's commencement address at that university.
  Following his graduation, Oscar did an extraordinary thing: he 
voluntarily returned to Mexico, a country he had not lived in since he 
was a child. He has now applied to reenter the United States. Oscar 
said:

       I decided to take a gamble and try to do the right thing.

  But there is a problem. Unless Oscar is granted a waiver, he will not 
be able to enter the United States for at least 10 years, if not 
longer. In the meantime, he is going to be separated from his wife 
Karla, who is here in the United States, and their 2-year-old daughter 
Samantha, who are both American citizens.
  This extraordinary young man--a mechanical engineer who won a 
national competition, a person who can add something to America, who 
has a wife and family here, who is doing the right thing by going back 
to the country of his origin even though he has little connection with 
it anymore--is being told: America doesn't need you. Wait for 10 years, 
separated from your family.
  It is not fair.
  There are so many other stories of young people who would be eligible 
for the DREAM Act. Every week--every single week--I receive calls, e-
mails, and letters from these dreamers. Let me tell you about two 
others.
  This is Benita Veliz. Benita Veliz was brought to the United States 
by her parents in 1993. She was 8 years old. Benita graduated 
valedictorian of her high school class at the age of 16. She received a 
full scholarship to St. Mary's University. She graduated from the 
honors program with a double major in biology and sociology. Benita's 
honors thesis was written about the DREAM Act.
  Benita sent me a letter recently, and I am going to read into the 
Record what she said. Benita said:

       I can't wait to be able to give back to the community that 
     has given me so much. I was recently asked to sing the 
     national anthems for both the U.S. and Mexico at Cinco de 
     Mayo community assembly. Without missing a beat, I quickly 
     belted out the Star Spangled Banner. I then realized that I 
     had no idea how to sing the Mexican national anthem. I am 
     American. My dream is American. It's time to make our dreams 
     a reality. It's time to pass the DREAM Act.

  Let me show one other. This is Minchul Suk. Minchul was brought to 
the United States from South Korea by his parents in 1991 when he was 9 
years old. Minchul graduated from high school with a 4.2 GPA. He 
graduated from UCLA with a degree in microbiology, immunology, and 
molecular genetics. With support from the Korean American community, 
Minchul was able to graduate from dental school. He has passed the 
national boards and licensing exam to become a dentist, but he cannot 
obtain a license because he does not have legal status.
  Minchul sent me a letter recently. Here is what he wrote:

       After spending the majority of my life here, with all my 
     friends and family here, I could not simply pack my things 
     and go to a country I barely remember. I am willing to accept 
     whatever punishment is deemed fitting for that crime; let me 
     just stay and pay for it . . . I am begging for a chance to 
     prove to everyone that I am not a waste of a human being, 
     that I am not a criminal set on leeching off taxpayers' 
     money. Please give me a chance to serve my community as a 
     dentist.

  The DREAM Act is not just the right thing to do, it is the right 
thing for America. Wouldn't America be a better place if someone such 
as Minchul Suk would be able to serve his community as a dentist? 
Couldn't our military use someone such as Oscar Vazquez, a mechanical 
engineer who has overcome so many obstacles in his young life? Wouldn't 
we all be better off if these talented young immigrants were able to 
contribute more fully to the country they love?
  Michael Bloomberg, the mayor of New York City, knows something about 
economic development. He sent me a letter supporting the DREAM Act. 
Here is what he said:

       Why shouldn't our economy benefit from the skills these 
     young people have obtained here? It is senseless for us to 
     chase out the home-grown talent that has the potential to 
     contribute so significantly to our society. They're the ones 
     who are going to start companies, invest in new technologies, 
     pioneer medical advances.

  Michael Bloomberg is right.
  Our country would also benefit from thousands of highly qualified, 
well-educated young people who are eager to serve the United States of 
America in our armed services. I know. I have spoken with those who 
work at the Pentagon. Diversity is important in our military. There are 
not enough, primarily from Hispanic populations, currently 
enlisting. This is a good way to change that, to make sure the next 
generation of leadership in the military truly reflects the United 
States of America.

  Immigrants have an outstanding tradition of military service. More 
than 65,000 immigrants are currently on Active Duty. The Center for 
Naval Analysis has concluded that ``noncitizens have high rates of 
success while serving--they are far more likely, for example, to 
fulfill their enlistment obligations. . . .''
  Many DREAM Act students come from a demographic group that is already 
predisposed toward military service. The RAND Corporation found that 
``Hispanic youth are more likely than any other groups to express a 
positive attitude toward the military'' and ``Hispanics consistently 
have higher retention and faster promotion speeds than their white 
counterparts.''
  The Army says high school graduation is ``the best single predictor'' 
of success in the military. However, in recent years, the Army has 
accepted more applicants who are high school dropouts, have low scores 
on the military aptitude test, and even some with criminal backgrounds. 
In contrast, under the DREAM Act, which I have introduced, all recruits 
would be well qualified as high school graduates with good moral 
character and no criminal record.
  Since the Bush administration, we have worked closely with the 
Defense Department on the DREAM Act. Defense Department officials have 
said to me publicly and privately that it is a very appealing law. It 
would apply to the cream of the crop of students and be great for 
military readiness.
  Military experts also support the DREAM Act. LTC Margaret Stock, a 
professor at West Point, wrote an article supporting the DREAM Act. She 
concluded:

       Passage of the DREAM Act would be highly beneficial to the 
     United States military. The DREAM Act promises to enlarge 
     dramatically the pool of highly qualified recruits for the 
     U.S. Armed Forces.

  Mr. President, I am sorry I waited until late in the evening and held 
the staff here for this, but this means a lot to me and it means a lot 
to literally hundreds of thousands of young people across America. I 
have introduced a lot of bills in my career. Some of them have become 
law. Most of them haven't. Most of them aren't even noticed. This one 
is noticed by hundreds of thousands of young people who, when they hear 
the name Durbin, ask the next question: When is he going to

[[Page S6749]]

pass the DREAM Act? Our lives depend on it. I feel a special, personal 
obligation to these young people.
  I want to take this story to my colleagues because I think they 
believe that America is a just and caring country, that these young 
people can bring talent and service to our great Nation and they 
deserve a chance. They should not be punished for any wrongdoing by 
their parents. They deserve a chance to prove themselves and to make 
this a better nation.
  Mr. President, I yield the floor.

                          ____________________