[Congressional Record Volume 156, Number 172 (Tuesday, December 21, 2010)]
[Senate]
[Pages S10852-S10885]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
MILITARY CONSTRUCTION AND VETERANS AFFAIRS AND RELATED AGENCIES
APPROPRIATIONS ACT, 2010
The ACTING PRESIDENT pro tempore. Under the previous order, the
Senate will resume consideration of the House message to accompany H.R.
3082, which the clerk will report.
The bill clerk read as follows:
Motion to concur in the House amendment to the Senate
amendment, with an amendment to H.R. 3082, an act making
appropriations for military construction, Department of
Veteran Affairs and Related Agencies, for the fiscal year
ending September 30, 2010, and for other purposes.
Pending:
Reid motion to concur in the amendment of the House to the
amendment of the Senate to the bill, with Reid amendment No.
4885 (to the House amendment to the Senate amendment), of a
perfecting nature.
Reid amendment No. 4886 (to amendment No 4885), to change
the enactment date.
Reid motion to refer the message of the House on the bill
to the Committee on Apropriations, with instructions, Reid
amendment No. 4887, to provide for a study.
Reid amendment No. 4888 (to (the instructions) amendment
No. 4887), of a perfecting nature.
[[Page S10853]]
Reid amendment No. 4889 (to amendment No. 4888) of a
perfecting nature.
Mr. ALEXANDER. Madam President, I suggest the absence of a quorum.
The ACTING PRESIDENT pro tempore. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. McCONNELL. Madam President, I ask unanimous consent that the
order for the quorum call be rescinded.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
Recognition of the Minority Leader
The ACTING PRESIDENT pro tempore. The minority leader is recognized.
Net Neutrality Rules
Mr. McCONNELL. Madam President, later today the Federal
Communications Commission is expected to approve new rules on how
Americans access information on the Internet. There are a lot of people
rightly concerned. The Internet has transformed our society, our
economy, and the very way we communicate with others. It has served as
a remarkable platform for innovation at the end of the 20th century and
now at the beginning of the 21st century. All of this has been made
possible because people have been free to create and to innovate, to
push the limits of invention free from government involvement.
Now that could soon change. Today, the Obama administration, which
has already nationalized health care, the auto industry, insurance
companies, banks, and student loans, will move forward with what could
be a first step in controlling how Americans use the Internet by
establishing Federal regulations on its use. This would harm
investment, stifle innovation, and lead to job losses. That is why I,
along with several of my colleagues, have urged the FCC Chairman to
abandon this flawed approach. The Internet is an invaluable resource.
It should be left alone.
As Americans become more aware of what is happening here, I suspect
many will be as alarmed as I am at the government's intrusion. They
will wonder, as many already do, if this is a Trojan horse for further
meddling by the government. Fortunately, we will have an opportunity in
the new Congress to push back against new rules and regulations.
Madam President, I suggest the absence of a quorum.
The ACTING PRESIDENT pro tempore. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. BROWN of Ohio. Madam President, I ask unanimous consent the order
for the quorum call be rescinded.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
Mr. BROWN of Ohio. I thank the Chair.
Mr. INOUYE. Madam President, today the Senate will consider a 73-day
continuing resolution, which will fund the government through March 4
of next year. This is a clean CR that is $1 billion above the spending
level for fiscal year 2010. It meets the most basic needs of the
Federal Government, and will allow Congress the time necessary to
reconsider a funding bill next year. Most importantly, this temporary
funding measure will avoid a government shutdown, which would be a
terrible thing for the American people. That is the last thing any
responsible Member of this body should wish for.
As I have previously stated, it is deeply unfortunate that we were
unable to take up and pass the omnibus bill. An omnibus, as opposed to
a CR, assumed responsibility for the spending decisions that are the
most basic responsibility of Congress. I regret that our colleagues on
the other side of the aisle, many of whom helped to craft the omnibus,
failed to support it in the end. It was a far superior alternative to
this short-term CR. The omnibus better protected our national security
and would have brought a responsible conclusion to the fiscal year 2011
appropriations process.
The CR we have before us allows for a limited number of adjustments
for programs that would lose either their funding or their
authorization between now and March 4. The CR will also prevent the
layoff of thousands of Federal workers and contractors during the
holiday season.
When the 112th Congress convenes in January, I hope the Senate and
the House will find a way to move forward in a responsible manner to
conclude work on the fiscal year 2011 appropriations process. To do so,
we will require a good-faith effort from Members of both parties to
reach reasonable compromises on a range of issues. I hope that despite
the current political environment, we can find a way to work together
to fund critical priorities that will strengthen our economy and
protect our Nation's security. That is what the American people expect
of us, and they deserve no less. But for now, I urge my colleagues to
support this 10-week continuing resolution.
Cloture Motion
The ACTING PRESIDENT pro tempore. The cloture motion having been
presented under rule XXII, the Chair directs the clerk to read the
motion.
The legislative clerk read as follows:
Cloture Motion
We, the undersigned Senators, in accordance with the
provisions of rule XXII of the Standing Rules of the Senate,
hereby move to bring to a close debate on the motion to
concur in the House amendment to the Senate amendment to H.R.
3082, the Full Continuing Appropriations Act, with an
amendment.
Joseph I. Lieberman, John D. Rockefeller, IV, Byron L.
Dorgan, John F. Kerry, Richard J. Durbin, Mark L.
Pryor, Robert Menendez, Amy Klobuchar, Patty Murray,
Kay R. Hagan, Christopher J. Dodd, Daniel K. Inouye,
Mark Begich, Al Franken, Robert P. Casey, Jr., Tom
Carper.
The ACTING PRESIDENT pro tempore. By unanimous consent the mandatory
quorum call has been waived. The question is, Is it the sense of the
Senate that debate on the motion to concur in the House amendment to
the Senate amendment to H.R. 3082, with amendment No. 4885, shall be
brought to a close? The yeas and nays are mandatory under the rule.
The clerk will call the roll.
The legislative clerk called the roll.
Mr. DURBIN. I announce that the Senator from Indiana (Mr. Bayh) and
the Senator from Oregon (Mr. Wyden) are necessarily absent.
Mr. KYL. The following Senators are necessarily absent: the Senator
from Kansas (Mr. Brownback) and the Senator from New Hampshire (Mr.
Gregg).
The ACTING PRESIDENT pro tempore. Are there any other Senators in the
Chamber desiring to vote?
The yeas and nays resulted--yeas 82, nays 14, as follows:
[Rollcall Vote No. 288 Leg.]
YEAS--82
Akaka
Alexander
Barrasso
Baucus
Begich
Bennet
Bennett
Bingaman
Bond
Boxer
Brown (MA)
Brown (OH)
Bunning
Cantwell
Cardin
Carper
Casey
Cochran
Collins
Conrad
Coons
Corker
Cornyn
Dodd
Dorgan
Durbin
Ensign
Enzi
Feinstein
Franken
Gillibrand
Graham
Grassley
Hagan
Harkin
Hutchison
Inouye
Johanns
Johnson
Kerry
Kirk
Klobuchar
Kohl
Kyl
Landrieu
Lautenberg
Leahy
Levin
Lieberman
Lincoln
Lugar
Manchin
McCaskill
McConnell
Menendez
Merkley
Mikulski
Murkowski
Murray
Nelson (FL)
Pryor
Reed
Reid
Roberts
Rockefeller
Sanders
Schumer
Sessions
Shaheen
Shelby
Snowe
Specter
Stabenow
Tester
Thune
Udall (CO)
Udall (NM)
Voinovich
Warner
Webb
Whitehouse
Wicker
NAYS--14
Burr
Chambliss
Coburn
Crapo
DeMint
Feingold
Hatch
Inhofe
Isakson
LeMieux
McCain
Nelson (NE)
Risch
Vitter
NOT VOTING--4
Bayh
Brownback
Gregg
Wyden
The ACTING PRESIDENT pro tempore. On this vote, the yeas are 82, the
nays are 14. Three-fifths of the Senators duly chosen and sworn having
voted in the affirmative, the motion is agreed to.
Mr. REID. Madam President, I suggest the absence of a quorum.
The ACTING PRESIDENT pro tempore. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. REID. I ask unanimous consent that the order for the quorum call
be rescinded.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
[[Page S10854]]
Mr. REID. Madam President, if I could have the attention of the
Senators, I have had a number of conversations with the Republican
leader today. The collective goal is to move forward with the schedule
as we know what it is. Senator McCain has 15 minutes, Senator Inouye
has 10 minutes, and the farewell speech of our friend Senator Specter
is going to be this morning. We hope to have agreement that at around 2
o'clock today, we will vote on a couple of judges. We will vote on the
motion to concur on the continuing resolution and vote on cloture on
the treaty. We don't have that down in writing yet, but that is the
goal, so everyone understands. We will have four to five votes this
afternoon around 2 o'clock. That would point us toward the final surge
on this most important treaty. I had conversations with Senator Kerry
and Senator Kyl this morning. I think there is a way clear to complete
this sometime tomorrow.
The ACTING PRESIDENT pro tempore. The Senator from Pennsylvania.
Farewell to the Senate
Closing Argument
Mr. SPECTER. Madam President, this is not a farewell address but,
rather, a closing argument to a jury of my colleagues and the American
people outlining my views on how the Senate and, with it, the Federal
Government arrived at its current condition of partisan gridlock, and
my suggestions on where we go from here on that pressing problem and
the key issues of national and international importance.
To make a final floor statement is a challenge. The Washington Post
noted the poor attendance at my colleagues' farewell speeches earlier
this month. That is really not surprising since there is hardly anyone
ever on the Senate floor. The days of lively debate with many Members
on the floor are long gone. Abuse of the Senate rules has pretty much
stripped Senators of the right to offer amendments. The modern
filibuster requires only a threat and no talking. So the Senate's
activity for more than a decade has been the virtual continuous drone
of a quorum call. But that is not the way it was when Senator Chris
Dodd and I were privileged to enter the world's greatest deliberative
body 30 years ago. Senators on both sides of the aisle engaged in
collegial debate and found ways to find common ground on the Nation's
pressing problems.
When I attended my first Republican moderates luncheon, I met Mark
Hatfield, John Chafee, Ted Stevens, Mac Mathias, Bob Stafford, Bob
Packwood, Chuck Percy, Bill Cohen, Warren Rudman, Alan Simpson, Jack
Danforth, John Warner, Nancy Kassebaum, Slade Gorton, and I found my
colleague John Heinz there. That is a far cry from later years when the
moderates could fit into a telephone booth.
On the other side of the aisle, I found many Democratic Senators
willing to move to the center to craft legislation--Scoop Jackson, Joe
Biden, Dan Inouye, Lloyd Bentsen, Fritz Hollings, Pat Leahy, Dale
Bumpers, David Boren, Russell Long, Pat Moynihan, George Mitchell, Sam
Nunn, Gary Hart, Bill Bradley, and others. They were carrying on the
Senate's glorious tradition.
The Senate's deliberate cerebral procedures have served our country
well. The Senate stood tall in 1805 in acquitting Supreme Court Justice
Samuel Chase in impeachment proceedings and thus preserved the
independence of the Federal judiciary. The Senate stood tall in 1868 to
acquit President Andrew Johnson in impeachment proceedings, and that
preserved the power of the Presidency. Repeatedly in our 223-year
history, the Senate has cooled the passions of the moment to preserve
the institutions embodied in our Constitution which have made the
United States the envy of the world.
It has been a great privilege to have had a voice for the last 30
years in the great decisions of our day: how we allocate our resources
among economic development, national defense, education, environmental
protection, and NIH funding; the Senate's role in foreign policy as we
exercise it now on the START treaty; the protection of civil rights, as
we demonstrated last Saturday, eliminating don't ask, don't tell;
balancing crime control and defendants' rights; and how we have
maintained the quality of the Federal judiciary, not only the high-
profile 14 Supreme Court nominations I have participated in but the 112
Pennsylvanians who have been confirmed during my tenure on the Federal
district courts or the Third Circuit.
On the national scene, top issues are the deficit and the national
debt. The deficit commission has made a start. When raising the debt
limit comes up next year, that will present an occasion to pressure all
parties to come to terms on future taxes and expenditures, to
realistically deal with these issues.
The Next Congress should try to stop the Supreme Court from further
eroding the constitutional mandate of separation of powers. The Supreme
Court has been eating Congress's lunch by invalidating legislation with
judicial activism after nominees commit under oath in confirmation
proceedings to respect congressional factfinding and precedents. That
is stare decisis. The recent decision in Citizens United is
illustrative. Ignoring a massive congressional record and reversing
recent decisions, Chief Justice Roberts and Justice Alito repudiated
their confirmation testimony given under oath and provided the key
votes to permit corporations and unions to secretly pay for political
advertising, thus effectively undermining the basic democratic
principle of the power of one person, one vote. Chief Justice Roberts
promised to just call balls and strikes. Then he moved the bases.
Congress's response is necessarily limited in recognition of the
importance of judicial independence as the foundation of the rule of
law, but Congress could at least require televising the Court
proceedings to provide some transparency to inform the public about
what the Court is doing since it has the final word on the cutting
issues of the day. Brandeis was right when he said that sunlight is the
best disinfectant.
The Court does follow the election returns, and the Court does
judicially notice societal values as expressed by public opinion. Polls
show that 85 percent of the American people favor televising the Court
when told that a citizen can only attend an oral argument for 3 minutes
in a chamber holding only 300 people. Great Britain, Canada, and State
supreme courts permit television.
Congress has the authority to legislate on this subject, just as
Congress decides other administrative matters such as what cases the
Court must hear, time limits for decisions, number of Justices, the day
the Court convenes, and the number required for a quorum. While
television cannot provide a definitive answer, it could be significant
and may be the most that can be done consistent with life tenure and
judicial independence.
Additionally, I urge Congress to substantially increase funding for
the National Institutes of Health. When NIH funding was increased from
$12 to $30 billion annually and $10 billion added to the stimulus
package, significant advances were made on medical research. It is
scandalous--absolutely scandalous--that a nation with our wealth and
research capabilities has not done more. Forty years ago, the President
of the United States declared war on cancer. Had that war been pursued
with the diligence of other wars, most forms of cancer might have been
conquered.
I also urge colleagues to increase their activity on foreign travel.
Regrettably, we have earned the title of ugly Americans by not treating
other nations with proper respect and dignity.
My experience on congressional delegations to China, Russia, India,
NATO, Jerusalem, Damascus, Bagdad, Kabul, and elsewhere provided an
opportunity for eyeball-to-eyeball discussions with world leaders about
our values, our expectations, and our willingness to engage in
constructive dialog. Since 1984, I have visited Syria almost every
year, and my extensive conversations with Hafiz al-Assad and Bashar al-
Assad have convinced me there is a realistic opportunity for a peace
treaty between Israel and Syria, if encouraged by vigorous U.S.
diplomacy. Similar meetings I have been privileged to have with Muammar
Qadhafi, Yasser Arafat, Fidel Castro, Saddam Hussein, and Hugo Chavez
have persuaded me that candid, respectful dialog with our toughest
adversaries can do much to improve relations among nations.
[[Page S10855]]
Now I will shift gears. In my view, a principal reason for the
historic stature of the U.S. Senate has been the ability of any Senator
to offer virtually any amendment at any time. This Senate Chamber
provides the forum for unlimited debate with a potential to acquaint
the people of America and the world with innovative proposals on public
policy and then have a vote on the issue. Regrettably, that has changed
in recent years because of abuse of the Senate rules by both parties.
The Senate rules allow the majority leader, through the right of his
first recognition, to offer a series of amendments to prevent any other
Senator from offering an amendment. That had been done infrequently up
until about a decade ago and lately has become a common practice, and,
again, by both parties.
By precluding other Senators from offering amendments, the majority
leader protects his party colleagues from taking tough votes. Never
mind that we were sent here and are paid to make tough votes. The
inevitable and understandable consequence of that practice has been the
filibuster. If a Senator cannot offer an amendment, why vote to cut off
debate and go to final passage? Senators were willing--and are
willing--to accept the will of the majority in rejecting their
amendments but unwilling to accept being railroaded to concluding a
bill without being provided an opportunity to modify it. That practice
has led to an indignant, determined minority to filibuster and to deny
60 votes necessary to cut off debate. Two years ago on this Senate
floor, I called the practice tyrannical.
The decade from 1995 to 2005 saw the nominees of President Clinton
and President Bush stymied by the refusal of the other party to have a
hearing or floor vote on many judicial and executive nominees. Then, in
2005, serious consideration was given by the Republican caucus to
changing the longstanding Senate rule by invoking the so-called nuclear
or constitutional option. The plan called for Vice President Cheney to
rule that 51 votes were sufficient to impose cloture for confirmation
of a judge or executive nominee. His ruling, then to be challenged by
Democrats, would be upheld by the traditional 51 votes to uphold the
Chair's ruling.
As I argued on the Senate floor at that time, if Democratic Senators
had voted their consciences without regard to party loyalty, most
filibusters would have failed. Similarly, I argued that had Republican
Senators voted their consciences without regard to party loyalty, there
would not have been 51 of the 55 Republican Senators to support the
nuclear option.
The majority leader then scheduled the critical vote on May 25, 2005.
The outcome of that vote was uncertain, with key Republicans
undeclared. The showdown was averted the night before by a compromise
by the so-called Gang of 14. Some nominees were approved, some
rejected, and a new standard was established to eliminate filibusters
unless there were extraordinary circumstances, with each Senator to
decide if that standard had been met. Regrettably, again, that standard
has not been followed as those filibusters have continued up to today.
Again, the fault rests with both parties.
There is a way out of this procedural gridlock by changing the rule
on the power of the majority leader to exclude other Senators'
amendments. I proposed such a rule change in the 110th and 111th
Congresses. I would retain the 60-vote requirement for cloture on
legislation, with a condition that Senators would have to have a
talking filibuster, not merely presenting a notice of intent to
filibuster. By allowing Senators to offer amendments and a requirement
for debate, not just notice, I think filibusters could be effectively
managed, as they had been in the past, and still retain, where
necessary, the opportunity to have adequate debate on controversial
issues.
I would change the rule to cut off debate on judicial and executive
branch nominees to 51 votes, as I formally proposed in the 109th
Congress. Important positions are left open for months, and the Senate
agenda today is filled with unacted-upon judicial and executive
nominees, and many of those judicial nominees are in areas where there
is an emergency backlog. Since Judge Bork and Justice Thomas did not
provoke filibusters, I think the Senate can do without them on judges
and executive officeholders. There is a sufficient safeguard of the
public interest by requiring a simple majority on an up-down vote. I
would also change the rule requiring 30 hours of postcloture debate and
the rule allowing the secret hold, which requires cloture to bring the
matter to the floor. Requiring a Senator to disclose his or her hold to
the light of day would greatly curtail this abuse.
While political gridlock has been facilitated by the Senate rules, I
am sorry to say partisanship has been increased greatly by other
factors. Senators have gone into other States to campaign against
incumbents of the other party. Senators have even opposed their own
party colleagues in primary challenges. That conduct was beyond
contemplation in the Senate I joined 30 years ago. Collegiality can
obviously not be maintained when negotiating with someone
simultaneously out to defeat you, especially within your own party.
In some quarters, ``compromise'' has become a dirty word. Senators
insist on ideological purity as a precondition. Senator Margaret Chase
Smith of Maine had it right when she said we need to distinguish
between the compromise of principle and the principle of compromise.
This great body itself was created by the so-called Great Compromise,
in which the Framers decreed that States would be represented equally
in the Senate and proportionate to their populations in the House. As
Senate Historian Richard Baker noted: ``Without that compromise, there
would likely have been no Constitution, no Senate, and no United States
as we know it today.''
Politics is no longer the art of the possible when Senators are
intransigent in their positions. Polarization of the political parties
has followed. President Reagan's ``big tent'' has frequently been
abandoned by the Republican Party. A single vote out of thousands cast
can cost an incumbent his seat. Senator Bob Bennett was rejected by the
far right in his Utah primary because of his vote for TARP. It did not
matter that Vice President Cheney had pleaded with the Republican
caucus to support TARP or President Bush would become a modern Herbert
Hoover. It did not matter that 24 other Republican Senators, besides
Bob Bennett, out of the 49 Republican Senators voted for TARP. Senator
Bennett's 93 percent conservative rating was insufficient.
Senator Lisa Murkowski lost her primary in Alaska. Congressman Mike
Castle was rejected in Delaware's Republican primary in favor of a
candidate who thought it necessary to defend herself as not being a
witch. Republican Senators contributed to the primary defeats of
Bennett, Murkowski, and Castle. Eating or defeating your own is a form
of sophisticated cannibalism. Similarly, on the other side of the
aisle, Senator Joe Lieberman, a great Senator, could not win his
Democratic primary.
The spectacular reelection of Senator Lisa Murkowski on a write-in
vote in the Alaska general election and the defeat of other Tea Party
candidates in the 2010 general elections may show the way to counter
right-wing extremists. Arguably, Republicans left three seats on the
table in 2010--beyond Delaware, Nevada, and perhaps Colorado--because
of unacceptable general election candidates. By bouncing back and
winning, Senator Murkowski demonstrated that a moderate centrist can
win by informing and arousing the general electorate. Her victory
proves that America still wants to be and can be governed by the
center.
Repeatedly, senior Republican Senators have recently abandoned long-
held positions out of fear of losing their seats over a single vote or
because of party discipline. With 59 votes for cloture on this side of
the aisle, not a single Republican would provide the 60th vote for many
important legislative initiatives, such as identifying campaign
contributors to stop secret contributions.
Notwithstanding the perils, it is my hope more Senators will return
to independence in voting and crossing party lines evident 30 years
ago. President Kennedy's ``Profiles in Courage'' shows the way.
Sometimes a party does ask
[[Page S10856]]
too much. The model for an elected official's independence in a
representative democracy has never been stated more accurately, in my
opinion, than it was in 1774 by Edmund Burke, in the British House of
Commons, when he said: `` . . . his [the elected representative's]
unbiased opinion, his mature judgment, his enlightened conscience . . .
[including his vote] ought not to be sacrificed to you, to any man or
any set of men living.''
But, above all, we need civility. Steve and Cokie Roberts,
distinguished journalists, put it well in a recent column, saying:
Civility is more than good manners. . . . Civility is a
state of mind. It reflects respect for your opponents and for
the institutions you serve together. . . . This polarization
will make civility in the next Congress more difficult--and
more necessary--than ever.
A closing speech has an inevitable aspect of nostalgia. An
extraordinary experience for me is coming to an end. But my dominant
feeling is pride in the great privilege to be a part of this very
unique body with colleagues who are such outstanding public servants. I
have written and will write elsewhere about my tenure here, so I do not
say farewell to my continuing involvement in public policy, which I
will pursue in a different venue. Because of the great traditions of
this body and because of its historic resilience, I leave with great
optimism for the future of our country, a great optimism for the
continuing vital role of the Senate in the governance of our democracy.
I thank my colleagues for listening.
(Applause, Senators rising.)
The PRESIDING OFFICER (Mr. Udall of New Mexico). Cloture having been
invoked, the motion to refer falls.
Mr. WHITEHOUSE. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
The PRESIDING OFFICER. The Senator from Pennsylvania.
Mr. CASEY. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Tribute to Retiring Senators
Arlen Specter
Mr. CASEY. Mr. President, I wish to offer some remarks in furtherance
of what Senator Specter told us about this great institution. I wanted
to spend a moment talking about his service to the Commonwealth of
Pennsylvania.
When I came to the Senate in 2007 as a Senator-elect, one of the
first things I did was go to see Senator Specter. He asked me at that
time to go to lunch. From the moment I arrived in the Senate, he made
it very clear to me that not only did the people of Pennsylvania
expect, but he expected as well, that we work together.
From the beginning of his service in the Senate, way back when he was
elected in 1980 all the way up to the present moment, he has been a
Senator who was focused on building bipartisan relationships and, of
course, focusing on Pennsylvania priorities. I am honored to have
worked with him on so many priorities, whether it was veterans or
workers, whether it was dairy farmers or the economy of Pennsylvania or
whether it was our soldiers or our children or our families. We have
worked on so many priorities. He has been a champion for our State and
he has shown younger Senators the way to work together in the interests
of our State and our country.
That bipartisanship wasn't just a sentiment; it was bipartisanship
that led to results. I wish to point to one example of many I could
list: the funding for the National Institutes of Health, that great
bulwark and generator of discoveries that cures diseases and creates
jobs and hope for people often without hope because of a disease or a
malady of one kind or another. That bipartisanship Senator Specter
demonstrated every day in the Senate has achieved results for
Pennsylvania, for sure, in terms of jobs and opportunity and hope but
also results for the Nation as well.
I know we are short on time, but I wanted to make one note about the
history of his service. No Senator in the history of the Commonwealth--
and we have had 55 or so Senators, depending on how you count those who
have been elected and served, but of those 55, no Senator has served
longer than Senator Specter. I recall the line--I think it is
attributed to Abraham Lincoln, but it is a great line about what years
mean and what service means, and I will apply the analogy to Senate
service. The line goes something like this: It is not the years in a
life, it is the life in those years. I am paraphrasing that. The same
could be said of the life of a Senator. It is not just that he served
30 years. That alone is a singular, unprecedented achievement. In fact,
the Senator he outdistanced in a sense in terms of years of service was
only elected by the people twice. Senator Specter was elected by the
people of Pennsylvania five times. But it is the life in those Senate
years, the work in those Senate years, the contribution to our
Commonwealth and our country in those Senate years that matters and has
meaning. His impact will be felt for generations--not just decades but
for generations.
Let me close with this. There is a history book of our State that
came out in the year 2002, and it has a series of stories and essays
and chapters on the history of Pennsylvania. It is a fascinating review
of the State's history. The foreword to that publication was written by
Brent E. Glass, at the time the executive director of the Pennsylvania
Historical and Museum Commission. He wrote this in March of 2002. It is
a long foreword which I won't read, but he said in the early part of
this foreword the following:
One way to understand the meaning of Pennsylvania's past is
to examine certain places around the State that are
recognized for their significance to the entire Nation.
Then he lists and describes in detail significant places in
Pennsylvania that have a connection to our history, whether it is the
Liberty Bell or the battlefield of Gettysburg; whether it is the farms
in our Amish communities or whether it is some other place of historic
significance. I have no doubt whatsoever that if the same history were
recounted about the people who had an impact on our Commonwealth--the
people who moved Pennsylvania forward; the people who in addition to
moving our State forward had an impact on the Nation--if we make a list
of Pennsylvanians who made such contributions, whether it would be
William Penn or Benjamin Franklin--and you can fill in the blanks from
there--I have no doubt that list would include Senator Arlen Specter.
He is a son of Kansas who made Pennsylvania his home. He is a son of
Kansas who fought every day for the people of Pennsylvania.
So it is the work and the achievements and the passion and the
results in those years in the Senate that will put him on the very
short list of those who contributed so much to our Commonwealth that we
love and to our country that we cherish.
For all of that and for so many other reasons, as a citizen of
Pennsylvania, a resident of Pennsylvania, a citizen of the United
States but as a Senator--I want to express my gratitude to Senator
Arlen Specter for his 30 years of service, but especially for what
those 30 years meant to the people, sometimes people without a voice,
sometimes people without power.
Thank you, Senator Specter.
I yield the floor.
The PRESIDING OFFICER. The Senator from Illinois.
Mr. DURBIN. Mr. President, I wish to join my colleagues in noting the
farewell address of Senator Arlen Specter is an inspiring moment in the
Senate.
It has been my great honor to serve with Senator Specter and to be a
member of the Senate Judiciary Committee with him as well. I think of
his contribution to the Senate at many levels. I certainly appreciate
what he did for the Senate and for the Nation when he chaired the
Judiciary Committee and served on that committee, particularly when it
came to the hearings involving the appointment of new Supreme Court
Justices. Without fail, Senator Specter at those hearings would always
have dazzling insight into the current state of the law and the record
of the nominee. I couldn't wait for him each time there was a hearing
to see what his tack would be. It always reflected a thoughtful
reflection on the historic moment we faced with each nominee. The
questions he asked, the positions he took, the statements he made, all
made for a better record for the United States as the
[[Page S10857]]
Senate proceeded to vote on those historic nominations.
But there is one area he touched on ever so slightly that I believe
is equal to his mark on the Senate Judiciary Committee. This man,
Senator Arlen Specter, with the help in some respects and in some
efforts by Senator Tom Harkin, has done more to advance the cause of
medical research in his time than virtually any other Member of the
Congress. He had a single-minded determination to advance medical
research and to put the investment in the National Institutes of
Health. On the House side, Congressman John Porter joined him in that
early effort--John Porter of Illinois--but time and again Arlen Specter
would have as his last bargaining chip on the table, whenever there was
a negotiation, that we needed to put more money in the National
Institutes of Health. I know he was probably inspired to that cause by
many things, but certainly by his own life experience where he has
successfully battled so many medical demons and is here standing before
us as living proof that with his self-determination and the advancement
of science, we can overcome even some of the greatest diseases and
maladies that come our way.
He was, to me, a role model many times as he struggled through cancer
therapy and never missed a bell when it came to presiding over a
committee hearing or coming to the floor to vote. There were times when
all of us knew he was in pain. Yet he never let on. He did his job and
did it with a gritty determination, and I respect him so much for it.
That personal life experience, I am sure, played some role in his
determination to advance medical research.
So as he brings an end to his Senate career, there are countless
thousands who wouldn't know the name Arlen Specter who have been
benefited by this man's public service and commitment to medical
research. I thank him for that as a person, as does everyone in this
Chamber who has benefited from that cause in his life.
I also think, as I look back on his work on the stimulus bill when he
was on the other side of the aisle, that it took extraordinary courage
and may have cost him a Senate seat to step forward and say, I will
join with two other Republicans to pass a bill for this new President
Obama to try to stop a recession and to give some new life to this
economy. There were very few with the courage to do it. He was one of
them. Sitting with him in the meetings where the negotiations were
underway, then-Republican Senator Arlen Specter drove hard bargains in
terms of bringing down the overall cost of the project and dedicating a
substantial portion--$10 billion, if I am not mistaken--to the National
Institutes of Health. Again, the final negotiation on the stimulus bill
for America included Arlen Specter's demand that the National
Institutes of Health have additional research dollars. His commitment
to make that happen did make it happen. Those three votes from the
Republican side of the aisle made it happen: a stimulus which averted,
in my mind, a terrible, much worse recession, maybe even a depression
in America. It was the best of the Senate, when a Senator had the
courage to stand up, take a position, risk his Senate seat because he
believed in it, and do some good for America which would benefit
millions, as his vote and his effort did.
When I look at those whom I have served with in the Senate, there are
precious few who meet the standards for Arlen Specter. I am going to
miss him for so many reasons, but I know his involvement in public life
will not quit. That is often a cliche we hear on the floor after a
farewell address. But I know it because he has been hammering away at
me every single day about bringing those cameras over to the Supreme
Court. So even when he leaves this body, if it is not done then, I am
sure I am going to hear from him again on televising the Supreme Court
proceedings. I give my word that as long as I am around here, Senator,
I will carry that banner for you, and if I have a chance to help you
pass that measure at some point in the future I am going to do it
because I think it is the right thing to do and I know it has meant so
much to you.
The Senate's loss is America's gain as he becomes a public figure in
a different life. But during his tenure in the Senate he has graced
this institution with an extraordinary intelligence, a determination,
and a belief that the national good should rise above any party cause.
I am going to miss Arlen Specter and I thank him for being my friend.
I yield the floor.
The PRESIDING OFFICER. The Senator from Mississippi.
Mr. COCHRAN. Mr. President, I was pleased to have an opportunity to
hear most of the remarks made this morning by my friend and colleague
from Pennsylvania and others who have spoken on the occasion of his
retirement from the Senate.
I couldn't help but remember when he was campaigning in his first
race for the Senate and I had been asked to be available to help out in
some campaigns that year. I was a brandnew Senator and didn't know a
lot of the protocols, but when I heard Arlen Specter wanted me to come
up and speak in Pennsylvania somewhere during his campaign, I decided I
would accept the invitation, although I was a little apprehensive about
it, about how I would be received as a Republican from Mississippi
going up and helping this new candidate who was running on the
Republican ticket too. His wife Joan was a member of the city council
in Philadelphia, as I recall--very well respected. Anyway, I enjoyed
getting to know the Senator and his wife better during those early
campaign events. Then, after he was elected, he asked me to make one
more trip up.
He could not go to Erie, PA, and keep an invitation that he wanted to
accept and speak to a retired group of businessmen. These were older
gentlemen who had been prominent in Pennsylvania business and political
life. I worried about it--that they would not think much about me. But
I went up there and nearly froze to death. I thought this is just a
payback for the Civil War, I guess, that Arlen never got to express. He
was going to do his part to help educate me and refine me in the ways
of modern America. But that led to an entire career here working
alongside him on both sides of the aisle, which I have enjoyed very
much.
We have all learned from him the commitment that he makes to the job,
the seriousness of purpose that he brings to committee work, and he has
truly been an outstanding leader in the Senate, through personal
performance and his serious and impressive record of leadership.
I am glad to express those thoughts today and wish Arlen well in the
years ahead. We will still have a friendship that will be appreciated.
I look forward to continuing that relationship.
I yield the floor.
The PRESIDING OFFICER (Mr. Merkley). The Senator from Pennsylvania is
recognized.
New START Treaty
Mr. SPECTER. Mr. President, I have sought recognition to comment
briefly about the START Treaty, the consideration of which is now
pending before the Senate, and to urge my colleagues to move forward to
ratify this important treaty.
I have long been interested in the relationship between the United
States and, at that time, the Soviet Union, following the end of World
War II, with the emergence of our Nation and the Soviets emerging as
the two great world powers.
In college, after the war, I devoted a good bit of study to U.S.-
U.S.S.R. relations. I wrote a senior thesis on it as a major in
political science and international relations, and I have continued
that interest throughout my tenure in the Senate. One of my first
initiatives, in 1982, after being elected in 1980, was to propose a
resolution calling for a summit meeting between the President of the
United States and the head of the Soviet Union.
President Reagan had a practice of making Saturday afternoon
speeches--or Saturday morning speeches--on the radio. One day I
listened in and heard him talk about the tremendous destructive power
which both the U.S. and U.S.S.R. had, and how they had the capacity to
destroy each other. Of course, that capacity became the basis of the
mutual assured destruction period. But it seemed to me that what ought
to be done was there ought to be a dialog and an effort to come to
terms with the Soviet Union to reduce the tension and reduce the threat
of nuclear war. I, therefore, offered a resolution to propose that.
[[Page S10858]]
My resolution was resisted by one of the senior Senators, Senator
John Tower of Texas, who was chairman of the Armed Services Committee.
When I proposed the resolution, it brought Senator Tower to the floor
with a very really heated debate, with Senator Tower challenging my
resolution and challenging my knowledge on the subject.
Early on, after being elected and starting to serve in 1981, I had
traveled to Grand Forks, ND, to see the Missileman II. I went to
Charleston, SC, to see our nuclear submarine fleet, and I went to
Edwards Air Force Base in California to look at the B1-B, the B-1
bomber, at that time. I was prepared to take on these issues.
Senator Tower opposed it, offered a tabling motion, and standing in
the well of the Senate, as if it was yesterday, I can remember that
Senator Laxalt walked down the aisle from the door entering this
Chamber and voted no. He started to walk up the aisle to the Republican
cloakroom.
Senator Tower chased him and said: Paul, you don't understand. This
is a tabling motion. I am looking for an ``aye.''
Laxalt turned and said: I understand it is a tabling motion, and I
voted the way I wanted to, no. I want the resolution to go forward.
Senator Tower said: Well, Arlen Specter is trying to tell the
President what to do.
Senator Laxalt replied: Well, why shouldn't he? Everybody else does,
he said jokingly.
That tabling motion was defeated 60 to 38. When a vote came up on the
final resolution, it passed with 90 in favor and 8 in opposition. We
know what happened. There were negotiations and President Reagan came
up with the famous dictum, ``trust, but verify.''
I was then active in the negotiations, the discussions on the Senate
observer group in Geneva around 1987. Then our record is plain that we
have approved by decisive numbers three very important treaties. START
I was approved by the Senate in 1992, with a vote of 93 to 6. The START
II treaty was approved in 1996 by a vote of 87 to 4. The Moscow Treaty
of 2003 was approved by a vote of 95 to 0.
We have heard extensive debate on the floor of the Senate. People
have questioned the adequacy of the verification. I think those
arguments have been answered by Senator John Kerry, chairman of the
Foreign Relations Committee, who has done such an excellent job in
managing the treaty. Questions have been raised about the missile
defense, and I think that, too, has been adequately responded to. This
has nothing to do with the issue of missile defense.
For me, a very key voice in this entire issue has been the voice of
Senator Richard Lugar, who has pointed out that this treaty does not
deal with these collateral issues. This treaty is, directly stated, an
extension of the treaty which has been in effect up until the present
time and has worked so very well.
Strenuous arguments have been made about modernizing our nuclear
forces. Well, that is a subject for another day and another time. But
those who have offered that advocacy have found a response from the
administration with millions of dollars, from $85 million. That, as I
say, belongs to another day and another analysis. But those who have
advocated for modernization have gained very substantial responses from
the administration on that subject. Curious, in that context, that
notwithstanding that very substantial funding, it hasn't won them over,
hasn't diminished their resistance to the treaty. Also, curious in the
context of those expenditures on an issue, which didn't directly
involve the necessity for modernization, there is a real question as to
whether there has been adequate debate and study on that subject, on
the hearings. It isn't part of the START treaty debate and discussion
about the expenditure of that kind of money, considering the kind of a
deficit we have, and also considering the advocates of those
modernization additions with the great expense have been some of the
loudest voices objecting to governmental expenditures.
Well, we ought to spend what it takes for defense. That is the
fundamental purpose of the Federal Government, to protect its citizens.
But real questions arise in my mind as to whether this was the proper
place to have that argument, but that has gone by the boards.
I think the letter which Admiral Mullen, Chairman of the Joint Chiefs
of Staff, has issued about the conclusion of the military, that this is
a good treaty; about Admiral Mullen's statement that he personally was
involved in the negotiations; that if the START treaty was not to be
ratified there would be U.S. military resources that would have to be
devoted to certain other issues which were taken by START so that it
leads to an unequivocal recommendation by our No. 1 military expert,
the Chairman of the Joint Chiefs of Staff.
One other very important element that has been discussed, but cannot
be over emphasized, is the destructive consequence of having this
treaty rejected in terms of our relations with Russia.
Russia is vitally important to us as we deal with Iran, vitally
important to us as we deal with North Korea, vitally important to us as
we deal with a whole range of international problems. For us to come
right to the brink and then to say no and reject it and seek to reopen
it would have a very serious effect on our relations with Russia, which
are so important to our national security. The other nations of the
world are watching in the wings what we do here. It would have a domino
effect on our relationship with other nations.
It comes in a context where it is subject to being misunderstood as a
political matter in the United States. I do not question for a moment
the motivation of those who oppose START. Those who have spoken against
it have been some of our body's most knowledgeable Members on this
important subject. But there is so much publicity about some
questioning whether President Obama can have both the START treaty and
repeal of don't ask, don't tell at the same time, there has been so
much public comment about not wanting to see President Obama have
another victory before the end of the year, so much comment which
raises a question as to whether opposition is politically motivated.
If the Russians and the other nations of the world cannot rely upon
the Senate to make a judgment on the merits without regard to the
politics or the appearance of politics, it has very serious
consequences for our standing in the international community of
nations.
For those reasons, I do believe we ought to move ahead promptly. We
ought to ratify this treaty. We ought to continue our strenuous efforts
to rid the world of the threat of nuclear war. This is part of that
ongoing process.
I urge my colleagues to ratify this important treaty.
I yield the floor.
The PRESIDING OFFICER (Mr. Udall of New Mexico). The Senator from
Alabama is recognized.
arlen specter
Mr. SESSIONS. Mr. President, I see my other colleagues. I do wish to
talk about one or two judicial nominees, but I want to say first how
much I appreciate Senator Specter.
I have had the honor to serve on the Senate Judiciary Committee with
Senator Specter the entire time I have been in the Senate--going on 14
years, I guess. No one has a clearer legal mind. The clarity of his
thought and expression is always impressive to me. And as someone who
practiced law, I see the great lawyer skills he possesses.
Also, I note that he has not just today but throughout his career
defended the legitimacy of the powers of the Senate. He was very
articulate over the past number of years in criticizing the abuse of
filling the tree, where bills can be brought up and amendments are not
allowed. He has believed that is an unhealthy trend in the Senate, and
he has been one of the most effective advocates in opposition to it.
He sponsored and helped pass the Armed Career Criminal Act. He was
one of the leaders in that. Having been a longtime prosecutor in
Philadelphia, I like to tease our good friend Senator Leahy that he was
a prosecutor, but it was in Vermont. Senator Specter had to deal with a
lot of crime in Philadelphia and was consistently reelected there for
his effectiveness and is a true source of insight into crime in America
and has been an effective advocate for fighting crime.
[[Page S10859]]
I note also that he has a good view about a Senator. He respects
other Senators. He was talking with me one time or I was sharing with
him my concern about a matter, and he used a phrase I heard him use
more than once: Well, you are a U.S. Senator. In other words, if you do
not like it, stand up and defend yourself. He respected that, even if
he would disagree.
I remember another time Senator Specter was on the floor. I had just
arrived in the Senate. I wanted him to do something--I have long since
forgotten what.
I said: Senator Specter, you could vote for this, and back home, you
could say thus and so.
He looked right at me, and he said: Senator, I don't need your advice
on how to conduct myself back home politically.
I learned a lesson from that. I never told another Senator that, I
say to Senator Specter. Who am I to tell you how to conduct yourself
politically back home in the State of Pennsylvania?
Senator Specter chaired the Judiciary Committee during the
confirmations of Chief Justice Roberts and Justice Alito. He was the
leading Republican chair at that time. He raised questions about the
nominees. But as chairman of the committee, with the votes and support
of his Republican colleagues, he protected our rights, he protected our
interests. He did not back down one time on any action by the other
party that would have denied the ability to move that nomination
forward to a vote and protect the rights of the parties on our side.
Those are a few things that come to mind when I think about the
fantastic service he has given to the Senate. He is one of our most
able Members, one of our most effective defenders of senatorial
prerogative and independence, one of our crime fighters without par,
and one of the best lawyers in the Senate, a person who is courageous
and strong. Even when he was conducting those very intense Alito and
Roberts hearings--it was just after he had serious cancer treatment,
the chemotherapy. I know he didn't feel well, but he was fabulous in
conducting himself at that time. Throughout all of that treatment, his
work ethic surpassed by far that of most Senators in this body. It has
been an honor to serve with him.
I see my other colleagues. I know Senator Coburn wanted to come down.
He was told he might be able to speak around noon.
Senator Specter
Mr. BENNET. Mr. President, first, before I get into my remarks, I
wish to say how much I appreciated the remarks of Senator Specter
today. I, for one, hope Senators on both sides of the aisle, Democrats
and Republicans, heed his closing remarks as he described them and also
the farewell remarks of so many Senators over the last 2 or 3 weeks. I
think there is a lot of wisdom we can apply to our work going forward.
I thank Senator Specter very much for his service.
I yield the floor.
The PRESIDING OFFICER. The Senator from Alaska is recognized.
New START Treaty
Mr. BEGICH. Mr. President, I rise in support of the New START treaty.
I do so for several reasons.
First, of course, the treaty is essential for national security. It
promotes transparency and stability between the two countries that
possess the majority of the world's nuclear weapons. It will decrease
the likelihood of a nuclear weapon falling into the hands of a rogue
nation.
For the residents of my State, the treaty is close to home,
literally. Alaska and Russia are less than 3 miles apart at the closest
point in the Bering Sea. Commerce, scientific, educational, and
cultural exchanges are commonplace between Alaska and our Russian
neighbors. So peaceful coexistence with Russia is more than an abstract
concept to my constituents; it is a way of life.
The second reason this treaty is personal for Alaskans is because of
our close proximity to North Korea. When North Korea's leader exercises
his political muscle by firing test missiles or threatening to attack
the United States, Alaskans get nervous because we are most directly in
the line of fire.
Thankfully, my home State is home to the ground-based missile defense
system. Based at Fort Greely, this sophisticated system of more than
two dozen ground-based interceptors is maintained and operated by
highly trained members of the Alaska National Guard. I was pleased to
show Defense Secretary Robert Gates this state-of-the-art system last
year. I worked with my colleagues on both sides of the aisle to make
sure this system gets the resources and funding it warrants to protect
us. I will continue to do that.
I would be troubled if the New START treaty impacted our Nation's
missile defense system. I know some of my colleagues on the other side
of the aisle would be equally concerned. Fortunately, such concerns are
unfounded. I am confident nothing in this treaty will limit our ability
to defend ourselves and our allies against a ballistic missile attack
from a rogue nation.
The preamble of this treaty simply acknowledges the relationship
between offensive and defensive strategic arms and verifies that
current defensive strategic arms do not undermine the offensive forces.
The preamble is nonbinding. There is no action or inaction arising from
this statement.
The section of the treaty prohibiting conversion of missile silos or
launchers for ballistic missile defense purposes does not impact us. It
is not something we are planning to do. In fact, we are in the process
of completing a missile field in Alaska to field interceptors. The
field will have seven spare silos to deploy more interceptors if we
need them. We are moving forward with the phased adaptive approach to
protect our allies, with the two-stage interceptor as a hedge.
The unilateral statement by Russia also is nonbinding and is not even
part of the treaty. Our own unilateral statements make it clear that
this treaty will not constrain missile defense in any way and that we
will continue improving and deploying missile defense systems to
protect us and our allies. These types of statements in a treaty are
not unprecedented. The right to withdraw has been stated in many
previous treaties--the nonproliferation treaty and the START treaty.
Those statements did not stop the Senate from ratifying those treaties.
The language in the New START treaty should not either. In fact, this
treaty actually helps missile defense because it lessens restrictions
on test targets that were in the previous treaty. We will have more
flexibility in testing.
We have heard from our national security leaders that this treaty
does not constrain ballistic missile defense in any way. Secretary of
State Hillary Clinton, Secretary of Defense Robert Gates, Chairman of
the Joint Chiefs of Staff Mike Mullen, Missile Defense Agency Director
LTG Patrick O'Reilly, former Strategic Commander GEN Kevin Chilton, and
countless others confirm that this treaty in no way limits our
ballistic missile defense plans. We cannot disregard the views of our
Nation's most senior military and civilian leaders on this critical
issue because of politics.
We have had almost 7 months to consider this treaty. We have had
numerous hearings and briefings--more on this treaty than any other
single item I have been involved in since I have been here. In that
time, I heard no current or former national security leader say this
treaty is a detriment to ballistic missile defense. What they say and
what we know is that the New START treaty will strengthen national
security and will not constrain ballistic missile defense.
For all of these reasons, I urge a prompt approval of this vital
treaty for our Nation and our world.
Mr. President, I yield the floor.
The PRESIDING OFFICER. The Senator from Colorado is recognized.
Mr. BENNET. Mr. President, I ask unanimous consent that my statement
and that of Senator Udall appear as in executive session and that the
time be charged postcloture.
The PRESIDING OFFICER. Without objection, it is so ordered.
Nomination of Bill Martinez
Mr. BENNET. Mr. President, I rise today to state my strong support
for the nomination of Bill Martinez to serve on the U.S. District Court
for the District of Colorado. Having recommended his candidacy to the
President, along with my colleague Senator Udall, I believe he is
eminently qualified for the Federal bench.
Bill was nominated to serve on the U.S. District Court for the
District of
[[Page S10860]]
Colorado in February of this year. His nomination cleared the Senate
Judiciary Committee in April. Since then, he has been in a state of
limbo awaiting a final vote allowing him to serve. That is why I am
very grateful for the hard work of the Judiciary Committee, both
Democrats and Republicans, who have moved this nomination forward and
are trying to finish it before the end of the 111th Congress.
Our State has two vacancies on the district court. Both vacancies are
over 2 years old, with one close to 3 years old. Because there are only
seven Federal judgeships in our State, the other judges are facing
ever-growing caseloads, resulting in significant backlogs for those
seeking justice.
In fact, the administrative office of the courts has declared the
vacancy situation in Colorado a judicial emergency. It is important
that we move these nominations forward to prevent further backlogs and
judicial emergencies, and I pledge to work with my colleagues on both
sides of the aisle to make sure we can work together to confirm
judicial nominees such as Bill Martinez in a timely manner.
I believe, after careful review of Bill Martinez's experience, my
colleagues will see this is someone well worth confirming. Bill is
currently at a law firm in Denver, where he primarily represents
plaintiffs in Federal and State courts and before arbitrators and
administrative agencies. He is certified as AAA arbitrator in
employment disputes.
Prior to starting his own firm, he was a regional attorney of the
U.S. EEOC in its Denver district office. Senator Udall will be going
into more detail regarding this nominee.
There, Bill had responsibility for the Commission's legal operations
and Federal court enforcement litigation in the office's six-State
jurisdiction.
Before joining the EEOC, Bill worked in private practice on
employment, securities and commercial litigation.
I know some want to focus on his pro bono work and try to make
political assumptions about him from a small portion of his career. But
I know Bill, and he is the sum of a lot of great work in the public and
private sectors.
For example, while at the EEOC Bill was in charge of an age
discrimination class action suit that resulted in a settlement of
nearly $200 million for 3,200 laid off engineers. This is one of the
largest ever age discrimination class actions.
Bill began his career at the Legal Assistance Foundation of Chicago,
representing indigent clients and other individuals seeking low- or no-
cost counsel. This is a nominee whose breadth of legal experience has
spanned the profession, and I think for that reason alone he should be
confirmed.
Over the course of his legal career, Bill has been lead or colead
counsel in complex litigation, resulting in 18 published opinions from
Federal and State courts in Colorado and Illinois. Bill's time as a
litigator and advocate has provided him with the necessary skills and
perspective to deal with the diverse docket that comes before U.S.
district court judges.
Beyond his distinguished legal skills, Bill's personal story is a
tribute to this country and embodies the American dream. He is an
immigrant success story. Bill was born in Mexico and immigrated with
his family to the United States at a young age. He was the first in his
family to attend college and law school. His rise through the legal
profession is a great example for bright, young law students, and,
indeed, for us all.
I urge my colleagues to vote for Bill's nomination. He is a model
nominee for the Federal district court, an expert in labor and
employment law who will serve Coloradans well. Bill Martinez has the
experience and strong sense of civic responsibility we need on the
Federal bench.
I thank the chairman for his guidance of this nomination, and I urge
my colleagues to vote to confirm Bill to Colorado 's Federal bench.
I also would be remiss, if I didn't thank my senior Senator, Mark
Udall, for his extraordinary efforts to make sure we had a fair,
balanced, and thoughtful search process. I think that process for this
appointment and for the others whom we have done already are a model
for the country, and it is a real testament to Senator Udall's
leadership.
With that, I yield the floor.
The PRESIDING OFFICER. The Senator from Tennessee.
New START Treaty
Mr. CORKER. Mr. President, I know today is a pretty monumental day as
it relates to the START treaty we have been discussing for some time,
and tomorrow will be a big day in that regard too. I think there is
nothing more we care about than our country being secure. I have two
daughters who are 21 and 23, a wonderful wife, and extended family, as
does every Member in this room, and there is nothing I take more
seriously than making sure our country is secure.
So as a member of the Foreign Relations Committee, when we entered
into discussions relating to the START treaty, I attended 11 of the 12
hearings. I have been in multiple classified meetings, I have spoken to
military leaders across our country, and I have been in so many
intelligence briefings that I have begun to speak like an intelligence
officer. So I have taken this responsibility very seriously.
I wish to say there are numbers of people who obviously are still
making up their mind regarding this treaty, and that is why I came to
the floor. One of the things we do when we end up ratifying a treaty is
we have something called a resolution of ratification. No doubt this
treaty was negotiated by the President and his team--the Secretary of
State and others who work with Secretary Clinton--and no doubt that is
done by people on the other side of the aisle. But what I would like to
bring to the attention of my colleagues is that whenever we ratify a
treaty, we do so through something called a resolution of ratification.
For those who might not have been involved in the markup, I would like
for everyone in this body to know this resolution of ratification,
thanks to the good will of the chairman of our committee, was mostly
drafted by Republicans. It was drafted, with the approval, certainly,
of the chairman, but this was drafted by Senator Lugar, by myself,
Senator Kyl had tremendous input into this, and Senator Isakson.
So the resolution of ratification we are amending today had
tremendous Republican input. As a matter of fact, it was done mostly by
Republicans. As a matter of fact, this resolution of ratification is
called the Lugar-Corker resolution. This is what came out of committee.
One of the things that has concerned people on both sides of the
aisle has been this whole issue of modernization. I have seen something
of beauty over the last year. About 1 year ago, I met with Senator Kyl
in the Senate Dining Room, and we began looking at the modernization of
our nuclear arsenal. Many people have focused during this debate on the
fact that we have 1,550 warheads as a limitation, if you will, in this
treaty. But they fail to realize we have over 5,000 warheads in our
nuclear arsenal, all of which need to be modernized, and all of which
are getting ready to be obsolete if we don't make the investment.
As a matter of fact, the Presiding Officer and I have visited some of
the labs throughout our country. There are seven facilities we have in
this country that deal with our nuclear arsenal. Many of those are
becoming obsolete and must have needed investment.
I have watched Senator Kyl over the last year, in a very methodical
way--under his leadership, with me as his wing man, and others--working
to make sure the proper modernization of our nuclear arsenal takes
place. There is no question in my mind--there is no question in my
mind--if it were not for the discussion of this treaty, we would not
have the commitments we have today on modernization.
This is the 1251 report that is required by Defense authorization.
This has been updated twice due to the efforts of Republicans, led by
Senator Kyl, who has done an outstanding job. This has been updated
twice. First, we had a 5-year update about 60 days ago, and we had a
10-year update that came thereafter. This is our nuclear modernization
plan.
Mr. President, I ask unanimous consent to have printed in the Record
the nuclear modernization plan as part of this debate.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[[Page S10861]]
November 2010 Update to the National Defense Authorization Act of
FY2010 Section 1251 Report
New START Treaty Framework and Nuclear Force Structure Plans
Introduction
This paper updates elements of the report that was
submitted to Congress on May 13, 2010, pursuant to section
1251 of the National Defense Authorization Act for Fiscal
Year 2010 (Public Law 111-84) (``1251 Report'').
2. National Nuclear Security Administration and modernization
of the complex--an overview
From FY 2005 to FY 2010, a downward trend in the budget for
Weapons Activities at the National Nuclear Security
Administration (NNSA) resulted in a loss of purchasing power
of approximately 20 percent. As part of the 2010 Nuclear
Posture Review, the Administration made a commitment to
modernize America's nuclear arsenal and the complex that
sustains it, and to continue to recruit and retain the best
men and women to maintain our deterrent for as long as
nuclear weapons exist. To begin this effort, the President
requested a nearly 10 percent increase for Weapons Activities
in the FY 2011 budget, and $4.4 billion in additional funds
for these activities for the FY 2011 Future Years Nuclear
Security Plan (FYNSP). These increases were reflected in the
1251 report provided to Congress in May 2010.
The Administration spelled out its vision of modernization
through the course of 2010. In February, soon after the
release of the President's budget, the Vice President gave a
major address at the National Defense University in which he
highlighted the need to invest in our nuclear work force and
facilities. Several reports to Congress provided the details
of this plan, including: NNSA's detailed FY 2011 budget
request, submitted in February; the strategy details in the
Nuclear Posture Review (NPR) (April); the 1251 report (May);
and the multi-volume Stockpile Stewardship and Management
Plan (SSMP) (June). Over the last several months, senior
Administration officials have testified before multiple
congressional committees on the modernization effort.
The projections in the Future Years Nuclear Security Plan
(FYNSP) that accompanied the FY 2011 budget submission and
the 1251 report by the President are, appropriately called,
`projections.' They are not a `fixed in stone' judgment of
how much a given project or program may cost. They are a
snapshot in time of what we expect inflation and other
factors to add up to, given a specific set of requirements
(that are themselves not fixed) over a period of several
years. Budget projections, whether in the FYNSP and other
reports, are evaluated each year and adjusted as necessary.
Indeed, planning and design, as well as budget estimates,
have evolved since the budget for FY 2011 was developed.
Notably, stockpile requirements to fully implement the NPR
and the New START Treaty have been refined, and the NNSA has
begun executing its Stockpile Stewardship and Management Plan
(SSMP). This update will discuss, in particular, evolving
life extension programs (LEP) and progress on the designs of
key facilities such as the Uranium Processing Facility (UPF)
and the Chemistry and Metallurgy Research Replacement (CMRR).
Based on this additional work, and the development of new
information and insights, the President is prepared to seek
additional resources for the Weapons Activities account, over
and above the FY 2011 FYNSP, for the FY 2012 budget and for
the remainder of the FYNSP period (FY 2013 through FY 2016).
Specifically, the President plans to request $7.6 billion
for FY 2012 (an increase of $0.6 billion over the planned FY
2012 funding level included in the FY 2011 FYNSP). Thus, in
two years, the level of funding for this program requested
will have increased by $1.2 billion, in nominal terms, over
the $6.4 billion level appropriated in FY 2010. Altogether,
the President plans to request $41.6 billion for FY 2012-2016
(an increase of $4.1 billion over the same period from the FY
2011 FYNSPT--).
Given the extremely tight budget environment facing the
federal government, these requests to the Congress
demonstrate the priority the Administration's places on
maintaining the safety, security and effectiveness of the
deterrent.
3. NNSA--Program Changes and New Requirements since
submission of the 1251 Report
A. Update to Stockpile Stewardship and Sustainment
Surveillance--Surveillance activities are essential to
enabling continued certification of the reliability of the
stockpile without nuclear testing. Surveillance involves
withdrawing weapons from deployment and subjecting them to
laboratory tests, as well as joint flight tests with the DoD
to assess their reliability. These activities allow detection
of possible manufacturing and design defects as well as
material degradation over time. NNSA has also received
recommendations from the National Laboratory directors, the
DoD, the STRATCOM Strategic Advisory Group, and the JASON
Defense Advisory Panel that the nuclear warhead/bomb
surveillance program should be expanded.
In response to this broad-based advice, NNSA has reviewed
the stockpile surveillance program and its funding profile.
From FY 2005 through FY 2009, funding for surveillance
activities, when adjusted for inflation, fell by 27 percent.
In recognition of the serious concerns raised by chronic
underfunding of these activities, beginning in FY 2010, the
surveillance budget has been increased by 50 percent, from
$158 million to $239 million. In the FY 2012 budget, the
President will seek to sustain this increase throughout the
FYNSP. This level of funding will assure that the required
surveillance activities can be fully sustained over time.
Weapon System Life Extension--The Administration is
committed to pursuing a fully funded Life Extension Program
for the nuclear weapons stockpile. The FY 2011 budget
submission and the NPR outlined initial plans. Since May
2010, additional work has further defined the requirements to
extend the life of the following weapon systems:
W76--The Department of Defense has finalized its assessment
of the number of W76 warheads recommended to remain in the
stockpile to carry out current guidance. The number of W76-1
life-extended warheads needing completion is larger than NNSA
built into its FY 2011 budget plans. NNSA, with the support
of the DoD, has adjusted its plan accordingly to ensure the
W76-1 build is completed in FY 2018, an adjustment of one
year that is endorsed by the Nuclear Weapons Council. This
adjustment will not affect the timelines for B61 or W78 life
extensions. The LEP will be fully funded for the life of the
program at $255 million annually.
B61--NNSA began the study on the nuclear portion of the B61
life extension in August 2010, six months later than the
original planning basis. To overcome this delay, NNSA will
accelerate the technology maturation, warhead development,
and production engineering that is necessary to retain the
schedule for the completion of the first production unit in
FY 2017. An additional $10 million per year has been added to
the FY 2012 FYNSP for this purpose.
W88 AF&F--The 1251 Report addressed the intent to study,
among other things, a common warhead for the W78 and the W88
as an option for W78 life extension. Early development of a
W88 Arming, Fuzing, and Firing system (AF&F) would enhance
the evaluation of commonality options and enable more
efficient long-term sustainment of the W88. Approximately
$400 million has been added to the FY 2012-16 FYNSP for this
purpose.
Stockpile Systems and Services--NNSA is now seeking to
execute a larger program of stockpile maintenance than
assumed in planning the FY 2011 budget and than projected in
the 1251 Report. The additional work includes an increase in
the development/production of the limited life components to
support the weapons systems. Consequently, the Administration
plans to request increased funding of $40 million in FY 2012
for the production of neutron generators and gas transfer
systems. NNSA and DoD are aligned for the delivery of
essential hardware to ensure no weapon fails to meet
requirements.
New Experiments--NNSA's current science and surveillance
activities have been more successful than originally
anticipated in ensuring the reliability of our existing
stockpile without nuclear testing. As we continue to develop
modern life extension programs, however, NNSA and the
laboratories are considering even more advanced methods for
evaluating the best technical options for life extension
programs, including refurbishment, reuse and replacement of
nuclear components. One such effort of interest that could
aid in our efforts includes expanded subcritical experiments
designed to modernize warhead safety and security features
without adding new military capabilities or pursuing
explosive nuclear weapons testing. This program might include
so-called ``scaled experiments'' that could improve the
performance of predictive capability calculations by
providing data on plutonium behavior under compression by
insensitive high explosives. In order to thoroughly
understand this issue, to assess its cost-effectiveness and
to ensure that there is a sound technical basis for any such
effort, the Administration will conduct a review of these
proposed activities and potential alternatives.
B. Updates to Modernization of the Nuclear Weapons Complex
Modernization of the complex includes reducing deferred
maintenance, constructing replacement facilities, and
disposing of surplus facilities. The Administration is
committed to fully fund the construction of the Uranium
Processing Facility (UPF) and the Chemistry and Metallurgy
Research Replacement (CMRR), and to doing so in a manner that
does not redirect funding from the core mission of managing
the stockpile and sustaining the science, technology and
engineering foundation. To this end, in addition to increased
funding for CMRR and UPF, the FY 2012 budget will increase
funding over the FY 2012 number in the 2011 FYNSP for
facilities operations and maintenance by approximately $176
million.
Readiness in Technical Base and Facilities (RTBF): CMRR and
UPF Construction--These two nuclear facilities are required
to ensure the United States can maintain a safe, secure and
effective arsenal over the long-term. The NPR concluded that
the United States needed to build these facilities; the
Administration remains committed to their construction.
Construction of large, one-of-a-kind facilities such as
these presents significant challenges. Several reviews by the
Government
[[Page S10862]]
Accountability Office, as well as a ``root-cause'' analysis
conducted by the Department of Energy in 2008, have found
that initiating construction before designs are largely
complete contributes to increased costs and schedule delays.
In response to these reviews, and in order to assure the best
value for the taxpayers, NNSA has concluded that reaching the
90% engineering design stage before establishing a project
baseline for these facilities is critical to the successful
pursuit of these capabilities.
The ten-year funding plan reported in the 1251 Report
reflected cost estimates for these two facilities that were
undertaken at a very early stage of design (about 10%
complete), were preliminary, and could not therefore provide
the basis for valid, longer-range cost estimates. The designs
of these two facilities are now about 45% completed; the
estimated costs of the facilities have escalated. Responsible
stewardship of the taxpayer dollars required to fund these
facilities requires close examination of requirements of all
types and to understand their associated costs, so that NNSA
and DoD can make informed decisions about these facilities.
To this end, NNSA, in cooperation with the DoD, is carrying
out a comprehensive review of the safety, security,
environmental and programmatic requirements that drive the
costs of these facilities. In parallel with, and in support
of this effort, separate independent reviews are being
conducted by the Corps of Engineers and the DOE Chief
Financial Officer's Cost Analysis Office. In addition, the
Secretary of Energy is convening his own review, with support
from an independent group of senior experts, to evaluate
facility requirements.
The overriding focus of this work is to ensure that UPF and
CMRR are built to achieve needed capabilities without
incurring cost overruns or scheduling delays. We expect that
construction project cost baselines for each project will be
established in FY 2013 after 90% of the design work is
completed. At the present time, the range for the Total
Project Cost (TPC) for CMRR is $3.7 billion to $5.8 billion
and the TPC range for UPF is $4.2 billion to $6.5 billion.
TPC estimates include Project Engineering and Design,
Construction, and Other Project Costs from inception through
completion. Over the FYNSP period (FY 2012-2016) the
Administration will increase funding by $340 million compared
with the amount projected in the FY 2011 FYNSP for the two
facilities.
At this early stage in the process of estimating costs, it
would not be prudent to assume we know all of the annual
funding requirements over the lives of the projects. Funding
requirements will be reconsidered on an ongoing basis as the
designs mature and as more information is known about costs.
While innovative funding mechanisms, such as forward funding,
may be useful in the future for providing funding stability
to these projects, at this early design stage, well before we
have a more complete understanding of costs, NNSA has
determined that it would not yet be appropriate and possibly
counterproductive to pursue such mechanisms until we reach
the 90% design point. As planning for these projects
proceeds, NNSA and OMB will continue to review all
appropriate options to achieve savings and efficiencies in
the construction of these facilities.
The combined difference between the low and high estimates
for the UPF and CMRR facilities ($4.4 billion) results in a
range of costs beyond FY 2016 as shown in Figure 3. Note that
for the high estimate, the facilities would reach completion
in FY 2023 for CMRR and FY 2024 for UPF. For each facility,
functionality would be attainable by FY 2020 even though
completion of the total projects would take longer.
Readiness in the Technical Base of Facilities (RTBF)--
Operations and Maintenance
In order to implement an increased scope of work for
stockpile activities, especially surveillance and the ongoing
life extension programs (LEPs), the following will be
supported:
NNSS--Full experimental facility availability to support
ongoing subcritical and other experiments necessary for
certification of life extension technologies.
Pantex--Funds are included in the FY 2012 request to fully
cover anticipated needs for flood prevention.
SNL--Replacement of aging and failing equipment at the
Tonopah Test Range in Nevada to facilitate the increasing
pace of operations support for the B61; and Micro-
electronics, engineering test, and surveillance actions at
SNL to support the B61, W76 and W78 that require additional
equipment maintenance in facilities and the need to operate
engineering test facilities that currently operate in a
periodic campaign mode.
LLNL, LANL, and Y-12--Investments in infrastructure and
construction, including support for Site 300, PF-4, and
Nuclear Facilities Risk Reduction.
Kansas City--Investment sufficient to meet LEP needs for
the W76-1, B-6I, and W78/88 while preparing and completing
the move to the KCRIMS site at Botts Road.
Savannah River--Sufficient investment to ensure that
availability of tritium supplies adequate for stockpile needs
is assured.
RTBF: Other Construction--As the CMRR and UPF projects are
completed, NNSA will continue to modernize and refurbish the
balance of its physical infrastructure over the next ten
years. The FY 2012 budget request includes $67 million for
the High Explosive Pressing Facility project that is ongoing
at Pantex, $35 million for the Nuclear Facilities Risk
Reduction Project at Y-12, $25 million for the Test
Capabilities Revitalization Project at Sandia, as well as
$9.8 million for the Transuranic Waste Facility and $20
million for the TA-55 Reinvestment Project at LANL.
RTBF: Construction Management--Because of the unprecedented
scale of construction that NNSA is initiating, both in the
nuclear weapons complex and in non- proliferation activities,
the Administration recognizes that stronger management
structures and oversight processes will be needed to prevent
cost growth and schedule slippage. NNSA will work with DoD,
OMB, and other affected parties to analyze current processes
and to consider options for enhancements.
C. Pension Cost Growth and Alternative Mitigation
Strategies
NNSA has a large contractor workforce that is covered by
defined-benefit pension plans for which the U.S. Government
assumes liability. Portfolio management decisions, market
downturns, interest rate decreases, and new statutory
requirements have caused large increases in pension costs.
The Administration is fully committed to keeping these
programs solvent without harming the base programs. The
Administration will therefore cover total pension
reimbursements of $875 million for all of NNSA for FY 2012,
adding $300 million more to the NNSA topline than the amount
provided in FY 2011. Over the five year period FY 2012 to FY
2016, the Administration will provide a total of $1.5 billion
above the FY 2011 level. About three-quarters of this funding
is associated with Weapons Activities and is included in the
funding totals for those programs noted above.
The Administration will conduct an independent study of
these issues using the appropriate statutory and regulatory
framework to inform longer-term decisions on pension
reimbursements. The Administration is evaluating multiple
approaches to determine the best path to cover pension plan
contributions, while minimizing the impact to mission.
Contractors are evaluating mitigation strategies, such as
analyzing plan changes, identifying alternative funding
strategies, and seeking increased participant contributions.
Also, contractors have been directed to look into other human
resource areas where savings can be achieved, in order to
help fund pension plan contributions.
3. Summary of NNSA Stockpile and Infrastructure Costs
A summary of estimated costs specifically related to the
Nuclear Weapons Stockpile, the supporting infrastructure, and
critical science, technology and engineering is provided in
Table 1.
TABLE 1--TEN-YEAR PROJECTIONS FOR WEAPONS STOCKPILE AND INFRASTRUCTURE COSTS
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Fiscal year
$ Billions ----------------------------------------------------------------------------------------------------------------------------------------------
2010 2011 2012 2013 2014 2015 2016 2017 2018 2019 2020
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Directed Stockpile............................... 1.5 1.9 2.0 2.1 2.3 2.5 2.6 2.6 2.6 2.6 2.6
Science Technology & Engineering Campaigns....... 1.6 1.7 1.8 1.8 1.8 1.8 1.9 2.0 2.1 2.2 2.3
Readiness in Technical Base and Facilities....... 1.8 1.8 2.1 2.3 2.5 2.5 2.5 2.7 2.8-2.9 2.9-3.1 2.9-3.3
UPF.......................................... 0.1 0.1 0.2 0.2 0.4 0.4 0.4 0.48-0.5 0.48-0.5 0.48-0.5 0.38-0.5
CMRR......................................... 0.1 0.2 0.3 0.3 0.4 0.4 0.4 0.48-0.5 0.4-0.5 0.3-0.5 0.2-0.5
Secure Transportation............................ 0.2 0.2 0.3 0.2 0.3 0.3 0.3 0.3 0.3 0.3 0.3
----------------------------------------------------------------------------------------------------------------------------------------------
Defense Programs Subtotal................ 5.2 5.7 6.1 6.5 6.9 7.1 7.3 7.5-7.6 7.7-7.9 7.9-8.2 8.0-8.4
Other Weapons.................................... 1.2 1.3 1.3 1.3 1.3 1.3 1.4 1.4 1.4 1.4 1.5
----------------------------------------------------------------------------------------------------------------------------------------------
Subtotal, Weapons........................ 6.4 7.0 7.4 7.8 8.2 8.5 8.7 8.9-9.0 9.2.9.3 9.4-9.6 9.4-9.8
Contractor Pensions Cost Growth.................. ........... ........... 0.2 0.2 0.2 0.2 0.2 *TBD *TBD *TBD *TBD
----------------------------------------------------------------------------------------------------------------------------------------------
Total, Weapons........................... 6.4 7.0 7.6 7.9 8.4 8.7 8.9 8.9-9.0 9.2-9.3 9.4-9.6 9.4-9.8
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Numbers may not add due to rounding.
* Anticipated costs for contractor pensions have been calculated only through FY 2016. For FY 2017-2020, uncertainties in market performance, interest rate movement, and portfolio management
make prediction of actual additional pension liabilities, assets, and contribution requirements unreliable.
[[Page S10863]]
4. Plans for Sustaining and Modernizing U.S. Strategic
Delivery Systems
The Administration remains committed to the sustainment and
modernization of U.S. strategic delivery systems, to ensure
continuing deterrent capabilities in the face of evolving
challenges and technological developments. DoD's estimates of
costs to sustain and modernize strategic delivery systems
will be updated as part of the President's FY 2012 budget
request; until this budget request is finalized, figures
provided in the May 2010 1251 report remain the best
available cost estimates.
The following section of this report provides the latest
information on DoD's efforts to modernize the Triad,
including expected timelines for key decisions.
Strategic Submarines (SSBNs) and Submarine-Launched Ballistic
Missiles (SLBMs)
As the NPR and the 1251 Report note, the United States will
maintain continuous at-sea deployments of SSBNs in the
Atlantic and Pacific Oceans, as well as the ability to surge
additional submarines in crisis. The current Ohio-class
SSBNs, have had their service life extended by a decade and
will commence retirement in FY 2027. DoD plans a transition
between the retiring Ohio-class SSBNs and the Ohio-class
replacement that creates no gap in the U.S. sea-based
strategic deterrent capability.
Current key milestones for the SSBN replacement program
include:
Research, development, test, and evaluation (RDT&E) began
in FY 2010 and continues with the goal of achieving 10
percent greater design maturity prior to starting procurement
than the USS VIRGINIA class had before procurement started;
In FY 2015, the Navy will begin the detailed design and
advanced procurement of critical components;
In FY 2019, the Navy will begin the seven-year construction
period for the new SSBN lead ship;
In FY 2026, the Navy will begin the three-year strategic
certification period for the lead ship; and
In FY 2029, the lead ship will commence active strategic
at-sea service.
The Analysis of Alternatives (AoA) considered three
platforms concepts for the Ohio-class Replacement: VIRGINIA-
Insert, OHIO-Like, and a New Design. DoD is currently
evaluating the advantages and disadvantages of each concept,
including cost tradeoffs, with the goal of meeting military
requirements at an affordable cost. An initial milestone
decision is expected by the end of calendar year 2010 to
inform the program and budget moving forward.
After the initial milestone design decision is made, DoD
will be able to provide any adjustments to the estimated
total costs for the Ohio-class replacement program. Thus,
today's estimated total costs for FY 2011 through FY 2020
remain the same as reported in the 1251 Report: a total of
approximately $29.4 billion with $11.6 billion for R&D and
$17.8 billion for design and procurement.
As noted in the 1251 Report, the Navy plans to sustain the
Trident II D5 missile, as carried on Ohio-class Fleet SSBNs
as well as the next generation SSBN, through a least 2042
with a robust life-extension program.
Intercontinental Ballistic Missiles (ICBMs)
As stated in the Nuclear Posture Review, while a decision
on an ICBM follow-on is not needed for several years,
preparatory analysis is needed and is in fact now underway.
This work will consider a range of deployment options, with
the objective of defining a cost-effective approach for an
ICBM follow-on that supports continued reductions in U.S.
nuclear weapons while promoting stable deterrence. Key
milestones include:
The Capabilities-Based Assessment (CBA) for the ICBM
follow-on system is underway.
By late 2011, the study plan for the AoA, including the
scope of options to be considered, will be completed.
In 2012, the AoA will begin.
In FY 2014, the AoA will be completed, and DoD will
recommend a specific way-ahead for an ICBM follow-on to the
President.
The Air Force is funding the ongoing CBA effort at
approximately $26 million per year. Given the inherent
uncertainties about missile configuration and basing prior to
the completion of the AoA, DoD is unable to provide costs for
its potential development and procurement at this time.
However, DoD expects to be able to include funding for RDT&E
for an ICBM follow-on system in the FY 2013 budget request,
based on initial results from the AoA.
The Air Force plans to sustain the Minuteman III through
2030. That sustainment includes substantial ongoing life
extension programs, cost data for which was provided to
Congress in the May 2010 Section 1251 Report.
Heavy Bombers
DoD plans to sustain a heavy bomber leg of the strategic
Triad for the indefinite future, and is committed to the
modernization of the heavy bomber force. Thus, the question
being addressed in DoD's ongoing long-range strike study is
not whether to pursue a follow-on heavy bomber, but the
appropriate type of bomber and the timelines for development,
production, and deployment. The long-range strike study,
which is also considering related investments in electronic
attack, intelligence, surveillance and reconnaissance, air-
and sea-delivered cruise missiles, and prompt global strike,
will be completed in time to inform the President's budget
submission for FY 2012.
As stated in the May 2010 1251 Report, pending the results
of the long-range strike study, estimated costs for a follow-
on bomber for FY 2011 through FY 2015 are $1.7 billion and
estimated costs beyond FY 2015 are to-be-determined. DoD
intends to provide any necessary updates to cost estimates
along with the President's budget submission for FY 2012.
The Air Force plans to retain the B-52 in the inventory
through at least 2035 to continue to meet both nuclear and
conventional mission requirements. The Air Force will make
planned upgrades and life extensions to the fleet. The B-2
fleet is being upgraded through three top priority
acquisition programs: the Radar Modernization Program (RMP),
Extremely High Frequency (EHF) Satellite Communications and
Computers, and Defensive Management System (DMS), as well as
multiple smaller sustainment initiatives.
Air Launched Cruise Missile (ALCM)
DoD intends to replace the current ALCM with the advanced
long range standoff (LRSO) cruise missile. The CBA for the
LRSO is underway. An AoA will be conducted from approximately
spring 2011 through fall 2013. The AoA will define the
platform requirements, provide cost-sensitive comparisons,
validate threats, and establish measures of effectiveness,
and assess candidate systems for eventual procurement and
production.
The Air Force has programmed approximately $800 million for
RDT&E over the FYDP for the development of LRSO. Based on
current analysis of the program, the Air Force expects low
rate initial production of LRSO to being in approximately
2025, while the current ALCM will be sustained through 2030.
Until the planned AoA is completed, DoD will not have a basis
for accurately estimating subsequent costs.
Mr. CORKER. Mr. President, the reason I want that entered into the
Record, over the next 10 years, what this calls for is $86 billion--$86
billion--worth of investment throughout the seven facilities throughout
our country on nuclear armaments and over $100 billion on the delivery
mechanisms to ensure that these warheads are deliverable.
So one might say: Well, that is great, but how are we going to be
sure? How are we going to be sure the appropriators actually ask for
the money?
Mr. President, I ask unanimous consent to have printed in the Record
a letter signed on December 16 by Chairman Inouye, Senators Dianne
Feinstein, Thad Cochran, and Lamar Alexander.
There being no objection, the material was ordered to be printed in
the Record, as follows:
U.S. Senate,
Washington, DC, December 16, 2010.
The White House,
Washington, DC.
Dear Mr. President: We are writing to express our support
for ratification of the New START Treaty and full funding for
the modernization of our nuclear weapons arsenal, as outlined
by your updated report that was mandated by Section 1251 of
the Defense Authorization Act for Fiscal Year 2010.
We also ask that, in your future budget requests to
Congress, you include the funding identified in that report
on nuclear weapons modernization. Should you choose to limit
non-defense discretionary spending in any future budget
requests to Congress, funding for nuclear modernization in
the National Nuclear Security Agency's proposed budgets
should be considered defense spending, as it is critical to
national security and, therefore, not subject to such
limitations. Further, we ask that an updated 1251 report be
submitted with your budget request to Congress each year.
We look forward to working with you on the ratification of
the New START Treaty and modernization of the National
Nuclear Security Agency's nuclear weapons facilities. This
represents a long-term commitment by each of us, as
modernization of our nuclear arsenal will require a sustained
effort.
Sincerely,
Daniel K. Inouye.
Dianne Feinstein.
Thad Cochran.
Lamar Alexander.
Mr. CORKER. Mr. President, that letter says to the President that
they will ask for the moneys necessary to modernize our nuclear
arsenal; that they agree to ask for that money as part of their
appropriations bill.
So, then, you might say: Well, what about the President? Will the
President actually, in his budget, ask Congress to ask for that money?
Mr. President, I ask unanimous consent to have printed in the Record
a letter from the President of the United States, dated December 20,
addressed to the appropriators who just wrote the letter I mentioned,
saying that he, in fact, will ask for those funds in the budget he puts
forth in the next few months.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[[Page S10864]]
The White House,
Washington, December 20, 2010.
Hon. Lamar Alexander,
U.S. Senate,
Washington, DC.
Dear Senator Alexander: Thank you for your letter regarding
funding for the modernization of the nuclear weapons complex
and for your expression of support for ratification of the
New START Treaty.
As you know, in the Fiscal Year 2011 budget, I requested a
nearly 10 percent increase in the budget for weapons
activities at the National Nuclear Security Administration
(NNSA). In May, in the report required by Section 1251 of the
National Defense Authorization Act for Fiscal Year 2010, I
laid out a 10 year, $80 billion spending plan for NNSA. The
Administration submitted an update to that report last month,
and we now project over $85 billion in spending over the next
decade.
I recognize that nuclear modernization requires investment
for the long-term, in addition to this one-year budget
increase. That is my commitment to the Congress--that my
Administration will pursue these programs and capabilities
for as long as I am President.
In future years, we will provide annual updates to the 1251
report. If a decision is made to limit non-defense
discretionary spending in any future budget requests, funding
for nuclear modernization in the NNSA weapons activities
account will be considered on the same basis as defense
spending.
In closing, I thought it important for you to know that
over the last two days, my Administration has worked closely
with officials from the Russian Federation to address our
concerns regarding North Korea. Because of important
cooperation like this, I continue to hope that the Senate
will approve the New START Treaty before the 111th Congress
ends.
Sincerely,
Barack Obama.
Mr. CORKER. Mr. President, there has been a lot of discussion about
many things--and I will get to missile defense in just one moment--but
I don't think there is anything, as it relates to nuclear issues, that
threatens our national security more than our not investing in the
arsenal we have. I think what we see is a commitment by appropriators
on the Senate side, the President of the United States, those within
the NNSA and our military complex who believe modernization has to
occur.
Candidly, the only thing today that would keep us from actually doing
modernization the way it needs to be done would be Republican
appropriators. So I just wish to say to my friends on this side of the
aisle, it seems to me, through Senator Kyl's efforts and the efforts of
people working in a cooperative way, we have been very successful in
getting the commitments we need on modernization.
By the way, I would add, I do not think we would be talking about the
issue of modernization today--something that hasn't been done for many
years to this scale--if it were not for discussions of the START
treaty. So I say to the Chair, I think we have enhanced our country's
national security just by having this debate, and I would say we have
sought and received commitments that otherwise we would not have
received if it were not for the discussion of this treaty.
The two are very related. I have heard a lot of people say there is
no real relationship between the two. There is a lot of relationship
between the two, in that I think Americans want to know if we are going
to limit ourselves to 1,550 warheads, that we know they operate, we
know they can be delivered, and we know the thousands of warheads we
have that are not deployed are warheads that will be kept up.
We have talked a lot about missile defense, and I just wish to say I
have been through every word of this treaty, I have been through every
word of the annexes, I have been through every word of the protocols
and I have been in countless briefings and there is nothing in this
treaty that limits our missile defense other than the fact that we
cannot convert ICBM launchers that we use on the offense for missile
defense--something our military leaders do not want to do. That is the
most expensive way of creating a missile defense system. That is
something they do not want to do.
So a lot of discussions have been brought up because in the preamble
something was stated that was nonbinding. How do we clear that up? We
clear that up by virtue of a letter the President has sent to us
absolutely committing to the missile defense system that is now being
deployed in Europe, absolutely committing to a national defense system.
People might say: Well, but that is no commitment.
I have reasonable assurance that by the time this debate ends we will
codify, as part of the resolution of ratification, the operative words
in the President's language committing to all four phases of our
adaptive missile system in Europe, committing to those things we need
to do as relates to our national defense system and making that a part
of the resolution of ratification.
I would say to you that I doubt very seriously we would have received
the types of commitments, the strident commitments from the President
as relates to missile defense today, if we were not debating this
treaty.
Mr. President, I ask unanimous consent that Senator Lamar Alexander
be added as a cosponsor to my amendment, amendment No. 4904, dealing
with ensuring the President's language becomes a part of this
resolution of ratification.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. CORKER. Mr. President, let me conclude by saying it is obviously
up to us, as Senators. We are the ones who have the right and the
responsibility and the privilege to take up the types of matters we are
taking up today. It is up to us to do the due diligence, to have the
intelligence briefings, to look at our nuclear posture reviews, to look
at what this treaty itself says, and to look at what our force
structure is. That is our responsibility. It is up to each of us, the
100 of us in this body, to decide whether we ratify this treaty. But I
think it is also at least interesting to get input from others.
One of the things our side of the aisle likes to do is we like to
listen to military leaders and what they have to say about issues
relating to the war--Afghanistan or Iraq--and certainly the issue of
how we enter into nuclear treaties with other countries.
I will ask to have printed in the Record a letter to Senator Kerry
from the Joint Chiefs of Staff talking about their firm commitment for
the START treaty on the basis that it increases our national security.
I ask unanimous consent to have printed in the Record this letter
dated December 20 from ADM Mike Mullen, Chairman of our Joint Chiefs.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Chairman of the
Joint Chiefs of Staff,
Washington, DC, December 20, 2010.
Hon. John F. Kerry,
Chairman, Committee on Foreign Relations, U.S. Senate,
Washington, DC.
Mr. Chairman, Thank you for your letter of 20 December
asking me to reiterate the positions of the Joint Chiefs of
Staff on ratification of the New START Treaty and several
related questions.
This treaty has the full support of your uniformed
military, and we all support ratification. Throughout its
negotiation, Secretaries Clinton and Gates ensured that
professional military perspectives were thoroughly
considered. During the development of the treaty, I was
personally involved, to include two face-to-face negotiating
sessions and several conversations with my counterpart, the
Chief of the Russian General Staff, Gen Makarov, regarding
key aspects of the treaty.
The Joint Chiefs and I--as well as the Commander, U.S.
Strategic Command--believe the treaty achieves important and
necessary balance between four critical aims. It allows us to
retain a strong and flexible American nuclear deterrent that
will allow us to maintain stability at lower levels of
deployed nuclear forces. It helps strengthen openness and
transparency in our relationship with Russia. It will
strengthen the U.S. leadership role in reducing the
proliferation of nuclear weapons. And it demonstrates our
national commitment to reducing the worldwide risk of a
nuclear incident resulting from proliferation.
More than a year has passed since the last START inspector
left Russian soil, and even if the treaty were ratified by
the Senate in the next few days, months would pass before
inspectors could return. Without the inspections that would
resume 60 days after entry into force of the treaty, our
understanding of Russia's nuclear posture will continue to
erode. An extended delay in ratification may eventually force
an inordinate and unwise shift of scarce resources from other
high priority requirements to maintain adequate awareness of
Russian nuclear forces. Indeed, new features of the treaty's
inspection protocol will provide increased transparency for
both parties and therefore contribute to greater trust and
stability.
The Joint Chiefs and I are confident that the treaty does
not in any way constrain our ability to pursue robust missile
defenses. We are equally confident that the European Phased
Adaptive Approach to missile defense
[[Page S10865]]
will adequately protect our European allies and deployed
forces, offering the best near- and long-term approaches to
ballistic missile defense in Europe. We support application
of appropriately modified Phased Adaptive Approaches in other
key regions, as outlined in the Ballistic Missile Defense
Review Report.
I can also assure you that U.S. senior military leaders
monitored very closely all provisions related to conventional
prompt global strike (CPGS) throughout the negotiation
process. During that process, the Russian Federation publicly
declared on several occasions that there should be a ban on
placement of conventional warheads on strategic delivery
systems. In the end, we agreed that any reentry vehicle
(nuclear or non-nuclear-armed) contained on an existing type
of ICBM or SLBM would be counted under the central limits of
the treaty. Importantly, the New START Treaty allows the
United States not only to deploy CPGS systems but also to
continue any and all research, development, testing, and
evaluation of such concepts and systems. It is true that
intercontinental ballistic missiles with a traditional
trajectory would be accountable under the treaty, but the
treaty's limits accommodate any plans the United States might
pursue during the life of the treaty to deploy conventional
warheads on ballistic missiles.
Further, the United States made clear during the New START
negotiations that we would not consider non-nuclear, long-
range systems, which do not otherwise meet the definitions of
the New START Treaty (such as boost-glide systems that do not
fly a ballistic trajectory), to be accountable under the
treaty.
Finally, I am comfortable that the Administration remains
committed to sustainment and modernization of the nuclear
triad and has outlined its plans to do so in the so-called
Section 1251 report to Congress, as well as a recent update
to that report and a letter from Secretary of Defense Gates
to Senator Lugar dated 10 December. Plans for sustainment and
replacement of current ICBMs, ballistic missile submarines,
heavy bombers, and air launched cruise missiles are in
various stages of development, in a process that will be
implemented over the next three decades and across multiple
administrations.
The Administration's proposed ten-year, $85B commitment to
the U.S. nuclear enterprise attests to the importance being
placed on nuclear deterrence and the investments required to
sustain it--especially given the country's present fiscal
challenges. The increased funding commitment, if authorized
and appropriated, allows the United States to improve the
safety, security, and effectiveness of our nuclear weapons
and develop the responsive nuclear weapons infrastructure
necessary to support our deterrent. I also fully support a
balanced Department of Energy program that sustains the
science, technology, and engineering base.
In summary, I continue to believe that ratification of the
New START Treaty is vital to U.S. national security. Through
the trust it engenders, the cuts it requires, and the
flexibility it preserves, this treaty enhances our ability to
do that which we in the military have been charged to do:
protect and defend the citizens of the United States. I am as
confident in its success as I am in its safeguards. The
sooner it is ratified, the better.
Sincerely,
M.G. Mullen,
Admiral, U.S. Navy.
Mr. CORKER. Mr. President, I would like to point out, too, just for
clarification, if you look at the makeup of our Joint Chiefs--Admiral
Mullen, General Cartwright, General Schwartz, General Casey, Admiral
Roughead--every single one of these gentlemen was appointed by a
Republican President. In addition to them, we have General Amos. My
sense is, based on some of the comments he has made over the course of
time, he would have Republican leanings. But all of these people have
firmly stated their support for this treaty.
In closing, I will also ask unanimous consent that the statement of
Robert Gates, again appointed by a Republican President, head of our
Defense Department, where yesterday he said:
The treaty will enhance the strategic stability at lower
numbers of nuclear weapons, provide a rigorous inspection
regime including on-sight access to Russian missile silos,
strengthen our leadership role in stopping the proliferation
of nuclear weapons, and provide the necessary flexibility to
structure our strategic nuclear forces to best meet the
national security interests.
This treaty stands on its merits and its prompt
ratification will strengthen U.S. national security.
I ask unanimous consent that this be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From the U.S. Department of Defense, News Release, Dec. 21, 2010]
Statement by Secretary Robert Gates on the New START Treaty
I strongly support the Senate voting to give its advice and
consent to ratification of the New START Treaty this week.
The treaty will enhance strategic stability at lower
numbers of nuclear weapons, provide a rigorous inspection
regime including on-site access to Russian missile silos,
strengthen our leadership role in stopping the proliferation
of nuclear weapons, and provide the necessary flexibility to
structure our strategic nuclear forces to best meet national
security interests.
This treaty stands on its merits, and its prompt
ratification will strengthen U.S. national security.
Mr. CORKER. There has been a lot of discussion about the role of the
Senate in this ratification. There are a lot of things that go into the
ratification of a treaty. I have laid out a number of things we have
discussed that are relevant to the ratification of this treaty.
As we move through a process such as this, I try to make sure all of
the t's are crossed and i's are dotted that can possibly be crossed and
dotted to ensure that I, as a U.S. Senator, feel comfortable that the
type of agreement we are entering into is one that is in the best
interests of our country. I have done that over the last year working
on nuclear modernization. Again, my hat is off to Senator Kyl and his
great leadership in that regard. I have done that over the course of
this last year as we have looked at missile defense. We spent
incredible amounts of time in our committee making sure people on my
side of the aisle had tremendous input into the resolution of
ratification. We have worked through to make sure that if we are going
to have fewer warheads deployed--again, we have thousands more that are
not deployed--that we, in fact, can assure the American people that
they will operate, that they are actually there for our national
security.
The question for me and for all of us who care so deeply about our
country's national security is, Will we say yes to yes? I firmly
believe that signing this treaty, that ratifying this treaty, and that
all the things we have done over the course of time as a result of this
treaty are in our country's national interest, and I am here today to
state my full support for this treaty. I look forward to its
ratification, and I hope many others will join me in that process.
I yield the floor.
Mr. UDALL of Colorado. Mr. President, before I begin the focus of my
remarks and the reason I came to the floor, I wish to commend the
Senator from Tennessee for his thoughtful remarks and what I think is a
thoughtful and important position he is taking on the START treaty. I
listened with great interest, and I learned additional information
about the importance of putting this treaty in effect. I also
acknowledge the Senator's concerns about missile defense, about
tactical nuclear weapons, and the other concerns that have been raised
in this very important and obviously historic debate on the floor of
the Senate. I thank the Senator from Tennessee for his leadership.
Tributes to Retiring Senators
Arlen Specter
I also wanted to associate myself with the remarks of Senator Bennet,
the Senator from Colorado, in regard to Senator Specter's farewell
address to the Senate. In particular, I think Senator Specter laid out
a thoughtful and comprehensive way we can change the Senate rules in
the upcoming 112th Congress in ways that respect the rights of the
minority but also provide the Senate with some additional ways to do
the people's business.
I know the Presiding Officer spent significant time on finding a way
forward for the Senate. I look forward to the debate that will begin
when we convene in just a couple of weeks for the 112th Congress.
Nomination of William Martinez
Let me turn to the reason I came to the floor initially, and that is
to urge my colleagues to support an outstanding nominee to the Federal
bench, Mr. William Martinez. Bill's story is an inspirational one, and
I will share that with you in a moment, but I wanted to first talk
about why there is such an urgency to confirm this fine nominee.
The situation in our Colorado District Court is dire, and I don't use
that word lightly. There are currently five judges on the court and two
vacancies, both of which are rated as judicial emergencies by the
Administrative Offices of the U.S. Courts. These five judges have been
handling the work of seven judges for nearly 2 years. It has
[[Page S10866]]
been over 3 years since our court had a full roster of judges.
I know the Presiding Officer is familiar with the need for a fully
stocked Federal bench as a former attorney general.
There is even more to the story. In 2008, based on the significant
caseload in Colorado, the Judicial Conference of the United States
recommended the creation of an eighth judgeship on the Colorado
District Court.
This is a pressing situation, but I know it is not unique just to
Colorado. Of the 100 current judicial vacancies, 46 are considered
judicial emergencies--almost half of those vacancies. I understand the
Senate has confirmed just 53 Federal circuit and district court
nominees since President Obama was elected, including the judges over
the last weekend. This is half as many as were confirmed in the first 2
years of the Bush administration and represents a historic low, which,
no matter who is to blame, is very detrimental to our system of
justice.
Bill Martinez was nominated in February of this year, had a hearing
in March, and was referred favorably by the Judiciary Committee to the
full Senate in April. So today his nomination has been sitting on the
Senate's Executive Calendar for over 8 months.
I am not going to complain about partisan delays, although I know
this continues to plague the Senate. Instead, in hope that we might
improve the nomination process, I want my colleagues to hear the real
effect of imposing these delays on nominees.
The people of Colorado deserve well-qualified justices, but what the
Senate put Bill Martinez through should make each of us question where
our priorities are--and I say that because, unlike other judicial
nominees before the Senate, Bill Martinez' life has been turned upside
down because of this delay in his confirmation. While many other
nominees--and I don't begrudge them this--continued their judicial
careers because they were sitting on the bench, he has essentially had
to dismantle his law practice to avoid Federal conflicts and even limit
taking clients to ensure they continue to receive representation once
he is confirmed. Both his life and his livelihood have been put on hold
just because he was willing to become a dedicated public servant. If we
continue this record or this habit of needlessly delaying judicial
nominations, we risk chasing off qualified nominees such as Bill
Martinez.
His long and winding road began last year when Senator Bennet and I
convened a bipartisan advisory committee, chaired by prominent legal
experts in Colorado, to help us identify the most qualified candidates
for the Federal bench. The committee interviewed many impressive
individuals, and then, based on his life experience, his record of
legal service, and his impressive abilities, both Republicans and
Democrats on this panel together recommended Bill Martinez for a
Federal judgeship. The President agreed and then subsequently nominated
Bill for the vacant judgeship I mentioned.
There is no doubt that being nominated for a Federal judgeship is a
prestigious honor, but since being nominated, Senate delays have not
only affected Bill and his family, but those delays have sent a
discouraging message to future nominees. Despite these disruptions the
process has caused for Bill and the dangerous precedent his delay may
have set, I am relieved that the Senate is finally giving this
qualified candidate the confirmation vote he deserves today.
I have spoken about his impressive intellect and experience on the
floor before, but in advance of my vote, I would like my colleagues to
hear one more time why Bill Martinez was selected by the bipartisan
advisory committee for this judgeship.
In addition to being an accomplished attorney and a true role model
in our community in Colorado, he has a personal story that captures
what is great about America and highlights what can be accomplished
with focus, discipline, and extraordinary hard work.
Bill was born in Mexico City, and he immigrated lawfully to the
United States as a child. He worked his way through school and college
and toward a career in law, becoming the first member of his family to
attend college. He received undergraduate degrees in environmental
engineering and political science from the University of Illinois and
earned his law degree from the University of Chicago.
As a lawyer, Bill has become an expert in employment and civil rights
law. He first began his legal career in Illinois, where he practiced
with the Legal Assistance Foundation of Chicago, litigating several law
reform and class action cases on behalf of indigent and working-class
clients. For the last 14 years, he has been in private practice and
previously served as a regional attorney for the U.S. Equal Employment
Opportunity Commission in Denver.
As you can imagine, over the years Bill has been a very active member
of the Denver legal community. During the 1990s, he was an adjunct
professor of law at the University of Denver College of Law and has
been a mentor to minority law students. He is currently vice chair of
the Committee on Conduct for the U.S. District Court for the District
of Colorado, and he has been a board member and officer of the faculty
of Federal Advocates.
Bill also sits on the board of directors of the Colorado Hispanic Bar
Association, where he serves as the chair of the bar association's
Ethics Committee. More recently, he was appointed by the Colorado Bar
Association to the board of directors of Colorado Legal Services and by
the chief justice of the Colorado Supreme Court to the Judicial Ethics
Advisory Board.
Like all of us, I believe in a strong, well-balanced court system
that serves the needs of our citizens. Bill Martinez will bring that
sense of balance because of his broad legal background,
professionalism, and his outstanding intellect. I am proud to have
recommended Bill, and I am certain that once confirmed he will make an
outstanding judge.
Before I conclude, I did want to give special acknowledgment to my
general counsel, Alex Harman, who has worked night and day on this
nomination. Alex has worked tirelessly to see that Bill Martinez
receives the vote he deserves, and I want to acknowledge him here on
the floor of the Senate.
I ask my colleagues to give their full support to this extraordinary
candidate and vote to confirm his nomination to the Colorado District
Court as a new Federal judge.
I yield the floor.
The PRESIDING OFFICER. The Senator from Ohio is recognized.
Mr. BROWN of Ohio. Mr. President, I appreciate the words from the
senior Senator from Colorado. His comments about the delays in the
judicial process here, the selection of Federal judges, the nomination
and confirmation, are identical to the situation for so many of the
rest of us. Very qualified people are put forward. At times, the White
House, perhaps, didn't move as fast as we would like. But the delays on
these judges is pretty outrageous.
Nomination of Benita Pearson
Judge Pearson, who sits as a U.S. magistrate in the Northern District
Court in Ohio, didn't have the same disruption in her life as soon-to-
be, I hope, Justice Martinez had, having a law practice to put aside
and having to wrap it up and figure out all that, but she has waited
since February when Senator Leahy and his Judiciary Committee voted her
out, had a wait of 9 months, almost 10 months, until we are about ready
to confirm.
I speak perhaps in criticism of the other party but, more
importantly, how do we fix this so people are not dissuaded,
discouraged from wanting to fill these very important jobs?
When I interview potential judicial candidates, I always ask them:
Are you willing to put your life on hold for at least a year before you
can actually be confirmed and sworn in, if it gets to that?
All are surprised, some are shocked, and some walk away and say: Find
somebody else. That is going to start happening. So I thank the Senator
from Colorado and his comments.
I rise in support of another very strong candidate for a Federal
judgeship, the nomination of Magistrate Judge Benita Pearson to become
a judge in the U.S. District Court in the Northern District of Ohio.
Magistrate Pearson will make an excellent addition to the bench. That
is not just my opinion. She has tremendous support from the judges with
whom she serves today and whose ranks she will soon join. She knows
them from her work, obviously, as a
[[Page S10867]]
magistrate. Judge James Carr, the chief U.S. district judge at the time
of her nomination, lauded Judge Pearson as ``a splendid choice . . .
eminently well-qualified by intelligence, experience . . . and judicial
temperament.'' Judge Carr's successor, Solomon Oliver, who now is the
chief U.S. district judge, is just as supportive of her nomination.
Support for that nomination extends throughout the State. The other
day when I gave a few remarks in the wake of Senator Voinovich's
farewell address, I neglected to mention how much I appreciated Senator
Voinovich's cooperation in the process of selecting candidates for
nomination to the Federal bench.
Senator Voinovich and I did something, and I do not know if any other
Senator in this body does this, any other pair of Senators--I do know
nobody in Ohio has done this--I asked Senator Voinovich, as the Senator
from the President's party--and, generally, by tradition, the Senator
who suggests nominees to the President--I asked Senator Voinovich to be
part of the selection system with me. We chose 17 people. We chose 17
people from northern Ohio to interview Southern District of Ohio
potential judges, and 17 people in southern Ohio--central and southern
Ohio--to interview prospective judges for the Northern District.
These panels, one of them was a Republican majority, the other was a
democratic majority, I believe, by one vote. These panels met, took
this job very seriously. Each of the 17 people was given the name of a
candidate, one of the people who was applying to interview, references
and all that. Each candidate got an hour in front of the 17-member
committee, this Commission we appointed, and were subjected, after
filling out a very lengthy questionnaire designed, again, bipartisanly
by my predecessor, Republican Senator DeWine, in large part, to, after
filling out this questionnaire, testifying, spending an hour in front
of this panel of 17 very distinguished judges, some who are lawyers,
some, I believe, former judges, all people who were very interested in
the Federal judiciary.
Anybody who came out of that had to have a strong supermajority
recommendation from the 17. I then interviewed the top three, made the
selection, cleared it with Senator Voinovich, and brought the name
forward.
That produced Judge Timothy Black, who has been confirmed, sits in
the Southern District. It also produced Judge Benita Pearson. A similar
selection committee, not identical but a similar selection committee,
enabled me, helped me come to the conclusion to reappoint a Bush
appointee to the U.S. marshal's job in Cleveland, Pete Elliott, to
appoint the first--to send to the President, nominate, and confirm the
first female U.S. marshal in the Southern District of Ohio, Cathy
Jones, and then the first African-American U.S. attorney in Columbus,
and a very qualified U.S. attorney in Cleveland.
So that is the process we have in Ohio to make sure we get the best
qualified people. As I said, they put in a tremendous amount of time
and energy, and I wish to thank those 17 members of each of those
Commissions, the 34 people who served again from both parties,
prominent jurists and lawyers and community activists, to come up with
Judge Pearson and others.
Judge Pearson currently resides in Akron but was born in Cleveland. I
got a chance to meet her mother and many of her family and friends
almost 1 year ago when she testified before the Judiciary Committee.
They were understandably proud of her, her achievements, and the honor
of her nomination, certainly, but I got the sense they were most proud
of her as a daughter, as a sister, as a family member. Nobody knows us
better than our family.
Judge Pearson earned her J.D. from Cleveland State University, her
bachelor's degree from Georgetown. Before law school, she spent several
years as a certified public accountant. I asked her how being a CPA
would help her in the judiciary as a judge. She said you can tell
stories with numbers. She smiled when she said it. She, clearly, had
kind of thought through what this means to be a Federal judge and what
qualifications she brings. Throughout her career, Judge Pearson has
litigated and presided over a range of criminal and civil matters,
including housing, public corruption cases. In addition to her work as
a magistrate judge since 2008, her legal experience includes serving as
an adjunct professor at Cleveland State's law school, 8 years as an
assistant U.S. attorney in Cleveland, the Northern District, and
several years in private practice.
If confirmed, Judge Pearson will become the first African-American
woman to serve as a Federal judge in Ohio. She will also be the only
U.S. district judge in the Youngstown courthouse, which, because of
delays here, for no apparent reason, has lacked a judge since this past
summer.
Last year, at the Akron Bar Association's annual Bench-Bar luncheon,
she urged attorneys to improve in two ways: to be better prepared to
litigate their cases and to be more civil to one another. Good advice
to this body and for all of us, I suppose, in our daily lives.
Judge Pearson's community service includes more than a decade of
ongoing work as a board member of Eliza Bryant Village. Eliza Bryant
Village is a multifacility campus, providing services for impoverished
elderly citizens. It was founded and named after the daughter of a
freed slave.
The facility began simply as a nursing facility built to serve
Eliza's mother and other African Americans who had been turned away
from nursing homes simply because of their race.
Judge Pearson's background as a prosecutor, as a private attorney, as
a CPA, and as a Federal magistrate make her uniquely qualified to serve
as U.S. district judge. Members of the law enforcement and legal
community throughout northern Ohio have attested to Judge Pearson's
ability and impartiality. As a magistrate and prosecutor, she, of
course, as I said, is supported by our State's senior Senator,
Republican George Voinovich. First assistant U.S. attorney, David
Sierlega, for example, called Judge Pearson ``an extremely hardworking
bright lawyer'' with an exemplary track record in handling public
corruption cases.
When asked to describe the ``most significant legal activities'' she
has been engaged in, Judge Pearson replied: ``My most significant legal
activity has been my steadfast commitment to administering equal
justice for all . . . the poor and the rich, the likable and unlikable
. . . the first-time offender and the repeat offender.''
At the end of the day, it is this demonstrated commitment to equal
justice, delivered after thorough consideration and fidelity to the
law, that distinguishes Judge Pearson as an invaluable asset to Ohio's
judicial system.
I urge my colleagues, this afternoon, to quickly confirm her in her
new position as U.S. district judge for the Northern District of Ohio.
I would close with thanking two people on my staff who have gone
above and beyond the call of duty: Mark Powden, my chief of staff, who
has, almost weekly, spoken with Judge Pearson, talking about the delays
and what is going to get this back on track and how are we going to get
her confirmed. I appreciate the work Mark Powden has done. And Patrick
Jackson in her office, who, while all this was going on, was getting
married. He got married earlier this month, and he was doing that at
the same time as we were doing all this. I am grateful to both of them.
I thank my colleagues.
I yield the floor and suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. SHELBY. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
littoral combat ship
Mr. SHELBY. Mr. President, I rise today in support of the Navy's
acquisition strategy to purchase 20 littoral combat ships, LCS.
The Navy's plan would allow 20 littoral combat ships to be awarded to
two shipyards: Austal, which will build 10 ships in Mobile, AL, and
Lockheed Martin, which will build 10 ships in Wisconsin.
Under the new procurement strategy, our sailors will receive the
ships they need to operate in shallow waters and
[[Page S10868]]
combat the threats of surface craft, submarines, and mines. These ships
will be used for a variety of security issues from sweeping for mines
in coastal waters to fighting pirates and chasing drug smugglers. They
are a needed asset for our Navy.
The Navy's dual acquisition plan, included in the continuing
resolution, brings significant advantages to the LCS program.
Our Navy will receive this capability faster, bring assets into
operational service earlier, and will assist the Navy in reaching a
313-ship Navy sooner.
The LCS strategy will stabilize the program and the industrial base
with an initial award of 20 ships. This will sustain competition
throughout the life of the program.
It is critical to ensure that the capabilities of our naval fleet are
the very best and that our Armed Forces receive the equipment they need
in executing future operations.
However, as the foundation of our ability to project force globally
for the next half century, we must obtain the best platform for the
taxpayer investment.
The LCS dual award does both.
The dual procurement of the LCS will bring tremendous cost savings to
the program that would not have been realized had the Navy moved
forward with a down select of designs.
According to the Navy, the acquisition savings for a dual award is
projected to be $2.9 billion as measured against the President's fiscal
year 2011 request. Of these savings, approximately $1 billion is
directly attributable to the dual award.
Acquisition decisions made in the near term will affect fleet
effectiveness and operating costs for decades to come.
This is the best outcome for all involved. The Navy will be able to
obtain the best solution for the taxpayer investment.
I urge my colleagues to support the dual acquisition strategy
included within the continuing resolution.
I yield the floor and suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. SESSIONS. I ask unanimous consent that the order for the quorum
call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
The PRESIDING OFFICER. The Senator from Alabama.
Mr. REID addressed the Chair.
The PRESIDING OFFICER. The majority leader.
Mr. REID. Mr. President, through the Chair to my friend from Alabama,
would it be agreeable to the Senator that I do a UC request so we can
find out what we are going to do?
Mr. SESSIONS. Mr. President, I would be pleased to yield to the
majority leader for that. And if I could ask consent to be recognized
afterward. I would note I did have time set aside for these remarks.
Mr. REID. Yes. I understand.
The PRESIDING OFFICER. Without objection, it is so ordered.
Order Of Procedure
Mr. REID. Mr. President, I ask unanimous consent that at 2 p.m.
today, all postcloture time be considered expired and that the second-
degree amendment be withdrawn; that no further amendments or motions be
in order; that the Senate then proceed to vote on the Reid motion to
concur in the House amendment to the Senate amendment to H.R. 3082 with
amendment No. 4885; that upon disposition of the House message, the
Senate proceed to executive session to consider Executive Calendar Nos.
703 and 813; that all time under the order governing consideration of
the nominations be yielded back, except for 8 minutes to be divided 4
minutes on each nomination, equally divided and controlled between
Senators Leahy and Sessions or their designees; that upon the use or
yielding back of all time with respect to the two nominations, the
Senate then proceed to vote on confirmation of the nominations in the
order listed; that upon disposition of the nominations, the other
provisions of the order remain in effect, except that the Senate remain
in executive session and there then be 4 minutes of debate, equally
divided and controlled between the leaders or their designees, prior to
the vote on the motion to invoke cloture on the New START treaty; that
upon the use of the time, the Senate then proceed to vote on the motion
to invoke cloture on the treaty; that after the first vote in this
sequence, the second and third votes be limited to 10 minutes each.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.
Mr. REID. Mr. President, I ask unanimous consent that Members have
until 1:30 p.m. today to file any germane second-degree amendments to
the New START treaty.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.
Mr. REID. Mr. President, I further ask unanimous consent that
following Senator Sessions, Senator Harkin then be recognized, to be
followed by Senator Voinovich for up to 20 minutes.
I say to my friend from Iowa, how much time--15 minutes.
Does that give us enough time to do all that? It appears it does. So
Senator Harkin would be recognized for 15 minutes and then Senator
Voinovich for 20 minutes.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.
The Senator from Alabama.
Mr. SESSIONS. Mr. President, I was pleased to yield to the majority
leader and just observe that although we do fuss a lot around here,
many things are done by agreement. Senator Reid has obviously talked
with the Republican leaders and reached this agreement on how we can
proceed on some of these matters, and I was pleased to yield to him.
Mr. REID. Mr. President, I would say to my friend from Alabama, my
friend from Alabama and I do not always agree on the substantive
issues, but there is no one more of a gentleman and easier to work with
than the Senator from Alabama, Mr. Sessions.
The PRESIDING OFFICER. The Senator from Alabama.
nomination of william martinez
Mr. SESSIONS. Mr. President, I rise to speak on the President's
nomination of Mr. William Martinez to the United States District Court
for Colorado. I will oppose the nomination, and I have several reasons
for doing so. He has a lot of good friends and people who respect him
and like him, but we are trying to make a decision about a lifetime
appointment to the federal district court. There are some concerns with
this nomination that are serious and, in particular, trends of the
President to nominate individuals with judicial philosophies outside
the mainstream.
There is one reason in particular that concerns me about Mr.
Martinez. It is his longtime affiliation with the American Civil
Liberties Union and the questions we asked him about that were answered
insufficiently for me. We have had a number of ACLU nominations. I have
supported some and opposed others. The ACLU is a very leftwing
organization. It seeks openly to defy the will of the American people
in many lawsuits while at the same time they endeavor to undermine and
oppose traditions and institutions that make up the very fabric of our
culture, our national identity, and who we are as a people, assuming
those things are insignificant and only pure philosophical approaches,
as they have, of an extreme nature should guide our Nation.
Mr. Martinez has been a member of the ACLU in Colorado for nearly a
decade, and since 2006 served on its legal panel. In this role he
reviews memorandum prepared by ACLU staff and attorneys and decides
whether to pursue litigation, a very significant post in that
organization. Of course that is not disqualifying. One can be a member
of an organization, even though some of us might not like it or agree
with the organization. But any nominee from a conservative organization
who takes extreme positions would certainly have to answer those
positions and justify why they might take them. Likewise it is fair and
appropriate to ask questions about this nominee and about this
organization and whether the nominee agrees with them or why, if they
don't agree, they are a member.
A lot of people say they didn't agree with this position or that
position. I was left asking: Why are you a member? It is on their Web
site.
When asked about some of the positions on important issues, he failed
to
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clearly respond and repeatedly refused to answer questions in a direct
and clear manner. For example, at his hearing I asked whether he agreed
with the ACLU's position that the death penalty was unconstitutional in
all circumstances. He refused to answer. Instead he noted that the
Supreme Court has held the death penalty constitutional, adding:
What my view would be as a sitting Federal district judge
is something that would be quite different from my views as a
personal citizen or an advocate or a litigant and member of
the ACLU.
I asked him whether he personally thinks the death penalty violates
the Constitution and whether he had ever expressed that view. He again
failed to answer, stating only that he had never expressed any view.
So I put the question to him again, and again he did not answer.
Let me stop and say why I think this is a very important issue. The
Constitution was passed as a unified document with 10 amendments. The
American people ratified it. Some people, in recent years, have come up
with the ingenious idea that they could disqualify and eliminate the
death penalty without a vote of the people, without the popular will to
change laws that exist all over the country. They decided they could
change it by finding something in the Constitution that would say the
death penalty is wrong, and they reached out to the provision that says
you should not have cruel and unusual punishment. They said the death
penalty is cruel and unusual and is unconstitutional, which is not
sound. Let me be respectful.
Why is that not a sound policy? There are multiple references in the
Constitution to a death penalty. It talks about capital crimes, taking
life without due process. it is in the Constitution. How could one say,
when there are multiple provisions explicitly providing for the death
penalty, how could we reach over here and take a position on cruel and
unusual punishment which was designed to prevent people from being hung
on racks and tortured and that kind of thing? But that is the ACLU
position.
This nominee, who is going to be given a lifetime appointment, the
power to interpret the Constitution on this very real issue of national
import that good lawyers know about, refused to state that the
Constitution is clear, that the death penalty is legal.
In fact, I note parenthetically that every Colony, every State had a
death penalty at the time, and so did the United States Government.
Surely the people, when they ratified it, had no idea that somebody
coming along in 2000 would create the view that the Constitution
prohibits the death penalty.
I also asked Mr. Martinez whether he agreed with the President's so-
called empathy standard, but rather than state flatly that empathy
should play no role in decisionmaking, as did Justice Sotomayor when
she came up--she flatly said no, a judge has to be impartial; one
should decide it on the facts and the law, not on feelings--he said
that empathy ``can provide a judge with additional insight and
perspective as to the intent and motivations of the parties appearing
before the court.'' Empathy, to me, is far too much like politics, far
too much like something other than law. It is certainly not law.
When a nominee such as Mr. Martinez, who has dedicated so much time
and legal expertise to the ACLU, refuses to answer basic questions
about these issues, it is fair and appropriate to conclude that perhaps
he agrees with the other positions of the ACLU. I have done a little
checking on that.
What is this organization of which he is a member? Some people like
the position they take on this issue or that issue. But what overall
are some of the policy and legal positions taken by the ACLU? Over the
last several decades it has taken positions far to the left of
mainstream America and the ideals and values the majority of Americans
hold dear. Roger Baldwin, the ACLU's founder, was openly vocal about
his support and belief in ``socialism, disarmament, and ultimately for
abolishing the State itself as an instrument of violence and
compulsion.''
He was quoted as saying:
I seek social ownership of property, the abolition of the
profited class and sole control by those who produce wealth.
Communism is the goal.
Mr. Baldwin's influence and impact on the ACLU could not be
overstated. As former ACLU counsel Arthur Hays says:
The American Civil Liberties Union is Roger Baldwin.
As I mentioned earlier, the ACLU opposes the death penalty under any
circumstances, even for child rapists. They filed a brief recently in
Kennedy v. Louisiana arguing that a State could not apply the death
penalty to a child rapist regardless of the severity of the crime or
the criminal history unless the child died from his or her injuries.
Here the defendant had raped his own 8-year-old stepdaughter and caused
horrific injuries that a medical expert said were the most severe he
had ever seen. The defendant had done the same thing to another young
girl within the family a few years earlier. Even President Obama, when
the case came before the Supreme Court, said he opposed that view. Yet
President Obama continues to nominate a host of ACLU lawyers to the
Federal bench and presumably has some sort of sympathy with the views
they have been taking.
In recent years, the ACLU has litigated on behalf of sex offenders,
including suing an Indiana city on behalf of a repeat sex offender who
was barred from the city's park after he admitted stalking children who
played there. Even though the convicted offender had admitted that he
thought about sexually abusing the children in the park, the ACLU sued
to give him full access to the park and the children. I agree with the
mayor of the city who said:
Parents need to be able to send their children to a park
and know they are going to be safe, not being window shopped
by a predator.
I would hope all nominees would share this view rather than the
ACLU's position on the subject. Although many view the ACLU as a
neutral defender of the Bill of Rights, the ACLU takes a very selective
view of the rights it advocates.
That is just a fact. Otherwise, if they were defending the
Constitution and what it says plainly, they would defend the
constitutionality of the death penalty. It should not take them 2
seconds to figure that out. They have an agenda.
As it explains on its Web site, the ACLU openly disagreed with the
Supreme Court's landmark ruling in the Heller case--the right to keep
and bear arms--in Washington because the ACLU does not believe the
second amendment confers an individual right to keep and bear arms.
Well, OK. So the lawyers might disagree on that. But if this
institution, this ACLU, is so committed to constitutional rights and
opposes the power of the State, why would they not read the plain words
of the second amendment: The right to keep and bear arms shall not be
infringed. Why wouldn't they defend that individual right of free
Americans to be armed and oppose the power of the State to take away
what has historically been an American right? I think it represents and
reveals a political agenda as part of this organization.
It also has a selective view of what exactly is protected by the
first amendment. It has done some good work on the first amendment, the
ACLU has, but it has gone to great lengths to limit freedom of
religion, as provided for in the first amendment, suing religious
organizations and groups such as the Salvation Army and even
individuals and supported the removal of ``under God'' from the Pledge
of Allegiance and ``in God we trust'' from our currency. It sued the
Virginia Military Institute to stop the longstanding tradition of
mealtime prayer for cadets. You do not have to bow your head if you go
to lunch and somebody wants to have a prayer. Nobody makes you pray.
But if other people want to take a moment before they partake of their
meal and, say, acknowledge a bit of appreciation for the blessings they
have received, what is wrong with that? I do not believe it violates
the first amendment.
The Constitution says that you cannot establish a religion in
America, and we cannot prohibit the free exercise of religion either.
The establishment clause and the free exercise clause are both in that
amendment. But the ACLU only sees one. They see everything as an
establishment of religion.
[[Page S10870]]
The ACLU has also argued for the removal of religious symbols and
scriptures from national parks and monuments and cemeteries that have
stood for years regardless of how innocuous they may be.
I am very surprised we do not have the ACLU filing a lawsuit to deal
with those words right over that door: ``In God We Trust.'' It won't be
long. They will want to send in gendarmes with chisels to chisel it off
the wall. It is an extreme view of the first amendment, and has never
been part of what we understood the Constitution to be about. The
reference in a public forum to a ``higher being'' is not prohibited by
the Constitution--except in the minds of some extremists.
So the ACLU has argued for the removal of all vestiges of Christmas,
going so far as to sue school districts to bar them from having Santa
Claus at school events and threatening to sue if Christmas carols are
sung anywhere on school grounds. Give me a break.
In addition, the ACLU has sought to limit or remove the rights of
children to salute the U.S. flag, recite the Pledge of Allegiance, and
openly pray.
It has sued the Boy Scouts--I am honored to have been an Eagle Scout
at one time in my life--and government entities that have supported
this honorable institution. It has sued them.
It has fought for the rights of child pornographers and against
statutes seeking to stop its production and distribution or limit
children's exposure to it. The ACLU absolutely not only opposes adult
pornography laws, they oppose laws that prohibit child pornography,
which is where so much of the problem of pedophilia occurs.
The ACLU has sought to overturn the will of the people by challenging
numerous State laws that define marriage as between a man and a woman
and has encouraged city mayors across the country to openly defy State
law by granting same-sex marriage licenses, even in contradiction to
law.
It has vehemently opposed the 1996 Defense of Marriage Act, calling
it ``a deplorable act of hostility unworthy of the United States
Congress.'' That passed a year before I came here--not too long ago. It
just said that if one State allows a marriage to be between members of
the same sex, another State would not be forced to acknowledge it and
recognize it. That is what the Defense of Marriage Act did, and it
passed here not too many years ago.
The ACLU has consistently opposed all restrictions on abortion--all
restrictions--including partial-birth abortion, the Unborn Victims of
Violence Act, and statutes requiring parental notification before a
minor child can have an abortion. If they want to defend the innocent
against wrongdoing, what about defending a child partially born whose
life is taken from them? The ACLU's extreme advocacy on abortion would
force even religious health care providers--doctors and nurses--to
perform abortions as a condition of Medicare or Medicaid reimbursement
eligibility. A doctor could not say: I will treat you, but I don't do
abortions. Oh, if you take Medicare or Medicaid money, then under the
ACLU's position, you would have to do so.
According to the ACLU:
There is no basis for a hospital to impose its own
religious criteria on a patient to deny [her] emergency care.
So this type of religious liberty is not, I think, what the Founders
said. I do not think a hospital that is founded on personal values and
has certain moral values should be required to give them up as a
capitulation to State domination, which is what they were asking for
actually, having the State be able to tell a hospital that did not
believe in abortion.
What about other issues that may come up, such as end-of-life issues.
Hospitals ought to be able to have--and doctors and nurses should be
able to have moral views about those matters and not do something they
think is wrong and not have to give up their practice or their hospital
in order to comply with what this group thinks is the right way to do
business.
So those are some of the examples of the ACLU's out-of-the-mainstream
point of view. It is no secret that this administration shares this
kind of legal reasoning. This is, of course, one of a long line of ACLU
nominees whom we have seen, and this kind of reasoning and legal
thought is well to the left of and out of touch with the American
people and, I think, for the most part, established law. It seeks to
impose its liberal progressive agenda any way it can, including by
filing lawsuits and having judges--unelected lifetime appointed judges
who have been popped through the Senate--ratify what the people who
filed the lawsuits want to achieve as a matter of policy, not being
neutral umpires who adjudicate disputes and decide them narrowly but to
try to use the courts as a vehicle to advance an agenda. That is what
has really been at the core of the debate in recent years over judicial
nominations.
So it is not surprising that many of the President's judicial and
executive branch nominees have been deeply involved in the ACLU--many
of them. For example, President Obama's first nominee, Judge David
Hamilton, who was confirmed to the Seventh Circuit last year, was a
leading member of the Indiana Civil Liberties Union for 9 years, where
he served as a board member and its vice president for litigation.
Judge Gerard Lynch, who now sits on the Second Circuit, was a
cooperating attorney and member of the ACLU for 25 years. Judge
Rogeriee Thompson, who was confirmed to the First Circuit earlier this
year, had been a member of the ACLU for 10 years. Judge Dolly Gee, who
now sits on the District Court for the Central District of California,
had been a member of the ACLU for 9 years. Carlton Reeves, who was
confirmed two days ago to the Southern District of Mississippi, was a
member for 12 years and served as a board member.
Three of President Obama's most controversial judicial nominees have
had extensive involvement with the ACLU. Edward Chen, nominated to the
Northern District of California, was a staff attorney on staff and
member of the ACLU of Northern California for 16 years. Goodwin Liu, a
professor, one of the most extreme nominees now pending, was nominated
to the Ninth Circuit, already the most activist circuit in America. He
was a member of the board of directors of the ACLU of northern
California for years. Jack McConnell, nominated to the district of
Rhode Island, was a volunteer lawyer for the ACLU as recently as last
year.
A number of nominees who were recently considered by the Judiciary
Committee also have significant ties to the ACLU. Amy Totenberg,
nominated to the Northern District of Georgia, has been a member for 21
years. Robert Wilkins, nominated to the District of DC, was also a
member. Michael Simon, nominated to the District of Oregon, has been a
member since 1986. He served on the lawyers committee and the board of
directors and as its vice president for legislation and vice president
for litigation.
That is more than I thought when we started going back and looking at
this. I am sure less than 1 percent of the lawyers in America are
members of the ACLU, but it seems if you have the ACLU DNA, you get a
pretty good leg up on being nominated by this President. It is clear
the President, our President, a community activist, a liberal
progressive, as his own friends have described him, and former law
professor is attempting to pack the courts with people who share his
views and who will promote his vision of, as he has said about judges,
what America ``should be.'' That was his phrase. He said, We want
judges who help advance a vision of what America should be.
But that is not good. We all have visions of what America should be.
I wish to see us be a more frugal nation, more local government, more
individual responsibility. I do not support cradle-to-grave government.
His vision is what? That we want judges on the bench promoting an
agenda because they were picked by a President who shares that agenda?
That is not the classical American heritage of what judges should be
about. Judges should take the bench and they should attempt, as
objectively as they possibly can, having put on that robe and having
taken an oath to do equal justice to the poor and the rich, and to be
not a respecter of persons, but to analyze that case objectively and
decide it based on the law and the facts, not on their empathy and not
on what their vision of what America should be because it may not be
what the people's vision is.
Democracy is undermined if a judge gets on the bench and feels that
they
[[Page S10871]]
can promote visions. I have to tell my colleagues, they are not
appointed to be vision promoters. They are appointed to decide the
strict matters of law and fact, to the best of the ability the Lord
gives them.
We can't stand idly by and allow that heritage of law that benefits
us so greatly, the American rule of law and the greatest strength this
Nation has, in my opinion, to be altered by promoting a Federal
judiciary that is agenda oriented. Any individual--regardless of the
position to which they have been nominated, to what kind of court
position they are nominated to--who demonstrates unwillingness to
subordinate his or her personal views, religious, political,
ideological, social, liberal, or conservative. Conservatives can't
promote their views, either--if they can't be faithful to the law and
the Constitution, they should not be on the bench.
I am not going to support such nominees and no Senator should support
them. I have given it a lot of thought. I know Mr. Martinez has had a
long affiliation with the ACLU. He refused to give clear answers to
these questions I posed to him. I am not convinced that those views,
which I think are outside legitimate constitutional theory, have been
objected to and are not by Mr. Martinez--indeed, it appears he supports
them because he has not with clarity rejected a single one. He has not
made any defense to participating in an organization that openly
advocates these kinds of legal views.
We ask a lot of the nominees: Do you believe the Constitution
prohibits the death penalty? They said, No. Even though they were part
of an organization and some of them--a lot--have been confirmed and I
have voted for a number of them, but I am not able to vote for this
one.
I have to say this: We are paid to judge and to vote, and when it
comes down to some of the positions taken by the ACLU--let's take the
one that the Constitution prohibits the death penalty--are so extreme
and are so nonlegal that if a person can't understand that, I have
serious doubt that they can understand any other significant
constitutional principle.
Therefore, I have concluded I would not be able to support the
nominee, although I respect my colleagues who think he will do well. I
certainly don't think he is a bad person. I think he is an able person
who has a wonderful background, but his legal history evidences an
approach to law that I think is outside the mainstream and I will
oppose the nomination. We are not blocking a vote. We will allow him to
have his up-or-down vote and Senators will cast their vote based on how
they conclude it should be decided.
I thank the Chair and I yield the floor.
The PRESIDING OFFICER (Mr. Manchin). The Senator from Ohio.
New START Treaty
Mr. VOINOVICH. Mr. President, I rise today to discuss the Senate's
deliberation of the New START treaty and the treaty's implications for
our friends and allies in Eastern and Central Europe and, more
importantly, the national security of the United States.
On November 17, I came to the Senate floor to discuss my concerns
about the treaty and the President's reset policy. Following my
remarks, I received a significant amount of feedback--some positive,
some critical--and throughout my deliberations on the treaty, my
intention was to contribute to advancing this important debate in a
meaningful way.
First, I wish to make it clear I remain concerned about the direction
of Russia in terms of its commitment to human rights and an effort to
reassert its influence over what Russia considers Eastern and Central
Europe, their sphere of influence--those countries I often describe as
the captive nations. One cannot ignore the statement of Vladimir Putin
when he described the collapse of the Soviet Union as the greatest
geopolitical catastrophe of the 20th century.
Two years ago, after listening to Russia's Foreign Minister Sergey
Lavrov at the German Marshall Fund Forum in Brussels, I concluded that
Russia's internal political dynamic suggested that its people were
deeply concerned by the growth in U.S. influence through NATO expansion
and incursion into their part of the world. The Russian people, it
seems, believed there was a post-Cold War promise, once the Iron
Curtain came down, to not interfere in the region.
As one of the leaders in helping the captive nations movement and to
this day regretting the way our brothers and sisters in these countries
were treated during the postwar conferences at Yalta and Tehran--I must
say I never thought the wall would come down or their curtain torn, but
once it did, I did everything I could to ensure these newly
democratized countries were invited to join NATO. In 1998, as chairman
of the National Governors Association, I worked to get a resolution
passed encouraging the United States to invite Poland, the Czech
Republic, and Hungary to join the alliance.
One of the proudest moments as a Senator was when I joined President
Bush, Secretary of State Powell, Secretary of Defense Rumsfeld, and
Chairman of the Joint Chiefs of Staff General Myers at the NATO summit
in Prague on November 21, 2002. I was in the room when NATO Secretary
General Lord Robinson officially announced the decision to invite
Bulgaria, Estonia, Latvia, Lithuania, Romania, Slovakia, and Slovenia
into NATO. I mention all of this history for a simple reason. I don't
think there is a Member of the Senate more wary of the intentions of
Russia toward the former captive nations than I.
So it brings me back to the subject of the treaty now pending before
the Senate. I take the Senate's constitutional advice and consent
duties very seriously. Since the treaty was signed in April, I have
attended numerous meetings and classified briefings on the treaty. I
suspect I have spent at least 10 to 12 hours on it. Since I last spoke
on this floor about the treaty in November, I have held additional
consultations with a number of former Cabinet Secretaries, ambassadors,
and experts from the intelligence community, including former
Secretaries of State Albright, Powell, and Rice, seeking their views
about the treaty's effect on our bilateral relationship with Russia, as
well as our relationship with our Eastern and Central European allies.
While some of those I met with had concerns about specific technical
aspects of the treaty, I continually heard that we should ratify the
treaty.
I believe it is noteworthy that five former Republican Secretaries of
State, including Kissinger, Shultz, Baker, Eagleburger, and Powell, in
a December 2, 2010 Washington Post opinion piece urged the Senate:
. . . to ratify the New START Treaty signed by President
Obama and Russian President Dmitry Medvedev. It is a modest
and appropriate continuation of the START I treaty that
expired almost a year ago.
These former Republican Secretaries of State described some of the
outstanding issues with the treaty, but describe convincingly, in my
opinion, why ultimately it is in our national interest to ratify the
treaty.
Mr. President, I ask unanimous consent that the op-ed piece from the
Washington Post be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From the Washington Post, Dec. 2, 2010]
The Republican Case for Ratifying New START
(By Henry A. Kissinger, George P. Shultz, James A. Baker III, Lawrence
S. Eagleburger and Colin L. Powell)
Republican presidents have long led the crucial fight to
protect the United States against nuclear dangers. That is
why Presidents Richard Nixon, Ronald Reagan and George H.W.
Bush negotiated the SALT I, START I and START II agreements.
It is why President George W. Bush negotiated the Moscow
Treaty. All four recognized that reducing the number of
nuclear arms in an open, verifiable manner would reduce the
risk of nuclear catastrophe and increase the stability of
America's relationship with the Soviet Union and, later, the
Russian Federation. The world is safer today because of the
decades-long effort to reduce its supply of nuclear weapons.
As a result, we urge the Senate to ratify the New START
treaty signed by President Obama and Russian President Dmitry
Medvedev. It is a modest and appropriate continuation of the
START I treaty that expired almost a year ago. It reduces the
number of nuclear weapons that each side deploys while
enabling the United States to maintain a strong nuclear
deterrent and preserving the flexibility to deploy those
forces as we see fit. Along with our obligation to protect
the homeland, the United States has responsibilities to
allies around the world. The commander of our nuclear forces
has
[[Page S10872]]
testified that the 1,550 warheads allowed under this treaty
are sufficient for all our missions--and seven former nuclear
commanders agree. The defense secretary, the chairman of the
Joint Chiefs of Staff and the head of the Missile Defense
Agency--all originally appointed by a Republican president--
argue that New START is essential for our national defense.
We do not make a recommendation about the exact timing of a
Senate ratification vote. That is a matter for the
administration and Senate leaders. The most important thing
is to have bipartisan support for the treaty, as previous
nuclear arms treaties did.
Although each of us had initial questions about New START,
administration officials have provided reasonable answers. We
believe there are compelling reasons Republicans should
support ratification.
First, the agreement emphasizes verification, providing a
valuable window into Russia's nuclear arsenal. Since the
original START expired last December, Russia has not been
required to provide notifications about changes in its
strategic nuclear arsenal, and the United States has been
unable to conduct on-site inspections. Each day, America's
understanding of Russia's arsenal has been degraded, and
resources have been diverted from national security tasks to
try to fill the gaps. Our military planners increasingly lack
the best possible insight into Russia's activity with its
strategic nuclear arsenal, making it more difficult to carry
out their nuclear deterrent mission.
Second, New START preserves our ability to deploy effective
missile defenses. The testimonies of our military commanders
and civilian leaders make clear that the treaty does not
limit U.S. missile defense plans. Although the treaty
prohibits the conversion of existing launchers for
intercontinental and submarine-based ballistic missiles, our
military leaders say they do not want to do that because it
is more expensive and less effective than building new ones
for defense purposes.
Finally, the Obama administration has agreed to provide for
modernization of the infrastructure essential to maintaining
our nuclear arsenal. Funding these efforts has become part of
the negotiations in the ratification process. The
administration has put forth a 10-year plan to spend $84
billion on the Energy Department's nuclear weapons complex.
Much of the credit for getting the administration to add $14
billion to the originally proposed $70 billion for
modernization goes to Sen. Jon Kyl, the Arizona Republican
who has been vigilant in this effort. Implementing this
modernization program in a timely fashion would be important
in ensuring that our nuclear arsenal is maintained
appropriately over the next decade and beyond.
Although the United States needs a strong and reliable
nuclear force, the chief nuclear danger today comes not from
Russia but from rogue states such as Iran and North Korea and
the potential for nuclear material to fall into the hands of
terrorists. Given those pressing dangers, some question why
an arms control treaty with Russia matters. It matters
because it is in both parties' interest that there be
transparency and stability in their strategic nuclear
relationship. It also matters because Russia's cooperation
will be needed if we are to make progress in rolling back the
Iranian and North Korean programs. Russian help will be
needed to continue our work to secure ``loose nukes'' in
Russia and elsewhere. And Russian assistance is needed to
improve the situation in Afghanistan, a breeding ground for
international terrorism.
Obviously, the United States does not sign arms control
agreements just to make friends. Any treaty must be
considered on its merits. But we have here an agreement that
is clearly in our national interest, and we should consider
the ramifications of not ratifying it.
Whenever New START is brought up for debate, we encourage
all senators to focus on national security. There are plenty
of opportunities to battle on domestic political issues
linked to the future of the American economy. With our
country facing the dual threats of unemployment and a growing
federal debt bomb, we anticipate significant conflict between
Democrats and Republicans. It is, however, in the national
interest to ratify New START.
Mr. VOINOVICH. Mr. President, I believe many of these experts remain
concerned, as do I, that a failure to ratify the treaty would be
exploited by those factions in Russia who wish to revert back to our
Cold War posture. Such a failure could easily be used by those factions
to play on Russian nationalism, which I fear, from what I have heard
from some people, is bordering on paranoia. Since I last spoke about
the treaty, a number of our new NATO allies have come out and supported
the treaty because they believe the treaty's approval should help
advance other issues related to Russia, including the lack of
compliance with the Conventional Forces in Europe Treaty, tactical
nuclear weapons, and cooperation on missile defense.
For example, during his recent visit to Washington, Polish President
Bronislaw Komorowski has stated he supports the treaty's ratification.
And at a press conference at the conclusion of the NATO Lisbon Summit,
Hungarian Foreign Minister Janos Martonyi stated:
My country has a very special experience with Russia, and
also a special geographic location . . . We advocate
ratification of START. It is in the interest of my nation, of
Europe and most importantly for the transatlantic alliance.
During this press conference, Lithuania's Foreign Minister pointed
out that he saw the treaty as a prologue to additional discussions with
Russia about other forms of nuclear arms in the region such as tactical
nuclear weapons. About three weeks ago, I received a call from
President Zatlers, the President of Latvia, urging me: Mr. Senator,
please ratify the START treaty.
Still, as history has taught us, the United States must make clear in
regard to our relationship with Russia that it will not be at the
expense of our NATO allies. Thus, I was pleased to see President Obama
provided the leaders of our Central and European allies public
reassurance regarding the U.S. commitment to article V of the North
Atlantic Treaty during the recent NATO summit in Lisbon which, by the
way, was one of the best NATO summits I think that has been held in the
last dozen years. The President reaffirmed this commitment in his
December 18, 2010 letter to the majority and minority leaders, and I
hope that letter from the President has been circulated among my
colleagues. It is very clear on where the President stands.
This NATO Summit meeting in Lisbon last month underscore,
we are proceeding with a missile defense system in Europe
designed to provide full coverage for NATO members on the
continent, as well as deployed U.S. forces, against the
growing threat posed by the proliferation of ballistic
missiles.
I know that some of my colleagues are concerned with issues related
to the treaty, including the modernization of our nuclear
infrastructure, missile defense, and verification, and I will discuss
each of these issues to explain why I believe they have been adequately
addressed.
First of all, as others have pointed out--and I reiterate--Senator
Kyl has made a valiant effort to ensure we modernize the U.S. nuclear
infrastructure. I have worked with Senator Kyl on reviewing the treaty.
I believe his hard work has led to nuclear modernization receiving the
attention it deserves. It is long overdue. I remember Pete Domenici
talking about the fact that we needed to do something about it and,
frankly, we ignored Senator Domenici.
In a December 1, 2010, letter to Senators Kerry and Lugar, the
National Lab Directors from Lawrence Livermore, Los Alamos, and Sandia
stated:
We are very pleased by the update to the Section 1251
report, as it would enable the laboratories to execute our
requirements for ensuring a safe, secure, reliable, and
effective stockpile under the Stockpile Stewardship and
Management Plan.
I ask unanimous consent to have that letter printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
December 1, 2010.
Hon. John Kerry,
Hon. Richard Lugar,
Senate Committee on Foreign Relations, U.S. Senate,
Washington, DC.
Dear Chairman Kerry and Ranking Member Lugar: This letter
is a joint response to the letters received November 30,
2010, by each of us in our current roles as directors of the
three Department of Energy/National Nuclear Security
Administration (NNSA) laboratories--Los Alamos National
Laboratory, Lawrence Livermore National Laboratory, and
Sandia National Laboratories.
We are very pleased by the update to the Section 1251
Report, as it would enable the laboratories to execute our
requirements for ensuring a safe, secure, reliable and
effective stockpile under the Stockpile Stewardship and
Management Plan. In particular, we are pleased because it
clearly responds to many of the concerns that we and others
have voiced in the past about potential future-year funding
shortfalls, and it substantially reduces risks to the overall
program. We believe that, if enacted, the added funding
outlined in the Section 1251 Report update--for enhanced
surveillance, pensions, facility construction, and Readiness
in Technical Base and Facilities (RTBF) among other
programs--would establish a workable funding level for a
balanced program that sustains the science, technology and
engineering base. In summary, we believe that the proposed
budgets provide adequate support to sustain the safety,
security, reliability and effectiveness of America's nuclear
deterrent within the limit of 1550 deployed strategic
warheads established by the New START Treaty with adequate
confidence and acceptable risk.
[[Page S10873]]
As we emphasized in our testimonies, implementation of the
future vision of the nuclear deterrent described by the
bipartisan Strategic Posture Commission and the Nuclear
Posture Review will require sustained attention and continued
refinement as requirements are defined and baselines for
these major projects are established. We appreciate the fact
that this 1251 update calls out the importance of being
flexible and the need to revisit these budgets every year as
additional detail becomes available.
We look forward to working with you and the Administration
to execute this program to ensure the viability of the U.S.
nuclear deterrent.
Sincerely,
Dr. George Miller,
Lawrence Livermore National Laboratory,
Dr.Michael Anastasio,
Los Alamos National Laboratory,
Dr. Paul Hommert,
Sandia National Laboratories.
Mr. VOINOVICH. Mr. President, a number of experts I have consulted
with have pointed out--and I have agreed with--the need for the
President to provide public assurances regarding the U.S. commitment to
a robust missile defense system. So I was pleased with the President's
letter to our leadership reiterating such support. Here I quote
directly from the President's letter:
Pursuant to the National Missile Defense Act of 1999, it
has long been the policy of the United States to deploy as
soon as is technologically possible an effective National
Missile Defense system capable of defending the territory of
the United States against limited ballistic missile attack,
whether accidental, unauthorized, or deliberate.
With regard to the Russian assertion--and we have heard this--that
the treaty's preamble prohibits the buildup in missile defense
capabilities, the President has stated in very clear language that the
``United States did not and does not agree with the Russian statement.
We believe the continued development and deployment of U.S. missile
defense systems, including qualitative and quantitative improvements to
such systems, do not and will not threaten the strategic balance with
the Russian Federation. . . . we believe the continued improvement and
deployment of U.S. missile defense systems do not constitute a basis
for questioning the effectiveness and the viability of the New START
Treaty, and therefore would not give rise to circumstances justifying
Russia's withdrawal from the Treaty.''
Mr. President, as I have discussed, I know many of my colleagues have
concerns about the treaty. But after my own research and consultations
with current and former Secretaries of State and numerous foreign
policy experts, including many conservative experts, as well as
yesterday's 3-hour closed session in the Old Senate Chamber, I support
this treaty and do not believe the concerns that we have heard from
some of our colleagues rise to the level at which the Senate should
reject the treaty.
The President signed the treaty in April. It is now December, and we
are coming up on 1 full year without any verification regime in place.
I believe we should work to get this treaty done because these
verification procedures are needed now. I am not the only one who
believes this. I recently received a letter from Bulgaria's Ambassador
to the United States, Elena Poptodorova. I have known her a long time
and worked with her to get Bulgaria into NATO. She wrote:
A failure to swiftly ratify the treaty would mean
discontinuation of the verification regime that could result
in negative consequences in the nuclear disarmament,
especially taking into consideration the significant
strategic nuclear advantage of Russia.
In my view, it will also put at risk the future cooperation
with Russia and will impede the negotiations on priorities,
such as conventional forces and tactical nuclear weapons in
Europe. It is of utmost importance that Russia be kept at the
negotiating table beyond the scope of the New START Treaty,
in particular on issues like Iran, Afghanistan and other
global security challenges.
I ask unanimous consent that her letter be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Embassy of the
Republic of Bulgaria,
Washington DC, December 6, 2010.
Dear Senator Voinovich: I am writing to you on an urgent
note regarding the pending ratification of the New START.
Firstly, I would like to reiterate the strong support of
the Bulgarian government for the treaty. As you may know,
already on the margins of the NATO Summit, the Bulgarian
Foreign Minister Nickolay Mladenov, together with his
colleagues from Denmark, Latvia, Lithuania, Hungary and
Norway, explicitly pointed out that the treaty is in the
interest of European and global security. I firmly believe
that it is indeed key to the national security interest of
each country as well as to the stability of the transatlantic
alliance.
Secondly, Bulgaria shares the assessment that the treaty
allows the United States to maintain an effective and robust
nuclear deterrent and to keep modernizing its nuclear weapons
complex. It is crucial that it does not put any constraints
on the US missile defense programs and allows for the
deployment of effective missile systems.
Furthermore, a failure to swiftly ratify the treaty would
mean discontinuation of the verification regime that could
result in negative consequences in the nuclear disarmament
especially taking into consideration the significant
strategic nuclear advantage of Russia. In my view, it will
also put at risk the future cooperation with Russia and will
impede the negotiations on priorities such as conventional
forces and tactical nuclear weapons in Europe. It is of
utmost importance that Russia be kept at the negotiating
table beyond the scope of the New START, in particular on
issues like Iran, Afghanistan and other global security
challenges.
I strongly urge you, dear Senator, to consider the
arguments above and act in favor of a swift ratification of
the New START. The new treaty is yet another step toward
guaranteeing our common security and the United States
leadership is absolutely essential in this respect.
I trust I will be taken in good faith.
Sincerely,
Elena Poptodorova,
Ambassador.
Mr. VOINOVICH. Mr. President, I also bring to my colleagues'
attention a July 14, 2010, letter to Senators Levin, Kerry, McCain, and
Lugar, from former commanders of the Strategic Air Command and U.S.
Strategic Command. Again, I hope my colleagues will read that letter.
They list three reasons for support of the treaty. I quote from their
second and third reasons:
The New START Treaty contains verification and transparency
measures--such as data exchanges, periodic dated updates,
notification, unique identifiers on strategic systems, some
access to telemetry and onsite inspections--that will give us
important insights into Russian strategic nuclear forces and
how they operate those forces.
We will understand Russian strategic nuclear forces much
better with the treaty that would be the case without it.
These former military commanders go on to state that the U.S. nuclear
armaments--again, I think this is for all of us as American people to
realize--``will continue to be a formidable force that will ensure
deterrence and give the President, should it be necessary, a broad
range of military options.''
I ask unanimous consent that letter sent to the Foreign Relations
Committee be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
July 14, 2010.
Senator Carl Levin,
Chairman,
Senate Armed Services Committee.
Senator John F. Kerry,
Chairman,
Senate Foreign Relations Committee.
Senator John McCain,
Ranking Member,
Senate Armed Services Committee.
Senator Richard G. Lugar,
Ranking Member,
Senate Foreign Relations Committee.
Gentlemen: As former commanders of Strategic Air Command
and U.S. Strategic Command, we collectively spent many years
providing oversight, direction and maintenance of U.S.
strategic nuclear forces and advising presidents from Ronald
Reagan to George W. Bush on strategic nuclear policy. We are
writing to express our support for ratification of the New
START Treaty. The treaty will enhance American national
security in several important ways.
First, while it was not possible at this time to address
the important issues of non-strategic weapons and total
strategic nuclear stockpiles, the New START Treaty sustains
limits on deployed Russian strategic nuclear weapons that
will allow the United States to continue to reduce its own
deployed strategic nuclear weapons. Given the end of the Cold
War, there is little concern today about the probability of a
Russian nuclear attack. But continuing the formal strategic
arms reduction process will contribute to a more productive
and safer relationship with Russia.
Second, the New START Treaty contains verification and
transparency measures--such as data exchanges, periodic data
updates, notifications, unique identifiers on strategic
systems, some access to telemetry and on-site inspections--
that will give us important insights into Russian strategic
nuclear forces and how they operate those forces. We will
understand Russian strategic forces much better with the
treaty than
[[Page S10874]]
would be the case without it. For example, the treaty permits
on-site inspections that will allow us to observe and confirm
the number of warheads on individual Russian missiles; we
cannot do that with just national technical means of
verification. That kind of transparency will contribute to a
more stable relationship between our two countries. It will
also give us greater predictability about Russian strategic
forces, so that we can make better-informed decisions about
how we shape and operate our own forces.
Third, although the New START Treaty will require U.S.
reductions, we believe that the post-treaty force will
represent a survivable, robust and effective deterrent, one
fully capable of deterring attack on both the United States
and America's allies and partners. The Department of Defense
has said that it will, under the treaty, maintain 14 Trident
ballistic missile submarines, each equipped to carry 20
Trident D-5 submarine-launched ballistic missiles (SLBMs). As
two of the 14 submarines are normally in long-term
maintenance without missiles on board, the U.S. Navy will
deploy 240 Trident SLBMs. Under the treaty's terms, the
United States will also be able to deploy up to 420 Minuteman
III intercontinental ballistic missiles (ICBMs) and up to 60
heavy bombers equipped for nuclear armaments. That will
continue to be a formidable force that will ensure deterrence
and give the President, should it be necessary, a broad range
of military options.
We understand that one major concern about the treaty is
whether or not it will affect U.S. missile defense plans. The
treaty preamble notes the interrelationship between offense
and defense; this is a simple and long-accepted reality. The
size of one side's missile defenses can affect the strategic
offensive forces of the other. But the treaty provides no
meaningful constraint on U.S. missile defense plans. The
prohibition on placing missile defense interceptors in ICBM
or SLBM launchers does not constrain us from planned
deployments.
The New START Treaty will contribute to a more stable U.S.-
Russian relationship. We strongly endorse its early
ratification and entry into force.
Sincerely,
General Larry Welch,
USAF, Ret.
General John Chain,
USAF, Ret.
General Lee Butler,
USAF, Ret.
Admiral Henry Chiles,
USN, Ret.
General Eugene Habiger,
USAF, Ret.
Admiral James Ellis,
USN, Ret.
General Bennie Davis,
USAF, Ret.
Mr. VOINOVICH. Mr. President, I also ask unanimous consent to have
printed in the Record a September 7, 2010, opinion piece from the Wall
Street Journal by former Secretary of State George Shultz, who served
under President Reagan. I think all of us who are familiar with George
Shultz's record have high respect and regard for him.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From the Wall Street Journal, Sept. 7, 2010]
Learning From Experience on Arms Control
(By George P. Shultz)
The New Start treaty provides an instructive example of
how, when everyone works at it, an important element of arms
control treaties can be improved by building on past treaties
and their execution.
I remember well the treaty on Intermediate-Range Nuclear
Forces (INF), as I had a hand in negotiating the treaty and
in getting implementation started. Our mantra was stated
almost endlessly by President Ronald Reagan, to the point
that Soviet leader Mikhail Gorbachev would join in: ``Trust
but verify.''
Reagan insisted on, and we obtained, on-site inspection of
the critical elements in the treaty: the destruction of all
missiles and a method of ensuring that new ones were not
produced. This critical element in the treaty built on an
earlier one. The Stockholm Agreement of 1986 was the first
U.S.-Soviet agreement to call for on-site observation of
military maneuvers. Although not as intrusive as a close look
at nuclear facilities, it was, nevertheless an important
conceptual breakthrough. The idea of on-site inspection had
been accepted and put in practice.
When the Strategic Arms Reduction Treaty (Start) was
negotiated and finally signed in 1991, a different problem
presented itself. On-site inspection of missile destruction
is one thing; on-site inspection of an active inventory is
something else again. You are looking at an ongoing
operation. Nevertheless, the challenge was met in part by
counting delivery vehicles, clearly building on the
successful experience of both sides with the INF treaty.
However, the political relations between the United States
and the then Soviet Union had not yet reached the level of
cooperation required to count the number of actual warheads
directly without concern about compromising secret design
information. The result was a process of attribution derived
from access to telemetry--that is, the data transmitted from
flight tests of missiles. This allowed for a cap on the
maximum number of warheads that could be delivered, which was
the number attributed in Start.
Periodic on-site inspections of the missile sites were
provided for under Start, but the experience of both sides
was that this process, conducted in a fragmented way,
disrupted normal operations and so was unnecessarily
burdensome to both sides.
The Strategic Offensive Reduction Treaty (SORT), negotiated
in 2002 under the George W. Bush administration, simply
relied on the Start verification regime. In a joint
declaration, President Bush and President Vladimir Putin
agreed on the desirability of greater transparency, but they
left it at that.
Along came the New Start treaty, signed by President Barack
Obama and Russian President Dmitry Medvedev on April 8, 2010.
People responsible for monitoring the original Start treaty
were included in the negotiations, so operating experience
was present at the table. The result was a further advance,
building on the transparency measures already in place under
the Start treaty. On-site inspection now allows the total
number of warheads on deployed missiles literally to be
counted directly.
Thus, up-close observation is substituted for the telemetry
that was essential in the original Start treaty. But some
cooperation in sharing telemetry information was included in
the New Start treaty. This provides some additional
transparency and can serve, over time, as a confidence-
building measure. It is well that some telemetry cooperation
will occur so that the principle is retained.
The New Start treaty, like others before it, was built on
previous experience. And, like earlier treaties, it provides
a building block for the future. As lower levels of warheads
are negotiated, the importance of accurate verification
increases and the precedent and experience derived from New
Start will ensure that a literal counting process will be
available. The New Start treaty also sets a precedent for the
future in its provision for on-site observation of
nondeployed nuclear systems--important since limits on
nondeployed warheads will be a likely next step.
The problem of interruptions in operations posed by the
original Start treaty and identified by the executors of the
treaty on both sides is addressed in the New Start treaty in
a way that gives more information but is less disruptive.
First of all, a running account in the form of regular data
exchanges is provided every six months on a wide range of
information about their strategic forces, and numerous
inspection procedures have been consolidated.
The United States will have the right to select, for
purposes of inspection, from all of Russia's treaty-limited
deployed and nondeployed delivery vehicles and launchers at
the rate of 18 inspections per year over the life of New
Start. It is also important that each deployed and
nondeployed intercontinental ballistic missile (ICBM) or
submarine-launched ballistic missile (SLBM) or heavy bomber
will have assigned to it a unique code identifier that will
be included in notifications any time the ICBM or SLBM or
heavy bomber is moved or changes status. The treaty
establishes procedures to allow inspectors to confirm the
unique identifier during the inspection process.
The notification of changes in weapon systems--for example,
movement in and out of deployed status--will provide more
information on the status of Russian strategic forces under
this treaty than was available under Start. Information
provided in notifications will complement and be checked by
on-site inspection as well as by imagery from satellites and
other assets which collectively make up each side's national
technical means of verification.
Having been involved in the Stockholm Treaty when a
breakthrough in on-site inspection was made and when
intrusive on-site inspection of key events was a main element
of the INF Treaty, I am pleased to see that the building
process is continuing, especially since the New Start treaty
includes some improved formulations that bode well for the
future. Seeing is not quite believing, but it helps. Learning
is not limited to what you get from experience, but it helps.
The original Start treaty expired last December. The time
has come to start seeing again, with penetrating eyes, and to
start learning from the new experience.
Mr. VOINOVICH. In his piece, the Secretary discusses the importance
of verification and closes with this thought:
The original START Treaty expired last December. The time
has come to start seeing again, with penetrating eyes, and to
start learning from the new experience.
In other words, the provisions in terms of verification are new
compared to the old START treaty.
Finally, I ask my colleagues to take note of Secretary Rice's
statement that ``the treaty helpfully reinstates onsite verification of
Russian nuclear forces, which lapsed with the expiration of the
original START treaty last year. Meaningful verification was a
significant achievement of Presidents
[[Page S10875]]
Reagan and George H.W. Bush, and its reinstatement is crucial.''
I ask unanimous consent that her article in the Wall Street Journal
be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From the Wall Street Journal, Dec. 7, 2010]
New Start: Ratify, With Caveats
(By Condoleezza Rice)
When U.S. President Bush and Russian President Putin signed
the Moscow Treaty in 2002, they addressed the nuclear threat
by reducing offensive weapons, as their predecessors had. But
the Moscow Treaty was different. It came in the wake of
America's 2001 withdrawal from the Anti-Ballistic Missile
Treaty of 1972, and for the first time the United States and
Russia reduced their offensive nuclear weapons with no
agreement in place that constrained missile defenses.
Breaking the link between offensive force reductions and
limits on defense marked a key moment in the establishment of
a new nuclear agenda no longer focused on the Cold War face-
off between the Warsaw Pact and NATO. The real threat was
that the world's most dangerous weapons could end up in the
hands of the world's most dangerous regimes--or of terrorists
who would launch attacks more devastating than 9/11. And
since those very rogue states also pursued ballistic
missiles, defenses would (alongside offensive weapons) be
integral to the security of the United States and our allies.
It is in this context that we should consider the potential
contribution of the New Start treaty to U.S. national
security. The treaty is modest, reducing offensive nuclear
weapons to 1,550 on each side--more than enough for
deterrence. While the treaty puts limits on launchers, U.S.
military commanders have testified that we will be able to
maintain a triad of bombers, submarine-based delivery
vehicles and land-based delivery vehicles. Moreover, the
treaty helpfully reinstates on-site verification of Russian
nuclear forces, which lapsed with the expiration of the
original Start treaty last year. Meaningful verification was
a significant achievement of Presidents Reagan and George
H.W. Bush, and its reinstatement is crucial.
Still, there are legitimate concerns about New Start that
must and can be addressed in the ratification process and, if
the treaty is ratified, in future monitoring of the Obama
administration's commitments.
First, smaller forces make the modernization of our nuclear
infrastructure even more urgent. Sen. Jon Kyl of Arizona has
led a valiant effort in this regard. Thanks to his efforts,
roughly $84 billion is being allocated to the Department of
Energy's nuclear weapons complex. Ratifying the treaty will
help cement these commitments, and Congress should fully fund
the president's program. Congress should also support the
Defense Department in modernizing our launchers as suggested
in the recent defense strategy study coauthored by former
Secretary of Defense Bill Perry and former National Security
Adviser Stephen Hadley.
Second, the Senate must make absolutely clear that in
ratifying this treaty, the U.S. is not re-establishing the
Cold War link between offensive forces and missile defenses.
New Start's preamble is worrying in this regard, as it
recognizes the ``interrelationship'' of the two.
Administration officials have testified that there is no
link, and that the treaty will not limit U.S. missile
defenses. But Congress should ensure that future Defense
Department budgets reflect this.
Moscow contends that only current U.S. missile-defense
plans are acceptable under the treaty. But the U.S. must
remain fully free to explore and then deploy the best
defenses--not just those imagined today. That includes
pursuing both potential qualitative breakthroughs and
quantitative increases.
I have personally witnessed Moscow's tendency to interpret
every utterance as a binding commitment. The Russians need to
understand that the U.S. will use the full-range of American
technology and talent to improve our ability to intercept and
destroy the ballistic missiles of hostile countries.
Russia should be reassured by the fact that its nuclear
arsenal is far too sophisticated and large to be degraded by
our missile defenses. In addition, the welcome agreements on
missile-defense cooperation reached in Lisbon recently
between NATO and Russia can improve transparency and allow
Moscow and Washington to work together in this field. After
all, a North Korean or Iranian missile is not a threat only
to the United States, but to international stability broadly.
Ratification of the treaty also should not be sold as a way
to buy Moscow's cooperation on other issues. The men in the
Kremlin know that loose nukes in the hands of terrorists--
some who operate in Russia's unstable south--are dangerous.
That alone should give our governments a reason to work
together beyond New Start and address the threat from
tactical nuclear weapons, which are smaller and more
dispersed, and therefore harder to monitor and control.
Russia knows too that a nuclear Iran in the volatile Middle
East or the further development of North Korea's arsenal is
not in its interest. Russia lives in those neighborhoods.
That helps explain Moscow's toughening stance toward Tehran
and its longstanding concern about Pyongyang.
The issue before the Senate is the place of New Start in
America's future security. Nuclear weapons will be with us
for a long time. After this treaty, our focus must be on
stopping dangerous proliferators--not on further reductions
in the U.S. and Russian strategic arsenals, which are really
no threat to each other or to international stability.
A modern but smaller nuclear arsenal and increasingly
sophisticated defenses are the right bases for U.S. nuclear
security (and that of our allies) going forward. With the
right commitments and understandings, ratification of the New
Start treaty can contribute to this goal. If the Senate
enters those commitments and understandings into the record
of ratification, New Start deserves bipartisan support,
whether in the lame-duck session or next year.
Mr. VOINOVICH. Mr. President, in my opinion, the jury has returned
its verdict, and the overwhelming evidence is that the Senate should
ratify the treaty. Support for the treaty should not be viewed through
the lens of being liberal or conservative, Republican or Democrat, but
rather what is in the best interest of our national security, the best
interest of the United States of America, the best interest of our
relationships with those countries who share our values and understand
that nuclear proliferation is the greatest international threat to our
children and grandchildren.
Mr. President, I urge my colleagues to support this treaty. I am
prayerful that we have a good vote for it to demonstrate that we have
come together on a bipartisan basis to do something that needs to be
done, and something that liberals, conservatives, Republicans and
Democrats, can come together on to make a difference for the future.
I yield the floor.
The PRESIDING OFFICER. The Senator from Iowa is recognized.
Mr. HARKIN. Mr. President, very shortly, the Senate will be voting on
the continuing resolution that will fund the operations of our Federal
Government through March--I think, if I am not mistaken, through March
4. I want to take this time to take a look at what happened recently
with our appropriations bill, the so-called omnibus bill, that was
defeated by our colleagues on the other side of the aisle.
Again, without getting into who caused what and did what to whom
first, which is a game we play a lot around here, the fact remains that
none of our appropriations bills were passed this year, even though our
subcommittees on appropriations passed out all of our bills. We passed
them through the Appropriations Committee and brought them to the
Senate for consideration, but they were not taken up on the floor.
Again, we can go into all the reasons why yes, why no. But that is
water over the dam. The fact is, they weren't; therefore, they weren't
passed.
At the end of the year, a week ago, Leader Reid wanted to put
together all the bills that had been passed out of committee with both
Republican and Democratic support. Of the 13 bills--and I could be a
little mistaken--only 1 or 2 had any minor changes or votes against
them in committee. They were almost all unanimous by Republicans and
Democrats.
So to keep the government going, we had this omnibus--in other words,
putting all the bills together in one package and passing that. My
friends objected to that. Because that was objected to, we now face
having a continuing resolution to continue the funding from last year
on into fiscal year 2011 until March.
When the Republicans killed this Omnibus appropriations bill last
week, certain things happened. For example, they chose to close Head
Start classrooms that serve 65,000 low-income children. By killing the
omnibus, my friends on the other side of the aisle decided to cut
childcare subsidies for 100,000 low-income working families. They
rejected the opportunity to provide lifesaving drugs to people living
with AIDS, who are on waiting lists for lifesaving medication. They
passed on the chance to provide 4\1/2\ million more meals to seniors in
need.
All of these programs would have received badly needed increases in
the appropriations bill, but my friends on the other side of the aisle
said no. They insisted on just keeping the present funding until March.
Here is another result of killing the omnibus: Millions of American
students who receive Pell grants--low-income students--to go to college
no
[[Page S10876]]
longer know if they will be able to afford college next year.
We cannot let that happen. The continuing resolution we will vote for
in a few minutes includes a provision that would close the so-called
Pell grant shortfall and ensure there is no cut to the Pell grants to
our poor students.
The Pell Grant Program is the backbone of our Nation's financial aid
system. More than 9 million low-income students and middle-income
students use these grants toward a postsecondary education or
vocational training.
People might say: Why has the Pell grant grown so much over the last
few months? When the economy is bad, more people tend to go to college
and more people in lower income brackets tend to go to college and try
to better themselves. That means the cost of providing Pell grants goes
up, even when the maximum Pell grant award a person can receive stays
the same.
Right now, the maximum Pell grant award is $5,550 a year. Nearly 90
percent of the students who receive that level come from families whose
annual income is less than $40,000 for a family of four. Without Pell,
most of them would have no chance of receiving a postsecondary
education. This is truly a program for low-income students and families
seeking to better themselves.
The omnibus bill that was killed last week would have provided the
additional funding to close that shortfall, to keep the maximum grant
at $5,550. That was $5.7 billion. Again, that money did not just fall
from the sky. Other programs across the Federal Government were cut to
offset that spending. We appropriators decided that maintaining Pell
was so important that it was worth reducing or eliminating other
programs, which we did.
When my friends on the other side killed the omnibus, they put the
Pell Grant Program in jeopardy and endangered the future of millions of
disadvantaged students. According to the recent estimates from OMB, if
we do not close the Pell shortfall before February, the maximum award
will drop by $1,840, and the Pell grants of all those students with a
family income of less than $40,000 will fall by 33 percent--from $5,550
to $3,710 next school year. An estimated 435,000 students who currently
receive Pell grants would get nothing, zero. Their entire grant would
be cut off. Why do I say that? Because if the award drops by $1,840, if
your Pell grant was $1,800, you get nothing. So 435,000 students will
get no Pell grants whatsoever. That is the situation facing students
all over the country today.
We are 4 days away from Christmas. More than 9 million students who
depend on Pell grants do not know if their financial aid will be
drastically cut or if they will get any financial aid at all.
Hopefully, in about 10 minutes, we are going to change that because I
am hopeful we will all join together today in supporting this
continuing resolution because as a part of the continuing resolution,
we close that Pell grant shortfall so we can undo or redo what was
undone by not taking up the omnibus bill.
We can keep the government running, but we can also make this fix. It
is so important to do that now because of certain rules and regulations
that go into effect after the first of the year that will drastically
impinge on the Pell Grant Program unless we take this action today.
I hope all Republicans and Democrats will join in supporting the
continuing resolution and so do more than 9 million American students
who depend on Pell grants for their college education.
Again, I point out that other appropriations will not be settled even
if we pass the continuing resolution today. Those decisions are kicked
down the street until March 4 when the continuing resolution expires.
We are going to face a tough situation on March 4. My friends on the
other side of the aisle have said that their plan is to cut
nonsecurity-related appropriations, to cut everything except defense,
homeland security, military construction, and VA by $100 billion. When
you exclude all that and you want to cut $100 billion, that is a 21-
percent cut from everything else.
Do Republicans really want to cut 21 percent from childcare subsidies
for working families in this economy--a 21-percent cut? Do you really
want to cut 21 percent from job training programs in this economy? Do
you really want to cut 21 percent from programs that educate
disadvantaged children, title I programs, in this economy? Do our
friends on the other side of the aisle want to cut 21 percent from the
AIDS drug assistance program? Do you want to cut 21 percent from senior
meals programs? Do we want to cut 21 percent from the Social Security
Administration in this economy?
That is what is coming down the pike on March 4. We kick the ball
down the field a little bit, but on March 4, the battle will be joined
again.
If my friends on the other side of the aisle try to decimate these
programs that are so critical to the well-being of so many families in
this country--children, working parents who need childcare, the elderly
who rely on a lot of these meals--I had it happen in my own family.
Meals on Wheels keeps people from going to the hospital, lets them stay
at home and get a decent diet, senior meals programs; job training
programs so people can train for new jobs--all part of getting our
country back up again. If they are going to cut 21 percent from all
this, I want to say there is going to be a battle. We are not going to
sit back and let these programs be decimated, these programs that mean
so much to so many families.
In the meantime, we have to keep the government running, and that is
what the continuing resolution is all about. As I said, what is so
important is to make sure the Pell grant shortfall is closed, which it
is on this continuing resolution.
I urge all my colleagues to support the continuing resolution and
hopefully when March 4 comes, again we can agree on a bipartisan basis
not to decimate so many programs that help so many people in our
country.
I yield the floor.
The PRESIDING OFFICER. The Senator from Oklahoma.
Nomination of Benita Y. Pearson
Mr. COBURN. Mr. President, I ask unanimous consent to have printed in
the Record two letters that have been received by the Senate in regard
to the nomination of Judge Benita Pearson--one from the National
Cattlemen's Beef Association; the other from the Farm Animal Welfare
Coalition.
There being no objection, the material was ordered to be printed in
the Record, as follows:
National Cattlemen's
Beef Association,
Washington, DC, December 21, 2010.
Hon. Harry Reid,
Senate Majority Leader, Capitol Building, Washington, DC.
Hon. Mitch McConnell,
Senate Republican Leader, Capitol Building, Washington, DC.
Dear Majority Leader Reid and Minority Leader McConnell:
The National Cattlemen's Beef Association (NCBA) opposes the
nomination of Judge Benita Pearson to the United States
District Court for the Northern District of Ohio. After
reviewing answers she gave to the Senate Judiciary Committee
earlier this year, we believe that Judge Pearson's
connections to the Animal Legal Defense Fund (ALDF) would
make it hard for her to be an impartial judge in cases
regarding actions by animal activists. ALDF is an activist
organization involved in numerous federal lawsuits and
advocates giving animals the same legal rights as humans.
NCBA expects the Senate to confirm judges who can hear
cases and make decisions based on facts and law, rather than
judges with strong biases that could lead to legislating from
the bench. While we continue to discover more about Judge
Pearson's animal activist work, we think her connection to
ALDF alone is enough to block her nomination in order for
Senators to do more research into her background and
character.
NCBA is the nation's oldest and largest national trade
association representing U.S. cattle producers with more than
140,000 direct and affiliated members. On behalf of our
producers, we urge you to oppose the nomination of Judge
Benita Y. Pearson to the United States District Court for the
Northern District of Ohio.
Sincerely,
Steve Foglesong,
President.
[[Page S10877]]
____
December 20, 2010.
Re Nomination of Benita Y. Pearson to the U.S. District Court
for the Northern District of Ohio.
To: The U.S. Senate.
From: The Farm Animal Welfare Coalition: American Farm Bureau
Federation, American Feed Industry Association, American
Sheep Industry Association, Biotechnology Industry
Organization, Farm Credit System, Livestock Marketing
Association, National Milk Producers Federation, National
Pork Producers Council, National Renderers Association,
United Egg Producers.
The Farm Animal Welfare Coalition (FAWC), an ad hoc
coalition of America's largest farm/ranch, input and related
organizations seeks to ensure all federal policy decisions
regarding the welfare of food animals are based upon sound
science, producer expertise and the rule of law. We write to
express our concerns related to the nomination of Benita Y.
Pearson to be a judge on the U.S. District Court for the
Northern District of Ohio.
Our concerns stem from Ms. Pearson's membership and
participation in the Animal Legal Defense Fund (ALDF), an
animal rights organization which uses the courts to impose
upon farmers, ranchers, biomedical researchers, animal
breeders and other legitimate users of animals its parochial
view of animal welfare. ALDF also provides legal support for
political organizations dedicated to furthering animal rights
in the U.S. ALDF's website is rife with references to
``factory farming,'' and other pejorative descriptions of
U.S. farm animal husbandry, as well as touting its current
and past lawsuits brought against agriculture interests. Its
political positions affecting contemporary American
agriculture are well known to us.
ALDF works to secure ``standing'' for animals in the
courts, a legal evolution with multiple potential negative
consequences for food production and the survivability of
farmers and ranchers in the U.S. Consider the following from
ALDF's Executive Director Steven Wells:
``One day, hopefully, animals will have more opportunities
to be represented in courts so that we can more effectively
fight the many injustices they face--perhaps as another kind
of recognized `legal person.' In the meantime we must be
resourceful and creative in bringing lawsuits to win justice
for animals.''
Ms. Pearson's membership in ALDF demonstrates the
willingness of a prospective jurist to go beyond the academic
or philosophical contemplation of the legal and political
issues of animal rights. Her membership in ALDF translates
her personal philosophy into implicit action in support of
the goals of the animal rights movement.
We are encouraged by Ms. Pearson's written statement it is
never appropriate for judges to ``indulge their own values in
determining the meaning of statutes and the U.S.
Constitution;'' however, her responses remain exceedingly
vague when it comes to animal rights issues.
Given one of the ALDF's long-standing priorities is the
legal adoption of its so-called ``animal bill of rights''--
which calls for the undefined ``right of farm animals to an
environment that satisfies their basic and psychological
needs''--it seems disingenuous of Ms. Pearson to say she is
unaware of this priority or even the existence of the ``bill
of rights'' given she is a self-described member of the ALDF.
She also teaches animal law courses at Ohio's Cleveland-
Marshall College of Law--including a section on
constitutional standing--which, we assume, must touch at some
point on the ALDF's 30-year-old political philosophy and
history of legal actions.
Ms. Pearson stated she does not use the term ``animal
rights'' and is ``not an advocate for animal rights'' but
``an advocate for doing what is in the best interest of
animals.'' However, she does not explain on what sources of
information she relies when determining what is ``the best
interest of animals,'' but simply her belief the law ``is
intended to do what is in the best interest of animals and
humans.''
While it is not a judge's role to legislate from the
bench--and we are gratified Ms. Pearson appears to concur--
judicial decisions set precedent and can precipitate
legislation and regulations. It is unsettling that in Ms.
Pearson's written responses to direct questions posed by
Senate Judiciary Committee members Sens. Charles Grassley,
Jeff Sessions and Tom Coburn, she simply restates existing
law as relates to animal rights, animal standing, etc. Hence,
we do not get a clear picture of her views regarding animal
rights and legal standing.
We would welcome a meeting with Ms. Pearson to discuss
these concerns.
Thank you for consideration of our views. Please feel free
to contact any of the organizations listed on this letter or
FAWC's coordinator, Steve Kopperud, at 202-776-0071 or
[email protected].
Mr. COBURN. Mr. President, I wish to spend a short time addressing
the remarks of my friend from Iowa.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. COBURN. Mr. President, the situation we find ourself in is that
no appropriations bills came to the floor. We did not control that. If
that had been under our control, I assure you they would have come to
the floor--and they should. No matter who is in charge, they should
come. I think he agrees with that. But I will address the greater issue
we have in front of us.
Our Nation has a very short time with which to reassess and
reprioritize what is important in our fiscal matters. That period of
time, I believe, is shorter than many of my colleagues believe. But I
have not been wrong in the past 6 years as to where we are coming. I
have been saying it for 6 years. We are now there.
The fact is everything is going to have to be looked at--everything--
every project, for every Senator, every position, every program--if we
are to solve the major problems that are facing this country.
We all want to help everybody we can, but the one thing that has to
be borne in mind as we try to help within the framework of our supposed
limited powers is there has to be a future for the country. The things
that are coming upon us in the very near future will limit our ability
to act if we do not act first.
I take to heart my colleague's very real concern for those who are
disadvantaged in our country. It is genuine. It is real. We are going
to have a choice to help them or we are going to have a choice to make
a whole lot more people disadvantaged. What we have to do is try to
figure out how compassionately we can do the most we can do and still
have a country left. That is the question that is going to come before
us.
I have no doubt we will have great discussions over the next few
years on what those priorities are. But we cannot wait to make those
priorities. We are going to have to squeeze wasteful spending from the
Pentagon. We have no choice. We have no choice with which to make the
hard choices in front of us. And it does not matter what happened in
the past. What is going to matter is what happens in the future and
whether we have the courage to meet the test that is getting ready to
face this country.
There is a lot of bipartisan work going on right now behind the
scenes in the Senate planning for next year to address those issues.
I say to my colleague from Iowa, the way to have the greatest impact
on that issue is to join with us to, No. 1, agree with the severity of
the problem and the urgency of the problem, and then let's build a
framework on how we solve it, knowing nobody is going to get what they
want.
Tributes to Retiring Senators
Russ Feingold
Mr. President, I wish to take 2 more minutes to pay a compliment to
one of my colleagues.
When I came to the Senate, I visited almost every Member of the
Senate on the other side of the aisle. I had a wonderful visit with the
Senator from Wisconsin. We actually--although we are totally opposite
in our philosophical leanings--had a wonderful time visiting together.
Senator Feingold is my idea of a great Senator. I want to tell you
why.
I left that meeting, and about a week later, I got a note from him
first of all thanking me for taking the initiative to come and meet
with him, but also a commitment that he would always be straight with
me, that when he gave me his word and handshake, it would always be
that way, and that I could count on him standing for what he believed
in but knowing he would do the things we needed to do to get things
done.
My observation in the last 6 years in this Chamber is I have watched
one man of great integrity keep his word and hold to his values through
every crisis and every vote. And every time it was taken where we had
to come together to do something, this gentleman kept his character. He
kept his word. He fulfilled the best aspects of the tradition of the
Senate.
Although I often--most of the time--am on the opposite side of issues
from Senator Russ Feingold, I want to tell you, he has my utmost
admiration and my hope that more would follow his principled stand and
his wonderful comity as he deals with those on the other side of the
aisle.
I yield the floor.
The PRESIDING OFFICER. The Senator from Michigan.
Mr. LEVIN. Mr. President, I understand the UC has us voting at 2
o'clock; is that correct?
The PRESIDING OFFICER. The Senator is correct.
[[Page S10878]]
Mr. LEVIN. Mr. President, I support the continuing resolution. One of
the many reasons is that the Navy's urgent request for authority for
the littoral combat ship, (LCS),--program is included.
The original LCS acquisition plan in 2005 would have had the Navy
buying both types of LCS vessels for some time while the Navy evaluated
the capabilities of each vessel. At some time in the future, the Navy
would have had the option to down select to building one type of
vessel. But in any case, the Navy would have been operating some number
of each type of LCS vessel in the fleet, which means that the Navy
would have been dealing with two shipyards, two supply chains, two
training pipelines, etc. Last year, after the bids came in too high,
the Navy decided upon a winner-take-all acquisition strategy to procure
the fiscal year 2010 vessels under a fixed-price contract, with fixed-
price options for two ships per year for the next 4 years. This revised
strategy included obtaining the data rights for the winning ship design
and competing for a second source for the winning design starting in
fiscal year 2012. Again, the Navy made this course correction because
the Navy leadership determined that the original acquisition strategy
was unaffordable.
Earlier this year, the Navy released the solicitation under that
revised strategy and has been in discussion with the two contractor
teams and evaluating those proposals since that time. The bids came in,
the competition worked, and the prices were lower than the Navy had
expected. Both teams have made offers that are much more attractive
than had been expected, and both are priced well below the original,
noncompetitive offers.
The Navy has now requested that we approve a different LCS
acquisition strategy, taking advantage of the low bids and keeping the
industrial base strong. The Armed Services Committee held a hearing on
the subject of the change in the Navy's acquisition strategy. We heard
testimony from the Navy that, after having reviewed the bids from the
two contractor teams, they should change their LCS acquisition
strategy.
The Navy testified that continuing the winner-take-all down select
would save roughly $1.9 billion, compared with what had been budgeted
for the LCS program in the Future-Years Defense Program, or FYDP.
The Navy further testified that revising the acquisition strategy to
accept the offers from both LCS contractor teams, rather than down
selecting to one design and starting a second source building the
winning design, would save $2.9 billion, or $1 billion more than the
program of record, and would allow the Navy to purchase an additional
LCS vessel during the same period of the FYDP--20 ships rather than 19
ships.
The Navy also testified that additional operation and support costs
for maintaining two separate designs in the fleet for their service
life over 40 to 50 years, using net present value calculations, would
be much less than the additional saving that could be achieved through
buying both the ships during the FYDP period--approximately $250
million of additional operating and support costs vs. approximately
$900 million in savings.
Those are the facts of the case as we heard from the Navy. Let me
relay a few quotes from the Navy witnesses at the hearing to amplify on
these points.
Secretary of the Navy Raymond E. Mabus, Jr., referring the authority
to revise the acquisition strategy, said the following:
This authority, which I emphasize, requires no additional
funding, will enable us to purchase more high-quality ships
for less money and get them into service in less time. It
will help preserve jobs in our industrial shipbuilding base
and will create new employment opportunities in an economic
sector that is critical to our Nation's military and economic
security.
ADM Gary Roughead, the Chief of Naval Operations, said:
The dual award also allows us to reduce costs by further
locking in a price for 20 ships, enabling us to acquire LCS
at a significant savings to American taxpayers and permitting
the use of shipbuilding funds for other shipbuilding
programs.
From a broad policy perspective, I believe that the Navy approach of
a competitive, dual source alternative could help ensure maximum
competition throughout the lifecycle of the program, meeting the spirit
and intent of the Weapon Systems Acquisition Reform Act of 2009, MSARA.
Specifically, it calls for two shipbuilders in continuous competition
to build the ships for the life of the program. The Navy plans to build
a total of 55 of these ships, so that could take a number of years.
Some have raised concerns because the Navy has been unable to reveal
the specific bid information from the two contractors. Unfortunately,
the Navy has been prevented from sharing specific bid information
because that would violate the competitive source selection process by
revealing proprietary information about the two contactors' bids.
Because of these constraints, I do not know what is in the bids. But I
take comfort from knowing that these bids are for fixed- price
contracts and not for cost-type contracts where a contractor has little
to lose from underbidding a contract.
As far as the capability of the two vessels, we heard from Admiral
Roughead at the hearing that each of the two vessels would meet his
requirements for the LCS program. I asked Admiral Roughead: ``Do both
of these vessels in their current configuration meet the Navy's
requirements?'' Admiral Roughead replied: ``Yes, Senator, they do. Both
ships do.''
Some have raised the possibility that development of the mission
packages could cause problems in the shipbuilding program and lead to
unexpected cost growth, and thereby fail to achieve the extra savings
the Navy is projecting. In some other shipbuilding programs that might
be a concern, but I believe that the Navy's fundamental architecture of
the LCS program divorces changes in the mission package from changes
that perturb the ship design and ship construction. In the past, when
there were problems with developing the right combat capability on a
ship, this almost inevitably caused problems in the construction
program. In the case of the LCS, the combat capability largely resides
in the mission packages that connect to either LCS vessel through
defined interfaces. What that means is that changes inside the mission
packages should not translate into changes during the ship construction
schedule--i.e., they are interchangeable. And whatever is happening in
the mission package development program would apply equally to either
the down select strategy or the dual source strategy.
In terms of the proposal's effects on the industrial base and on
competition, I believe that there would be a net positive. The Navy
would have the opportunity to compete throughout the life of the
program, and any erosion in contractor performance could be corrected
by competitive pressures. For the industrial base, there would be more
stability in the shipbuilding program. Countless Navy witnesses have
testified to the Armed Services Committee and the other defense
committees that achieving stability in our shipbuilding programs is one
of the best things we in the government can do to help the Navy support
the shipbuilding industry.
The Navy's proposal to change to a dual source selection strategy
would promote that goal of stability, while effectively continuing
competition throughout the program, and at the same time reducing
acquisition costs and buying an additional ship over the FYDP.
Why don't we just wait until sometime after the new Congress convenes
to deliberate this changed acquisition strategy? Senator Jack Reed
asked the Navy about this very issue at the hearing. He asked, ``What
is lost or what do you gain or lose by waiting?'' Assistant Navy
Secretary Sean Stackley answered that question as follows: ``Workforce
is leaving, hiring freezes are in effect, vendors are stressed in terms
of their ability to keep faith with the proposals, the fixed price
proposals that they have put in place. They will need to have to then
go back with any further delay and reprice their proposals.''
What that means is, if we were to let the bids expire at the end of
December, we would lose the full benefits of the competition and our
savings will likely be reduced.
Mr. President, I support including the authority for the Navy to make
this change in the continuing resolution before us.
Mr. McCAIN. Mr. President, I rise to oppose the littoral combat
ships, LCS,
[[Page S10879]]
provision in the continuing resolution, CR. That provision--which,
according to the Congressional Budget Office, CBO, and the
Congressional Research Service, CRS, could cost taxpayers as much as
$2.9 billion more than the current acquisition strategy--simply does
not belong in the CR. But once again we are looking at a cloture vote
on a piece of ``must-pass'' legislation where the majority leader has
filled the amendment tree and no amendments will be allowed.
The LCS program has a long, documented history of cost overruns and
production slippages and yet we now find ourselves inserting an
authorization provision at the 11th hour to yet again change the
acquisition strategy of a program that has been plagued by instability
since its inception.
Let's look at its track record over the past 5 years:
1st LCS funded in 2005--LCS 1 Commissioned in Nov 2008 at
cost of $637 million;
2nd LCS funded in 2006--LCS 2 Commissioned in Jan 2010 at
cost of $704 million;
3rd LCS funded in 2006--Canceled by Navy in April 2007,
because of cost, and schedule growth;
4th LCS funded in 2006--Canceled by Navy in Nov 2007,
because of cost and schedule growth;
5th LCS funded in 2007--Canceled by Navy in Mar 2007,
because of cost and schedule growth;
6th LCS funded in 2007--Canceled by Navy in Mar 2007,
because projected costs too high;
7th LCS funded in 2008--Canceled by Navy in Sep 2008,
because projected costs too high;
8th LCS funded in 2009--Christened in Dec 2010 is about 80
percent complete; ``New LCS 3'';
9th LCS funded in 2009--Under construction is about 40
percent complete; ``New LCS 4.''
When the Navy first made its proposal to Congress just over 6 weeks
ago, it failed to provide Congress with basic information we need to
decide whether it should approve the Navy's request--including the
actual bid prices, which would tell us how realistic and sustainable
they are, and specific information about how capable each of the yards
are of delivering the ships as needed, on time and on budget. Why don't
we have that information? Because it's sensitive to the on-going
competition.
Last week, in testimony before the Senate Armed Services Committee,
the General Accountability Office, GAO, the Congressional Research
Service, CRS, and the Congressional Budget Office, CBO, raised
important questions that Congress should have answers to before it
considers approving the proposal.
Those questions included not only ``how much more (or less) would it
cost for the Navy to buy LCS ships under its proposal'' but also ``how
much would the cost be to operate and maintain two versions of LCS,
under the proposal''. They also asked ``how confident can we be that
the Navy will be able to stay within budgeted limits and deliver
promised capability on schedule--given that all of the deficiencies
affecting LCS' lead ships have not been identified and fully resolved''
and ``has the combined capability of the LCS seaframes with their
mission modules been sufficiently demonstrated so that increasing the
Navy's commitment to seaframes at this time would be appropriate?''
Those questions, and others, that GAO, CRS and CBO raised last week,
are salient and should be answered definitively before we approve of
the Navy's proposal. Every one of those witnesses conceded that more
time would help Congress get those answers. And, considering this
provision in connection with a Continuing Resolution, brought up at the
11th hour; during a lame-duck session; outside of the congressional
budget-review period; and without specific information or the
opportunity for full and open debate by all interested Members, does
not give us that time. Buying into this process would be an abrogation
of our constitutional oversight responsibility.
From 2005 to date, we have sunk $8 billion into the LCS program. And,
what do we have to show for it? Only two boats commissioned and one
boat christened--none of which have been shown to be operationally
effective or reliable--and a trail of blown cost-caps and schedule
slips. I suggest that, having made key decisions on the program hastily
and ill-informed, we in Congress are partly to blame for that record.
But, with the cost of the program from 2010 to 2015 projected to be
about $11 billion, we can start to fix that--by not including this ill-
advised provision in the CR.
I ask unanimous consent that my December 10, 2010, letter to the
chairman and ranking member of the Appropriations Committee, asking
them not to include the LCS provision in any funding measure, a letter
from the Project on Government Oversight to Senator Levin and me, and
the exchange of letters between me and the Chief of Naval Operations,
CNO, be printed in today's Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Chief of Naval Operations,
Navy Pentagon,
Washington, DC, November 22, 2010.
Hon. John S. McCain,
Ranking Member, Committee on Armed Services,
U.S. Senate, Washington, DC.
Dear Senator McCain: Thank you for affording me the
opportunity to discuss the Littoral Combat Ship (LCS)
program. This program is vital to the future force structure
of the United States Navy, and I am committed to its success.
The Navy tackled aggressively and overcame the program's past
cost and schedule challenges, ensuring affordability of this
new critical warfighting capability.
The Department has taken action on all four of the
recommendations of the August 2010 General Accountability
Office (GAO) LCS report.
The Navy has been operating both LCS designs and collecting
design performance data. There are mechanisms in place to
ensure design corrections identified in building and testing
the first four ships are incorporated in the operating ships,
ships under construction, and ships yet to be awarded.
The Navy will update the Test and Evaluation Master Plan
(TEMP) for the LCS, to reflect the Program of Record
following the Milestone B (MS B) decision.
The Navy will update test and evaluation and production of
LCS seaframes and mission modules following the MS B
decision.
The Navy has completed a robust independent cost analysis
of the LCS lifecycle using estimating best practices and
submitted this estimate to the Office of the Secretary of
Defense (OSD) for comparison with the Cost Assessment and
Program Evaluation (CAPE) group independent estimate.
These recommendations and the Department's responses apply
for either the down-select or the dual block-buy approach and
the Department's concurrence and related actions with the
recommendations (included in Appendix III of the August GAO
report) will not change in either case.
As you know, Navy has taken delivery of the first two ships
and the third and fourth ships are under construction. The
performance of the USS FREEDOM (LCS 1) and USS INDEPENDENCE
(LCS 2) and their crews are extraordinary and affirm the
value and urgent need for these ships. For the Fiscal Years
(FYs) 2010-2014 ships, Navy has been pursuing the
congressionally authorized down-select to a ten ship block-
buy. Competition for the down-select has succeeded in
achieving very affordable prices for each of the ten ship
bids which reflect mature designs, investments made to
improve performance, stable production, and continuous labor
learning at their respective shipyards.
The result of this competition affords the Navy an
opportunity to award a dual block-buy award (for up to 20
ships between FYs 2010-2015) with fixed-price type contracts,
which achieves significant savings for the taxpayer, while
getting more ships to the Fleet sooner and providing greater
operational flexibility. The dual block-buy provides much
needed stability to the shipbuilding industrial base; from
vendors, to systems providers to the shipyards. This will pay
important dividends to the Department, and to potential
Foreign Military Sales customers, in way of current and
future program affordability. The fixed-price type contract
limits the government's liability and incentivizes both the
government and the shipbuilder to aggressively pursue further
efficiencies and tightly suppress any appetite for change.
Navy will routinely report on the program's progress and
Congress retains control over future ship awards through the
annual budget process.
The agility, innovation and willingness to seize
opportunities displayed in this LCS competition reflect
exactly the improvements to the way we do business that the
Department requires in order to deliver better value to the
taxpayer and greater capability to the warfighter.
I greatly appreciate your support for the LCS Program. As
always, if I can be of further assistance, please let me
know.
Sincerely,
G. Roughead,
Admiral, U.S. Navy.
____
Project on Government Oversight,
Washington, DC, December 9, 2010.
Senate Armed Services Committee,
Senate Russell Office Building,
Washington, DC.
Dear Chairman Levin and Ranking Member McCain, The Project
On Government Oversight (POGO) is a nonpartisan independent
watchdog that champions good government reforms. POGO's
investigations into corruption, misconduct, and conflicts of
interest achieve a more effective, accountable,
[[Page S10880]]
open, and ethical federal government. We are troubled by a
rushed proposal to change the Navy Littoral Combat Ship (LCS)
sea frame acquisition strategy.
The Navy notified Congress of its proposal to change its
acquisition strategy for LCS on November 3, 2010. The
proposed strategy, under which the Navy intends to buy up to
20 sea frames from two separate shipyards, is a substantial
change from the current strategy. Currently, the Navy's
strategy is to ``down select'' (i.e. choose a winner) to one
yard and (with the winning design in hand) hold another
competition later to build a total of 19 ships--only 10 of
which are now authorized under law. To implement the new
strategy, the Navy needs Congress to sign off on it and wants
Congress to do so by mid-December.
Congress should require that the Navy give it more time to
get answers to the serious questions raised by, among others,
the Congressional Research Service (CRS) in its November 29,
2010, report (attached) and the Government Accountability
Office (GAO) in reports issued in August and December 2010.
As CRS asked:
``Does the timing of the Navy's proposal provide Congress
with enough time to adequately assess the relative merits of
the down select strategy and the dual-award strategy? . . .
Should the Navy ask the contractors to extend their bid
prices for another, say, 30 or 60 or 90 days beyond December
14, so as to provide more time for congressional review of
the Navy's proposal?''
Congress needs time to consider whether the Navy's new plan
is fiscally responsible or whether it increases risks that
already exist in the program. Congress should require that
the Navy to ask the two contractor teams to extend their bid
prices up to 90 days beyond December 14. The two contractor
teams are led by, respectively, Lockheed Martin and Austal
USA.
The Navy's justification for its new strategy is the
purportedly low prices that both bidders have submitted in
the current competition. But it is not clear if these low
bids are reasonable. The use of fixed-price contracts won't
necessarily prevent an underperforming shipyard from simply
rolling its losses into its prices for follow-on ships.
There can be no doubt that the LCS program has already had
significant problems. For example, the sea frames were
originally intended to cost about $220 million each. But the
ones built and under construction have ballooned up to over
$600 million each. Yet without any real data indicating that
the program is likely to perform adequately in the future
(the Navy has failed to meaningfully implement many of GAO's
recommendations in its August report), the Navy wants
Congress's help to lock the program into 20 ships over the
next five years.
The Navy has not demonstrated the combined capabilities of
the LCS sea frame(s) with its mission packages. It's
important to bear in mind that the LCS sea frame is
effectively a ``truck.'' The LCS's combat effectiveness
derives from its modular ``plug-and-play'' mission packages
(e.g., anti-submarine, mine-countermeasures, and surface
warfare). The LCS program has been struggling with
developmental challenges with these mission packages that
have led to postponed testing. As the GAO states, ``Until
mission packages are proven, the Navy risks investing in a
fleet of ships that does not deliver promised capability.''
Without effective mission capabilities, the LCS will be
``largely constrained to self-defense as opposed to mission-
related tasks.''
Furthermore, it is likely that other shipyards that may be
just as capable of building LCS sea frames as the two that
would be awarded contracts under the dual-award strategy.
Some, including CRS, have asked whether other shipyards will
be frozen out of the LCS program--even after the first 20
ships have been built. For that reason, we believe that,
before approving the Navy's proposal, Congress should
carefully evaluate whether it may in fact stifle, rather than
encourage, competition throughout the program's lifecycle, as
is required under the recently enacted weapon systems
acquisition reform law.
This is not the first time the Navy has given Congress
insufficient time to evaluate its LCS acquisition strategy.
The last time the Navy asked Congress to approve its LCS
acquisition strategy--just last year--there was short notice.
In 2002, the Navy gave ``little or no opportunity for formal
congressional review and consideration'' of the Navy's
proposed LCS acquisition strategy, according to CRS. This is
deja vu all over again. The taxpayers deserve the careful
consideration of Congress.
In sum, Congress should not approve the Navy's acquisition
strategy without a clear picture of the likely costs and
risks. Furthermore, Congress should not allow the Navy to
continue to skirt oversight. We appreciate your review of
this letter and your time, and look forward to working with
you on the Littoral Combat Ship Program. If you have any
questions, please do not hesitate to contact Nick
Schwellenbach.
Sincerely,
Danielle Brian,
Executive Director.
____
U.S. Senate,
Committee on Armed Services,
Washington, DC, December 10, 2010.
Hon. Daniel Inouye,
Chairman, Senate Committee on Appropriations, Washington, DC.
Hon. Thad Cochran,
Vice Chairman, Senate Committee on Appropriations,
Washington, DC.
Dear Chairman Inouye and Vice Chairman Cochran: The House-
passed Full-Year Continuing Appropriations Act, 2011 (H.R.
3082) contains a provision that would authorize the
Department of the Navy to acquire 20 Littoral Combat Ships
(LCS) in lieu of the 10 that were authorized under the
National Defense Authorization Act, 2010. As you finalize
your Omnibus Appropriations Bill, I wanted to express my
opposition to including this provision in the Omnibus
Appropriations Bill or any other stop-gap funding measure
that you may be considering.
As you know, the Navy first conveyed to the Senate its
proposal that gave rise to this provision just a few weeks
ago, and the competition for the LCS ship construction
contract is still open. As such, not only has the Senate been
given an unusually short time to review such an important
proposal but it also has been unable to obtain basic
information (on cost and capability, for example) it needs to
consider the proposal carefully because they remain source-
selection sensitive.
Moreover, recent reviews of the proposal released by the
General Accountability Office (GAO) and the Congressional
Research Service (CRS) just yesterday raise a number of
salient concerns about it. In the aggregate, those concerns
indicate the proposal needs more careful and open
deliberation than would be afforded by including it in a late
cycle Omnibus or continuing resolution.
In particular, the GAO identified a full range of
uncertainties (relating to, for example, design changes,
operations and support costs, mission-package development)
that would determine whether the proposal will realize
estimated savings--savings that, in its own report release
just today, the Congressional Budget Office (CBO) suggests
that the Navy may have overstated. GAO also negatively
assessed the Navy's implementation of some of the
recommendations it made in its August 2010 report--
recommendations with which the Department of Defense
concurred. Against that backdrop, GAO observed that
``decisionmakers do not have a clear picture of the various
options available to them related to choosing between the
down-select and dual award strategies''.
Similarly posing a number of important questions (on, for
example, the potential relative costs and risks of the two
strategies, the proposal's impact on the industrial base, and
its effect on competition) in its recent review of the
proposal, CRS too noted that this is the third time that the
Navy has presented Congress with a difficult choice about how
to buy LCS ships late in Congress' budget-review cycle--after
budget hearings and often after defense bills have been
written.
Given the foregoing, without the basic information and the
time necessary for the Senate to discharge its oversight
responsibilities with respect to the Navy's proposal
responsibly and transparently, I oppose including this
provision in the any funding measure now under consideration.
With the LCS' program's troubled history, I suggest that such
measures would serve as inappropriate vehicles to make
dramatic changes to the program.
Thank you for your consideration.
Sincerely,
John McCain,
Ranking Member.
____
U.S. Senate,
Committee on Armed Services,
Washington, DC, December 8, 2010.
Admiral Gary Roughead, USN,
Chief of Naval Operations,
Navy Pentagon, Washington, DC.
Dear Admiral Roughead: About a month ago, the Navy first
proposed that Congress let it fundamentally change how it
buys seaframes under the Littoral Combat Ships (LCS)
program--a program that has had serious difficulty on cost,
schedule and performance.
However, in August 2010 and again just today, the General
Accountability Office (GAO) issued a report raising serious
concerns about the program. In today's report, it also
conveyed criticism about the Navy's implementation of its
recommendations.
When you and I met, on November 18, 2010. I asked that you
describe how the Navy has implemented GAO's recommendations.
In that regard, your letter of November 22, 2010, was
unhelpful. Not only did it cite what the Navy will do to
implement GAO's recommendations as examples of action it had
already taken, most of the action items it described didn't
even correspond to GAO's actual recommendations. Indeed, the
whole thrust of the Navy's proposal appears basically
inconsistent with the recommendation that the Navy not buy
excess quantities of ships and mission packages before their
combined capabilities have been sufficiently demonstrated.
Until deficiencies affecting the lead ships have been fully
identified and resolved, I simply cannot share your optimism
that the LCS program will stay within budgeted limits and
deliver required capability on time--an assumption that
underpins the Navy's proposal. And, without basic information
needed to consider the proposal responsibly (because, with
the competition still open, they remain sensitive), I cannot
support it at this time.
Finally, I would like to comment on how undesirable the
process by which the Navy has made this proposal has been--
outside of ``regular order''; during an open competition; in
a way that precludes full and open debate
[[Page S10881]]
by all interested Members; and without full information. I
respectfully suggest that neither this program nor the Navy's
shipbuilding enterprise have been served well by Congress'
making decisions in this way in the past. I, therefore,
respectfully ask that this process not be repeated.
Thank you for your visit. I look forward to continuing to
work with you in support of our sailors.
Sincerely,
John McCain,
Ranking Member.
____
U.S. Congress,
Congressional Budget Office,
Washington, DC, December 10, 2010.
Hon. John McCain,
Ranking Member, Committee on Armed Services,
U.S. Senate, Washington, DC.
Dear Senator: As you know, the Navy is planning to acquire
a fleet of 55 littoral combat ships (LCSs), which are
designed to counter submarines, mines, and small surface
craft in the world's coastal regions. Two of those ships have
already been built, one each of two types: a semiplaning
steel monohull built jointly by Lockheed Martin and Marinette
Marine in Wisconsin and an all-aluminum trimaran built by
Austal in Alabama. The Navy also has two more ships (one of
each type) under construction. The remaining 51 ships would
be purchased from 2010 through 2031. In response to your
request, the Congressional Budget Office (CBO) analyzed the
cost implications of the Navy's existing plan for acquiring
new LCSs and a new plan that it is currently proposing:
Existing ``Down-Select'' Plan: In September 2009, the Navy
asked the two builders to submit fixed-price-plus-incentive
bids to build 10 ships, 2 per year from 2010 to 2014,
beginning with funds appropriated for 2010. The Navy planned
to select one of the two versions of the LCS, awarding a
contract for those 10 ships to the winning bidder, and then,
through another competition, to introduce a second yard to
build 5 more ships of that same design from 2012 to 2014. In
2015, the Navy would purchase 4 more ships; the acquisition
strategy for those vessels has not been specified. A total of
19 ships of one design would be purchased by 2015 (see Table
1). Any shipyard could bid in that second competition except
the winner of the contract for the first 10 ships.
TABLE 1--LCS PROCUREMENT UNDER DIFFERENT ACQUISITION PLANS, 2010 TO 2015
[Number of ships procured]
----------------------------------------------------------------------------------------------------------------
2010 2011 2012 2013 2014 2015 Total
----------------------------------------------------------------------------------------------------------------
Existing Down-Select Plan
Winner................................................. 2 2 2 2 2 4 19
Second Builder......................................... ...... ...... 1 2 2 ...... .......
Proposed Dual-Award Plan
Lockheed Martin/Marinette Marine....................... 1 1 2 2 2 2 20
Austal................................................. 1 1 2 2 2 2 .......
----------------------------------------------------------------------------------------------------------------
Source: Congressional Budget Office based on data from the Navy.
Note: The Navy also purchased two ships from each builder between 2005 and 2009. Under the down-select plan, the
Navy proposes to procure four ships in 2015. How the Navy would purchase those ships has not been determined.
Proposed ``Dual-Award'' Plan: In November of this year, the
Navy proposed to accept the fixed-price-plus-incentive bids
from both teams, purchasing 10 of each type of LCS (a total
of 20 ships) by 2015, beginning with funds appropriated for
fiscal year 2010.
According to the Navy, the bid prices received under the
existing down-select plan were lower than expected, which
would allow the service, under the dual-award plan, to
purchase 20 ships from 2010 through 2015 for less than it had
expected to pay for 19. (The total number of LCSs ultimately
purchased would be the same under both plans.)
CBO has estimated the cost for the LCS program between 2010
and 2015 under both plans, using its standard cost-estimating
model. By CBO's estimates, either plan would cost
substantially more than the Navy's current estimates--but CBO
did not have enough information to incorporate in its
estimates the bids from both contractors for the 10-ship
contract.
CBO's analysis suggests the following conclusions:
Whether one considers the Navy's estimates or CBO's, under
either plan, costs for the first 19 ships are likely to be
less than the amounts included in the Navy's 2011 budget
proposal and the Future Years Defense Program (FYDP).
CBO's estimates show per-ship construction costs that are
about the same for the two plans, but those estimates do not
take into account the actual bids that have been received.
Adopting the dual-award plan might yield savings in
construction costs, both from avoiding the need for a new
contractor to develop the infrastructure and expertise to
build a new kind of ship and from the possibility that bids
now are lower than they would be in a subsequent competition,
when the economic environment would probably be different.
Operating and maintaining two types of ships would probably
be more expensive, however. The Navy has stated that the
differences in costs are small (and more than offset by
procurement savings), but there is considerable uncertainty
about how to estimate those differences because the Navy does
not yet have much experience in operating such ships. In
addition, if the Navy later decided to use a common combat
system for all LCSs (rather than the different ones that
would initially be installed on the two different types of
vessels), the costs for developing, procuring, and installing
that system could be significant.
The Navy's Estimates of Costs Between 2010 and 2015
In the fiscal year 2011 FYDP, the Navy proposed spending
almost $12 billion in current dollars to procure 19 littoral
combat ships between 2010 and 2015 under the down-select
plan. (The Navy's budget estimate was submitted in February
2010, well before it received the two contractors' bids in
the summer of 2010.) The Navy now estimates the cost under
that plan to be $10.4 billion, about $1.5 billion (or 13
percent) less than its previous estimate.
Now that the Navy has the two bids in hand, it has
formulated a new plan for purchasing LCSs. It estimates that
it could purchase 20 ships--10 from each contractor--for
about $9.8 billion through 2015, or $0.6 billion less than it
currently estimates for the down-select plan and $2.1 billion
less than the cost it had estimated for 19 ships in its 2011
FYDP. The Navy's projected cost per ship under this plan is
21 percent less than its estimate in the 2011 FYDP.
The Navy's block-buy contracts under either plan would be
structured as fixed price plus incentive. Under the terms of
the two contractors' bids, the ceiling price is 125 percent
of the target cost, and that price represents the maximum
liability to the government. The Navy and the contractor
would share costs equally over the target price up to the
ceiling price. If costs rose to the ceiling price, the result
would be a 12.5 percent increase in price to the government
compared with the target price at the time the contract was
awarded. The Navy has stated that its budget estimates
include additional funding above the target price to address
some, but not all, of the potential cost increases during
contract execution. There is also the potential for cost
growth in other parts of the program, such as in the
government's purchasing of equipment that it provides to the
shipyard, that are not part of the shipyard contract. But the
cost of government-furnished equipment is small; it is less
than 5 percent of the total cost in the case of the third and
fourth ships currently under construction.
The Navy indicates that its estimates reflect the
experience the shipyards gained from building two previous
ships and the benefits of competition. Under the down-select
plan, the second shipyard that would begin building LCSs in
2012 would be inexperienced with whichever ship design was
awarded, and the investments required in infrastructure and
expertise would make the first ships it produced more
expensive than those from a shipyard with an existing
contract for LCS construction. Conversely, under the dual-
award plan, each shipyard would benefit from its experience
with building two of the first four LCSs. CBO cannot quantify
the benefits of competition, although they undoubtedly exist.
In light of the results of the competition for the 10-ship
block, it is possible that the competition the Navy would
hold in 2012 for the second source in the down-select plan
might also yield costs that are below those the Navy (or CBO)
estimates, in which case the current estimate of the costs
for that plan would be overstated.
The Navy briefed CBO on some aspects of those estimates but
did not provide CBO with the detailed contractor data or with
the Navy's detailed analysis of those data. If the
contractors' proposals for the 10-ship award are robust and
do not change, the Navy's estimates would be plausible
although not guaranteed. CBO has no independent data or means
to verify the Navy's savings estimate, and costs could grow
by several hundred million dollars if the shipbuilders or
developers of the combat systems carried by those ships
experience cost overruns.
Comparison of CBO's and the Navy's Estimates
CBO's estimates of costs are higher and indicate little
difference in the per-ship costs of the two plans. They
reflect information about the ships currently being built,
but they do not incorporate information about the
contractors' bids because CBO does not
[[Page S10882]]
have access to that information. Thus, CBO's estimates do not
incorporate any benefits of competition that may have arisen
as a result of the Navy's existing down-select acquisition
strategy--benefits the Navy argues would be locked in by the
fixed-price-plus-incentive contracts.
CBO estimates that the down-select plan would cost the Navy
about $583 million per ship--compared with an estimated cost
of $591 million per ship under the dual-award plan (see table
2). Contributing to that difference is the loss of efficiency
that would result from having two yards produce one ship per
year in 2010 and 2011, rather than having one yard produce
two ships per year. Given the uncertainties that surround
such estimates, that difference, of less than 2 percent, is
not significant.
CBO's estimates of the cost for the down-select and dual-
award strategies are higher than the Navy's, by $680 million
and $2.0 billion, respectively, because the contractors'
prices are apparently much lower than the amounts CBO's cost-
estimating model would have predicted and even lower than the
Navy predicted in its 2011 budget. (CBO's model is based on
well-established cost-estimating relationships, and it
incorporates the Navy's experience with the first four LCSs.)
For example, the Navy's estimate of the average cost for one
ship in each of the two yards in 2010 and 2011 is lower than
CBO's estimate of what the average cost would be to build
(presumably, more efficiently) two ships in one yard. And
those lower costs carry through to the years when each yard
would be building two ships per year. In addition, again
according to the Navy, the contractors were willing to accept
a change in the number of ships purchased per year in 2010
and 2011 without increasing the total cost of the ships.
The Navy stated that the contractors achieved a
substantial savings in the cost of materials because,
under the block buy, the Navy would be committing to
purchase 10 ships from one or both shipyards. With the
dual- award strategy, the Navy is attempting to capture
the lower prices offered by both builders for 20 ships,
rather than just for 10 ships under the down-select
strategy.
TABLE 2--CBO'S AND THE NAVY'S ESTIMATES OF THE COSTS OF THE LCS PROGRAM UNDER DIFFERENT ACQUISITION PLANS, 2010
TO 2015
[Millions of current dollars]
----------------------------------------------------------------------------------------------------------------
Average
2010 a 2011 2012 2013 2014 2015 Total ship cost
----------------------------------------------------------------------------------------------------------------
CBO's Estimates
19-Ship Down-Select Plan................. 1,080 1,150 b 1,790 2,330 2,350 2,380 11,080 583
20-Ship Dual-Award Plan.................. 1,080 1,450 b 2,290 2,300 2,330 2,370 11,820 591
Navy's Estimates
19-Ship Down-Select Plan................. n.a. n.a. n.a. n.a. n.a. n.a. 10,400 547
20-Ship Dual-Award Plan.................. n.a. n.a. n.a. n.a. n.a. n.a. 9,800 490
Memorandum:
2011 President's Budget and FYDP (19- 1,080 1,509 1,808 2,334 2,417 2,748 11,893 626
ship plan)..........................
----------------------------------------------------------------------------------------------------------------
Source: Congressional Budget Office.
Note: n.a. = not available; FYDP = Future Years Defense Program.
a. The amount for 2010 is the funding level provided in the Defense Appropriations Act, 2010.
b. The amounts for 2011 include additional funds CBO estimates would be needed to complete the 2010 ships.
With the Navy in possession of contract bids, it is not
clear that CBO's cost-estimating model is a better predictor
of LCS costs through 2015 than the Navy's estimates. Still,
the savings compared with the 2011 FYDP might not be realized
if the Navy changes the number of ships that are purchased
after the contract has been let or makes design changes to
address technical problems, regardless of which acquisition
strategy the Navy pursues. Inflation or other escalation
clauses in the contract also could add to costs.
Although CBO estimates that the dual-award plan would be
slightly more costly, that approach might also provide some
benefits. In materials delivered to the Congress about that
strategy, the Navy stated, ``There are numerous benefits to
this approach including stabilizing the LCS program and the
industrial base with award of 20 ships; increasing ship
procurement rate to support operational requirements;
sustaining competition through the program; and enhancing
Foreign Military Sales opportunities.'' CBO did not
evaluate those potential benefits.
Implications of the Two Acquisition Plans for Costs Beyond 2015
A Navy decision to buy both types of ships through 2015
would have cost implications after 2015. But whether those
long-term costs will be higher or lower would depend on at
least three aspects of the Navy's decision:
Which of the two ship designs the Navy would have selected
if it had kept to its original down-select plan;
Whether the Navy will buy one or both types of ships after
2015; and
Whether the Navy decides eventually to develop a common
combat system for both types of ships or to keep the two
combat systems (one for each type of ship) that it would
purchase under the dual-award approach.
CBO cannot estimate those costs beyond 2015 because it does
not know what the Navy is likely to decide in any of those
areas. For example, if the Navy pursued its original down-
select strategy and chose the ship with lower total ownership
costs (the costs of purchasing and operating the ships),
switching to the dual-award strategy would increase the
overall cost of the program because the Navy would then be
buying at least 10 more ships that have higher total
ownership costs. Conversely, if the Navy were to choose the
ship with higher total ownership costs under the down-select
strategy, the dual-award strategy might produce an overall
savings. However, some of those savings would be offset by
the extra overhead costs of employing a second shipyard and
by other types of additional costs described below. Added
costs would also arise if the Navy selected the dual-award
strategy through 2015 and then decided to build both types of
ships after 2015 to complete the 55-ship fleet rather than
selecting only one type, in keeping with its current plans.
The dual-award strategy might entail higher costs to
support two full training and maintenance programs for the
two ship designs. Under the down-select strategy, the Navy
would need training, maintenance, and support facilities to
sustain a fleet of 53 LCSs of the winning design. Facilities
would be required for both the Pacific Fleet and the Atlantic
Fleet--essentially one on each coast of the continental
United States. A more modest set of facilities would be
required to support the two ships of the losing LCS design,
which the Navy could presumably concentrate at a single
location. Under a dual-award strategy, the Navy would buy at
least 12 ships of each type, with an additional 31 ships of
either or both designs purchased after 2015. Thus, a more
robust training, maintenance, and support program would be
required for the version of the LCS that would have lost
under the down-select strategy. The Navy has said that those
costs are relatively small and more than offset by the
savings generated by the shipyards' bids, but CBO did not
have the data to independently estimate those additional
costs.
Finally, another, potentially large, cost would hinge on
whether the Navy decides in 2016 or later to select a common
combat system for all LCSs. Currently, the two versions of
the ship use different combat systems. If the Navy decided to
have both versions of the LCS operate with the same combat
system, it would incur research, development, and procurement
costs, as well as costs to install the new system on 12 of
the LCSs already equipped with an incompatible system. Combat
systems for the LCS today cost about $70 million each, not
including the cost to remove the old system and install the
new one. At a minimum, the Navy would lose some efficiency in
the production of the combat system under the dual-award plan
because neither producer of the combat system would have
provided more than 12 systems for installation on LCSs by
2015; under the down-select strategy, by contrast, one
producer would have provided 19 systems by that year. Thus,
the production costs of the combat system are likely to be
higher for ships purchased after 2016 under the dual-award
strategy than under the existing down-select approach because
the manufacturers of those later ships would have had less
experience building ships of the same type and thus fewer
opportunities to identify cost-saving practices. Furthermore,
the costs to operate two combat systems (or to switch to a
single combat system later) would probably exceed the cost to
operate a single system from the outset.
I hope you find this information helpful. If you have any
more questions, please contact me or CBO staff. The CBO staff
contact is Eric Labs.
Sincerely,
Douglas W. Elmendorf,
Director.
Mr. LEAHY. Mr. President, I strongly support the alternate engine for
the F-35 Joint Strike Fighter. The evidence and the logic for an
alternate engine easily overwhelm the flawed arguments that have been
used to attack it. Investments in fighter engine competition will
reduce costs over the life of the F-35 program. Not only will
competition cost less than a single engine monopoly; competition also
forces contractors to be more responsive and reliable. And the F-35
will comprise a vast percentage of the U.S. strike aircraft fleet. With
just one engine, our national security would rest on a single point of
failure. Sole-sourcing the F-35 Joint Strike Fighter engine is simply
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the wrong decision for our country, and I am glad that the continuing
resolution will preserve funding for this program through March.
Though misinformation has been spread about the costs of the
alternate engine, multiple nonpartisan reports suggest that it is
highly likely to save taxpayer dollars. According to Government
Accountability Office testimony, the Congress can reasonably expect to
recoup investment costs over the life of the program. If the so-called
``Great Engine War'' of the F-16 program is any example, the F-35
alternate engine might even yield 30 percent cumulative savings for
acquisition, 16 percent savings in operations and support, and 21
percent savings over the life cycle of the aircraft. Not only would we
sacrifice these potential savings by killing the F-35 alternate engine
program, but that decision would waste the investment we have already
made in a competitive second engine. Ending fighter engine competition
for the F-35 is pound foolish without even being penny wise.
GAO also points to several possible nonfinancial benefits of engine
competition, including better system performance, increased reliability
and improved contractor responsiveness. News reports about the broader
F-35 program reveal what happens when we sole-source crucial large,
multiyear defense programs. The F-35 faces a range of unanticipated
problems, delays and cost overruns. Even the independent panel on the
2010 Quadrennial Defense Review--led by President Clinton's Defense
Secretary, William Perry, and President Bush's National Security
Adviser, Stephen Hadley--strongly advocated dual-source competition in
major defense programs. Without competition, the American people will
keep paying more and more to buy less and less.
Without competition, our country's strike aircraft would be one
engine problem away from fleet-wide grounding. Putting all of our eggs
in the single engine basket would elevate risks to our troops and their
missions. Imagine our soldiers in Afghanistan stranded without air
support simply because we were not wise enough to diversify the program
to avoid engine-based groundings. With their lives on the line, we
cannot afford to be irresponsible with this program.
The continuing resolution appropriately maintains funding for the
alternate engine program. It does not allow for so-called new starts,
but neither does it bring programs to a premature end without the
debate and full consideration here in the Congress that they deserve.
The alternate engine program will rightly continue, and I expect that
when programs receive scrutiny during budget consideration next spring,
the same will also be the case.
Ensuring engine competition is the right thing to do because it is
the smart thing to do. Although some have stressed the up-front costs,
taxpayers stand to save more money over the life of the F-35 program by
maintaining competitive alternatives. Most importantly, we will
purchase a better and more reliable product for the people who risk
their lives to defend our country. I will continue to support engine
competition that ensures the best product for the troops at the best
price for the taxpayer.
Ms. MIKULSKI. Mr. President, I rise to speak about the appropriations
process and the need to return it to regular order. I come to the floor
very bitter that we have to pass this continuing resolution, CR. The
power of the purse is our constitutional prerogative. I am for regular
order. Regular order is the most important reform to avoid continuing
resolutions and omnibus bills.
Regular order starts with the Appropriations subcommittees and then
full committee marking up 12 individual bills. Chairman Inouye has led
these bills out of Committee for the last 2 years, as Chairman Byrd did
before him. Then the full Senate considers 12 bills on the floor and
all Senators have a chance to amend and vote on the bills. This,
however, has not happened since the 2006 spending bills. Lack of
regular order means trillion dollar omnibuses or continuing
resolutions. If a bill costs a trillion dollars, then opponents ask why
can't we cut it by 20 percent--what will it matter? But we are dealing
with actual money; it is not authorizing, which is advisory. There are
real consequences. If we are really going to tackle the debt, the
Appropriations Committee must be at the table. Tackling the debt can't
be done just through Budget and Finance Committees alone.
What are the real life consequences of this CR? Well, this CR means
that it will be harder to keep America safe. Under this CR the FBI
cannot hire 126 new agents and 32 intelligence analysts it needs to
strengthen national security and counter terrorist threats. The FBI's
cyber security efforts will also be stalled, even while our Nation
faces a growing and pervasive threat overseas from hackers, cyber spies
and cyber terrorists. Cyber security is a critical component to our
Nation's infrastructure, but this CR doesn't allow the FBI to hire 63
new agents, 46 new intelligence analysts and 54 new professional staff
to fight cyber crime. The DEA, ATF and FBI cannot hire 57 new agents
and 64 new prosecutors to reduce the flow of drugs and fight violence
and strengthen immigration enforcement along the Southwest border.
Under this CR, we leave immigration courts struggling to keep pace with
over 400,000 immigration court cases expected in 2011 because they
cannot add Immigration Judge Teams who decide deportation and asylum
cases. We cannot hire 143 new FBI agents and 157 new prosecutors for
U.S. attorneys to target mortgage and financial fraud scammers and
schemers who prey on America's hard working, middle class families and
destroy our communities and economy. We miss the chance to add at least
75 new U.S. deputy marshals to track down and arrest the roughly
135,000 fugitive, unregistered child sexual predators hiding from the
law and targeting children.
This CR stifles innovation and workforce development. In September,
Norm Augustine and the National Academy of Sciences updated the 2005
``Rising Above the Gathering Storm'' report, sounding the alarm that
the U.S. is still losing ground in science that fuels innovations, and
brings us new products and new companies. Everyone says they are for
science, but it appears that no one wants to pay for it. So, under this
CR, our science agencies, like the National Institute of Standards and
Technology, NIST, and the National Science Foundation, NSF, will be
flat funded. For NSF, this would mean 800 fewer research grants, and
7,000 fewer scientists and technicians working in labs across the
country on promising research in emerging fields like cyber security
and nanotechnology. Under a CR, we will let the world catch up by not
making new investments in science education. We won't just lose the
Ph.D.s who open avenues of discovery and win the Nobel Prize. We will
also lose the technicians who are going from making steel and building
ships to the new, innovation-based manufacturing economy, creating the
next high tech product. We will also lose the chance to build up
technical education in key fields like cyber security. Under this CR,
we cannot expand the supply of cyber security specialists who are
responsible for protecting U.S. Government computers and information.
We miss the opportunity to triple funding for the NSF program to train
cyber professionals for Federal careers, which has brought us more than
1,100 cyber warriors since 2002 and of whom more than 90 percent take
jobs with Federal agencies.
I am also disappointed we will be passing this CR because I believe
in the separation of powers established by the Constitution. Congress
should not cede power to the Executive Branch, regardless of which
party is in the White House. The Constitution gives the power of the
purse to Congress. I will not cede the power to meet compelling human
or community needs or create jobs for America and for Maryland. I don't
want to leave all funding decisions to bureaucracy.
On the Appropriations Committee, we did our work by reporting 12
separate bills to the full Senate, but none came to the Senate floor.
My Commerce, Justice, Science--or CJS--Subcommittee held 6 hearings
with 14 witnesses to examine agencies' budget requests and policies. We
heard from 4 inspectors general, IGs, from our major departments and
agencies: Todd Zinser at Commerce, Glenn Fine at Justice, Paul Martin
at NASA and Allison Lerner at NSF. We listened to agencies' officials,
representatives of organizations from sheriffs to scientists
[[Page S10884]]
and interested Senators. My CJS Subcommittee worked in a bipartisan way
to craft a bill that makes America safer, invests in the American
workforce of the future and is frugal and gets value for taxpayer
dollars. Under this CR, all of that work is wasted. Instead of
fulfilling our constitutional duty of the power of the purse, we are
leaving it to the Executive Branch to make key funding decisions with
minimal direction from Congress.
As I travel around Maryland, people tell me that they are mad at
Washington. Families are stretched and stressed. They want a government
that's on their side, working for a strong economy and a safer country.
They want a government that is as frugal and thrifty as they are. They
want to return to a more constitutionally based government. This CR is
not the solution.
Some Members might say that a CR is OK, it will save money, it
doesn't matter. Well, even though the CR provides less funding for CJS,
it doesn't do it smarter because the CR is essentially a blank check
for the executive branch. Regular order provides direction, telling the
government to be smarter and more frugal, making thoughtful and
targeted cuts and modest increases where justified--not government on
autopilot.
For example, my CJS appropriations bill tells agencies to cut
reception and representation funds by 25 percent; eliminate excessive
banquets and conferences; cut overhead by at least 10 percent--by
reducing non-essential travel, supply, rent and utility costs; increase
funding to IGs, the taxpayers' watchdogs at the agencies, and have
those IGs do random audits of grant funding to find and stop waste and
fraud; and notify the committee when project costs grow by more than 10
percent so that we have an early warning system on cost overruns. These
reforms are lost in any CR.
We should refocus on the Appropriations Committee. Many Senators have
only been elected for the first time in the last 6 years, so most have
never seen regular order and don't know what Appropriations Committee
is supposed to be. The Appropriations Committee is ``the guardian of
the purse,'' which puts real funds in the Federal checkbook for the
day-to-day operations of Federal agencies in Washington, and around the
Nation and the world. It performs oversight of spending by Federal
agencies. And it serves as Congress's main tool to influence how
agencies spend money on a daily basis. Why does this matter? It matters
because the Appropriations Committee is the tool for aggressive
oversight and meeting the needs of our constituents. Agencies must
respond to Appropriations--their budgets depend on it.
We must preserve the separation of powers, oversight of Federal
agencies and advocacy for our States and our constituents. I urge my
colleagues to return to the regular order, and look forward to
consideration of all 12 appropriations bills on the floor next year.
Mr. LAUTENBERG. Mr. President, when our colleagues from across the
aisle blocked the Omnibus appropriations bill they decided to leave our
Nation less safe and less prepared to thwart the next terrorist attack.
They chose to put our homeland security on autopilot for the next few
months--and that is just too risky.
We had before us an Omnibus bill that addressed the evolving threats
to our homeland security. As chairman of the Homeland Security
Appropriations Subcommittee, I can attest to the diligent, bipartisan
work that went into crafting this legislation, which met our security
challenges in a fiscally responsible manner. But our colleagues across
the aisle chose instead to fund our homeland security at the status quo
levels under a continuing resolution. The terrorists aren't operating
under the status quo and neither should we.
The terrorists are constantly searching for new ways to threaten our
way of life. We are approaching the 1-year anniversary of the Christmas
Day bombing attempt, when a terrorist boarded a flight to Detroit with
explosives sewn into his underwear. And just in October, printer
cartridges being shipped from Yemen were found to contain explosives
that were meant to blow up on cargo planes flying over the east coast
of the U.S.
Homegrown terrorism is also a growing threat, as evidenced by the
Fort Hood shooting, the Times Square bombing attempt and the New York
City subway plot. Earlier this month, the FBI arrested a suspect who
was planning to blow up a military recruitment center in Baltimore. And
last month, the FBI stopped a U.S. citizen who planned a terrorist
bombing at a Christmas tree-lighting ceremony in Portland, OR.
Because of the opposition to the Omnibus, our Department of Homeland
Security and first responders across the country will not have the
resources they need to anticipate, thwart, and respond to these
threats: The Transportation Security Administration will not be able to
purchase new explosive-tracing equipment or hire more intelligence
officers and canine teams. We won't be able to hire more Federal air
marshals, who have been stretched thin since the Christmas Day bomb
plot was foiled. Our airports and seaports won't get new equipment to
detect radiation and nuclear material. We will have fewer resources to
secure air cargo and eliminate threats like the package bombs from
Yemen. We will have less funding to secure our rail and transit
systems, which are prime targets for terrorists--as we've seen
everywhere from Madrid and Russia to DC and New York City. The Coast
Guard won't be able to hire 100 new maritime inspectors or improve
their capacity to respond to an oil spill. Immigration and Customs
Enforcement may have to cut back investigations into human trafficking,
drug smuggling and identity theft. There will be fewer Customs officers
on duty to keep dangerous cargo and terrorists out of our country. Our
ability to prepare for natural disasters and other emergencies will
suffer. Fewer local fire departments will receive needed assistance to
pay for equipment and training.
In short, the Republicans' decision to kill the Omnibus will
shortchange our safety and take chances with our security--and that is
wrong for our country.
Beyond homeland security, the Republicans' actions will leave our
troops worse prepared and our children without the education they
deserve.
The Omnibus crafted by Senator Inouye, on the other hand, responsibly
met all of these needs. And it did so at the exact same funding level
proposed by the Republican leader in the Appropriations Committee
earlier this year. In June, 40 Republicans voted to support funding the
government at this level. Moreover, the Omnibus was crafted on a
bipartisan basis--and included earmarks and other spending requested by
Republicans.
So it is the height of hypocrisy and cynicism for our Republican
colleagues to attack this bill as wasteful or bloated. Adding to the
hypocrisy, just two days after killing the Omnibus, which included a
quarter billion dollars more for border security than the CR,
Republicans killed the DREAM Act--on the alleged basis that we should
secure the border first. They are clearly more concerned with handing a
defeat to our President and to congressional Democrats than with
governing in a responsible way. Republicans have put politics first and
it is our troops, our security and our children that will pay the
price.
In the aftermath of the wreckage caused by the Republicans'
opposition to the Omnibus, Senator Inouye was faced with the challenge
of drafting a slimmed-down continuing resolution that would not leave
the country vulnerable. This was an extremely difficult task, but
Senator Inouye was able to craft a bill that provides the most vital
resources our government needs to function over the next few months.
This was no small feat and I commend the chairman for his tireless work
on this bill and throughout this year's appropriations process.
The PRESIDING OFFICER. The Senator from Colorado.
Nomination of Bill Martinez
Mr. UDALL of Colorado. Mr. President, I rise in response to Senator
Sessions' comments about a nominee we are going to consider shortly,
Bill Martinez.
Senator Sessions just spoke about the ACLU for 30 minutes, trying to
define Bill Martinez--a district court nominee, not the appeals court
as Sessions noted--as an ACLU-like nominee and then criticizing his
hearing responses on the death penalty and the
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empathy standard. I wanted to clarify for the record three points of
misinformation.
Bill Martinez did not work for the ACLU. He served on an advisory
board regarding cases in Denver. Several Bush nominees were members of
the Federalist Society and contributors to other conservative
litigation centers and were confirmed just a few years ago. Bill
Martinez is not the ACLU, and we ought to be careful to avoid setting
false standards.
From the Martinez Hearing:
Senator Sessions: Have you ever acted as counsel in a
matter on behalf of the ACLU? If so, please provide the
Committee with a citation for each case, a description of the
matter, and a description of your participation in that
matter.
Martinez Response: No.
Senator Sessions claimed he was dissatisfied with Bill Martinez's
response regarding the death penalty, stating that he was not clear in
his beliefs. This is misleading and the record states otherwise.
From the Martinez Hearing:
Senator Sessions: Please answer whether you personally
believe that the death penalty violates the Constitution.
Martinez Response: It is clear under current Supreme Court
jurisprudence that, with very limited exceptions, the death
penalty does not violate the Eighth Amendment to the U.S.
Constitution. Gregg v. Georgia, 428 U.S. 153 (1976); Roper v.
Simmons, 543 U.S. 551 (2005); Kennedy v. Louisiana, 129 S.Ct.
1 (2008). Consistent with this precedent, I do not believe
the death penalty is unconstitutional.
Senator Sessions also claimed that Bill Martinez stated empathy can
be taken into consideration with legal decisions. This is misleading
and the record states otherwise.
From the Martinez Hearing:
Senator Sessions: Do you think that it's ever proper for
judges to indulge their own subjective sense of empathy in
determining what the law means?
Martinez Response: No.
Let me end on this note. Bill Martinez is a man of high character, he
is a good man, and he will make an excellent Federal judge. Let us vote
to confirm Bill Martinez to the Colorado U.S. District Court.
Mr. President, I yield the floor.
The PRESIDING OFFICER (Mr. Begich). Under the previous order, the
second-degree amendment is withdrawn. The question is on agreeing to
the motion to concur.
Mr. UDALL of Colorado. Mr. President, I ask for the yeas and nays.
The PRESIDING OFFICER. The yeas and nays have been ordered.
The clerk will call the roll.
The bill clerk called the roll.
Mr. DURBIN. I announce that the Senator from Indiana (Mr. Bayh) and
the Senator from Oregon (Mr. Wyden) are necessarily absent.
Mr. KYL. The following Senators are necessarily absent: the Senator
from Kansas (Mr. Brownback), the Senator from New Hampshire (Mr.
Gregg), and the Senator from Missouri (Mr. Bond).
The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
The result was announced--yeas 79, nays 16, as follows:
[Rollcall Vote No. 289 Leg.]
YEAS--79
Akaka
Alexander
Barrasso
Baucus
Begich
Bennet
Bennett
Bingaman
Boxer
Brown (MA)
Brown (OH)
Bunning
Cantwell
Cardin
Carper
Casey
Cochran
Collins
Conrad
Coons
Corker
Dodd
Dorgan
Durbin
Ensign
Enzi
Feinstein
Franken
Gillibrand
Grassley
Hagan
Harkin
Hutchison
Inouye
Johanns
Johnson
Kerry
Kirk
Klobuchar
Kohl
Kyl
Landrieu
Lautenberg
Leahy
Levin
Lieberman
Lincoln
Lugar
Manchin
McCaskill
McConnell
Menendez
Merkley
Mikulski
Murkowski
Murray
Nelson (FL)
Pryor
Reed
Reid
Roberts
Rockefeller
Sanders
Schumer
Sessions
Shaheen
Shelby
Snowe
Specter
Stabenow
Tester
Thune
Udall (CO)
Udall (NM)
Voinovich
Warner
Webb
Whitehouse
Wicker
NAYS--16
Burr
Chambliss
Coburn
Cornyn
Crapo
DeMint
Feingold
Graham
Hatch
Inhofe
Isakson
LeMieux
McCain
Nelson (NE)
Risch
Vitter
NOT VOTING--5
Bayh
Bond
Brownback
Gregg
Wyden
The motion was agreed to.
____________________