[Congressional Record (Bound Edition), Volume 155 (2009), Part 12]
[Senate]
[Pages 15994-16020]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

 NOMINATION OF HAROLD HONGJU KOH TO BE LEGAL ADVISER OF THE DEPARTMENT 
                                OF STATE

  The PRESIDING OFFICER. Under the previous order, the Senate will 
proceed to executive session to consider the following nomination, 
which the clerk will report.
  The legislative clerk read the nomination of Harold Hongju Koh, of 
Connecticut, to be Legal Adviser of the Department of State.
  The PRESIDING OFFICER. Under the previous order, the time until 11 
a.m. will be equally divided and controlled between the two leaders or 
their designees.
  The Senator from Massachusetts.
  Mr. KERRY. Mr. President, I yield myself such time as I will consume. 
I intend to yield time to Senator Lieberman and Senator Feingold.
  Mr. President, I rise in very strong support of the nomination of 
Dean Harold Koh to be the Legal Adviser to the Secretary of State. This 
nomination is, in fact, overdue.
  Dean Koh is one of the foremost legal scholars in the country and a 
man of the highest intellect, integrity, and character. He received a 
law degree from Harvard, where he was an editor of the Law Review, with 
two master's degrees from Oxford University where he was a Marshall 
Scholar.
  He clerked on both the DC Circuit Court of Appeals and the U.S. 
Supreme Court. He has served with distinction in both Democratic and 
Republican administrations, beginning his career in government in the 
Office of Legal Counsel in the Reagan era.
  I think everybody who has dealt with him and has worked with him on a 
personal level understands the skill Dean Koh would bring to this job. 
He has worked with the State Department on a firsthand basis. He served 
as Assistant Secretary of State for Democracy, Human Rights, and Labor 
in the Clinton administration--a post for which he was unanimously 
confirmed by the Senate in 1998.
  He left government to teach at Yale Law School, and he went on to 
serve as dean until his nomination to serve in the current 
administration. As a renowned scholar and a leading expert on 
international law, he has published or coauthored eight books and over 
150 articles.
  Throughout his career, Dean Koh has been a fierce defender of the 
rule of law and human rights. He understands that the United States 
benefits as much if not more than any other country from an 
international system of law where we are governed by the rule of law.
  At the same time, his personal commitment to America's security and 
to the defense of our Constitution are indisputable. Accusations that 
his views on international or foreign law would somehow undermine the 
Constitution are simply unjustified and unfounded--completely and 
totally. As Dean Koh explained in response to a question from Senator 
Lugar, who supports his nomination, he said:

       My family settled here in part to escape from oppressive 
     foreign law, and it was America's law and commitment to human 
     rights that drew us here and have given me every privilege in 
     my life that I enjoy. My life's work represents the lessons 
     learned from that experience. Throughout my career, both in 
     and out of government, I have argued that the U.S. 
     Constitution is the ultimate controlling law in the United 
     States and that the Constitution directs whether and to what 
     extent international law should guide courts and 
     policymakers.

  So while disagreements on legal theory are obviously legitimate, I 
regret that some of the accusations and insinuations against Dean Koh 
have simply gone over any line of reasonableness or decency. Some 
people have actually alleged that Dean Koh supports the imposition of 
Islamic Shariah law in America, which it just begs any notion of 
relevance to what is rational.
  Some have questioned Dean Koh for allegedly supporting suits against 
Bush administration officials involved in abusive interrogation 
techniques. Well, this is a matter for the Justice Department that he 
will have no role in as Legal Adviser of the State Department.
  Others have actually gone so far as to claim--believe it or not--that 
he is against Mother's Day. I am happy his mother was at the hearing. 
He pointed to her and had to go so far as to actually deny that, which 
is rather extraordinary.
  Dean Koh deserves a better debate than he has been given thus far, 
and all of us are done a disservice when the debate gets diverted to 
some of the accusations we have heard in this case.
  Regardless of any policy differences, everyone in the Senate ought to 
be able to agree on Dean Koh's obvious competence. We have received an 
outpouring of support for this nomination from all corners, including 
from over 600 law professors, over 100 law school deans, over 40 
members of the clergy, 7 former State Department Legal Advisers--
including the past two Legal Advisers from the Bush administration--and 
many others.
  Perhaps most remarkable has been the enthusiastic support for Dean 
Koh from those who do not agree with him on some issues who have spoken 
out on his behalf, including former Solicitor General Ted Olson and 
former White House Chief of Staff Joshua Bolten. No less a conservative 
legal authority than Ken Starr wrote:

       The President's nomination of Harold Koh deserves to be 
     honored and respected. For our part as Americans who love our 
     country, we should be grateful that such an extraordinarily 
     talented lawyer and scholar is willing
       leave the deanship at his beloved Yale Law School and take 
     on this important but sacrificial form of service to our 
     Nation.

  So I think that says it all. That is the kind of Legal Adviser we 
need at the State Department. I urge my colleagues to support this 
nomination and to vote for cloture on this nomination.
  Mr. President, how much time do we have remaining on our side? At 
least another 15 minutes.
  The PRESIDING OFFICER. There is 3 minutes 40 seconds remaining.
  Mr. KERRY. That is the total time we have available?
  The PRESIDING OFFICER. That is the total time remaining controlled by 
the majority.
  Mr. KERRY. I divide it evenly between Senator Lieberman and Senator 
Feingold.
  The PRESIDING OFFICER. The Senator from Connecticut.
  Mr. LIEBERMAN. Mr. President, I rise to speak on behalf of the 
nomination of Harold Koh to be Legal Adviser at the Department of 
State.
  I have known Harold Koh for many years, as a friend and as a neighbor 
in New Haven, and there is no doubt in my mind that he is a profoundly 
qualified choice for this important position, and deserving of 
confirmation.
  To state the obvious, Harold is a brilliant scholar and one of 
America's foremost experts on international law. He also has a 
distinguished record of service in our government, having worked in 
both Democratic and Republican administrations and consistently won the 
highest regard from people across the political spectrum.
  However, Harold Koh will bring to this position a deep devotion to 
our country and an appreciation of the fundamental values for which we 
stand,

[[Page 15995]]

drawn from his own personal experience and the experience of his 
family.
  Harold's parents came to this country, like so many before and since, 
fleeing the evils of dictatorship and seeking freedom. It was this 
experience that helped forge in Harold his lifelong commitment to 
democracy and the rule of law.
  Harold has of course been a prolific scholar, having authored or 
coauthored 8 books and more than 150 articles. And in the course of his 
long academic career, he has quite often exercised his right of free 
speech.
  To tell the truth, there have been occasions when Harold has said or 
written things that I personally don't agree with. And although he is 
too gracious to say so, I am sure there have been occasions when I have 
said or done things that Harold has not agreed with.
  But this has never interrupted my respect for Harold--for his 
intelligence and his integrity, nor I have any doubt about Harold's 
love for our great nation and its values, and his commitment to uphold 
our Constitution. To use a word we do not use enough anymore, Harold 
Koh is a true American patriot who will put our country and our 
Constitution first.
  It is also worth noting that no one who has ever worked with Harold 
has offered anything but praise for him personally and support for his 
nomination. In fact, his nomination has attracted a remarkable 
bipartisan coalition of supporters, including Ted Olson, Ken Starr, and 
Josh Bolten.
  These endorsements reflect the fact that, even those who might not 
always agree with Harold on every issue, nonetheless respect him 
enormously and feel he is profoundly qualified to serve in this 
position.
  There is a great deal that we debate in this chamber, but there is 
really no debate about the importance of the rule of law to our 
country. That is what Harold Koh's life and career have been all about, 
and it is that surpassing priority that he will bring to the position 
of Legal Adviser at the State Department.
  For these reasons, I urge my colleagues to support Harold Koh's 
nomination and to vote for his confirmation.
  The cloture vote will occur at 11 o'clock, minutes from now. I speak 
from a real depth and personal experience with Harold Koh. I know him 
and have known him for years as a friend and a neighbor in Connecticut. 
Based on that and all of his professional work, there is no doubt in my 
mind that he is profoundly qualified to occupy this important position 
as Legal Adviser at the Department of State. He is a brilliant scholar. 
He is one of America's foremost experts on international law. He 
actually is qualified to be the Legal Adviser to the Secretary of 
State. He has a distinguished record of service in our government, 
having worked in both Democratic and Republican administrations. He has 
consistently won the highest regard from people across the political 
spectrum.
  Harold Koh will bring to this position a deep devotion to our country 
and the appreciation of the fundamental values for which we stand, 
based on his personal status as the child of immigrants who came to 
this country, escaping dictatorship, seeking freedom, and contributing 
mightily to America.
  Harold has been a prolific scholar in the course of his long academic 
career. He has fully exercised his right of free speech. To tell the 
truth, there have been occasions when Harold has said or written things 
that I personally don't agree with. Although he is too gracious to say 
so, I am sure there have been occasions on which I have centered on 
some things that Harold has not agreed with, but that has never 
interfered with my respect and admiration for him----
  The PRESIDING OFFICER. The time of the Senator from Connecticut has 
expired.
  Mr. LIEBERMAN.--because I have always known, regardless of whether we 
agree or disagree, Harold Koh is committed to the United States of 
America, to the Constitution, and the rule of law. What more could we 
ask for a Legal Adviser to the Department of State.
  I thank the Chair and yield the floor.
  The PRESIDING OFFICER. The Senator from Wisconsin.
  Mr. FEINGOLD. Mr. President, I am so pleased to rise today in strong 
support of the nomination of Harold Koh to be Legal Adviser at the 
State Department. I have known Dean Koh for more than 30 years, and I 
can say without any doubt he is an excellent choice for this position. 
I say that not just because he is one of my oldest friends but because 
he is one of the leading legal scholars in the country. He is 
extraordinarily qualified for this position.
  Dean Koh is one of the most intelligent, ethical, and hard-working 
individuals I have ever encountered. He has spent his career of some 30 
years working on public and private international law, national 
security law, and on human rights. Throughout that time, he has been 
committed to America's security and to defending our Constitution. He 
has dedicated his life to upholding the rule of law and strengthening 
American values.
  During his confirmation hearing in the Senate Foreign Relations 
Committee, Dean Koh effectively responded to all of the charges against 
him. He made clear that he understands that his role as legal counsel 
for the State Department would be different from that of an academic, 
that he would adhere to the constitutional laws of our land, and that 
of course he does not believe that foreign law can trump the 
Constitution.
  There is no doubt in my mind that Dean Koh will candidly and 
objectively advise the Secretary of State on existing law, while also 
ensuring that she receives competent, objective, and honest advice on 
the legal consequences of her actions and decisions in an effort to 
support and advance the President's foreign policy agenda.
  At the same time, Dean Koh will ensure respect for our national 
interests and our legal obligations. If confirmed, Dean Koh will serve 
our President, and this Nation, and defend the Constitution fully and 
faithfully.
  We are long overdue in confirming Dean Koh. I urge my colleagues to 
vote in favor of cloture so we can move expeditiously to an up or down 
vote and Dean Koh can begin his service as the State Department's Legal 
Adviser.
  Mr. President, I thank the Chair and yield the floor.
  The PRESIDING OFFICER. The Senator's time has expired.
  The Senator from Texas is recognized.
  Mr. CORNYN. Mr. President, I rise reluctantly to speak against the 
nomination of Harold Koh to be the Legal Adviser to the State 
Department. I had a chance to explain some of the reasons yesterday, 
and for the benefit of our colleagues I wish to cover those and some 
additional concerns as well with a little more detail.
  There is no question that Dean Koh is a brilliant lawyer and he has 
been a charming advocate for his promotion to this important position. 
However, I have concluded that he is not the right person for this job, 
because he has stated what I would consider to be radical views with 
regard to the role of the United States sovereignty relative to the 
rest of the world.
  For example, he has advocated judges using treaties in customary 
international law, including treaties that the Senate has not ratified, 
to bind the United States. If that is not an erosion of U.S. 
sovereignty, I don't know what it is. Advocating that judges who take 
an oath to uphold and defend the Constitution and laws of the United 
States should instead look to international treaties as the source of 
that law, to me, is a radical and very fundamental shift in what I 
think most people would expect from our judges.
  He said that Federal judges should use their power to ``vertically 
enforce'' or ``domesticate'' American law with international norms and 
foreign law. Do we want the top adviser at the State Department 
supporting the idea that international bodies and unelected Federal 
officials, not the Congress, should be the ultimate lawmaking authority 
for the American people? I don't think so.
  This has manifested itself in a number of ways. For example, in an 
interview that Dean Koh gave on May 10 for

[[Page 15996]]

the ``News Hour,'' he was asked about, for example, some of the 
interrogations that took place in places such as Guantanamo. He 
basically said that the U.S. forces, including our commanders and 
presumably the intelligence officials who actually conducted 
interrogations and detentions, violated the Geneva Conventions and 
should be held accountable for that. Does he believe that U.S. 
officials should be prosecuted and perhaps convicted of war crimes 
because they did what the American people asked them to do, consistent 
with the legal opinions from the Office of Legal Counsel at the Justice 
Department?
  As the Wall Street Journal points out today in an article called 
``The Pursuit of John Yoo''--I will read a couple of sentences from it:

       Here's a political thought experiment: Imagine that 
     terrorists stage an attack on U.S. soil in the next 4 years. 
     In the recriminations afterward, Administration officials are 
     sued by families of victims for having advised in legal memos 
     that Guantanamo be closed and that interrogations of al-Qaida 
     detainees be limited. Should these officials be personally 
     liable for the advice they gave to President Obama?

  The article goes on to say:

       We'd say no, but that's exactly the kind of lawsuit that 
     the political left, including State Department nominee Harold 
     Koh, has encouraged against Bush administration officials.

  Of course, it goes on to talk about the lawsuit brought by Jose 
Padilla, a convicted terrorist, against lawyers at the Office of Legal 
Counsel at the Justice Department that is being encouraged, if not 
facilitated, by Harold Koh, the outgoing dean at the Yale Law School, 
the person who is being proposed for promotion as a Legal Adviser at 
the Justice Department.
  I think his views, if they were confined to academia and to Yale Law 
School, would be one thing, but the thought that he would bring and put 
these what I would consider to be out-of-the-mainstream legal theories 
and approaches into action as a Legal Adviser at the State Department, 
to me is a frightening prospect.
  He has also, in the course of his writings, taken very extreme views 
with regard to the second amendment to the Constitution of the United 
States, part of our Bill of Rights, the right to keep and bear arms. In 
2002, and later in Fordham Law Review in May of 2003, he wrote an 
article called ``The World Drowning In Guns'' in which he argued for a 
global gun control regime. Do we want the top adviser at the State 
Department working through diplomatic circles to take away Americans' 
second amendment rights to the Constitution? I think not.
  Third, Professor Koh in 2007 argued that foreign fighters, detainees 
held by the U.S. Armed Forces anywhere in the world--not just at 
Guantanamo Bay--are entitled to habeas corpus review in U.S. Federal 
courts--in civilian courts--just as an American citizen would be, no 
matter where they were held. Do we want the top adviser at the State 
Department working to grant terrorists and enemy combatants more rights 
than they have ever had before under any court interpretation? I think 
not.
  Perhaps most timely, Professor Koh appears to draw moral equivalence 
between the Iranian regime's political suppression and human rights 
abuses on the one hand, which we have been watching play out on 
television, and America's counterterrorism policies on the other hand. 
In 2007, he wrote:

       The United States cannot stand on strong footing attacking 
     Iran for ``illegal detentions'' when similar charges can be 
     and have been lodged against our own government.

  Do we want a Legal Adviser to the State Department who can't see the 
difference between America defending itself against terrorism and the 
brutal repression practiced by a theocratic dictatorship? I think not.
  I am afraid that Dean Koh is just another in a line of radical 
nominees by this administration that the Senate should not confirm.
  I think back to Don Johnson who was also nominated to the Office of 
Legal Counsel who said America is not at war post 9/11, and that 
instead of embracing the provisions of the Constitution that recognize 
the President's powers as Commander in Chief to protect the American 
people, we ought to instead resort to a paradigm that says, Well, this 
is a law enforcement matter. If it is a law enforcement matter, then 
you are not going to do anything to stop terrorist attacks before they 
occur; you are merely going to prosecute the terrorists after they kill 
innocent life.
  Just like Don Johnson, who said we are not at war, Harold Koh has 
encouraged and facilitated the investigation and perhaps prosecution of 
American military personnel, and who knows who else, including lawyers 
who have provided legal advice, as well as perhaps the intelligence 
officials who relied on that advice to get actual intelligence that we 
have used to deter and indeed to defeat terrorist attacks on our own 
soil.
  I hope my colleagues will join me in voting against cloture on this 
nomination. Professor Koh may be an appropriate individual for some 
other job, but when our national security is at stake, and our role 
relative to the international community, whether we are going to 
subject ourselves not just to the U.S. Constitution and laws made by 
the elected representatives of the people here in the Congress but 
instead to international treaties and international common law that we 
have not agreed to and that the American people have not consented to, 
I think this is the wrong job for this nominee. I ask my colleagues to 
join me in voting against cloture.
  I yield the floor and reserve the remainder of our time.
  The PRESIDING OFFICER. The Senator from Pennsylvania.
  Mr. SPECTER. Mr. President, I ask unanimous consent to speak for 2 
minutes.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  Mr. SPECTER. Mr. President, I have sought recognition to strongly 
support the nomination of Dean Koh for this position. I have known Dean 
Koh from his outstanding work at the Yale Law School and from his 
outstanding contribution as the dean of the Yale Law School. He comes 
to this position with an extraordinary educational background: summa 
cum laude of Harvard College, Oxford; Harvard Law School, cum laude. He 
has had a distinguished career with the Federal Government having 
served as Assistant Secretary of State from 1998 to 2001. He has done 
exemplary work at Yale. His father was the first Korean lawyer to study 
in the United States.
  Yesterday, I spoke at some length about Dean Koh and inserted his 
extraordinary resume in the Record. It took many pages to list all of 
his honorary degrees, all of his publications, and all of his awards. 
When we search for the best and the brightest to come to Washington, 
Dean Koh is a perfect match for that description. If his nomination is 
to be rejected, it certainly will be a signal to people who have an 
interest in public service that they are better off not treading in 
these waters because the politics is so thick that even individuals of 
such extraordinary credentials can be rejected by the Senate.
  I strongly urge my colleagues to support this nomination. I have been 
in this body a while. I have never spoken with such enthusiasm or such 
determination for the confirmation of a nominee as I have for Dean Koh. 
I think he will do an outstanding job.
  Certainly, the points that have been raised by the distinguished 
Senator from Texas are worthy of consideration, but there is no showing 
that any of those ideas will be followed to the extreme to the 
detriment of the United States, and his qualifications suggest he would 
be a great asset to the United States of America and the State 
Department.
  The PRESIDING OFFICER. The Senator's time has expired.


                             Cloture Motion

  Under the previous order, pursuant to rule XXII, the Chair lays 
before the Senate the pending cloture motion, which the clerk will 
report.
  The assistant legislative clerk read as follows:

                             Cloture Motion

       We, the undesigned Senators, in accordance with the 
     provisions of rule XXII of the Standing Rules of the Senate, 
     hereby move

[[Page 15997]]

     to bring to a close debate on the nomination of Harold Hongju 
     Koh, of Connecticut, to be Legal Adviser of the Department of 
     State.
         Harry Reid, Mark L. Pryor, Sheldon Whitehouse, Daniel K. 
           Inouye, Russell D. Feingold, Christopher J. Dodd, 
           Roland W. Burris, Richard Durbin, Patty Murray, Jon 
           Tester, Mark Udall, Amy Klobuchar, Jack Reed, Max 
           Baucus, Jeff Merkley, Blanche L. Lincoln, Maria 
           Cantwell, Byron L. Dorgan.

  The PRESIDING OFFICER. By unanimous consent, the mandatory quorum 
call has been waived.
  The question is, Is it the sense of the Senate that debate on the 
nomination of Harold Koh, of Connecticut, to be Legal Adviser of the 
State Department shall be brought to a close?
  The yeas and nays are mandatory under the rule. The clerk will call 
the roll.
  The assistant legislative clerk called the roll.
  Mr. DURBIN. I announce that the Senator from West Virginia (Mr. Byrd) 
and the Senator from Massachusetts (Mr. Kennedy) are necessarily 
absent.
  Mr. KYL. The following Senator is necessarily absent: the Senator 
from Mississippi (Mr. Cochran).
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The yeas and nays resulted--yeas 65, nays 31, as follows:

                      [Rollcall Vote No. 212 Ex.]

                                YEAS--65

     Akaka
     Alexander
     Baucus
     Bayh
     Begich
     Bennet
     Bingaman
     Boxer
     Brown
     Burris
     Cantwell
     Cardin
     Carper
     Casey
     Collins
     Conrad
     Dodd
     Dorgan
     Durbin
     Feingold
     Feinstein
     Gillibrand
     Gregg
     Hagan
     Harkin
     Hatch
     Inouye
     Johnson
     Kaufman
     Kerry
     Klobuchar
     Kohl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     Lugar
     Martinez
     McCaskill
     Menendez
     Merkley
     Mikulski
     Murray
     Nelson (NE)
     Nelson (FL)
     Pryor
     Reed
     Reid
     Rockefeller
     Sanders
     Schumer
     Shaheen
     Snowe
     Specter
     Stabenow
     Tester
     Udall (CO)
     Udall (NM)
     Voinovich
     Warner
     Webb
     Whitehouse
     Wyden

                                NAYS--31

     Barrasso
     Bennett
     Bond
     Brownback
     Bunning
     Burr
     Chambliss
     Coburn
     Corker
     Cornyn
     Crapo
     DeMint
     Ensign
     Enzi
     Graham
     Grassley
     Hutchison
     Inhofe
     Isakson
     Johanns
     Kyl
     McCain
     McConnell
     Murkowski
     Risch
     Roberts
     Sessions
     Shelby
     Thune
     Vitter
     Wicker

                             NOT VOTING--3

     Byrd
     Cochran
     Kennedy
  The PRESIDING OFFICER. On this vote, the yeas are 65, the nays are 
31. Three-fifths of the Senators duly chosen and sworn having voted in 
the affirmative, the motion is agreed to.
  (Disturbance in the Visitors' Galleries.)
  The PRESIDING OFFICER. No applause from the gallery is allowed.
  The Senator from Georgia.
  Mr. CHAMBLISS. Mr. President, I ask unanimous consent to speak as in 
morning business and that I be followed by my colleague, Senator 
Isakson.
  The PRESIDING OFFICER. Is there objection? Hearing no objection, it 
is so ordered.


                       Tribute to Dr. Bruce Grube

  Mr. CHAMBLISS. Mr. President, I rise to pay tribute to an academic 
leader and a true public servant--Dr. Bruce Grube. A decade ago, Dr. 
Grube took the helm of Georgia Southern University in Statesboro, GA. 
At the end of this month, after 10 years on this job, he will leave 
Georgia Southern a bigger, better, and considerably richer university, 
both in terms of its endowment and in its academic achievements, than 
when he started.
  His leadership has been robust. During Dr. Grube's tenure as 
President of Georgia Southern the school's enrollment has risen almost 
23 percent. Nearly 18,000 students are proud to call Georgia Southern 
their academic home. And while freshman SAT scores were rising some 13 
percent on his watch, the university was being catapulted into national 
prominence. During Dr. Grube's time as president, Georgia Southern was 
designated a Carnegie doctoral/research university, was featured in the 
U.S. News and World Report's ``Best Colleges'' guide, and was named one 
of the Nation's ``Top 100 Best Values'' in education by Kiplinger.
  He also oversaw the creation of two new colleges specializing in 
information technology and public health, presided over a veritable 
building boom on campus, and brought Georgia Southern into the Internet 
age with distance learning courses.
  Of all his remarkable achievements, perhaps the most significant is 
that in the decade of Dr. Grube's presidency, the amount of 
scholarships funded through the Georgia Southern Foundation has 
doubled. In 1999, the foundation's scholarships totaled $644,000. In 
2007, the foundation was able to award $1.3 million to deserving 
scholars, many of whom may not have been able to start school or 
complete their degrees without that assistance. And Dr. Grube has led 
the way in doubling the university's endowment in 9 years' time.
  In addition, he has overseen Georgia Southern's rise in the world of 
collegiate athletics. In the past decade, the Eagles' volleyball, 
softball, baseball, and golf teams have reached their respective NCAA 
tournaments. Its football team went to the FCS national championships, 
and its cheerleading squad captured the national title.
  Georgia Southern and the entire university system will miss Dr. 
Grube's visionary leadership. Fortunately, this political scientist who 
got his start in the classroom won't be going far. After a little time 
off, he will return to Georgia Southern to teach in 2010.
  Dr. Grube, we certainly wish you and your family the best. Your 
professional dedication to better education has made Georgia Southern 
and Georgia a better place in which to live. I am proud to call you my 
good friend.
  The PRESIDING OFFICER. The Senator from Georgia.
  Mr. ISAKSON. Mr. President, I am delighted to rise with my colleague 
from Georgia, Senator Chambliss, and pay tribute to my friend, Dr. 
Bruce Grube. A lot of times we stand on the floor and say ``my 
friend,'' when it is a passing statement. Well, it is not for me. I met 
Dr. Grube in 1989, when he was named the 11th president of Georgia 
Southern University, and I was with him as recently as commencement 
last year.
  He is a great leader in education in our State, and he will be 
missed. But he is both remembered and revered and there are three 
reasons I would like to talk about his distinguished career. No. 1, he 
did what is most important for college presidents to do--he raised the 
endowment of the university. In fact, he doubled the endowment of the 
university. And because of that, as Senator Chambliss said, he doubled 
the number of scholarships going out to deserving Georgians to come to 
Georgia Southern University. That is No. 1.
  No. 2, as a former chairman of a State board of education and one 
whose passion is education, I love what Dr. Grube did when he put in 
the First-Year Experience program at Georgia Southern University, a 
program designed to make the first-year experience a lasting experience 
so student retention improved at Georgia Southern and more kids who 
entered graduated. Since the inception of that program, retention at 
Georgia Southern University has gone from 66 percent of the freshman 
class to 81 percent of the freshman class--four out of five returning 
and getting their degree at Georgia Southern University.
  No. 3, among everything else that a president of a university does in 
terms of responsibility, it is so important that they outreach to the 
community. When you go to Bulloch County in Statesboro, GA, if you are 
at Snooky's Restaurant for breakfast, Dr. Grube is there. If you are on 
campus in the middle of the day, interacting with students under the 
shade of a Georgia pine tree, Dr. Grube is there. If there is a 
charitable or benefit program in Bulloch County, Dr. Grube is there. He 
is the face of Georgia Southern University, and he will be missed--but 
only for a year because after a brief sabbatical he comes back to teach 
political science at Georgia Southern University. He returns to his 
roots, established in his doctorate degree at the

[[Page 15998]]

University of Texas in political science and carried on for years to 
come as a distinguished professor of political science at Georgia 
Southern University.
  I am proud to rise with my colleague, Senator Chambliss, to pay 
tribute to a great Georgian, a great educator, and my personal friend, 
Dr. Bruce Grube.
  I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Kaufman). The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. McCONNELL. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. McCONNELL. Mr. President, I am going to proceed on my leader time 
which I did not use earlier this morning.


                      Health Care Week IV, Day III

  Mr. President, when it comes to reforming health care, Republicans 
believe that both political parties should work together to make it 
less expensive and easier to obtain, while preserving what people like 
about our current system.
  That is why Republicans have put forward ideas that should be easy 
for everyone to support, such as reforming medical malpractice laws to 
get rid of junk lawsuits; encouraging wellness and prevention programs 
that have already been shown to cut costs; and addressing the needs of 
small businesses without imposing taxes that will kill jobs.
  Unfortunately, Democrats on Capitol Hill have opted against many of 
these commonsense proposals, moving instead in the direction of a 
government-run system that denies, delays, and rations care.
  So it is my hope that the President uses his prime time question and 
answer session at the White House tonight to clearly express where he 
himself comes down on a number of crucial questions.
  One question relates to whether Americans would be able to keep the 
care they have if the Democrat plan is enacted. The President and 
Democrats in Congress have repeatedly promised Americans they could 
keep their health insurance. Yet the independent Congressional Budget 
Office says that just one section of the Democrat bill being rushed 
through Congress at the moment would cause 10 million people with 
employer-based insurance to lose the coverage they have.
  Another independent study of a full proposal that includes a 
government-run plan estimates that 119 million Americans, or 
approximately 70 percent of those covered under private health 
insurance, could lose the health insurance they have as a consequence 
of a government plan. America's doctors have also warned that a 
government plan threatens to drive private insurers out of business. 
And yesterday, the President himself acknowledged that under a 
government plan, some people might be shifted off of their current 
insurance.
  So the first question is this: Will the President veto any 
legislation that causes Americans to lose their private insurance?
  The President also said that health care reform cannot add to the 
already staggering national debt. Yet once again, the Congressional 
Budget Office has said that just one section of the Democrats' HELP 
bill would spend $1.3 trillion, while others estimate the whole thing 
could end up spending more than $2 trillion. And here is how the CBO 
put it: ``the substantial costs of many current proposals to expand 
Federal subsidies for health insurance would be much more likely to 
worsen the long-run budget outlook than to improve it.''
  Let me repeat that, Mr. President. The Congressional Budget Office 
says that some of the proposals in the Democrats' bill would be much 
more likely to worsen the long-run budget outlook than to improve it.
  So the second question is this: Will the President veto a bill that 
adds to the Nation's already staggering deficit?
  The President has said that no middle-class Americans would see their 
taxes raised a penny. Yet Democrats on Capitol Hill are considering 
proposals, such as a plan to limit tax deductions for medical costs, 
that would not only raise taxes on middle class families, but that 
would hit these families the hardest.
  So the third question is this: Will the President veto any 
legislation that raises taxes on the middle class?
  The President has said he supports wellness and prevention programs 
that have proven to cut costs and improve care by encouraging people to 
make healthy choices, like quitting smoking and fighting obesity. One 
such program is the so-called Safeway plan, which has dramatically cut 
that company's costs and employee premiums. Yet the bill Democrats are 
rushing through the Senate would actually ban the key provisions of the 
Safeway program from being implemented by other companies.
  So the fourth question is this: Does the President support the HELP 
Committee bill, which bans providing incentives for healthy behavior, 
and will he veto legislation that bans these kinds of programs?
  Finally, the President has said that government should not dictate 
the kind of care Americans receive. On this issue, the President has no 
stronger supporters than Republicans. But Democrats on the HELP 
Committee rejected a Republican amendment that would have prohibited a 
Democrat-proposed government board from rationing care or denying 
lifesaving treatments because they are too expensive.
  So the fifth question is this: Does the President support the 
Republican amendment to prohibit the rationing of care, and will he 
veto legislation that allows the government to deny, delay, and ration 
care?
  Five questions: Will the President use his veto pen to make sure 
Americans are not kicked off their current health plans? Will he oppose 
any legislation that increases the nation's deficit? Will he oppose any 
bill that raises taxes on middle-class families? Will he reject any 
bill that excludes commonsense wellness and prevention programs that 
have been proven to cut costs and improve care? And will he disavow 
legislation that denies, delays, and rations care?
  The American people want Republicans and Democrats to work together 
to enact health care reform, but they want the right kind of reform not 
a massive government takeover that forces them off of their current 
insurance and denies, delays, and rations care. Americans are right to 
be concerned about what they are hearing from Democrats. It's my hope 
that the President addresses those concerns tonight once and for all.
  Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. KYL. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. KYL. Mr. President, the nomination of Harold Koh concerns me for 
a number of reasons. Primarily, his view that international law should 
guide U.S. law and his criticism of our first amendment right to 
freedom of speech and his opposition to the Solomon amendment, which 
conditions Federal funding to educational institutions on allowing 
military recruiting on campus.
  The State Department Legal Adviser helps formulate and implement U.S. 
foreign policy, advises the Justice Department on cases with 
international implications, influences U.S. positions on issues 
considered by international bodies, and represents the United States at 
treaty negotiations and international conferences.
  In short, this position requires the utmost deference to the 
Constitution of the United States. Mr. Koh is a proponent of 
transnationalism, the belief that Americans should use foreign law and 
the views of international organizations to interpret our Constitution 
and to determine our policies.
  Mr. Koh has gone so far as to refer to the United States as part of 
an ``axis of

[[Page 15999]]

disobedience'' in reference to America's alleged violations of 
international law.
  During his 2003 speech at the University of California at Berkeley, 
Mr. Koh said:

       When I came to government, the first conclusion I reached 
     was that the rule of law should be on the U.S. side.
       That's a system of law--

  He is speaking now of international law--

     that we helped to create. So that's why we support various 
     systems of international adjudication. That's why we support 
     the UN system. We need these institutions, even if they cut 
     our own sovereignty a little bit.

  Mr. Koh's views on the first amendment again portray a desire to make 
American law subservient to international law. In his Stanford Law 
Review article--the title of which was ``On American Exceptionalism''--
Koh stated that our first amendment gives ``protections for speech and 
religion . . . far greater emphasis and judicial protection in America 
than in Europe or Asia,'' and he opined that America's ``exceptional 
free speech tradition can cause problems abroad.'' Furthermore, he 
stated that the way for the ``Supreme Court [to] moderate these 
conflicts'' is ``by applying more consistently the transnationalist 
approach to judicial interpretation.''
  This is breathtaking. Is it even consistent with an oath to protect 
and defend the Constitution? Should we now begin to dismantle a 
founding principle of our democracy in order to appease the so-called 
international community, as Mr. Koh advocates? If the Founding Fathers 
had followed this advice, this country would not be the leading example 
of freedom in the world it is today and a leader in getting others to 
protect free speech and assembly and other freedoms--such as are being 
asserted in Iran today. Conforming our views to the norm, which Mr. Koh 
acknowledges provides less protection than our Constitution would, 
therefore, would adversely affect the very international community 
which Mr. Koh seeks to emulate.
  Let me put it another way. People in Iran today are taking to the 
streets to try to exercise some degree of free speech and assembly and 
petition their government. Mr. Koh acknowledges that in our 
Constitution we provide much more protection for those rights than 
anywhere else, or, I think as he put it, than the mainstream of 
international law provides. That is true.
  I think that is something we should not only adhere to for our own 
benefit but for the benefit that it provides to others around the world 
as an example of what they should seek to achieve and because of the 
moral status it gives the United States to be able to say to the 
leaders of a country such as Iran: You need to provide free speech and 
assembly and the right to petition their government, and the fact that 
you are not doing it is wrong because if we believe we are all created 
equal, by our Creator, that means we have moral equality as 
individuals. Everybody in Iran, we believe, would have the same right 
as anyone else to exercise these God-given rights. And if that is true, 
it makes no sense to diminish those rights as they have been 
interpreted by our courts in the United States, interpreting our U.S. 
Constitution, in order for us to conform to an international norm.
  Rather, it makes sense for us to continue to adhere to those high 
standards and to try to bring other countries along with us. In fact, I 
would postulate that because of our high standard of rights and the 
example that our Constitution provides, many countries of the world 
have actually advanced the cause of free speech and assembly and 
petitioning their government more than they otherwise would have 
because they have the example of the United States to look at.
  If I think of countries, the revolutions, the Orange Revolution, and 
the changes in governments in places such as Poland, back when it broke 
from the Soviet Union, and Ukraine and Georgia and all of the other 
places in the world where people finally broke free from the shackles 
of a government that would not permit free speech, what were they 
seeking to do? To exercise free speech in order to petition their 
government for individual freedom.
  So the United States should jealously guard those rights in our 
Constitution rather than, as Mr. Koh says, have the United States 
interpret its Constitution more in line with the mainstream of thinking 
in the rest of the world.
  If you sort of try to apply a mathematical formula, and you average 
what the rest of the world thinks about free speech, the right of 
religion, the right to assemble, the right to petition the government, 
the average is far below what we provide. We are pretty much at the top 
of the pile in terms of what we protect.
  But if we were to follow Mr. Koh's advice, in order to be more 
accepted in the world, we would draw our standards of protection of 
individual rights down to the leveled area of the mainstream around the 
world. If you look around the world today, there are so many 
dictatorships, totalitarian systems, autocracies--even a country such 
as China--which provide very little in the way of freedom for their 
people. If you just took the average based on the population of the 
world, I know what the mainstream would be. It would not be very much 
in the way of individual rights.
  So we should jealously protect what we have in the United States, 
which is a constitution that at least thus far has been interpreted to 
protect those rights jealously, not just for our benefit--though that 
should be, I submit, the sole purpose of a Supreme Court Judge, for 
example, deciding Supreme Court cases; what does the Constitution say 
for the people of America?--but if one is going to consider the 
international implications, I think it would be exactly the opposite of 
what Mr. Koh is saying; namely, that we should be concerned that any 
diminishment of the interpretation of our rights would negatively 
affect other people around the world.
  I do not care if the average is a lower standard. I wish those 
countries would bring their standards up to ours. But I certainly do 
not want to conform to some idea of international acceptance or 
international popularity by bringing ourselves down to their level. 
This is not what ``American Exceptionalism'' is all about--the title of 
the piece Mr. Koh wrote.
  He has argued in other contexts as well that unique American 
constitutional provisions should conform to the international view of 
things. I have been speaking of free speech and assembly, the right to 
petition your government, to practice religion. We think those are 
absolutely basic. But there are some other rights in our Constitution. 
One of them is the second amendment. It is controversial.
  Other countries do not have a protection such as the second amendment 
to the U.S. Constitution. If we want to amend the Constitution, we can 
do that. But as it stands right now, the second amendment has been 
upheld by the Supreme Court to apply to every individual in the United 
States, free from Federal undue interference with respect to the 
ownership of guns.
  But if we adopt Mr. Koh's argument about conforming to international 
norms, including stricter gun control, it may bring us more in line 
with some other countries, but it certainly would not be in keeping 
with the interpretation of the U.S. Supreme Court with respect to that 
second amendment.
  In an April 2002 speech at the Fordham University School of Law, Mr. 
Koh advocated a U.N.-governed regime to force the United States ``to 
submit information about their small arms production.'' He believes the 
United States should ``establish a national firearms control system and 
a register of manufacturers, traders, importers and exporters'' of guns 
to comply with international obligations. This would allow U.N. members 
such as Cuba and Venezuela and North Korea and Iran to have a say in 
what type of gun regulations are imposed on American citizens.
  As the dean of Yale Law School, Mr. Koh was a leader in another 
effort I think is troublesome. It was an effort to deprive students of 
the freedom to listen to military recruiters who wanted to explain on 
campus the benefits of a career in our military services. We

[[Page 16000]]

all--every one of us in this body--frequently express our gratitude to 
the people in the U.S. military services who protect us, who put 
themselves in danger in order to protect the very freedoms we are 
talking about. Yet as dean of the law school, he would not allow the 
recruiters for these military institutions to come on campus. Yet he 
would protect students' freedom to listen to antiwar speakers on 
campus. But Yale closed its doors to military recruiters primarily 
because it disagreed with the military's policies on gays, which, by 
the way, is a policy of the President and the Congress, not just the 
military.
  In court, Mr. Koh and others in Yale's administration challenged the 
constitutionality of the Solomon amendment. The Solomon amendment is a 
statute that denies Federal funds to educational institutions that 
block military recruiters. The Supreme Court unanimously ruled against 
Mr. Koh's position.
  Mr. Koh also led a lawsuit against Department of Justice lawyer John 
Yoo for doing what any government lawyer is expected to do: provide his 
legal opinions to the people he worked for, the policymakers of the 
U.S. Government.
  The Supreme Court has said, in no uncertain terms, that government 
lawyers need immunity from suit in order to avoid ``the deterrence of 
able citizens from acceptance of public office'' and the ``danger that 
fear of being sued will dampen the ardor of . . . public officials in 
the unflinching discharge of their duties.''
  In other words, by encouraging this lawsuit, Mr. Koh was effectively 
deterring his students from doing precisely what Yale otherwise 
recommends that they do: enter public service.
  Elections have consequences. I understand and generally support the 
prerogative of the President to nominate individuals for his 
administration he deems appropriate as long as they are within the 
spectrum of responsible views. However, because of the importance of 
his position in representing the United States in the international 
community with respect to treaties and other agreements, his own words 
and actions demonstrate to me he is far outside the mainstream in such 
a way that his appointment as State Department Legal Adviser could 
damage U.S. sovereignty.
  So I oppose his nomination. I urge my colleagues--all of us who take 
an oath to support and defend the Constitution and who appreciate there 
are always challenges to America's sovereignty--to closely examine Mr. 
Koh's record and determine whether he would be a representative not 
only whom they could be proud of but whom they could rely upon in 
representing the American public interest.
  At the end of the day, our sovereignty depends upon the American 
people. We govern with the consent of the governed. Our government does 
not start with rights. We had a group of people in America who gave 
their government certain limited rights in order for their common good. 
So the American people are our bosses. They pay our salary. We need to 
listen to them.
  When I talk to my constituents--at least in recent months--I notice a 
theme that is recurring, and it is troublesome to me first of all 
because it is the kind of thing that sometimes is influenced by people 
who have less character than those of us in this body and others who 
may disagree with each other but seriously approach these issues. It is 
the idea that little by little the people are losing sovereignty, and 
that the country of America is giving up its sovereignty to others. Who 
are the others?
  I am not a conspiratorial person. That is why I say some of the 
people who promote this idea do not do so for the right reasons, and I 
do not like to see them paid attention to by our constituents. But 
every time we adhere to a U.N. resolution or sign a treaty with another 
country or agree to abide by the terms of a trade agreement, or 
something of that sort, to some extent we are giving up a little bit of 
our sovereignty. As long as we do all of those things with the consent 
of the governed and as long as we do it through the representative 
process where we pass a law or we confirm a treaty, ratify a treaty, it 
is done in the right way. We may make a mistake, we may go too far 
sometimes, but that is the decision we make. We have the right to make 
mistakes too. But when we go outside the legal framework of the country 
to cede a little bit of our sovereignty, as Mr. Koh says is OK, then we 
have abused the confidence the American people have placed in us and we 
have gone beyond our legal ability as representatives of the people to 
give up this little degree of sovereignty.
  What I am concerned about, because of his position, which is the 
direct link between the United States and all of these international 
organizations and countries which our country necessarily deals with, 
is that he cares less about the protection of American sovereignty than 
the vast majority of the American citizens. In fact, he has a point of 
view which regards that as less important than conforming to 
international norms and even being in line with popular opinion 
internationally. As I said before, it is nice to be liked, but at the 
end of the day, the United States should not be about popular opinion.
  We could probably be more popular with 100 countries in the United 
Nations if we stopped harping on things such as clean elections and 
free speech and the right to assembly and so on because my guess is 
there are probably 50 to 100 countries in the United Nations that don't 
respect their citizens' rights nearly as much as we do. In fact, the 
number is probably larger than that. They are uncomfortable with the 
example of a country such as the United States which sets on such a 
high pedestal our American citizens' rights, that we not only protect 
those rights for our citizens, but we hold them out to the rest of the 
world as something that would be beneficial for their citizens as well. 
This makes them uncomfortable, and rightly so, because sometimes, as we 
are seeing in Iran today, people decide that it is a good thing to 
decide to exercise those rights and they feel the denial of that 
ability by their governments is wrong. They are even willing to risk 
their lives, as our forefathers did, to assert those rights. That is 
how important they are.
  How odd it is, therefore, to come across such an intelligent--and he 
certainly is intelligent--man such as Mr. Koh who has a very different 
point of view about these important American rights, who believes it is 
more important for us to be in the mainstream of international thinking 
even though that mainstream represents a view of rights far less than 
the United States views our rights; it is far more important for us to 
be well viewed in the international community than it is to strictly 
adhere to those rights that are embodied in our Constitution. That is 
extraordinarily troubling to me. Some of his views are breathtaking as 
they have been asserted.
  I know he has met with some of our colleagues, that he is apparently, 
in addition to being very intelligent, very charming, and that his 
essential position is: Well, that is what I said in a speech, but I 
will recognize my obligations as a member of the administration.
  I think we are all informed by our views, and if we care enough about 
them to speak out in a way that he has, as frequently and as forcefully 
as Mr. Koh has, it is difficult to believe that all of a sudden, in a 
moment of his confirmation, he will forget about everything he said and 
what he believes and conform his representation of the American people 
to what is a far more mainstream point of view; namely, that we should 
defend our Constitution to the absolute maximum extent we can, 
irrespective of the views of other countries around the world. That is 
why, at the end of the day, as I said, I hope my colleagues will review 
his record very carefully and will judge and eventually base their vote 
on his confirmation on what he has said--because he is an intelligent 
man who knows very well what he has said--and what, therefore, could 
flow from his words as actions as our representative in the State 
Department as its Legal Adviser.
  Mr. President, I note the absence of a quorum.

[[Page 16001]]

  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. CARDIN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Begich). Without objection, it is so 
ordered.
  Mr. CARDIN. Mr. President, I ask unanimous consent to speak as in 
morning business for up to 20 minutes, with the time counting toward 
the postcloture debate time.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                            Metro Collision

  Mr. CARDIN. Mr. President, I rise today to offer my condolences to 
the families and loved ones of those who lost their lives in the tragic 
collision of two Metro trains this past Monday evening. This accident 
is the most devastating, by any measure, in Metro's history, and it has 
affected our entire region. My prayers are with those who lost their 
lives and my deepest sympathies are with their families, friends, and 
all those they touched.
  I want to take a moment to praise the first responders, who worked 
tirelessly through the night to rescue the injured and save lives. It 
is during tragedies such as this that we can fully appreciate the 
heroism and bravery of our first responders.
  At this time, we don't know the cause of the crash, and it may take 
considerable time for the National Transportation Safety Board to 
complete its investigation and make a determination. We certainly will 
do everything we can in this body to assist the National Transportation 
Safety Board in their investigation, make sure it is thorough and 
complete, and that we fully understand how this tragedy occurred.
  News reports found that the train car that caused the fatal accident 
was an older model that the Federal safety officials had recommended 
for replacement. It didn't have the data recorder or modern 
improvements to stand up to a collision, and it may have been 2 months 
behind in its scheduled maintenance. Metro officials are replacing 
these aging cars that date back to the 1970s. These costly replacements 
are being made but at a pace that is too slow.
  Funding shortfalls have caused Metro to make repairs instead of 
replacing aging equipment or structures throughout the system. Last 
year, I visited the Shady Grove Station and witnessed firsthand how 
they literally are using wood planks and iron rods to prop up station 
platforms. They have been forced to make accommodations to keep the 
system running in the safest possible manner.
  The Washington Metro rail system is the second busiest commuter rail 
system in America, carrying as many as a million passengers a day. It 
carries the equivalent of the combined subway ridership of BART in San 
Francisco, MARTA in Atlanta, and SEPTA in Philadelphia each day. But 
more than three decades after the first train started running, the 
system is showing severe signs of age. Sixty percent of the Metro rail 
system is more than 20 years old. The costs of operations maintenance 
and rehabilitation are tremendous.
  This is not only the responsibility of the local jurisdictions that 
serve Metro--the State of Maryland, Virginia, and Washington, DC--but 
there is also a Federal responsibility in regard to these cars. Federal 
facilities are located within footsteps of 35 of Metrorail's 86 
stations. Nearly half of Metrorail's rush hour riders are Federal 
employees. This is our Metro system. We have a responsibility. 
Approximately 10 percent of Metro's riders use the Metrorail stations 
at the Pentagon, Capital South, and Union Station, serving the military 
and the Congress.
  In addition, Metro's ability to move people quickly and safely in the 
event of a terrorist attack or natural disaster is crucial. The Metro 
system was invaluable on September 11, 2001, proving its importance to 
the Federal Government and the Nation during the terrorist attacks of 
that tragic day.
  There is a clear Federal responsibility to this system.
  Metro is unique from any other major public transportation system 
across the country because it has no dedicated source of funding to pay 
for its operation and capital funding requirements. But we are close to 
resolving that issue.
  I was proud to work alongside Senator Mikulski, Senator Webb, and 
former Senator John Warner last year to pass the Federal Rail Safety 
Improvement Act, which was signed into law in October 2008. This law 
authorizes $1.5 billion over 10 years in Federal funds for Metro's 
governing Washington Metropolitan Area Transit Authority, matched 
dollar for dollar by local jurisdictions, for capital improvement. The 
technical details of this arrangement are nearly complete, and when 
done, Metro finally will have its dedicated funding sources. I 
compliment the States of Virginia and Maryland and the District for 
passing the necessary legislation.
  Earlier this year, as a regional delegation, along with our new 
colleague, Senator Mark Warner, we requested that the Appropriations 
Committee provide the first $150 million. While this is a substantial 
downpayment, it is not nearly enough to fulfill all of Metrorail's 
obligations. At the time of the bill's passage, Metro had a list of 
ready-to-go projects totaling about $530 million and $11 billion in 
capital funding needs over the next decade. Yesterday, I joined with my 
colleagues from Maryland and Virginia in sending another letter to the 
chairman and ranking member of the Appropriations Committee reiterating 
our urgent request for a first-year installment of $150 million in 
funding for WMATA. Earlier today, I was pleased to announce $34.3 
million in additional funding for the purchase of new Metro cars. This 
was the last installment of a 3-year, $104 million commitment. However, 
only a steady, major stream of funding will help WMATA make the 
investments needed to reassure the commuters, locals, tourists, 
families, and all Americans who ride Metro that the system is as safe 
and reliable as it can possibly be. I find it unacceptable that the 
transit system in our Nation's Capital does not have enough resources 
to improve safety and upgrade its aging infrastructure. While we may 
not know the cause of Monday's tragic collision for some time, it 
shined a spotlight on the dire need for improvements and upgrades to 
the Metrorail's infrastructure.
  Again, on behalf of all our colleagues, I extend our deepest 
sympathies to all those affected by this horrific accident, in 
particular the families and loved ones of those who were killed. I hope 
my colleagues will join together, working with the Virginia Senators 
and Maryland Senators, to ensure that this body does everything it can 
to make sure a similar tragedy is never repeated.


                        Hate Crimes Legislation

  Madam President, I next wish to talk about the urgent need to pass 
the Matthew Shepard Hate Crimes Prevention Act of 2009. We passed this 
2 years ago, and unfortunately we were unable to reconcile it with the 
other body.
  In the last 2 years, we have had constant reminders of the need to 
pass this legislation. Just this past June 15, Steven Johns, a security 
guard at the U.S. Holocaust Museum, lost his life to a person who was 
deranged but who also was acting under hate. On February 12, 2008, 
Lawrence King, a 15-year-old student, lost his life because he was gay. 
On election night, we saw two men go on a killing spree against African 
Americans because America elected its first African-American President. 
In July of last year, four teenagers killed a Mexican immigrant and 
used racial slurs, making it clear it was a hate crime. In 2007, there 
were 7,600 reported hate crimes in America--150 in my own State of 
Maryland. So we need to do something about this. The trends have not 
been positive. They have been negative. Crimes against Latinos, based 
upon hate, have increased steadily since 2003. In 2007, we saw the 
highest number of hate crimes against lesbians, gays, bisexual and 
transgendered, up 6 percent from the year before. The number of 
supremacist groups in America has increased

[[Page 16002]]

dramatically. There has been an increase in anti-Semitism between 2006 
and 2007. The list goes on and on.
  My point is this: We are seeing a troubling trend in America, with 
increased violence caused by hate-type activities. We need to act. The 
Federal Government needs to act. The Matthew Shepard Hate Crimes 
Prevention Act of 2009 will do just that. It expands the current hate 
crimes legislation we have on the Federal books so that it covers not 
just protected Federal activities but all activities in which a hate 
crime is perpetrated, and it extends the protections against hate 
crimes generated by gender, disability, gender identity, and sexual 
orientation. It will supplement what the States are doing. Many States 
are aggressively pursuing these matters. In fact, 45 States and the 
District of Columbia have passed their own hate crimes statute, and 31 
include sexual orientation as a protected right.
  The reason we need the Federal law is that the Federal Government has 
the resources and the capacity to respond when many times the States 
cannot. And I want to make it clear that this bill fully protects first 
amendment rights. This protection is against violent acts, not against 
speech. Hate crimes not only affect the victim, but they affect the 
entire community. It is time for us to act, and I hope we will soon 
pass the Matthew Shepard Hate Crimes Prevention Act of 2009.


                           Health Care Reform

  Lastly, I wish to talk about health care reform. There has been a lot 
of debate in this body, a lot of conversation about health care reform 
and what we need to do. I hope the only option that is not on the table 
is the status quo. We cannot allow the current system to continue.
  I say that for several reasons. First is the matter of cost. The 
Nation cannot afford the health care system we have now. Last year, the 
Nation's health care costs totaled $7,400 for every man, woman, and 
child in this country, for a total of $2.4 trillion. We spent 15 
percent of our gross domestic product on health care in 2006--the 
highest country by far. Switzerland, which is No. 2, spends 11 percent, 
and the average of the OECD nations is 8\1/2\ percent. We spend 
approximately twice as much as the industrial nations of the world 
spend on health care. And we don't have the results to warrant this 
type of expenditure. Of the 191 countries ranked by the World Health 
Organization, we are ranked 37th on overall health systems 
performance--behind France, Canada, and Chile, just to mention a few. 
We rank 24th on health life expectancies, and we ranked No. 1, by far, 
on health care expenditures. Between 2000 and 2007, the median earnings 
of Maryland workers increased 21 percent. Yet health insurance premiums 
for Maryland families rose three times faster than the median earnings 
in that same time period.
  So we can't afford the cost of health care in America. It is 
crippling our economy, and our budgets are not sustainable. We are 
having a hard time figuring out how we are going to bring down the 
Federal deficit. When we look at the projected numbers, if we don't get 
health care costs under control, it is going to be extremely difficult 
to figure out how to balance budgets in the future. We need to bring 
down the cost of health care if America is going to be competitive in 
this international competitive environment.
  For all those reasons, we need to do it. Yet we know we have 46 
million Americans--despite how much money we spend--who don't have 
health insurance, and that is 20 percent higher than 8 years ago. We 
are running in the wrong direction. In my State of Maryland, 760,000 
people do not have health insurance. Every day, people in Maryland and 
around the Nation are filing personal bankruptcy because they can't 
afford the health care bills they have. We have to do something about 
this.
  I wish to thank and congratulate President Obama for bringing forward 
a reform that I hope will be embraced by this body. It certainly has 
been embraced by the American people. They understand it. We build on 
our current system. We want to maintain high quality. And I say that 
coming from a State that is proud to be the home of Johns Hopkins 
University and its great medical institution; the University of 
Maryland Medical Center, with its discoveries; and certainly NIH. This 
is a State--a nation--that is proud of its medical traditions of 
quality. We want to maintain choice. I want the constituents in 
Maryland and around the country to not only choose their doctor and 
their hospital but to choose the health care plans they can participate 
in, and we certainly want to make sure this is affordable. So for all 
those reasons, we want to build on the current system.
  Let me talk about one point that has gotten a lot of attention, and 
that is whether we should have a public option. I certainly hope we 
have a robust public insurance option, and I say that for many reasons. 
Public insurance has worked in our system. Just look at Medicare. If 
the Federal Government did not move for Medicare, our seniors would not 
have had affordable health care coverage, our disabled population would 
not have had affordable health care coverage. I don't know of a single 
Member of this body who is suggesting that we repeal Medicare, and that 
is a public insurance option.
  A public insurance option does not have the government interfering 
with your selection of a doctor. The doctors and hospitals are private. 
We are talking about how we collect pay for these bills. And Medicare 
has worked very well, as has TRICARE for our military community. So we 
want to build on that experience.
  The main reason we want a public insurance option is to keep down 
cost. That is our main reason. We know Medicare Advantage is a private 
insurance option within Medicare. I am for a private insurance option 
in Medicare, but I oppose costing the taxpayers more money because of 
that. We know Medicare Advantage costs between 12 to 17 percent more 
for every senior who enrolls in the private insurance option. The CBO--
Congressional Budget Office--tells us that cost is $150 billion over 10 
years. So this is a cost issue.
  I remember taking the floor in the other body when we were talking 
about Medicare Part D, the prescription drug part of the Medicare 
system. I urged a public insurance option at that time, on the same 
level playing field as private insurance so that we could try to keep 
the private insurance companies honest and have fair competition. We 
didn't do that. As a result, the Medicare Part D Program is costing the 
taxpayers more than it should.
  So my main reason for saying we need to have a public insurance 
option is to keep costs down, but it also provides a guaranteed 
reliable product for that individual who is trying to find an 
affordable insurance option, for that small business owner who today 
finds it extremely difficult to find an affordable, reliable product 
available in the private insurance marketplace. Maybe the private 
insurance marketplace will be up to the challenge with 46, 47 million 
more people applying for insurance in America. I want to make sure they 
are. And having a public insurance option puts us on a level playing 
field and allows the freedom of choice for the consumer as to what 
insurance product they want to buy and the freedom of choice to choose 
an insurance product that allows them to choose their own private 
doctor and hospital.
  There are plenty of positive proposals, and I congratulate the 
leadership on the Finance Committee and on the HELP Committee for the 
manner in which they are working to bring down health care costs--first 
by universal coverage. Universal coverage will bring down health care 
costs. We know that someone who has no health care insurance uses the 
emergency room. It costs us a lot of money to use the emergency room. 
We want to get care out to the community, and with universal coverage 
it will bring down costs.
  Preventive health care saves money. It saves money and it saves 
lives. It provides better, healthier lives for individuals, but it also 
saves money. We know that providing a test for a person for early 
detection of a disease costs literally a couple hundred dollars 
compared to the surgery that might be avoided which costs tens of 
thousands of dollars. So this is about cost, about

[[Page 16003]]

saving lives, and about a better quality of life with preventive health 
care. I congratulate the committees for really coming together on this 
issue.
  Also, the better use of health information technology will not only 
save us money in the administrative aspect of health care but actually 
in the delivery of care. If we know about a person and we can 
coordinate that person's care, we can bring down the cost of care and 
prevent medical errors.
  For all those reasons, I strongly concur in what our committees are 
doing currently to reform our health care system to bring down costs.
  One last point is the need for us to work together. I do reach out to 
every Member of this body to say: Look, I don't know of anyone who says 
our system is what it should be. Everyone agrees we are spending too 
much money. I haven't talked to a single Senator who believes we can't 
cut the cost of health care. We have to bring down the cost of health 
care. I think all of us agree we have to do a better job in preventive 
care and we have to do a better job of having an affordable product for 
those who don't have health insurance today. We all agree on that.
  Let's listen to each other and work together. This is not a 
Democratic problem or a Republican problem. It cries out for Democrats 
and Republicans to work together to solve one of the most difficult 
problems facing our Nation. I congratulate President Obama for being 
willing to tackle this problem, and I urge all colleagues to join in 
this debate so, at the end of the day, we can pass reform that will 
truly bring down the cost of health care to America, be able to say 
America still leads the world in medical technology, and allows that 
care to be available to all the people of our country.
  That is our goal. We can achieve it working together, and I look 
forward to working with my colleagues in achieving that goal.
  I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER (Mrs. Hagan). The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. SESSIONS. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                          Sotomayor nomination

  Mr. SESSIONS. Madam President, the individual right to keep and bear 
arms--I think a fundamental right guaranteed by the explicit text of 
the second amendment of the U.S. Constitution--is at risk today in ways 
a lot of people have not thought about.
  Although the Supreme Court recently held that the second amendment is 
an individual right, which is a very important rule, many significant 
issues remain unresolved, which most people have not thought about.
  The Supreme Court, including whoever will be confirmed to replace 
Justice Souter, will have to decide whether the second amendment has 
any real force or whether, as a practical matter, to allow it to 
eviscerate its guarantees.
  The second amendment says that ``the right of the people to keep and 
bear Arms, shall not be infringed.'' ``[T]he right of the people to 
keep and bear Arms, shall not be infringed.'' I know there is a 
preamble about a well-regulated militia being important to the security 
of the State, but the Supreme Court has ruled on that in Heller and 
said that does not obviate the plain language that the right to keep 
and bear arms is a right that individual Americans have, at least vis-
a-vis the U.S. Government.
  Not all the amendments, I would say, are so clearly a personal right. 
The first amendment, if you will recall, protects freedom of religion 
and freedom of speech. It talks about restricting Congress: Congress 
shall make no law with respect to the establishment of a religion or 
prohibiting the free exercise thereof.
  So some could argue that does not apply to the States. It would apply 
only to the Federal Government because it explicitly referred to it. 
However, the Supreme Court has held it does apply to the States, and 
the right of speech and press and religion are applicable to the States 
and bind the States as well.
  In the case of District of Columbia v. Heller, the Supreme Court 
recently held that the second amendment ``confer[s] an individual right 
to keep and bear arms.'' This is consistent with the Constitution and 
was a welcome and long-overdue holding.
  Despite this holding, however, many important questions remain. For 
example, it is still unsettled whether the second amendment applies 
only to the Federal Government or to the State and local governments as 
well--a pretty big question. This question will determine whether 
individual Americans will truly have the right to keep and bear arms 
because if that is not held in that way, it would allow State and local 
governments--not bound by the second amendment--to pass all sorts of 
restrictions on firearms use and ownership. They may even ban the 
ownership of guns altogether.
  So we are talking about a very important issue. Remember, the 
District of Columbia basically banned firearms. It is a Federal 
enclave, in effect, with Federal law. And the Supreme Court held that 
the Federal Government could not violate the second amendment, was 
bound by the second amendment, and that legislation went too far. But 
they, in a footnote, noted they did not decide whether it applies to 
the States, cities, and counties that could also pass restrictions 
similar to the District of Columbia.
  President Obama, who nominated Judge Sotomayor, has a rather limited 
view of what the second amendment guarantees.
  In 2008, he said that just because you have an individual right does 
not mean the State or local government cannot constrain the exercise of 
that right--exactly the issues the Supreme Court has not resolved yet. 
Can States and localities constrain the exercise of that right in any 
way they would like?
  In 2000, as a State legislator, the President cosponsored a bill that 
would limit the purchase of handguns to one a month.
  In 2001, he voted against allowing the people who are protected by 
domestic violence protective orders--because they felt threatened--he 
voted against legislation that would allow them to carry handguns for 
their protection.
  So there is some uncertainty about his personal views.
  Let's look at Judge Sotomayor, whom the President nominated, and her 
record on the second amendment. That record is fairly scant, but we do 
know that Judge Sotomayor has twice said the second amendment does not 
give you and me and the American people a fundamental right to keep and 
bear arms.
  The opinions she has joined have provided a breathtakingly, I have to 
say, short amount of analysis on such an important question to the U.S. 
Constitution. And the opinions she has written lack any real discussion 
of the importance of these issues, in an odd way.
  Judge Sotomayor has gone from sort of A to Z without going through B, 
C, D, and so forth. For example, in her most recent opinion in January 
of this year--Maloney v. Cuomo--which asked whether the Supreme Court's 
protection of the right to bear arms in DC--the Heller case--would 
apply to the States, she spent only two pages to explain how she 
reached her conclusion. Her conclusion was that it did not.
  The Seventh Circuit dealt with this same question and reached the 
same conclusion, but they gave the issue the respect it deserved and 
had eight pages discussing this issue, at a time when Judge Sotomayor 
only spent about two pages on it and not very much discussion at all.
  The Ninth Circuit reached a different opinion. They say the second 
amendment does apply to individual Americans and does bar the cities of 
Los Angeles or New York or Philadelphia from barring all hand guns 
because you have an individual constitutional right to keep and bear 
arms. So the Ninth Circuit disagreed, and they had 33 pages in 
discussing this important issue.
  Further, in deciding that the second amendment applies to the people, 
the

[[Page 16004]]

majority in the Supreme Court dedicated, in Heller, 64 pages to this 
important issue. Including dissents and concurrences on that decision, 
the entire Court generated 157 pages of opinion. Judge Sotomayor wrote 
only two pages in a very important case as important as Heller. Judge 
Sotomayor's lack of attention and analysis is troubling.
  These truncated opinions also suggest a tendency to avoid or casually 
dismiss constitutional issues of exceptional importance. Other examples 
might include the New Haven firefighters case, Ricci v. DeStefano, 
which is currently pending before the Supreme Court on review, and the 
fifth amendment case of Didden v. Village of Port Chester, which was 
recently discussed in the New York Times. It dealt with condemnation of 
a private individual's property. All those were serious constitutional 
cases. They had the most brief analysis by the court, which is odd.
  I do not think it is right for us to demand that we know how a judge 
will rule on a case in the Supreme Court. I am not going to ask her to 
make any assurances about how she might rule. But I do think it will be 
fair and reasonable to ask her how she reached the conclusions she 
reached and perhaps why she spent so little time discussing cases of 
fundamental constitutional importance.
  I am not the only one who has been troubled by the second amendment 
jurisprudence of Judge Sotomayor. As I mentioned previously, the Ninth 
Circuit disagreed with her opinion and held that the second amendment 
is a fundamental right applicable to the States and localities.
  Additionally, in a June 10 editorial, the Los Angeles Times--a 
liberal newspaper--disagreed with her view in Maloney as to whether the 
second amendment applies against States and localities.
  Moreover, in a June 10 op-ed in the Washington Times, a leading 
academic argued that the decision in Maloney was flawed.
  So these are critical questions that will determine whether the 
people of the United States have a fundamental right guaranteed by the 
Constitution to keep and bear arms. So I think it is important and it 
is more than reasonable for the Senators to analyze the opinions on 
this question and to inquire as to how the judge reached her decisions 
and what principles she used in doing so.
  I would say we are moving forward with this confirmation process. It 
is a difficult time for us in terms of time. There are now only eight 
legislative days before the hearings start. There is a lot of work to 
be done, a lot of records that have not yet been received. So our team 
and Senators are working very hard, and we will do our best to make 
sure we have the best hearings we have ever had for a Supreme Court 
nominee.
  I see my colleague, Senator Hatch, in the Chamber, who is a fabulous 
constitutional lawyer and former chairman of this Judiciary Committee. 
I was honored to work for him, serve under him, when he was our leader. 
I know whatever he says on these subjects is something the American 
people need to listen to because he loves this country, he loves our 
Constitution, and he understands it.
  I thank the Chair and yield the floor.
  The PRESIDING OFFICER (Mr. Udall of New Mexico). The Senator from 
Utah is recognized.
  Mr. HATCH. Mr. President, I thank my colleague for his comments. He 
knows how deeply I respect him and how proud I am that he is the 
Republican leader on the Judiciary Committee. He will do a terrific 
job, and has been doing a terrific job, ever since he took over.
  Considering a Supreme Court nominee is one of this body's most 
important responsibilities. I come at this wanting to support whomever 
the President nominates. The President has the right to nominate and 
appoint, and we have a right, it seems to me, to vote up or down one 
way or the other and determine whether we will consent to the 
nomination. We can also give advice during this time.
  Only 110 men and women have so far served on our Nation's highest 
Court, and President Obama has now nominated Judge Sonia Sotomayor to 
replace Justice David Souter. Our constitutional rule of advise and 
consent requires us to determine whether she is qualified for this 
position by looking at her experience and, more importantly, her 
judicial philosophy.
  President Obama has already described his understanding of the power 
and role of judges in our system of government. He has said he will 
appoint judges who have empathy for certain groups and that personal 
empathy is an essential ingredient for making judicial decisions. Right 
off the bat, President Obama's vision of judges deciding cases based on 
their personal feelings and priorities is at odds with what most 
Americans believe. A recent national poll found that by more than three 
to one, Americans reject the notion that judges may go beyond the law 
as written and take their personal views and feelings into account.
  Judge Sotomayor appears to have endorsed this subjective view of 
judging. In one speech she gave several times over nearly a decade, she 
endorsed the view that there is actually no objectivity or neutrality 
in judging, but merely a series of perspectives. She questioned whether 
judges should even try to set aside their personal sympathies and 
prejudices in deciding cases, a view that seems in conflict with the 
oath of judicial office which instead requires impartiality.
  We must examine Judge Sotomayor's entire record for clues about her 
judicial philosophy. She was, after all, a Federal district court judge 
for 6 years and has been a Federal appeals court judge for nearly 11 
more. While we were told that this is the largest Federal judicial 
record of any Supreme Court nominee in a century, we are being allowed 
the shortest time in recent memory to consider it. The 48 days from the 
announcement to the hearing for Judge Sotomayor is more than 3 weeks--
more than 30 percent--shorter than the time for considering Justice 
Samuel Alito's comparable judicial record. There was no legitimate 
reason for this stunted and rushed timetable, but that is what the 
majority has imposed on us and that is where we are today.
  I wish to take a few minutes this afternoon to look at Judge 
Sotomayor's judicial record on a very important issue to me and, I 
think, many others in this body: the right to keep and bear arms 
protected by the second amendment to the Constitution.
  Some can be quite selective about constitutional rights--prizing 
some, while ignoring others. Some even trumpet rights that are not in 
the Constitution at all as more important than those that are right 
there on the page. It appears that Judge Sotomayor has taken a somewhat 
dim view of the second amendment. Two issues related to the scope and 
vitality of the right to keep and bear arms are whether it is a 
fundamental right and whether the amendment applies to the States as 
well as to the Federal Government. On each of these issues, Judge 
Sotomayor has chosen the side that served to limit, confine, and 
minimize the second amendment. She has done so without analysis, when 
it was unnecessary to decide the case before her, and even when it 
conflicted with Supreme Court precedent or her own arguments.
  In a 2004 case, for example, a Second Circuit panel including Judge 
Sotomayor issued a short summary order affirming an illegal alien's 
conviction for drug distribution and possession of a firearm. The case 
summary and headnotes supplied by Lexis take up more space than the 
three short paragraphs proffered by the court. Judge Sotomayor's court 
rejected a second amendment challenge to New York's ban on gun 
possession in a single sentence relegated to a footnote with no 
discussion, let alone any analysis of the issue whatsoever. In fact, 
the court neither described the appellant's argument nor indicated how 
the district court had addressed this constitutional issue, but merely 
cited a Second Circuit precedent for the proposition that the right to 
possess a gun is ``clearly not a fundamental right.''
  That is pretty short shrift for a constitutional claim. Last year, in 
the District of Columbia v. Heller, the Supreme Court held that the 
second

[[Page 16005]]

amendment right to keep and bear arms is an individual rather than a 
collective right. But the Court also noted that by the time of 
America's founding, the right to have arms was indeed fundamental, and 
that the second amendment codified this preexisting fundamental right. 
Several months later, a Second Circuit panel including Judge Sotomayor 
affirmed a conviction under State law for possessing a weapon. Citing a 
1886 Supreme Court precedent, the Second Circuit held that under the 
Constitution's privileges and immunities clause, the second amendment 
applies only to the Federal Government, not to the States. Whether 
correct or not, that holding was obviously enough to decide the issue 
in that particular case. Judge Sotomayor's court, however, went beyond 
what was necessary to further minimize the second amendment by once 
again characterizing it as something less than a fundamental right. The 
court said that there need be only a so-called rational basis to 
justify a law banning such weapons, a legal standard it said applies 
where there is no fundamental right involved. The court simply ignored 
and actually contradicted the Supreme Court's decision in Heller by 
treating the second amendment as protecting less than a fundamental 
right. In fact, the very 1886 precedent Judge Sotomayor's court cited 
to hold that the second amendment limits only the Federal Government 
recognized the preconstitutional nature of the right to bear arms. Her 
court never addressed these contradictions.
  The Seventh Circuit has since also held that under the privileges and 
immunities clause, the second amendment limits only the Federal 
Government. But the Ninth Circuit last month held that under the 
Constitution's due process clause, the second amendment does indeed 
apply to the States. These courts gave this issue much more analysis 
than did Judge Sotomayor's court and neither found it necessary to 
address whether the right to keep and bear arms is fundamental. I wish 
Judge Sotomayor's court had shown similar restraint.
  It appears that Judge Sotomayor has consistently and even 
gratuitously opted for the most limiting, the most minimizing view of 
the second amendment. No matter how distasteful, this result would be 
legitimate if it followed adequate analysis, if it properly applied 
precedent, and if it was necessary to decide the cases before her. In 
that event, it would not like it but probably could not quarrel with 
it. But as I have indicated here, this is not the case. There was 
virtually no analysis, her conclusion conflicted with precedent, and 
was unnecessary to decide the cases before her. This is not the picture 
of a restrained judge who has set aside personal views and is focusing 
on applying the law rather than on reaching politically correct 
results. These are serious and troubling issues which go to the very 
heart of the role judges play in our system of government. These are 
elements not from her speeches but from her cases that give shape to 
her judicial philosophy. We have a written Constitution which is 
supposed to limit government, including the judiciary. We have the 
separation of government power under which the legislative branch may 
employ empathy to make the law, but the judicial branch must 
impartially interpret and apply the law. We have a system of self-
government in which the people and their elected representatives make 
the law and define the culture. It is no wonder that most Americans 
believe that judges must take the law as it is, not as judges would 
like it to be, and decide cases impartially. That is exactly what 
judges are supposed to do if our system of ordered liberty based on the 
rule of law is to survive.
  President George Washington said that the right to keep and bear arms 
is ``the most effectual means of preserving peace.''
  Justice Joseph Story, in his legendary commentaries on the 
Constitution, called this right the ``palladium of the liberties of a 
republic.''
  I, for one, am glad that our Founders did not give short shrift to 
this fundamental individual right.
  Let me close my remarks this afternoon by saying that these are some 
of the questions that need answers, issues that need clarification, and 
concerns that need to be satisfied as the Senate examines Judge 
Sotomayor's record. Perhaps such answers, clarification, and 
satisfaction exist. My mind is open, and I look forward to the hearing 
in which these and many other matters no doubt will be raised. These 
are important issues that can't be shunted aside as though they are 
unimportant, and Judge Sotomayor needs to answer some of these issues 
and questions that we are raising as we go along.
  I told her that we will ask some very tough questions and that she is 
going to have to answer them. She understands that, and I appreciate 
that.
  With that, I yield the floor.
  The PRESIDING OFFICER. The Senator from South Dakota is recognized.
  Mr. THUNE. Mr. President, I rise today to follow up on some of the 
comments made by my colleagues who had come to the floor to talk about 
the nomination of Judge Sotomayor to the Supreme Court of the United 
States.
  Any confirmation the Senate considers is important but none more so 
than a lifetime appointment to the most distinguished judicial office 
in our Nation.
  Now that the President has nominated Judge Sotomayor, it is the 
Senate's job to give advice and consent. As Alexander Hamilton told the 
Constitutional Convention:

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

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

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

  The Senator who made those remarks was then-Senator Obama. He spoke 
those words in January 2006 on this floor when the Senate was debating 
the confirmation of now-Supreme Court Justice Samuel Alito.
  I, like the President, believe it is the Senate's constitutional duty 
to thoroughly review all nominees to the Federal bench, especially 
those who will have a lifetime appointment to the highest Court in our 
Nation. This review should be thorough and fair and cover a nominee's 
background, judicial record, and adherence to the Constitution. This is 
especially true with the voluminous judicial record Judge Sotomayor has 
compiled, with over 3,600 Federal district and appellate level 
decisions. The Senate must also work to ensure that the nominee will 
decide cases based upon the bedrock rule of law as opposed to their own 
personal feelings and political views.
  As part of this confirmation process, I had the opportunity this 
morning to meet with Judge Sotomayor. Like many in this body, I agree 
that she has an impressive background, as well as a compelling personal 
story. But what we have to do is examine and look at her record when it 
comes to her understanding of the Constitution, especially as it 
relates to the second amendment right to bear arms, and that is an area 
where I have significant concerns.
  While sitting on the Second Circuit Court of Appeals, Judge Sotomayor 
consistently advanced a narrow view of the second amendment and did so 
with little explanation or reasoning. For example, twice, Judge 
Sotomayor has ruled that the second amendment is not a ``fundamental 
right.'' The first time she did so with a one-sentence footnote, and 
most recently it was simply stated as fact without any explanation or 
reasoning being provided. Judge Sotomayor's views on whether the second 
amendment right to bear

[[Page 16006]]

arms is a fundamental right are so important because the Supreme Court 
has made this determination a key element in deciding whether to apply 
parts of the Bill of Rights, such as the second amendment, to State and 
local governments.
  This question, also known as incorporation, is likely to be the next 
second amendment issue the Supreme Court will consider because the 
circuit courts of appeal are split, and the Supreme Court specifically 
noted that they were not deciding this issue in the landmark District 
of Columbia v. Heller decision, which was decided last year.
  What is most troubling to me, though, is that these second amendment 
cases point out a disturbing trend that legal experts have expressed 
about Judge Sotomayor: That she has a record of avoiding or casually 
dismissing difficult and important constitutional issues. It doesn't 
take an attorney to notice that Judge Sotomayor's discussion of 
incorporation, a challenging and constitutionally significant issue, 
consists of just a few paragraphs. In contrast, the opinions for both 
the Ninth Circuit and the Seventh Circuit discuss the issue at length 
and, in doing so, give this important issue the attention and analysis 
it deserves. While I understand that writing styles can and do vary, 
even in the writing of judicial opinions, I am still concerned about 
the apparent lack of thoughtfulness and thorough reasoning in her 
decisions.
  Another example of a Judge Sotomayor opinion that appears to be 
unnecessarily short and inadequately reasoned is the Ricci v. DeStefano 
case, or more popularly known as the New Haven firefighter promotion 
case. In this case, a three-judge panel, which included Judge 
Sotomayor, published an unusually short and unsigned opinion that 
simply adopted the lower district court's ruling without adding any 
original analysis. Even one of Judge Sotomayor's own mentors, Judge 
Jose Cabranes, commented that the Ricci opinion ``contains no reference 
whatsoever to the constitutional claims at the core of this case'' and 
that the ``perfunctory disposition [of the case] rests uneasily with 
the weighty issues presented by this appeal.'' Without careful 
reasoning being provided, critics and supporters alike have been left 
to wonder on what basis these decisions have been made. I am left with 
concerns about these rulings and whether they are based upon personal 
views and feelings rather than the rule of law.
  My short meeting with Judge Sotomayor this morning did not provide 
either of us with enough time to address these issues and these 
concerns at length, and that is why, like many colleagues, I will be 
monitoring closely the confirmation hearings that are set to occur next 
month. During those hearings, it is my hope that the members of the 
Judiciary Committee will take the necessary time to explore and 
thoroughly examine her positions and legal reasoning, especially on the 
second amendment, in greater detail.
  I, like many of my colleagues, am anxious to see this process move 
forward. We also understand the weight that is attached to the 
constitutional role of the Senate when it comes to advice and consent. 
When you consider a lifetime appointment to the highest Court in the 
land, you better make sure that you do your homework and that you 
thoroughly and completely and fairly examine the record.
  I hope the Judiciary Committee--and I know they will--will conduct 
this in a way which is consistent with the tone that ought to be a part 
of this. It ought to be a civil discussion. It also needs to be 
thorough because we are talking about a lifetime appointment to the 
Supreme Court. Whoever ends up on that Court will be faced with a great 
many issues, all of which have lasting consequences for this great 
Republic.
  In my view, it is important that we have judges who are put on the 
Supreme Court who understand that the role of the judiciary in our 
democracy is not to play or take sides; it is to be the referee, the 
umpire, to be someone who applies the Constitution, the laws of the 
land, fairly to the facts in front of them in the cases they will hear. 
I certainly hope that, as we have an opportunity to more thoroughly 
review the record of this nominee, the members of the Judiciary 
Committee and all of the Members of the Senate will take that 
responsibility very seriously. That will be the criteria and the filter 
by which I look at this nominee--whether or not, in my view, she 
exercises an appropriate level of judicial restraint and doesn't view 
the role of a judge in our judiciary system in this country to be that 
of an activist, someone who expresses personal feelings or tries to 
advance a particular political agenda, but someone who, in terms of 
philosophy and temperament, is committed to that fundamental principle 
of judicial restraint, which is a hallmark of our democracy and has 
been for well over 200 years.
  I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. THUNE. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. THUNE. Mr. President, I didn't have an opportunity to address the 
Koh nomination this morning. We had a cloture vote on the nomination of 
Harold Koh to be the next State Department Legal Adviser. I wish to 
express some of the views and concerns I have. Obviously, cloture was 
invoked this morning, and my guess is that he will ultimately be 
confirmed. We have an opportunity in a postcloture period to talk a 
little bit about this nominee.
  I have to say this is an important position. If confirmed, Mr. Koh 
would be the top lawyer at the State Department and would be involved 
in the negotiation, the drafting, and the interpretation of treaties 
and U.N. Security Council resolutions. He would also represent the 
United States in other international negotiations, at international 
organizations, and before the International Court of Justice. To put it 
simply, he would be viewed as the top legal authority for the United 
States by the international community.
  Similar to Judge Sotomayor, Mr. Koh highlights an alarming trend 
which I think we see in some of President Obama's nominees. They have 
impressive backgrounds, but when their records are examined in detail, 
there are substantive questions about their understanding of the 
Constitution. For example, Mr. Koh has said repeatedly, including at 
his confirmation hearing, that he believes the congressionally 
authorized 2003 U.S. invasion of Iraq ``violated international law'' 
because the United States had not received ``explicit United Nations 
authorization'' beforehand. He also said that the U.S. Supreme Court 
should ``tip more decisively toward a transnationalist jurisprudence'' 
as opposed to basing decisions on the U.S. Constitution and laws made 
pursuant to it.
  His views on the second amendment are also extremely worrisome. In a 
speech called ``A World Drowning in Guns,'' which was given at Fordham 
University Law School in 2002 and later published in the Law Review, he 
explains why he believed there should be a global gun control regime 
and admits that ``we are a long way from persuading government to 
accept a flat ban on the trade of legal arms.''
  He concludes his speech with this statement:

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

  Given, again, that Mr. Koh will be the top legal adviser at the State 
Department on both domestic and international issues, I have concerns, 
because of statements such as these, that he could place his own 
personal agenda ahead of the needs of our country and the Constitution.
  So we will have an opportunity probably--we have had the cloture vote 
on the nomination, but I wanted to express for the record my concerns 
about this nominee and the types of statements he has made in the past, 
the type of agenda he has expressed support for, and how, in my view, 
it contradicts many of the basic constitutional freedoms and rights--
the second

[[Page 16007]]

amendment being one--that I would raise as a major concern but also 
this notion that transnational jurisprudence--that the Supreme Court 
ought to tip more decisively in that direction. That is a cause for 
great concern.
  I hope that on final disposition of this nominee, the Senate will 
vote to reject this nomination. It is, in my view, dangerous to the 
national security interests of the United States and some of our basic 
constitutional freedoms when he rules in the way he has in the past and 
continues to issue statements that, in my view, are very troublesome. I 
will be opposing this nomination, and I hope my colleagues will as 
well.
  I yield the floor.
  Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. DURBIN. Mr. President, I ask unanimous consent the order for the 
quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Merkley). Without objection, it is so 
ordered.
  Mr. DURBIN. It is my understanding we are postcloture, speaking on 
the nomination of Harold Koh to be Legal Adviser for the Department of 
State; is that correct?
  The PRESIDING OFFICER. That is correct.
  Mr. DURBIN. Mr. President, earlier today the Senate voted to invoke 
cloture and move forward with this nomination. Sixty-five Senators 
recognized the extraordinary qualifications that Mr. Koh will bring to 
the State Department. Yet in the last few weeks, some Senators on the 
other side of the aisle have done everything they can to slow down the 
work of the Senate, even going so far as to delay the consideration of 
a bill to promote tourism in America. That is a noncontroversial bill 
with 11 Republican cosponsors but a bill that could only get two 
Republican Senators to support it when we asked to move it forward.
  Unfortunately, the same thing is happening with the nomination of Mr. 
Koh. This is a nomination which is not controversial for most Members 
of the Senate--65 supported going forward. Yet the Republicans are 
insisting, as they have the right to do under Senate rules, that we 
delay for maybe up to 30 hours before we actually get to the vote. If 
we are going to waste that much time on a noncontroversial nomination 
for a person to become Legal Adviser to the State Department, the 
people of this country have a right to ask what is the goal of the 
Republicans in doing this?
  There is a lot we need to do in the Senate. There is a lot the 
American people are counting on us to do, measures we should be 
considering. I have a bipartisan measure on food safety. I have been 
working on this for over 10 years. There is not a week that goes by 
that there is not some new press report about something dangerous: pet 
food, cookie dough--you name it. All of these things have been in the 
headlines over the last several years, and we can do a better job 
making sure the items we purchase at our local stores for our families, 
for our pets, are safe; making sure the things we import from other 
countries are safe. But we cannot even get to that measure because 
there is a strategy on the Republican side of the aisle to stop us, to 
delay as much as possible to try to make sure the Senate does as little 
as possible.
  In the last election, the people of this country said: We think it is 
time for change in this town of Washington. We are sick and tired of 
this partisan bickering and this waste of time and Democrats banging 
heads with Republicans. Why don't you all just roll up your sleeves and 
be Americans for a change and try to solve the problems? You may not 
get it completely right, but do your best and work at it. Spend some 
time on it.
  Look at what we have, an empty Chamber. This Senate Chamber should be 
filled with debate on critical issues, but it is not because, 
unfortunately, this is a procedural strategy on the other side of the 
aisle which is slowing us down.
  This man whose nomination is before us should have just skated 
through here. This is an extraordinarily talented man. Mr. Harold Koh 
has a long and distinguished history of serving his country and the 
legal profession. During the Reagan administration, a Republican 
President's administration, he was a career lawyer in the Office of 
Legal Counsel at the Department of Justice; in 1998, unanimously 
confirmed as the U.S. Assistant Secretary of State for Democracy, Human 
Rights and Labor, a bureau in the State Department that champions many 
of our country's most cherished values around the world.
  Mr. Koh's academic credentials are amazing--a Marshall Scholar at 
Oxford, graduate of Harvard Law School, editor of the Harvard Law 
Review, and he went on to be a clerk at the Supreme Court across the 
street, which is about as good as it gets coming out of law school.
  Since the year 2004, Harold Koh has served as dean of the Yale Law 
School. Mr. Koh was a Marshall Scholar at Oxford. He has been awarded 
11 honorary degrees and 30 human rights awards.
  I don't know that you could present a stronger resume for a man who 
wants to serve our country, to be involved in public service and step 
out of his professional life as a lawyer in the private sector, with 
law schools. He has been endorsed by leaders, legal scholars from both 
political parties, including the former Solicitor General, Ted Olson, 
former Independent Counsel Ken Starr, former Bush Chief of Staff Josh 
Bolton, seven former Department of State Legal Advisers, including 
three Republicans, more than 100 law school deans, and 600 law school 
professors from around the country. What more do we ask for someone who 
wants to serve this country?
  Several retired high-ranking military lawyers have written: If the 
U.S. follows Koh's advice, as State Department Legal Adviser:
  [It] will once again be the shining example of a Nation committed to 
advancing human rights that we want other countries to emulate.
  Here is an excerpt from a recent letter for support Ken Starr sent to 
Senators Kerry and Lugar. I have had my differences with Ken Starr. 
Politically we are kind of on opposite sides. Here is what he said of 
Dean Koh, who is being considered by this empty Senate Chamber as we 
burn off 30 hours. He wrote:

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

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


                           Health Care Reform

  Mr. President, you are well aware from your State of Oregon and from 
my State of Illinois how much this health care reform debate means to 
everybody we represent. When you ask the American people what we can do 
about health insurance, 94 percent of people across America 
overwhelmingly support change in our current health

[[Page 16008]]

care system. Some 85 percent of the people across this country, 
Democrats, Republicans, and Independents, say that the health care 
system needs to be fundamentally changed.
  This is the time to do it. This is the President to lead us in doing 
it. We had better seize this moment. If we do not, if we miss it, we 
may never have another chance for years and years to come. That is 
unfortunate.
  Democrats want to build on what is good about the current system. It 
is interesting that so many people would say we should change the 
health care system, but about three out of four people say: I kind of 
like my health insurance.
  So what we have to do first is to say we are going to keep the things 
in the current system that work, and only fix those things that are 
broken. If you have a health insurance plan that you like and you trust 
it is good for you and your family, you need to be able to keep it. We 
should not be able to take it away from you. We do not want to. That is 
the starting point. And then when we start to fix what is broken in the 
system, we address some issues that I think are really critical.
  Health insurance companies today can deny you coverage because of an 
illness you might have had years ago, exclude coverage for what they 
call preexisting conditions, which sadly we all know about, or charge 
you vastly more because of your health status or your age.
  We want to make sure that the end of the day, after health care 
reform, we keep the costs under control, make sure you have a choice of 
your doctor, make certain you have privacy in dealing with your doctors 
so that the doctor-patient relationship is protected and confidential.
  We want to protect quality in the system, to make certain we bring 
out the very best in medical care, and not reward those who are doing 
things poorly. We believe we can do this on a bipartisan basis, with 
both parties working together.
  Some of the critics of this effort basically are in denial that we 
need to change our health care system. I do not think they are taking 
the time to look at it closely. Whether you talk to people, average 
families, or small businesses, large corporations, you understand that 
the cost of health care now is spinning out of control, and if we do 
not do something dramatic and significant about it, it will become 
unaffordable.
  I had a group of people in my office who were in the communications 
industry. They are union workers. They are worried because every year 
when they get more money per hour for working, it always goes to health 
insurance. They learn each year there is less coverage: pay more, get 
less.
  We have got to do something about containing the cost of a system 
that is the most expensive health care system in the world. We spend, 
on average, more than twice as much as the next country on Earth for 
health care for Americans. We have great hospitals and doctors. We have 
amazing technology and pharmacies. But the bottom line is, other 
countries get better results for fewer dollars.
  So the first item we must address is bringing down the cost of health 
care, stop it from going through the roof, so that families and 
businesses can afford it, and government can afford it as well.
  The second thing we have to make sure we do is protect the choice of 
individuals for their doctor and their hospital, their providers. There 
are limitations now. In my home town of Springfield, IL, my health 
insurance plan tells me there is one preferred hospital of the two I 
can choose, and I know if I do not go to that hospital, I can end up 
with a bill I have to pay personally. So there are limitations under 
the current system, and that is to be expected. But we want to limit 
those to as few as possible so people are able to come forward and have 
the basic choice they want in physicians.
  Then there is a question about how to keep the costs under control. 
If we are going to build this new health care reform on private health 
insurance, the obvious question is: Will there be a government health 
insurance plan such as Medicare available as an option so you can look 
at all of the private health insurance plans you might buy, and also 
consider the government health insurance plan, the public health 
insurance plan, as an option?
  This is controversial. Health insurance companies say, if we have to 
compete with a government plan, they will always charge less and we 
will not be able to compete. Others argue that if you do not have at 
least one nonprofit entity offering health insurance, then basically 
the private health insurance plans will continue to be too expensive; 
they will not have the kind of competition they need to bring about 
real savings.
  Many people on the other side of the aisle have come to the floor and 
criticized the idea of a public interest health insurance plan. They 
argue it is government insurance, government health care. But most 
Americans know that government health care is not a scary thing in and 
of itself. There are 40 million Americans under Medicare. That is a 
government health care program. Millions of Americans are protected by 
Medicaid for lower income people in our country. That has a government 
component too.
  Our veterans come back from war and go to the Veterans' 
Administration, a government health program. I have not heard a single 
Republican come to the floor and say: We need to eliminate Medicare, 
eliminate Medicaid, close the VA hospitals, because it is all 
government health care. No. For most people being served by these 
programs, they believe they are godsends and they do not want to lose 
them.
  Yesterday, the minority leader, the Republican Senator from Kentucky, 
came to the floor and talked about a future which is fictitious. He 
said: A government plan where care is denied, delayed, and rationed.
  Those are fighting words, because no one wants their coverage denied, 
they do not want to wait in a long line for surgery, and they do not 
want to believe they are victims of rationing. It is important for them 
to have medical care given to them.
  The language we hear from the other side of the aisle is language we 
are all too familiar with. The miracle of the Internet is that people 
can come up with a written document now, and by pressing a button or 
clicking a mouse, they can send that document to lots of different 
people.
  A couple of months ago, a Republican strategist named Frank Luntz 
wrote a 28-page memo to give to Republican Senators on how to defeat 
health care. Dr. Luntz--he calls himself ``doctor''--Dr. Luntz said: 
Whatever they come up with, here is the way to beat it.
  He had not seen the health care reform plan that President Obama 
might support or the Democrats might produce. But he says: This is how 
we stop them from passing anything, how we delay things, deny things. 
And he used those words. He said: We have got to use words that 
Americans will identify with, buzzwords like ``deny,'' ``delay,'' 
``ration.'' And those are the words we hear every week now from the 
other side of the aisle.
  The reason I mentioned the Internet is it turns out somebody punched 
the wrong button on their computer, clicked the wrong mouse button, and 
the next thing you know that memo spread across Washington. Everybody 
has it.
  So we have seen the play book. We kind of know the plays they are 
running. We know their speeches before they give them. But they still 
come down and give these speeches over and over again.
  I guess the starting point is this: Some of my colleagues and friends 
on the other side of the aisle want to keep the current health care 
system. They think it is fine. They do not want to change it. Well, I 
do not join them, and most American people do not join them either.
  There are winners in the current system. There are people making a 
lot of money under the current health care system. Health insurance 
companies were one of the few sectors in the economy last year, 2008, 
that showed profitability when most American companies that were not 
health insurance companies were not profitable. So were oil

[[Page 16009]]

companies, incidentally. But the health insurance companies that are 
making a lot of money do not want to see this system changed. It is a 
good, profitable system for them. By and large, they want to keep it 
the way it is. There are some providers who are doing quite well under 
the system, some specialists are making a lot of money, some hospitals 
are making a lot of money. They want to keep it as it is.
  But we know we cannot. It is unsustainable. It is too expensive for 
individuals, families, and for businesses and for government, for us 
not to get the cost under control.
  The Republican resistance to change in health care reform is not 
surprising. Last week we had a cloture vote and 30 hours of debate to 
proceed to the consideration of a bipartisan noncontroversial bill. We 
have been through cloture votes and delays all of this week. We are in 
the middle of one right now. That is why those who are visiting the 
Capitol are wondering where all of the Senators are. This is a 
situation where the Republicans have decided they are going to force us 
to wait 30 hours before we do something, a waste of time that we cannot 
afford, and we have faced it before.
  We have to understand that we need to have health care reform. The 
President is right that this opportunity comes around so rarely.
  We have pretty good health insurance as Members of Congress. But I 
want to make it clear for the record, we do not have ``special'' health 
insurance. I have heard that argument being made. If you can get the 
same health insurance the Senator has, you would be set for life. We 
have great health insurance. But it is the same health insurance 
available to all Federal employees, 2 million Federal employees; 8 
million employees and their families. We have a Federal health benefits 
program. We have an open enrollment each year to pick, in my case, from 
nine different health insurance plans available to me in my home State 
of Illinois for my wife and myself. That is a luxury most people can 
only dream of. All Federal employees have it, and so do Members of 
Congress, because we are considered Federal employees. But it is 
something most Americans do not have and we can make available to small 
and large businesses alike. It is important that we do this.
  I hope we can get some support, some support from the other side of 
the aisle. Today in America, while we are going about our business, 
14,000 Americans will wake up and realize something: Yesterday they had 
health insurance and today they do not. Every day in America, 14,000 
Americans lose their health insurance.
  I cannot imagine what life is like without health insurance. There 
was a time in my life when I did not have it. It was scary. I was a 
brandnew married father, baby on the way, and no health insurance. It 
happened. We made it through with a lot of bills that we took years to 
pay off. That goes back a long time.
  Currently, if you are without health insurance, you are one diagnosis 
or one accident away from being wiped out. So going after bringing the 
cost of health insurance down is our first priority, but the second is 
to make sure everybody has some basic form of health insurance.
  We have to understand that those of us who have health insurance pay 
more for our health insurance because some 47 million Americans do not 
have it. They present themselves to the doctors and hospitals, and in 
this caring Nation, we treat them and their bills are then absorbed by 
a system that spreads them around for all of the rest of us to pay. It 
is about $1,000 a year. It is a hidden tax for families, $1,000 more 
each year on health insurance premiums to take care of the uninsured in 
our country.
  So now we have a chance to bring the uninsured into coverage. By 
bringing them into coverage, we will not only give them peace of mind, 
make them part of the system, we will reduce that $1,000 hidden tax 
every family pays who has health insurance. So we have an opportunity 
to do something positive about health insurance.
  For those who are following this debate closely, they probably heard 
this mentioned by others, but I want to make a point of it. There is an 
important article for people to read, and they can go online to find 
it. It is from the June 1st New Yorker magazine.
  A man who is a surgeon in Boston, an Indian American, whose name is 
Dr. Atul Gawande, wrote an article about health care in America today. 
I will not go into detail about what he found, but it is an eye opener 
because he went to one of the most expensive cities in America when it 
comes to treating Medicare patients. It is McAllen, TX. He could not 
figure out why in McAllen, TX, they were spending about $15,000 a year 
for Medicare patients--dramatically more than other towns in Texas and 
around the country.
  What he found, unfortunately, is that many of the doctors in that 
city were treating elderly patients by running up their charges, by 
ordering unnecessary tests, by ordering hospitalizations and things 
that were not being ordered in other cities. The reason is, there was a 
financial incentive. The more tests, the more procedures, the more 
hospitalizations they can charge to Medicare, the more the doctor was 
paid.
  Well, Dr. Gawande went down and met with the doctors and confronted 
them with it. There was no other explanation. That was it.
  Then he went to Mayo Clinic in Rochester, MN--a place I respect very 
much, a place that has treated my family and treated them well. He 
found out the cost for treating Medicare patients in Rochester, MN, is 
a fraction of what it is in McAllen, TX.
  At the Mayo Clinic it is cheaper to treat a Medicare patient than it 
is in McAllen, TX. Why? Well, it turns out it is pretty basic. The 
doctors who are on the staff of the Mayo Clinic are paid a salary. They 
are not paid by the patient or by the procedure. So their interest is 
not in running up a big medical chart of tests. Their interest is 
getting that patient well, and doing it effectively. They do it with 
fewer procedures and less money spent and better results at the end of 
the day.
  So now we have a choice in this health care debate: Do we want to 
continue the example of McAllen, TX, which is abusing the system, 
charging too much, and not giving good health care results, or do we 
want to move to a Mayo Clinic model, one that basically is much more 
efficient and effective, keeps people healthier, at lower cost? I hope 
the answer is obvious. It is to me. I would like to see us move toward 
incentives such as the Mayo Clinic system.
  The President spoke to the American Medical Association in Chicago 
last week. It was a mixed review. They were very courteous to him. 
There were a few people dissatisfied with his remarks, but it is a free 
country. We can expect that. Some of those doctors in that room 
understand it is time for change and some of them do not. Some of them 
think change is going to be bad for them and bad for our country. But 
most of us understand if we work together in good faith, 
conscientiously, we can change this health care system for the better, 
reduce its costs, preserve our choice of doctors and hospitals, make 
certain quality is rewarded, and also make certain we cover those 46 or 
47 million uninsured Americans and come up with a health care system 
that does not break the bank--not for families, not for businesses, and 
not for governments in the future.
  Mr. President, I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Ms. KLOBUCHAR. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                          Sotomayor Nomination

  Ms. KLOBUCHAR. Mr. President, I will be joined on the floor today by 
some of my fellow women Senators to talk about the President's nominee 
for the Supreme Court. I will note that some of my colleagues on the 
other side of the aisle came to the floor yesterday to, as one news 
report described

[[Page 16010]]

it, ``kick off their campaign against her.'' So we wanted to take this 
opportunity to get the facts out to correct any misconceptions and to 
set the record straight.
  The Supreme Court confirmation hearing for Judge Sotomayor will begin 
on July 13, but my consideration of her will not begin then. I began 
considering her the day she was announced because, as a member of the 
Judiciary Committee, I wish to learn as much as I can about President 
Obama's choice to fill one of the most important jobs in our country.
  Even though there are many questions that will be asked and many 
areas we will want to focus on, I wish to speak today about how Judge 
Sotomayor appears to me based on my initial review. After meeting with 
her and learning about her, I am very positive about her nomination. 
Judge Sotomayor knows the Constitution, she knows the law, but she also 
knows America.
  I know Americans have heard a lot about her background and long 
career as a judge. But it is very important for us to talk about what a 
solid nominee she is because we have to keep in mind that there have 
been accusations and misstatements, many made by people outside of this 
Chamber on TV and 
24/7 cable. There have been misstatements.
  It came to me a few weeks ago when I was in the airport in the Twin 
Cities in Minnesota. A guy came up to me on a tram in the airport and 
said: Hey, do you know how you are voting on that woman?
  I said that I want to listen to her and see how she answers some of 
the questions.
  He said: I am worried.
  I said: Why? She is actually pretty moderate.
  He said: She is always putting her emotions in front of the law.
  I said: Do you know that when she is on a panel with three judges--
which they often do on the circuit court where she sits now, and they 
have her and two other judges--95 percent of the time she comes to an 
agreement with the Republican-appointed judge on the panel? You must be 
thinking the same thing about those guys because you cannot just say 
that about her.
  That incident made me think we really need to set the record straight 
here about the facts, that we should be ambassadors of truth and get 
out the truth about her record and the kind of judge we are looking for 
on the U.S. Supreme Court. We need to make sure she gets the same 
civil, fair treatment other nominees have been given.
  Judge Sotomayor's story is a classic American story about what is 
possible in our country through hard work. She grew up, in her own 
words, in modest and challenging circumstances and worked hard for 
every single thing she got. Many of you know her story. Her dad died 
when she was 9 years old, and her mom supported her and her brother. 
Her mom was devoted to her children's education. In fact, her mom was 
so devoted to her and her brother's education that she actually saved 
every penny she could so that she could buy Encyclopedia Britannica for 
her kids. I remember when I was growing up that the Encyclopedia 
Britannica had a hallowed place in the hallway. I now show my daughter, 
who is 14, these encyclopedias from the 1960s, and she doesn't seem 
very interested in them. They meant a lot to our family and also to 
Judge Sotomayor.
  Judge Sotomayor graduated from Princeton summa cum laude and Phi Beta 
Kappa, and she was one of two people to win the highest award Princeton 
gives to undergraduates. She went on to Yale Law School, which launched 
her three-decades-long career in the law. So when commentators have 
questions about whether she is smart enough--you cannot make up Phi 
Beta Kappa. You cannot make up that you have these high awards. These 
are facts.
  Since graduating, the judge has had a varied and interesting legal 
career. She has worked as a private sector civil litigator, she has 
been a district court and an appellate court judge, and she taught law 
school.
  The one experience of hers that particularly resonates for me is 
that, immediately graduating from law school, she spent 5 years as a 
prosecutor at the Manhattan district attorney's office, which was one 
of the busiest and most well thought of prosecutor's offices in our 
country. At the time, it paid about half as much as a job in the 
private sector, but she wanted the challenge and trial experience, she 
told me when we met, and she took the job as a prosecutor. Before I 
entered the Senate, I was a prosecutor. I managed an office of about 
400 people in Minnesota, which was the biggest prosecutor's office in 
our State. So I was very interested in this experience we had in 
common.
  One of the things that I learned and that I quickly learned that she 
understood based on our discussions is that, as a prosecutor, the law 
is not just some dusty book in your basement. After you have interacted 
with victims of crime, after you have seen the damage crime can do to a 
community, the havoc it can wreak, after you have interacted with 
defendants who are going to prison and you have seen their families 
sitting in the courtroom, you know the law is not just an abstract 
subject; you see that the law has a real impact on real people.
  As a prosecutor, you don't just have to know the law, you have to 
know people, you have to know human nature. Sonia Sotomayor's former 
supervisor said that she was an imposing and commanding figure in the 
courtroom who would weave together a complex set of facts, enforce the 
law, and never lose sight of whom she was fighting for. Of course, she 
was fighting for the people in those neighborhoods, the victims of 
crime. Judge Sotomayor's experience as a prosecutor tells me she meets 
one of my criteria for a Supreme Court nominee: She is someone who 
deeply appreciates the power and impact that laws have and that the 
criminal justice system has on real people's lives. From her first day 
at that Manhattan district attorney's office, Judge Sotomayor learned 
that the law is not just an abstraction.
  In addition to her work as a prosecutor, I have also learned a lot 
about Judge Sotomayor from her long record as a judge. She has been a 
judge for 17 years--11 years as an appellate judge and 6 years as a 
trial judge. President George H.W. Bush--the first President Bush--gave 
her the first job she had as a Federal judge. She was nominated by a 
Republican President. The job was to be a district judge in the 
Southern District of New York. Her nomination to the Southern District 
was enthusiastically supported by both New York Senators, Democratic 
Senator Daniel Patrick Moynihan and Republican Senator Alfonse D'Amato.
  If you watch TV or read newspapers or blogs, you know that Judge 
Sotomayor has been called some names. It always happens in these 
Supreme Court nominations--the nominees are called names by talking 
heads on TV and on the radio. In most cases, these commentators may 
have read a case or two of hers or, even worse, a speech and took a 
sentence or so out of context, and they have decided they are entitled 
to make a sweeping judgment about her judicial fitness based on a few 
words taken out of context.
  I think just about everything in a nominee's professional record is 
fair game to consider. After all, we are obligated to determine whether 
to confirm someone to an incredibly important position with lifetime 
tenure. That is a constitutional duty I take very seriously. But that 
said, when people get upset about a few items and a few speeches a 
judge has given, I have to wonder, do a few statements someone made in 
public, for which they said they could have used different words, do 
those trump 17 years of modest, reasoned, careful judicial 
decisionmaking? I don't think so.
  If we want to know what kind of a Justice she will be, isn't our best 
evidence to look at the type of judge she has already been? Here are 
the facts. As a trial judge, Sonia Sotomayor presided over roughly 450 
cases on the Second Circuit and participated in more than 3,000 panel 
decisions. She has authored more than 200 appellate opinions. In cases 
where she and at least one Republican-appointed judge sat on a three-
judge panel, she and the Republican-appointed judge agreed 95 percent

[[Page 16011]]

of the time, as I mentioned. The Supreme Court has only reviewed five 
cases where she authored the decision and affirmed the decision below 
in two of them. The vast majority of her cases have not been in any way 
overturned or reversed by a higher court.
  It is worth noting that this nominee, if confirmed, would bring more 
Federal judicial experience to the Supreme Court than any Justice in 
100 years.
  With that, I see one of my colleagues, the Senator from New 
Hampshire. We will have a number of women Senators here today. I will 
come back and finish my remarks sometime in the next half hour. I think 
it is very important that Senator Shaheen, the Senator from New 
Hampshire, be able to say a few words about the nominee.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Burris). The Senator from New Hampshire is 
recognized.
  Mrs. SHAHEEN. Mr. President, I am delighted to be here this afternoon 
to join my friend and colleague from the State of Minnesota, Senator 
Klobuchar, in supporting the nomination of Judge Sonia Sotomayor to be 
a Justice of the Supreme Court.
  Everyone in New Hampshire was very proud 19 years ago when former 
President George Bush nominated New Hampshire's own David Souter as an 
Associate Justice of the Supreme Court. Every action Justice Souter has 
taken since he began service to our Nation's highest Court has only 
reinforced that pride. So when Justice Souter announced in early May 
that he intended to retire at the end of his term and return home to 
New Hampshire, I took particular interest in whom President Obama would 
select to fill David Souter's seat.
  I believe the President has made a thoughtful and outstanding choice 
in nominating Judge Sonia Sotomayor.
  Judge Sotomayor has had a distinguished career as a Federal judge. As 
has been widely noted, if confirmed, she would bring more Federal 
judicial experience to the Supreme Court than any Justice in 100 years. 
Today, David Souter is the only member of the Supreme Court with prior 
experience as a trial court judge. Sonia Sotomayor, too, would be the 
only Justice with experience as a trial court judge. I happen to agree 
with Senator Klobuchar. I think it is important that at least one of 
the nine Supreme Court Justices have that experience. It is trial 
judges, after all, who day-in and day-out must apply the legal 
principles enunciated in Supreme Court opinions.
  Judge Sotomayor also served 5 years as a local prosecutor and 
practiced law for 7 years as a trial attorney with a law firm. Judge 
Sotomayor, because of her experience, will be ever mindful of the need 
to provide those in the courtroom with clear and practical decisions. 
More important, she will understand how Supreme Court opinions affect 
real human beings.
  As a trial judge, every day Judge Sotomayor directly faced innocent 
victims of crime, vicious perpetrators of crime, and occasionally the 
wrongfully accused. She directly faced injured parties seeking civil 
redress and civil defendants who may have made honest mistakes. She had 
to answer: What is the right verdict? What is the right length of 
incarceration? What is the right level of damages? These are not easy 
decisions. I know that because my husband was a State trial court judge 
for 16 years. Trial court judges must be able to live with the justice 
they mete out. To do it well, it takes more than an understanding of 
the law, it takes an understanding of people. Judge Sotomayor has a 
great understanding of both.
  I had the pleasure of meeting with Sonia Sotomayor the day she 
fractured her ankle. I said to her as she came into my office: Boy, you 
are tough. She said: I grew up in the Bronx; we had to be tough. She 
handled that painful injury with grace and humor. She has a first-rate 
temperament and also a first-rate intellect. After growing up in a 
public housing project in the South Bronx, she excelled at both 
Princeton and Yale Law School.
  I believe Judge Sonia Sotomayor is an excellent choice to replace 
David Souter as a Supreme Court Justice. She deserves a fair and a 
thorough hearing without delay. I look forward to that hearing.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Minnesota.
  Ms. KLOBUCHAR. Mr. President, I thank my colleague, Senator Shaheen, 
for her remarks and for her reminiscence of meeting with the judge and 
once again the judge showing how she perseveres in the face of 
adversity.
  I wish to talk a little bit more--I was ending my last comments 
talking about how, in fact, this nominee would bring more Federal 
judicial experience to the Supreme Court than any Justice in 100 years. 
I had earlier noted my exchange with someone in an airport, where he 
wondered if she was worthy of this, if she was able to apply the facts, 
apply the law.
  Clearly, when you look at this experience she brings and you compare 
it to any of these other nominees on the Supreme Court, she stands out. 
She stands out not only because of her unique background, as she 
overcame obstacles to get here, but she stands out as to her 
experience, all those years as a prosecutor, all those years as a 
Federal judge. That makes a difference.
  I wish to address one other point that has been made about Judge 
Sonia Sotomayor in her capacity as a judge. It is something Senator 
Shaheen mentioned, this temperament issue. There have been some stories 
and comments, mostly anonymous, I note, that question Judge Sotomayor's 
judicial temperament. According to one news story about this topic, 
Judge Sotomayor developed a reputation for asking tough questions at 
oral arguments and for being sometimes brusque and curt with lawyers 
who were not prepared to answer them. So she was a little curt, one 
anonymous source said. Where I come from, asking tough questions and 
having very little patience for unprepared lawyers is the very 
definition of being a judge. I cannot tell you how many times I have 
seen judges get very impatient with lawyers who were not prepared and 
who did not know the answer to a question. As a lawyer, you owe it to 
the bench and to your clients to be as well prepared as you possibly 
can be.
  As Nina Totenberg said on National Public Radio, if Sonia Sotomayor 
sometimes dominates oral arguments at her court, if she is feisty, even 
pushy, then she would fit right in on the U.S. Supreme Court.
  I would add this to that comment. Surely, we have come to a time in 
this country where we can confirm as many gruff, to-the-point female 
judges as we have confirmed gruff, to-the-point male judges. Think how 
far we have come with this nominee.
  When Sandra Day O'Connor graduated from law school 50-plus years ago, 
the only offer she received from a law firm was for a position as a 
legal secretary. She had this great background, a very impressive 
background, and yet the only offer she received was as a legal 
secretary.
  Judge Ginsburg, who now sits on the Court, faced similar obstacles. 
When she entered Harvard in the 1950s, she was only 1 of 9 women in a 
class of more than 500. One professor actually asked her to justify 
taking a place that would have gone to a man in that class in Harvard. 
Mr. President, 9 women, 500 spots, and someone actually asked her to 
justify the fact that she was there. I suppose she could justify it 
now, saying she is now on the U.S. Supreme Court. Later Justice 
Ginsburg was passed over for a prestigious clerkship despite her 
impressive credentials.
  Looking at Judge Sotomayor's long record as a lawyer, a prosecutor, 
and a judge, you can see we have come a long way.
  She was confirmed by this Senate for the district court. She was 
nominated at that point by the first President Bush.
  She was confirmed by this Senate for the Second Circuit, and she now 
faces a confirmation hearing before our Judiciary Committee and 
confirmation, again, for a position with the U.S. Supreme Court.
  I will tell you this, after learning about Judge Sotomayor, her 
background, her legal career, her judicial record, similar to so many 
of my colleagues, I am very impressed. To use

[[Page 16012]]

President Obama's words, I hope Judge Sotomayor will bring to her 
nomination hearing and to the Supreme Court, if she is confirmed, not 
only the knowledge and the experience acquired over the course of a 
brilliant legal career but the wisdom accumulated from an inspiring 
life's journey.
  Actually today, Justice O'Connor was on the ``Today Show.'' She was 
asked about her work on the Court and what it was like. She was 
actually asked about Judge Sotomayor. She was asked: When you retired, 
you let it be known you would like a woman to replace you and you were 
sort of disappointed when a woman didn't replace you. So what is your 
reaction to Judge Sotomayor's nomination?
  Justice O'Connor said: Of course, I am pleased that we will have 
another woman on the Court. I do think it is important not to just have 
one. Our nearest neighbor, Canada, also has a court of nine members and 
in Canada there is a woman chief justice and there are four women all 
told on the Canadian court.
  Then she was asked: Do you think there is a right number of women who 
should be on the Court?
  Justice O'Connor, this morning, said: No, of course not.
  But then she pointed out: But about half of law graduates today are 
women, and we have a tremendous number of qualified women in the 
country who are serving as lawyers and they ought to be represented on 
the Court.
  She was also asked later in the interview about opponents of Judge 
Sotomayor who have brought up this term ``activist judge.''
  She was asked: I know that is a term you have railed against in the 
past. What is it about the term that you object to?
  She answered: I don't think the public understands what is meant by 
it. It is thrown around by many in the political field, and I think 
that probably for most users of the term, they are distinguishing 
between the role of a legislator and a judge, and they say a judge 
should not legislate. The problem, of course, Justice O'Connor says, is 
at the appellate level, the Supreme Court is at the top of the 
appellate level. Rulings of the Court do become binding law. So it is a 
little hard to talk in terms of who is an activist.
  I, again, ask people to look at Judge Sotomayor's opinions. When I 
talked with her about this, she talked about how she uses a set 
formula, laying out the facts, laying out the law, showing how the law 
applies to the facts, and then reaching a decision.
  We can also look at her record where, in fact, when she was on a 
three-judge panel with two other judges, when you look at her record of 
what she agreed with judges who had been appointed by a Republican 
President, 95 percent of the time they reached the same decision. So 
unless you believe those Republican-appointed judges are somehow 
activist judges, then I guess you would say she is an activist judge. 
But I think when you look at her whole record, you see someone who is 
moderate, sometimes coming down on one side and sometimes coming down 
on another.
  I can tell you, as a former prosecutor, I did not always just look at 
whether I agreed with the judge if I was trying to figure out if 
someone would be a good judge. I would look at whether they applied the 
laws to the facts, whether they were fair. Sometimes our prosecutor's 
office would not agree with a judge's decision. We would argue 
vehemently for a different decision. In the end, when we evaluated 
these judges, when we decided whether we thought they were a fair 
person to have on a case, we looked at that whole experience, we looked 
at that whole experience to make a decision about whether this was a 
judge who could be fair.
  That is what I think when you look at her record--and I am looking 
very much to her hearing, where we are going to explore a number of 
these cases--again, colleagues on one side of the aisle will agree with 
one case or disagree with another, and the other side of the aisle 
would have made a decision one way or the other.
  You have to look at her record as a whole. When you look at her 
record, you will see someone of experience, someone thoughtful, someone 
who makes a decision based on the facts and based on the law.
  I am very much looking forward to these hearings. I know that some of 
my colleagues are coming to the Chamber as we speak. I am looking 
forward to their arrival as we become, as I said, ambassadors of truth 
to get these facts out as so many things have been bandied about in 
names and other things that get into people's heads. I think it 
important for all those watching C-SPAN right now and for all of those 
who are in the galleries today, that people take these facts away with 
them--the facts of her experience, that in over 100 years of judicial 
experience, when you look back 100 years, she has more experience on 
the bench than any of the Justices who were nominated. You have to go 
back 100 years to find someone with that much experience. You look at 
that work she has done as a prosecutor, you look at the work she has 
done throughout her whole life, where she basically came from nothing, 
worked her way up, got into a good college, got into a good law school, 
did it on her own, with maybe a little help from her mom who bought the 
``Encyclopedia Britannica.''
  As I said at the beginning, this is a nominee who not only 
understands the law, understands the Constitution but also understands 
America.
  Mr. President, I yield the floor. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Ms. KLOBUCHAR. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Ms. KLOBUCHAR. Mr. President, I am pleased that my colleague from 
Louisiana, Senator Landrieu, who has spoken many times in the past 
about the importance of fair judges and strong judges, is here today to 
discuss this nominee.
  The PRESIDING OFFICER. The Senator from Louisiana.
  Ms. LANDRIEU. Mr. President, I thank my colleague for her passionate 
remarks about this particular nominee. I am happy to join many of my 
colleagues in supporting a woman I consider to be an extraordinarily 
accomplished woman, and I commend President Obama for his selection.
  As the Senate Judiciary Committee prepares for its confirmation 
hearing, I wished to come to the floor to express my strong support for 
this nominee. As we all know, the Supreme Court serves as the highest 
tribunal in the Nation. As the final arbitrator of our laws, the 
Supreme Court Justices are charged with ensuring the American people 
achieve the promise of equal justice under our law and serving as 
interpreters of our Constitution. It is a very important charge.
  It is our duty as Senators to ensure that the members of this High 
Court, which we are asked to confirm, serve as impartial, fairminded 
Justices who apply our laws, not merely their ideology. The American 
people deserve no less.
  A number of my colleagues have expressed concerns regarding this 
nominee. Those are not concerns I share. Having reviewed her resume, 
her academic credentials, having reviewed her time on the bench on the 
Second Circuit, as well as in a trial capacity, she has an expansive 
judicial record, and I think that provides evidence of the kind of 
Justice she will be on the Supreme Court.
  She has been described as a ``fearless and effective prosecutor.'' 
She has served for 6 years as a trial judge in New York, as I said, on 
the Federal district court, and 11 years on the circuit court of 
appeals. So she has been in the courtroom on both sides of the bench 
representing a variety of clients, and she has written extensively. I 
think that record reflects the kind of balance, fairminded, 
intellectual rigor we are looking for.
  Talking about Democratic and Republican Parties, she has been 
appointed by both a Democratic administration and a Republican 
administration. So clearly there were some things that were seen in her 
and her service

[[Page 16013]]

by President George Bush as well as President Bill Clinton.
  She has participated in over 3,000 decisions. She has written over 
400 signed opinions on the Second Circuit. If confirmed, Judge 
Sotomayor would bring more Federal judicial experience to the Supreme 
Court than any Justice in 100 years. That is a very strong and powerful 
statement, and I think a compelling statement, to the Members of this 
body.
  I had, as many of us have, the opportunity to meet with Judge 
Sotomayor in my office earlier this month. In addition to having an 
impressive professional resume, her personal journey as a young woman 
from a struggling, very middle-class background from the Bronx also 
captured my attention. She came up the hard way, with a lot of hard 
knocks but with a loving and supportive family around her to lead her 
and guide her. Tutors and teachers saw in this young girl a tremendous 
amount of promise and potential, and she has most certainly lived up to 
the promise her mother and grandmother and others saw in her at a young 
age.
  I believe she is the kind of person who will bring not only 
extraordinary intellect and character and credibility but a tremendous 
breadth of experience that will be very helpful in dealing with the 
issues the Court has before it today and will in the near future. She 
has not only been a champion in many ways, but her life has been an 
inspiration to all Americans, proving that with determination and hard 
work anything is possible.
  Finally, it goes without saying that she is a historic choice that 
will bring a wealth of experience and added diversity to the Nation's 
highest Court. When confirmed, she will become only the third woman to 
serve on the Nation's highest court and the first Hispanic Justice in 
the history of the United States. This is truly a remarkable turning 
point. I wish she could receive, because of her outstanding resume--not 
just because of her gender and background and culture. I believe her 
resume should garner the support of a broad range of Members of this 
body. Hopefully, that is the way it will come out in the final vote. 
She most certainly, from my review, deserves our support, and I look 
forward to doing what I can to process her nomination as it is debated 
by the full Senate.
  I thank my colleague from Minnesota, and I yield the floor.
  The PRESIDING OFFICER. The Senator from Minnesota.
  Ms. KLOBUCHAR. I thank my colleague Senator Landrieu for her very 
kind and thoughtful remarks about the nominee.
  We are now joined by the Senator from Missouri, Senator McCaskill, 
who as a former prosecutor I am sure will shed some light on the 
subject.
  I also thank the Senator from Kansas for allowing us to take an 
additional 5 minutes.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Missouri.
  Mrs. McCASKILL. Mr. President, I thank my friend, the Senator from 
Minnesota, for helping to get us organized this afternoon to spend a 
little time talking about an outstanding Federal judge.
  I also thank my colleague from Kansas for giving us a few minutes to 
make these remarks.
  I will confess that I wasn't familiar with Judge Sotomayor before she 
was nominated. I started looking at her resume, and there are so many 
things in her resume that are, frankly, amazing that you can get 
distracted by--where she went to school, where she got her law degree, 
and the fact that she has been at several levels of the Federal bench; 
and also, of course, that she had a very big job with complex 
litigation in a law firm. But the part of her resume that spoke to me 
was her time as an assistant district attorney in New York.
  I don't know that most Americans truly understand the difference 
between a State prosecuting attorney and a Federal prosecuting 
attorney. Those of us who have spent time in the State courtrooms like 
to explain that we are the ones who answer the 911 calls. When you are 
a State prosecutor, you don't get to pick which cases you try. You try 
all of the cases. When you are a State prosecutor, you don't have the 
luxury of a large investigative staff or maybe a very light caseload. 
It would be unheard of for a Federal prosecutor to have a caseload of 
100 felonies at any given time, but that is the caseload Judge 
Sotomayor handled as an assistant district attorney during her time in 
the District Attorney's Office in New York.
  When she came to the prosecutor's office, ironically it was almost 
exactly the same year I came to the prosecutor's office as a young 
woman out of law school. I was in Kansas City; she was in New York. I 
know what the environment is in these prosecutors' offices. There are a 
lot of aggressive type A personalities, and it is very difficult to 
begin to handle serious felony cases because everybody wants to handle 
the serious felony cases. In only 6 months, Judge Sotomayor was 
promoted to handle serious felony cases in the courtroom. She 
prosecuted every type of crime imaginable, including the most serious 
crimes that are committed in our country.
  She had many famous cases. One was the Tarzan murderer, where she 
joined law enforcement officers in scouring dangerous drug houses for 
evidence and witnesses. After a month of trial, she convicted Richard 
Maddicks on three different murders and he was sentenced to 67 years to 
life in prison.
  A New York detective had a hard time finding a New York prosecutor 
willing to take his child pornography case. Judge Sotomayor stepped up, 
winning convictions against two men for distributing films depicting 
children engaged in pornographic activities. These were the first child 
pornography convictions after the Supreme Court had upheld New York's 
law that barred the sale of sexually explicit films using children.
  After her time as a prosecutor, she eventually became a trial judge. 
A trial judge is an unusual kind of experience for a Supreme Court 
Justice. But keep in mind what the Supreme Court Justices do: They look 
at the record of the trial. They are trying to pass on matters of law 
that emanate from the courtroom. What a wonderful nominee we have, one 
who has not only stood at the bar as a prosecutor but also sat on the 
bench ruling on matters of evidence, ruling on matters of law. I am 
proud of the fact that she has this experience. If she is confirmed, or 
when she is confirmed, she will be the only Supreme Court Justice with 
that trial judge experience, because she is replacing the only Supreme 
Court Justice with that experience--Judge Souter.
  This is a meat-and-potatoes moderate judge. This is a judge who has 
agreed with Republicans on her panels 95 percent of the time. This is a 
judge who has the kind of experience that will allow her to make 
knowing and wise decisions on the most important matters that come in 
front of our courts in this country.
  We have a ``gotcha'' mentality around here. We all engage in it at 
one time or another. It is gotcha, gotcha, gotcha. It is an outgrowth 
of the political system of this grand and glorious democracy we all 
participate in. It is not my favorite part, but it is real. Justice 
Sotomayor will become a Supreme Court Justice, after having gone 
through a gotcha process. We are going to hear a lot of gotchas over 
the coming weeks. But at the end of the day, this is a smart, proud 
woman who has fought her way through a system against tremendous odds 
to show that she has integrity, grit, intellect, and the ability to 
pass judgment in the most difficult intellectual challenges that face a 
Supreme Court Justice.
  I am proud to support her nomination, and I look forward to the day--
and I am confident that the day will come--she will take her place on 
the highest Court in the land.
  Mr. President, I again thank the Senator from Kansas for his 
indulgence, and I yield the floor.
  The PRESIDING OFFICER. The Senator from Minnesota.
  Ms. KLOBUCHAR. Mr. President, again I thank the Senator from Kansas, 
and also Senator McCaskill, Senator Shaheen, and Senator Landrieu,

[[Page 16014]]

who spoke today. I also know that Senators Gillibrand, Feinstein, 
Mikulski, Boxer, and Murray will be speaking, or may have already and 
will be in the next few weeks on this nominee, as will many of my 
colleagues.
  I appreciate this time, Mr. President. We are very excited about this 
upcoming hearing, and we are glad to be here as ambassadors for the 
truth.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Kansas.
  Mr. BROWNBACK. Mr. President, I believe under a previous agreement I 
have time allotted at the present time; is that correct, if I could 
inquire of the Chair.
  The PRESIDING OFFICER. The Senator may be recognized under cloture.
  Mr. BROWNBACK. Mr. President, I rise today to discuss the nomination 
of Judge Sonia Sotomayor to the U.S. Supreme Court. I had the 
opportunity to meet with Judge Sotomayor 2 weeks ago. I was in the 
Senate when she was previously before this body on the Second Circuit 
Court nomination, and I appreciated the chance to meet with her 
recently.
  I have also appreciated the chance to review her record in depth and 
also to hear my colleagues speak about Judge Sotomayor, because it 
represents the distinction that I think is very important to note here. 
My colleague from Missouri just spoke, and she was talking about the 
wonderful qualifications of Judge Sotomayor and the candidate's 
background and experiences that she brings. She has a very interesting, 
a very American story to tell of her background. It is a compelling 
story. She is the daughter of immigrants who overcame diversity to go 
to two of the Nation's best universities. I admire that, and I admire 
the things they pointed out in their presentation of her background and 
what she has done. I think those are all admirable characteristics.
  But what we are doing here is picking somebody to be on the U.S. 
Supreme Court, and what their judicial philosophy is that they will 
take with them. It isn't all just about the background or the 
experience. It is about the judicial philosophy that comes forward, and 
that is what my colleagues didn't discuss. So that is what I want to 
discuss here this afternoon.
  I have had the chance to review Judge Sotomayor's records. In 1998, 
the Senate voted to promote Judge Sotomayor to the appellate court. I 
voted against her at that time because I was concerned not about her 
background, not about her qualifications, but I was concerned that she 
embraced an activist judicial philosophy. That is what I want to talk 
about today, because that is what we are deciding when we put somebody 
on the Supreme Court--what is the judicial philosophy this person 
carries with them.
  It is not necessarily about their own background or their 
qualifications. Those are important to review, but at the heart is what 
is the judicial philosophy. Is this a person who supports an activist 
judiciary getting into many areas in which the American public doesn't 
think they should go into or is it a person who believes in more of a 
strict constructionist view, that the Court is there to be an umpire 
and not an active player in policy development? Are they an umpire who 
calls the balls and strikes, and not how do we do law; how do we 
rewrite what is here?
  I think the Court loses its lustre when it gets into becoming an 
active player in policy development instead of being a strict umpire of 
policy development. Unfortunately, what I saw in Judge Sotomayor in 
1998 was somebody who embraced an activist judicial philosophy. During 
a 1996 speech at Suffolk University Law School 2 years before the 
Senate voted on her nomination to the Second Circuit, Judge Sotomayor 
said:

       The law that lawyers practice and judges declare is not a 
     definitive capital ``L'' law that many would like to think 
     exists.

  Translated, that is to say the law is not set. It is mobile, as moved 
by judges, not by legislatures. This is not the rule of law. This is 
the rule from the bench. This is the rule of man, and it makes our law 
unpredictable. That is not good for a society like ours which is based 
on the rule of law, not the rule by a person.
  Any nominee to the Federal bench, and especially to the U.S. Supreme 
Court, must have a proper understanding and respect for the role of the 
Court--for the role they would assume. The Court must faithfully hold 
to the text of the Constitution and the intent of the Founders, not try 
to rewrite it based on ever changing cultural views. This is at the 
heart of what a judge does.
  Democracy, I believe, is wounded when Justices on the high Court, who 
are unelected, invent constitutional rights and alter the balance of 
governmental powers in ways that find no support in the text, the 
structure, or the history of the Constitution. Unfortunately, in recent 
years, the courts have assumed a more aggressive political role. In 
many cases, the courts have allowed the left in this country to achieve 
through court mandates what it cannot persuade the people to enact 
through the legislative process. The Constitution contemplates that the 
Federal courts will exercise limited jurisdiction. They should neither 
write nor execute the law.
  This is very basic in our law and goes back to the very Founders. As 
Chief Justice John Marshall said in his famous 1803 case, Marbury v. 
Madison, that every law student has studied at length, the role of the 
court is simple. It is to ``say what the law is.'' It is not to write 
the law. It is not to rewrite the law. It is to ``say what the law 
is,'' what did the legislature pass, when it needs interpretation. It 
is not about writing it. It is not about the mobility, that the law 
isn't with a capital ``l,'' and we can move it here based on these 
factors that we think are different with the cultural environment and 
we may have to move it over here in 10 years because the environment 
has changed and the law changes with it.
  If the law changes, it is by legislatures. It is not by the court. 
That is why Marbury v. Madison said the law is to ``say what the law 
is,'' not to rewrite it.
  In Federalist 78, Alexander Hamilton wrote this--law students study 
this as well:

       Whoever attentively considers the different departments of 
     power must perceive that, in a government in which they are 
     separated from each other, the judiciary, from the nature of 
     its functions, will always be the least dangerous to the 
     political rights of the Constitution; because it will be 
     least in a capacity to annoy or injure them. The executive 
     not only dispenses the honors but holds the sword of the 
     community. The legislature not only commands the purse, but 
     prescribes the rules by which the duties and rights of every 
     citizen are to be regulated. The judiciary, on the contrary, 
     has no influence over either the sword or the purse; no 
     direction either of the strength or of the wealth of the 
     society, and can take no active resolution whatsoever. It may 
     truly be said to have neither FORCE nor WILL but merely 
     judgment; and must ultimately depend upon the aid of the 
     executive arm even for the efficacy of its judgments.

  The court is to have judgment. A judge is to have judgment, not write 
the law.
  In Hamilton's view, judges could be trusted with power because they 
would not resolve divisive social issues--that is for the legislature 
to do--short-circuit the political process, or invent rights which have 
no basis in the text of the Constitution.
  I have long believed the judicial branch preserves its legitimacy 
with the public and has its strength with the public through refraining 
from action on political questions. This concept was perhaps best 
expressed by Justice Felix Frankfurter, a steadfast Democrat appointed 
by President Franklin Delano Roosevelt. Justice Frankfurter said this:

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

  That is to quote Justice Frankfurter.

[[Page 16015]]

  I recall a private meeting I had with then-Judge Roberts, before 
assuming the position of Chief Justice, when he had been nominated to 
be Chief Justice--a wonderful Justice on the Supreme Court who then-
Senator Obama voted against. Senator Obama voted against the 
confirmation of John Roberts, voted against the confirmation of Samuel 
Alito to the Supreme Court based, I believe, primarily on judicial 
philosophy because they believed in strict constructionism; that a 
court was to be a court and not a legislative body. Then-Senator Obama 
voted against both John Roberts and against Samuel Alito.
  In my meeting with Judge Roberts, he talked about baseball and about 
the courts and his analogy to baseball. He gave a great analogy, I 
thought, when he said:

       It is a bad thing when the umpire is the most watched 
     person on the field.

  Imagine that, watching a baseball game and the thing you are watching 
the most is the umpire because the umpire is both umpire and a player. 
How confusing, how difficult, and what a wrong way to have a game. He, 
of course, Judge Roberts, was alluding to the current situation in 
American governance where the legislature can pass a law, the executive 
sign it, but everybody waits, holding their breath to see what the 
courts will do with it.
  Unfortunately, Judge Sotomayor seems to me far too interested in 
being both an umpire and active player. Prior to becoming a Federal 
judge, Sonia Sotomayor spent more than a decade on the board of 
directors of the Puerto Rican Legal Defense and Education Fund. A 
September 25, 1992, article in the New York Times referred to Judge 
Sotomayor as ``a top policy maker'' on the group's board.
  In 1998, the group brought suit against the New York City Police 
Department, claiming that a promotion exam was discriminatory because 
the results gave a disproportionate number of promotions to White 
police officers. As a judge on the appellate court, Judge Sotomayor was 
involved in a nearly identical case, Ricci v. Destefano, involving a 
group of White firefighters seeking promotion in New Haven, CT. City 
officials in New Haven decided to void the results of the exam because 
it had a disparate impact on minorities. Judge Sotomayor agreed with 
the city's decision, and we are now waiting on a ruling from the 
Supreme Court.
       Sotomayor's work as an activist challenging the New York 
     Police Department's test results in 1998 is evidence that she 
     may have allowed personal biases to guide her decision to 
     rule against New Haven firefighters. I hope we can find out 
     more in her confirmation interviews and in her hearings. But 
     I am also troubled by the number of amicus briefs filed by 
     the fund in support of what are radical positions on pro-
     abortion issues during the time Sotomayor was on this same 
     board.
  Six briefs were filed taking positions outside of the mainstream in 
support of abortion rights in prominent cases such as in Webster v. 
Reproductive Health Services or in Ohio v. Akron Center for 
Reproductive Health. In that Ohio v. Akron case, the Court upheld 
Ohio's parental consent laws. These are laws that say, before a minor 
can have an abortion, they must have parental consent.
  Joining the majority opinion were moderate Justice Sandra Day 
O'Connor and liberal Justice John Paul Stevens. Yet the group that 
Judge Sotomayor was associated with filed a brief opposing this 
parental notification law, saying ``any efforts to overturn or in any 
way to restrict the rights in Roe v. Wade,'' they opposed any 
restriction, even allowing parents of a minor child to have parental 
notification that their child was going to go through this major 
medical procedure. She took a stand opposed to that parental right that 
most of the American public, 75 percent of the American public 
supports; that parental right of that notification. She opposed it.
  According to the New York Times:

       The board monitored all litigation undertaken by the fund's 
     lawyers, and a number of those lawyers said Ms. Sotomayor was 
     an involved and ardent supporter of their various legal 
     efforts during her time with the group.

  I am also deeply concerned that Judge Sotomayor will bring this 
radical agenda to the Court.
  Judge Sotomayor has given speeches and written articles promoting 
judicial activism. The President who appointed her said judges should 
have ``the empathy to recognize what it's like to be a young teenage 
mom; the empathy to understand what it is like to be poor or African-
American or gay or disabled or old,'' and that difficult cases should 
be decided by ``what is in the Justice's heart.''
  While I think it is admirable to have empathy, a Justice and a person 
who sits on the bench is to decide this based on the law. That is what 
they are to decide it upon, not an interpretation or rewriting of the 
law.
  The President's view of the role of a Judge on the Court is not 
shared by Justices Marshall or Frankfurter, nor is it the view of 
Hamilton and the drafters of the Constitution.
  The oath that all Supreme Court Justices take says:

       I will administer justice without respect to persons, and 
     do equal right to the poor and to the rich.

  That is the oath they take. The Justice is to be blind and just to 
hear the case and decide it based on the facts and what the law is and 
say what the law says, not what they wish it to be nor what is in their 
heart. It is to be blind and it is to hold these and to weigh these 
equally and fairly to determine the truth and to determine the outcome 
in the case.
  The President is asking his nominees to ignore, in essence, their 
oath. I fear Justice Sotomayor is all too eager to comply.
  In her writings, Judge Sotomayor has rejected the principle of 
impartiality and embraces a rather novel idea that a Judge's personal 
life story should come into play in the courtroom. In a 2001 speech at 
the UC Berkeley Law School, which was later published, Judge Sotomayor 
dismissed the idea that ``judges may transcend their personal 
sympathies and prejudices and aspire to achieve a greater degree of 
fairness and integrity based on the reason of law,'' by saying that 
``ignoring our differences as women or men of color we do a disservice 
both to the law and society.''
  I am not sure why Judge Sotomayor believes the law is somehow 
different when interpreted by people of a different gender, but I think 
Judge Sotomayor is absolutely wrong and we do a disservice to law and 
society when we don't transcend our personal sympathies and prejudices 
and base our decisions upon the facts and the law.
  Judge Sotomayor's view is contrary to the words engraved upon the 
Supreme Court's entrance which state ``equal justice under law.''
  In the same 2001 speech, Judge Sotomayor made the following 
astonishing statement:

       Personal experiences affect the facts judges choose to see. 
     . . . I simply do not know what the difference will be in my 
     judging. But I accept there will be some.

  When Judge Sotomayor says that ``personal experiences affect the 
facts judges choose to see,'' does that mean she is willing to ignore 
other facts? Is justice blind or is it actually interpreting and seeing 
which facts to pick and which facts not to pick?
  The role of judges is to examine all the facts of a particular case, 
not solely the facts that deliver a desired outcome or solely the facts 
that the judge can relate to based on his or her personal biography. It 
is dangerous for this body to consent to elevating a judge who believes 
that justice equates with picking winners and losers based upon his or 
her own personal biases. That is not judging.
  I hope my colleagues understand this 2001 speech at Berkeley was not 
an isolated incident. In a 1994 speech, Judge Sotomayor used language 
nearly identical to that of the 2001 speech, saying judges should not 
ignore their differences as women and people of color and to do so 
would be a disservice to the law and society. In 1994, Judge Sotomayor 
discussed the impact that more women on the bench will have on the 
``development of the law.''
  ``Development,'' like this is about the writing of the law. If that 
is the case, that is done by the Congress not by the courts. Judges do 
not make law, and under no circumstances should they be under the 
impression they do.

[[Page 16016]]

  Judge Sotomayor sees judges as lawmakers, as both umpire and player. 
In the 2005 appearance at Duke Law School, she said: ``The court of 
appeals is where policy is made.''
  I wonder how Alexander Hamilton would respond. I think he would 
wholly disagree with that interpretation. Unfortunately, Judge 
Sotomayor's writings and statements lead me to believe that she is a 
proponent, a clear proponent, of an activist judiciary. I cannot 
support her nomination. I will vote no when it comes before the full 
Senate.
  I ask unanimous consent that her speech in the Berkeley La Raza Law 
Journal be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

             [From the Berkeley La Raza Law Journal, 2002]

 Raising the Bar: Latino and Latina Presence in the Judiciary and the 
                      Struggle for Representation

       Judge Reynoso, thank you for that lovely introduction. I am 
     humbled to be speaking behind a man who has contributed so 
     much to the Hispanic community. I am also grateful to have 
     such kind words said about me.
       I am delighted to be here. It is nice to escape my hometown 
     for just a little bit. It is also nice to say hello to old 
     friends who are in the audience, to rekindle contact with old 
     acquaintances and to make new friends among those of you in 
     the audience. It is particularly heart warming to me to be 
     attending a conference to which I was invited by a Latina law 
     school friend, Rachel Moran, who is now an accomplished and 
     widely respected legal scholar. I warn Latinos in this room: 
     Latinas are making a lot of progress in the old-boy network.
       I am also deeply honored to have been asked to deliver the 
     annual Judge Mario G. Olmos lecture. I am joining a 
     remarkable group of prior speakers who have given this 
     lecture. I hope what I speak about today continues to promote 
     the legacy of that man whose commitment to public service and 
     abiding dedication to promoting equality and justice for all 
     people inspired this memorial lecture and the conference that 
     will follow. I thank Judge Olmos' widow Mary Louise's family, 
     her son and the judge's many friends for hosting me. And for 
     the privilege you have bestowed on me in honoring the memory 
     of a very special person. If I and the many people of this 
     conference can accomplish a fraction of what Judge Olmos did 
     in his short but extraordinary life we and our respective 
     communities will be infinitely better.
       I intend tonight to touch upon the themes that this 
     conference will be discussing this weekend and to talk to you 
     about my Latina identity, where it came from, and the 
     influence I perceive it has on my presence on the bench.
       Who am I. I am a ``Newyorkrican.'' For those of you on the 
     West Coast who do not know what that term means: I am a born 
     and bred New Yorker of Puerto Rican-born parents who came to 
     the states during World War II.
       Like many other immigrants to this great land, my parents 
     came because of poverty and to attempt to find and secure a 
     better life for themselves and the family that they hoped to 
     have. They largely succeeded. For that, my brother and I are 
     very grateful. The story of that success is what made me and 
     what makes me the Latina that I am. The Latina side of my 
     identity was forged and closely nurtured by my family through 
     our shared experiences and traditions.
       For me, a very special part of my being Latina is the mucho 
     platos de arroz, gandoles y pernir--rice, beans and pork--
     that I have eaten at countless family holidays and special 
     events. My Latina identity also includes, because of my 
     particularly adventurous taste buds, morcilla,--pig 
     intestines, patitas de cerdo con garbanzo--pigs' feet with 
     beans, and la lengua y orejas de cuchifrito, pigs' tongue and 
     ears. I bet the Mexican-Americans in this room are thinking 
     that Puerto Ricans have unusual food tastes. Some of us, like 
     me, do. Part of my Latina identity is the sound of merengue 
     at all our family parties and the heart wrenching Spanish 
     love songs that we enjoy. It is the memory of Saturday 
     afternoon at the movies with my aunt and cousins watching 
     Cantinflas, who is not Puerto Rican, but who was an icon 
     Spanish comedian on par with Abbot and Costello of my 
     generation. My Latina soul was nourished as I visited and 
     played at my grandmother's house with my cousins and extended 
     family. They were my friends as I grew up. Being a Latina 
     child was watching the adults playing dominos on Saturday 
     night and us kids playing loteria, bingo, with my grandmother 
     calling out the numbers which we marked on our cards with 
     chick peas.
       Now, does any one of these things make me a Latina? 
     Obviously not because each of our Carribean and Latin 
     American communities has their own unique food and different 
     traditions at the holidays. I only learned about tacos in 
     college from my Mexican-American roommate. Being a Latina in 
     America also does not mean speaking Spanish. I happen to 
     speak it fairly well. But my brother, only three years 
     younger, like too many of us educated here, barely speaks it. 
     Most of us born and bred here, speak it very poorly.
       If I had pursued my career in my undergraduate history 
     major, I would likely. provide you with a very academic 
     description of what being a Latino or Latina means. For 
     example, I could define Latinos as those peoples and cultures 
     populated or colonized by Spain who maintained or adopted 
     Spanish or Spanish Creole as their language of communication. 
     You can tell that I have been very well educated. That 
     antiseptic description however, does not really explain the 
     appeal of morcilla--pig's intestine--to an American born 
     child. It does not provide an adequate explanation of why 
     individuals like us, many of whom are born in this completely 
     different American culture, still identify so strongly with 
     those communities in which our parents were born and raised.
       America has a deeply confused image of itself that is in 
     perpetual tension. We are a nation that takes pride in our 
     ethnic diversity, recognizing its importance in shaping our 
     society and in adding richness to its existence. Yet, we 
     simultaneously insist that we can and must function and live 
     in a race and color-blind way that ignore these very 
     differences that in other contexts we laud. That tension 
     between ``the melting pot and the salad bowl''--a recently 
     popular metaphor used to described New York's diversity--is 
     being hotly debated today in national discussions about 
     affirmative action. Many of us struggle with this tension and 
     attempt to maintain and promote our cultural and ethnic 
     identities in a society that is often ambivalent about how to 
     deal with its differences. In this time of great debate we 
     must remember that it is not political struggles that create 
     a Latino or Latina identity. I became a Latina by the way I 
     love and the way I live my life. My family showed me by their 
     example how wonderful and vibrant life is and how wonderful 
     and magical it is to have a Latina soul. They taught me to 
     love being a Puerto Riquena and to love America and value its 
     lesson that great things could be achieved if one works hard 
     for it. But achieving success here is no easy accomplishment 
     for Latinos or Latinas, and although that struggle did not 
     and does not create a Latina identity, it does inspire how I 
     live my life.
       I was born in the year 1954. That year was the fateful year 
     in which Brown v. Board of Education was decided. When I was 
     eight, in 1961, the first Latino, the wonderful Judge 
     Reynaldo Garza, was appointed to the federal bench, an event 
     we are celebrating at this conference. When I finished law 
     school in 1979, there were no women judges on the Supreme 
     Court or on the highest court of my home state, New York. 
     There was then only one Afro-American Supreme Court Justice 
     and then and now no Latino or Latina justices on our highest 
     court. Now in the last twenty plus years of my professional 
     life, I have seen a quantum leap in the representation of 
     women and Latinos in the legal profession and particularly in 
     the judiciary. In addition to the appointment of the first 
     female United States Attorney General, Janet Reno, we have 
     seen the appointment of two female justices to the Supreme 
     Court and two female justices to the New York Court of 
     Appeals, the highest court of my home state. One of those 
     judges is the Chief Judge and the other is a Puerto Riquena, 
     like I am. As of today, women sit on the highest courts of 
     almost all of the states and of the territories, including 
     Puerto Rico. One Supreme Court, that of Minnesota, had a 
     majority of women justices for a period of time.
       As of September 1, 2001, the federal judiciary consisting 
     of Supreme, Circuit and District Court Judges was about 22% 
     women. In 1992, nearly ten years ago, when I was first 
     appointed a District Court Judge, the percentage of women in 
     the total federal judiciary was only 13%. Now, the growth of 
     Latino representation is somewhat less favorable. As of today 
     we have, as I noted earlier, no Supreme Court justices, and 
     we have only 10 out of 147 active Circuit Court judges and 30 
     out of 587 active district court judges. Those numbers are 
     grossly below our proportion of the population. As recently 
     as 1965, however, the federal bench had only three women 
     serving and only one Latino judge. So changes are happening, 
     although in some areas, very slowly. These figures and 
     appointments are heartwarming. Nevertheless, much still 
     remains to happen.
       Let us not forget that between the appointments of Justice 
     Sandra Day O'Connor in 1981 and Justice Ginsburg in 1992, 
     eleven years passed. Similarly, between Justice Kaye's 
     initial appointment as an Associate Judge to the New York 
     Court of Appeals in 1983, and Justice Ciparick's appointment 
     in 1993, ten years elapsed. Almost nine years later, we are 
     waiting for a third appointment of a woman to both the 
     Supreme Court and the New York Court of Appeals and of a 
     second minority, male or female, preferably Hispanic, to the 
     Supreme Court. In 1992 when I joined the bench, there were 
     still two out of 13 circuit courts and about 53 out of 92 
     district courts in which no women sat. At the beginning of 
     September of 2001, there are women sitting in all 13 circuit 
     courts. The

[[Page 16017]]

     First, Fifth, Eighth and Federal Circuits each have only one 
     female judge, however, out of a combined total number of 48 
     judges. There are still nearly 37 district courts with no 
     women judges at all. For women of color the statistics are 
     more sobering. As of September 20, 1998, of the then 195 
     circuit court judges only two were African-American women and 
     two Hispanic women. Of the 641 district court judges only 
     twelve were African-American women and eleven Hispanic women. 
     African-American women comprise only 1.56% of the federal 
     judiciary and Hispanic-American women comprise only 1%. No 
     African-American, male or female, sits today on the Fourth or 
     Federal circuits. And no Hispanics, male or female, sit on 
     the Fourth, Sixth, Seventh, Eighth, District of Columbia or 
     Federal Circuits.
       Sort of shocking, isn't it. This is the year 2002. We have 
     a long way to go. Unfortunately, there are some very deep 
     storm warnings we must keep in mind. In at least the last 
     five years the majority of nominated judges the Senate 
     delayed more than one year before confirming or never 
     confirming were women or minorities. I need not remind this 
     audience that Judge Paez of your home Circuit, the Ninth 
     Circuit, has had the dubious distinction of having had his 
     confirmation delayed the longest in Senate history. These 
     figures demonstrate that there is a real and continuing need 
     for Latino and Latina organizations and community groups 
     throughout the country to exist and to continue their efforts 
     of promoting women and men of all colors in their pursuit for 
     equality in the judicial system.
       This weekend's conference, illustrated by its name, is 
     bound to examine issues that I hope will identify the efforts 
     and solutions that will assist our communities. The focus of 
     my speech tonight, however, is not about the struggle to get 
     us where we are and where we need to go but instead to 
     discuss with you what it all will mean to have more women and 
     people of color on the bench. The statistics I have been 
     talking about provide a base from which to discuss a question 
     which one of my former colleagues on the Southern District 
     bench, Judge Miriam Cederbaum, raised when speaking about 
     women on the federal bench. Her question was: What do the 
     history and statistics mean. In her speech, Judge Cederbaum 
     expressed her belief that the number of women and by direct 
     inference people of color on the bench, was still 
     statistically insignificant and that therefore we could not 
     draw valid scientific conclusions from the acts of so few 
     people over such a short period of time. Yet, we do have 
     women and people of color in more significant numbers on the 
     bench and no one can or should ignore pondering what that 
     will mean or not mean in the development of the law. Now, I 
     cannot and do not claim this issue as personally my own. In 
     recent years there has been an explosion of research and 
     writing in this area. On one of the panels tomorrow, you will 
     hear the Latino perspective in this debate.
       For those of you interested in the gender perspective on 
     this issue, I commend to you a wonderful compilation of 
     articles published on the subject in Vol. 77 of the 
     Judicature, the Journal of the American Judicature Society of 
     November-December 1993. It is on Westlaw/Lexis and I assume 
     the students and academics in this room can find it.
       Now Judge Cedarbaum expresses concern with any analysis of 
     women and presumably again people of color on the bench, 
     which begins and presumably ends with the conclusion that 
     women or minorities are different from men generally. She 
     sees danger in presuming that judging should be gender or 
     anything else based. She rightly points out that the 
     perception of the differences between men and women is what 
     led to many paternalistic laws and to the denial to women of 
     the right to vote because we were described then ``as not 
     capable of reasoning or thinking logically'' but instead of 
     ``acting intuitively.'' I am quoting adjectives that were 
     bandied around famously during the suffragettes' movement.
       While recognizing the potential effect of individual 
     experiences on perception, Judge Cedarbaum nevertheless 
     believes that judges must transcend their personal sympathies 
     and prejudices and aspire to achieve a greater degree of 
     fairness and integrity based on the reason of law. Although I 
     agree with and attempt to work toward Judge Cedarbaum's 
     aspiration, I wonder whether achieving that goal is possible 
     in all or even in most cases. And I wonder whether by 
     ignoring our differences as women or men of color we do a 
     disservice both to the law and society. Whatever the reasons 
     why we may have different perspectives, either as some 
     theorists suggest because of our cultural experiences or as 
     others postulate because we have basic differences in logic 
     and reasoning, are in many respects a small part of a larger 
     practical question we as women and minority judges in society 
     in general must address. I accept the thesis of a law school 
     classmate, Professor Steven Carter of Yale Law School, in his 
     affirmative action book that in any group of human beings 
     there is a diversity of opinion because there is both a 
     diversity of experiences and of thought. Thus, as noted by 
     another Yale Law School Professor--I did graduate from there 
     and I am not really biased except that they seem to be doing 
     a lot of writing in that area--Professor Judith Resnik says 
     that there is not a single voice of feminism, not a feminist 
     approach but many who are exploring the possible ways of 
     being that are distinct from those structured in a world 
     dominated by the power and words of men. Thus, feminist 
     theories of judging are in the midst of creation and are not 
     and perhaps will never aspire to be as solidified as the 
     established legal doctrines of judging can sometimes appear 
     to be.
       That same point can be made with respect to people of 
     color. No one person, judge or nominee will speak in a female 
     or people of color voice. I need not remind you that Justice 
     Clarence Thomas represents a part but not the whole of 
     African-American thought on many subjects. Yet, because I 
     accept the proposition that, as Judge Resnik describes it, 
     ``to judge is an exercise of power'' and because as, another 
     former law school classmate, Professor Martha Minnow of 
     Harvard Law School, states ``there is no objective stance but 
     only a series of perspectives--no neutrality, no escape from 
     choice in judging,'' I further accept that our experiences as 
     women and people of color affect our decisions. The 
     aspiration to impartiality is just that--it's an aspiration 
     because it denies the fact that we are by our experiences 
     making different choices than others. Not all women or people 
     of color, in all or some circumstances or indeed in any 
     particular case or circumstance but enough people of color in 
     enough cases, will make a difference in the process of 
     judging. The Minnesota Supreme Court has given an example of 
     this. As reported by Judge Patricia Wald formerly of the D.C. 
     Circuit Court, three women on the Minnesota Court with two 
     men dissenting agreed to grant a protective order against a 
     father's visitation rights when the father abused his child. 
     The Judicature Journal has at least two excellent studies on 
     how women on the courts of appeal and state supreme courts 
     have tended to vote more often than their male counterpart to 
     uphold women's claims in sex discrimination cases and 
     criminal defendants' claims in search and seizure cases. As 
     recognized by legal scholars, whatever the reason, not one 
     woman or person of color in any one position but as a group 
     we will have an effect on the development of the law and on 
     judging.
       In our private conversations, Judge Cedarbaum has pointed 
     out to me that seminal decisions in race and sex 
     discrimination cases have come from Supreme Courts composed 
     exclusively of white males. I agree that this is significant 
     but I also choose to emphasize that the people who argued 
     those cases before the Supreme Court which changed the legal 
     landscape ultimately were largely people of color and women. 
     I recall that Justice Thurgood Marshall, Judge Connie Baker 
     Motley, the first black woman appointed to the federal bench, 
     and others of the NAACP argued Brown v. Board of Education. 
     Similarly, Justice Ginsburg, with other women attorneys, was 
     instrumental in advocating and convincing the Court that 
     equality of work required equality in terms and conditions of 
     employment.
       Whether born from experience or inherent physiological or 
     cultural differences, a possibility I abhor less or discount 
     less than my colleague Judge Cedarbaum, our gender and 
     national origins may and will make a difference in our 
     judging. Justice O'Connor has often been cited as saying that 
     a wise old man and wise old woman will reach the same 
     conclusion in deciding cases. I am not so sure Justice 
     O'Connor is the author of that line since Professor Resnik 
     attributes that line to Supreme Court Justice Coyle. I am 
     also not so sure that I agree with the statement. First, as 
     Professor Martha Minnow has noted, there can never be a 
     universal definition of wise. Second, I would hope that a 
     wise Latina woman with the richness of her experiences would 
     more often than not reach a better conclusion than a white 
     male who hasn't lived that life.
       Let us not forget that wise men like Oliver Wendell Holmes 
     and Justice Cardozo voted on cases which upheld both sex and 
     race discrimination in our society. Until 1972, no Supreme 
     Court case ever upheld the claim of a woman in a gender 
     discrimination case. I, like Professor Carter, believe that 
     we should not be so myopic as to believe that others of 
     different experiences or backgrounds are incapable of 
     understanding the values and needs of people from a different 
     group. Many are so capable. As Judge Cedarbaum pointed out to 
     me, nine white men on the Supreme Court in the past have done 
     so on many occasions and on many issues including Brown.
       However, to understand takes time and effort, something 
     that not all people are willing to give. For others, their 
     experiences limit their ability to understand the experiences 
     of others. Others simply do not care. Hence, one must accept 
     the proposition that a difference there will be by the 
     presence of women and people of color on the bench. Personal 
     experiences affect the facts that judges choose to see. My 
     hope is that I will take the good from my experiences and 
     extrapolate them further into areas with which I am 
     unfamiliar. I simply do not know exactly what that difference 
     will be in my judging. But I accept there will be some based 
     on my gender and my Latina heritage.
       I also hope that by raising the question today of what 
     difference having more

[[Page 16018]]

     Latinos and Latinas on the bench will make will start your 
     own evaluation. For people of color and women lawyers, what 
     does and should being an ethnic minority mean in your 
     lawyering? For men lawyers, what areas in your experiences 
     and attitudes do you need to work on to make you capable of 
     reaching those great moments of enlightenment which other men 
     in different circumstances have been able to reach. For all 
     of us, how do change the facts that in every task force study 
     of gender and race bias in the courts, women and people of 
     color, lawyers and judges alike, report in significantly 
     higher percentages than white men that their gender and race 
     has shaped their careers, from hiring, retention to promotion 
     and that a statistically significant number of women and 
     minority lawyers and judges, both alike, have experienced 
     bias in the courtroom?
       Each day on the bench I learn something new about the 
     judicial process and about being a professional Latina woman 
     in a world that sometimes looks at me with suspicion. I am 
     reminded each day that I render decisions that affect people 
     concretely and that I owe them constant and complete 
     vigilance in checking my assumptions, presumptions and 
     perspectives and ensuring that to the extent that my limited 
     abilities and capabilities permit me, that I reevaluate them 
     and change as circumstances and cases before me requires. I 
     can and do aspire to be greater than the sum total of my 
     experiences but I accept my limitations. I willingly accept 
     that we who judge must not deny the differences resulting 
     from experience and heritage but attempt, as the Supreme 
     Court suggests, continuously to judge when those opinions, 
     sympathies and prejudices are appropriate.
       There is always a danger embedded in relative morality, but 
     since judging is a series of choices that we must make, that 
     I am forced to make, I hope that I can make them by informing 
     myself on the questions I must not avoid asking and 
     continuously pondering. We, I mean all of us in this room, 
     must continue individually and in voices united in 
     organizations that have supported this conference, to think 
     about these questions and to figure out how we go about 
     creating the opportunity for there to be more women and 
     people of color on the bench so we can finally have 
     statistically significant numbers to measure the differences 
     we will and are making.
       I am delighted to have been here tonight and extend once 
     again my deepest gratitude to all of you for listening and 
     letting me share my reflections on being a Latina voice on 
     the bench. Thank you.

  Mr. BROWNBACK. 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. BROWN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BROWN. Mr. President, I ask unanimous consent to speak as in 
morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Ohio is recognized.
  Mr. BROWN. I thank the Chair.
  (The remarks of Mr. Brown pertaining to the introduction of S. 1343 
are printed in today's Record under ``Statements on Introduced Bills 
and Joint Resolutions.'')
  Mr. LUGAR. Mr. President, today the Senate considers the nomination 
of Harold Koh to be Legal Adviser to the Department of State. After 
reading his answers to dozens of questions, attending his hearing in 
its entirety, meeting with him privately, and reviewing his writings, I 
believe that Dean Koh is unquestionably qualified to assume the post 
for which he is nominated. He has had a distinguished career as a 
teacher and advocate, and he is regarded widely as one of our Nation's 
most accomplished experts on the theory and practice of international 
law. He also has served ably in our government as a Justice Department 
lawyer during the Reagan administration and as Assistant Secretary of 
State for Democracy, Human Rights, and Labor from 1998 to 2001.
  The committee has received innumerable letters of support for the 
nominee attesting to his character, his love of country, and his 
respect for the law. He enjoys support from the lawyers with whom he 
has worked, as well as those including former Solicitor General Kenneth 
Starr--whom he has litigated against.
  Both in private meetings and in public testimony, Dean Koh has 
affirmed that he understands the parameters of his role as State 
Department Legal Adviser. He understands that his role will be to 
provide policymakers objective advice on legal issues, not to be a 
campaigner for particular policy outcomes. He also has affirmed that as 
Legal Adviser, he will be prepared to defend the policies and interests 
of the U.S. Government, even when they may be at odds with positions he 
has taken in a private capacity. In applying laws relevant to the State 
Department's work, he has stated clearly that he will take account of 
and respect prior U.S. Government interpretations and practices under 
those laws, rather than considering each such issue as a matter of 
first impression.
  Finally, I believe Dean Koh respects the role of the Senate and the 
Congress on international legal matters, especially treaties. He has 
promised to consult with us regularly and fully, not just when treaties 
come before the Senate, but also on the application of treaties on 
which the Senate has already provided advice and consent, including any 
proposed changes in the interpretation of such treaties.
  Absent extraordinary circumstances, President Obama and Secretary of 
State Clinton should be able to choose the individuals on whom they 
will depend for legal analysis, interpretation, and advice. Given Dean 
Koh's record of service and accomplishment, his personal character, his 
understanding of his role as Legal Adviser, and his commitment to work 
closely with Congress, I support his nomination and believe he is well 
deserving of confirmation by the Senate.
  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.
  Mr. KAUFMAN. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Bennet). Without objection, it is so 
ordered.
  Mr. KAUFMAN. Mr. President, I ask unanimous consent to speak as in 
morning business for 18 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                             SHORT SELLING

  Mr. KAUFMAN. Mr. President, I rise again to speak out about the 
problems in the financial markets caused by abusive short selling 
activities, which includes naked short selling and rumor mongering. It 
can also include abuse of the credit default market by planting false 
suggestions that an issuer's survival is in doubt. My focus today, 
however, is on the first element--naked short selling.
  Let me be clear about my main point. The public believes and the SEC 
has yet to discount that the effects of abusive naked short selling 
practices helped cement the demise of Bear Stearns and Lehman Brothers, 
as well as made it significantly harder for banks to raise critical 
capital in the throes of this financial crisis. It is no exaggeration 
to say that abusive short selling at a critical moment further 
endangered our financial system and economy and thereby help lead to 
taxpayer bailouts that have totaled hundreds of billions of dollars. We 
are still waiting for the SEC's enforcement response. It is likely we 
will continue to wait, as I will discuss, because current rules are 
ineffective and unenforceable.
  There is still a critical need for better SEC regulations that would 
help the enforcement division to do its job and stop naked short 
selling that is abusive and manipulative dead in its tracks.
  Yes the SEC in April proposed five versions of a return to the uptick 
rule, which I believe never should have been repealed in the first 
place, at least without putting something effective in its place. The 
uptick rule, which simply required stock traders to wait for an uptick 
in price before continuing to sell a stock short, was in effect for 70 
years--that is 7-0 years--until it was repealed in June of 2007. The 
comment period for the reinstatement of some form of the prior uptick 
rule is complete, and it is disappointing, but not surprising, to see 
that many on Wall Street now oppose that modest step. I continue to 
urge the SEC to move forward on that front.

[[Page 16019]]

  As I have consistently maintained in my communications with the SEC, 
however, reinstating some form of the uptick rule alone puts too narrow 
a frame on the problems associated with naked short selling. The 
problem at its root is that the current rules against naked short 
selling are both inadequate and impossible to enforce. A strict 
preborrow requirement would address the problem and end it once and for 
all. Yet the SEC still has done nothing to propose a preborrower rule. 
If we end up with no uptick rule and no preborrow requirement, the SEC 
will be bending to the will of an industry that has shown recklessness 
but clearly lacks remorse.
  There is a fierce urgency to fix this problem. Today, the financial 
markets are teetering on the brink of either continuing with a bull 
market rally or falling back substantially in what would be the 
continuation of a severely painful bear market. If the markets of 
certain stocks fall back precipitously again and if the bear market 
raiders act again using abusive naked short selling practices to damage 
and possibly destroy the stocks of banks and other companies, the SEC 
will have a lot of explaining to do--unless we see responses from the 
agency in the near term.
  I have been writing the SEC and talking about this issue on the 
Senate floor since March 3. It is now June 24, and the SEC has still 
done nothing. It is time for the SEC to act.
  Let me review the history of this issue and the evidence.
  Naked short selling occurs when a trader sells a financial instrument 
short without first borrowing it or even ensuring it can be borrowed. 
This converts our securities and capital markets into nothing more than 
gambling casinos since the naked seller purports to sell something he 
doesn't own, and may never own, in the expectation that prices of the 
instruments sold will decline before ever settling the trade. Because 
this activity requires no capital outlay, it also inspires naked short 
sellers to flood the market with false rumors to make the prediction a 
self-fulfilling one.
  This practice often leads to fails to deliver. If the seller does not 
borrow the security in time to make delivery to the buyer within the 
standard 3-day settlement period, the seller ``fails to deliver.'' 
Sometimes fails to deliver can be caused by human or mechanical errors, 
but those types of fails are only a small portion of the actual number 
of fails to deliver our markets confront continually.
  Selling what you do not own and have not borrowed gives a seller a 
free ride. It effectively says: Show me the money now and you will get 
your stock sometime in the future. By analogy, it is very much like 
giving access to the Super Bowl on the day of the game--in other words, 
giving someone a ticket to the Super Bowl on the day of the game--in 
return for a promise that the spectator will ultimately produce a 
ticket long after the big event has occurred.
  It is well known that abusive short selling has been linked to the 
downfall of two major financial firms--Bear Stearns and Lehman 
Brothers.
  According to Bloomberg News:

       Failed trades correlate with drops in share value, enough 
     to account for 30 to 70 percent of the declines in Bear 
     Stearns, Lehman, and other stocks last year.

  Let me repeat that. ``Failed trades,'' according to Bloomberg News, 
``correlate with drops in share value, enough to account for 30 to 70 
percent of the declines in Bear Stearns, Lehman, and other stocks last 
year.''
  The huge increase in naked short selling exacerbated the financial 
crisis. Listen to this. In January 2007, 550 million shares failed to 
deliver. By January 2008, 1.1 billion shares failed to deliver. And in 
July of 2008, 2 billion shares failed to deliver.
  These fails to deliver drove stock value down further than the market 
would have done by diluting stock prices. According to Clinton Under 
Secretary of Commerce Robert Shapiro in his recent comprehensive study:

       Before Bear Stearns collapsed, its fails to deliver went 
     from less than 100,000 to 14 million, significantly diluting 
     the values of its stock.

  As the Coalition Against Market Manipulation stated:

       Just as counterfeit currency dilutes and destroys value, 
     these phantom shares deflate share prices by flooding the 
     market with false supply.

  For example, according to EuroMoney, on March 14, 2008, ``128 percent 
of Bear Stearns' outstanding stock was traded.'' Let me repeat that. On 
March 14, 2008, 128 percent of Bear Stearns outstanding stock was 
traded. How can more than 100 percent be traded? It can only occur 
because of the absence of required borrowers and naked short selling. 
Without a preborrow requirement, in 1 day, multiple locates allow the 
same single share of a stock to be sold over and over. And without 
effective rules or enforcement, millions of shares of stock are sold 
short and not delivered as required.
  Lehman Brothers also faced a similar abnormal increase in fails to 
deliver before its collapse.
  According to Bloomberg:

       As Lehman Brothers struggled to survive last year, as many 
     as 32.8 million shares in the company were sold and not 
     delivered to buyers on time. . . .That was more than a 57-
     fold increase over the prior year's peak of 567,518 failed 
     trades . . .

  Many banks that help to drive the U.S. economy are particularly at 
risk from abusive short selling practices due to the importance of 
investor confidence in maintaining their capital.
  On September 19, 2008, the SEC implemented a temporary emergency 
order barring all short selling to protect 799 financial companies, 
which included many banks, because of the damage naked short selling 
had done in destroying their company and investor values. But barring 
all short selling is like throwing the baby out with the bathwater. 
Proper short selling provides the marketplace with greater liquidity 
and the prospect of meaningful price discovery.
  Naked short selling practices led to market disequilibrium and the 
SEC recognizing that the only way to protect these companies from 
unnecessary devaluation was to implement a ban. Many of these companies 
later moved under the Troubled Assets Relief Program, TARP.
  While new regulations issued by the SEC last fall were the first 
steps to protect companies, the SEC has not done nearly enough. If 
naked short selling is not policed and rules against market 
manipulation are not enforced effectively, naked short selling will 
continue to harm TARP banks and companies. If stronger regulations are 
not implemented, abusive short selling will impair the government's 
ability to invest taxpayer money into TARP banks and return them to 
health and thus limit the effects of the government's economic recovery 
plan.
  The SEC began addressing these issues 10 years ago with a concept 
release that eventually became known as Regulation SHO, a set of rules 
that has been amended several times. But a price extracted by 
Regulation SHO was the elimination of the 70-year-old uptick test.
  Reg SHO intended to curb naked short selling by requiring would-be 
short sellers to have merely a reasonable expectation they can deliver 
the stock when it must be delivered and imposing a post-trade 
requirement that would-be short sellers actually preborrow securities 
for future trades only if too many fails have already occurred. This is 
somewhat akin to a ``one free bite at the apple'' approach, something 
regulators attempt to avoid. The reason is because, in practice, it 
turns out to be a ``free bite at the apple'' each time a manipulative 
trader switches brokers--something a manipulative trader can easily do 
with no penalty.
  But this rule has proved effectively unenforceable according to 
former SEC Commissioner Roel Campos and others. Current SEC regulations 
allow traders to short a stock if the trader ``reasonably believes that 
it can locate and borrow the security by the settlement day.''
  Reasonableness includes merely glancing at a list of easy to borrow 
stocks, with no need to continue to locate even if the list is faulty. 
Let me repeat. Reasonableness includes merely

[[Page 16020]]

glancing at a list of easy to borrow stocks, with no need to continue 
to locate even if this list is faulty. That rule, the mother of all 
loopholes, is much too vague to have any real effect. Any trader who 
passed Finance 101 could provide proof that he or she ``reasonably 
believed'' the shorted stocks could be located. In fact, the provision 
of a false locate is beneficial for generating commissions on the 
trade.
  Ultimately, many commentators and I believe the SEC cannot bring 
cases against the gravest violators of this rule, because it does not 
have the means to prove intent. The rule is, in effect, unenforceable. 
The SEC has, in fact, not brought a single enforcement case for naked 
short selling. We must change the rules so the SEC Enforcement Division 
can do its job.
  Even former SEC Chairman Christopher Cox said the SEC is:

     . . . concerned that the persistent failures to deliver in 
     the market for some securities may be due to loopholes in 
     Regulation SHO.

  It is too difficult to prove a trader's motives necessary for proving 
a fraud violation. I strongly believe the SEC needs to strengthen its 
rules, surveillance, and the enforcement regarding naked short selling 
to prevent market manipulation and loss of investor confidence.
  Again, according to Robert Shapiro:

     . . . there is considerable evidence that market manipulation 
     through the use of naked short sales has been much more 
     common than almost anyone has suspected, and certainly more 
     widespread than most investors believe.

  Furthermore, indicators the SEC typically uses to determine the 
effects of abusive short selling do not accurately reflect the extent 
of the problem. The so-called Threshold List provided by the SEC tracks 
sustained fails to deliver of over 10,000 shares, accounting for at 
least 5 percent of a company's outstanding shares.
  According to Shapiro, this list does not capture the naked short 
sales that occur frequently that are under this threshold, and it does 
not capture the large volume of short interests that can spike during 
the 3-day settlement period. Nor does it capture any trades that occur 
outside of the Depository Trust and Clearing Corporation, so-called ex-
clearing trades.
  Let us look to other countries. Other countries have taken proper 
steps to make sure rules that prevent naked short selling are clear and 
easy to enforce. According to EuroMoney, naked short selling is:

     . . . a situation specific to the U.S. markets.

  Alan Cameron, head of clearing, settlement and custody client 
solutions at BNP Paribas Securities Services in London, says he has 
seen little to indicate similar instances of fails to deliver in 
Europe. Some European countries such as Spain impose strict fines on 
failures to deliver. It's not an issue here in Europe.
  Therefore, I strongly believe that the SEC must adopt new policies in 
order to protect the damage to investor confidence and, yes, the damage 
to our economic recovery that is being caused by naked short selling.
  Today, along with Senators Isakson and Tester, and Representative 
Carolyn Maloney, who cochairs the Joint Economic Committee, I wrote to 
SEC Chairman Mary Schapiro on this subject. Our letter urged that the 
Commission establish a pilot program to study whether a strict 
preborrow agreement would work effectively to end the problem of naked 
short selling. Such a pilot program would lead to the collection of 
data about stock lending and borrowing and the costs and benefits of 
imposing a preborrow requirement on all short sales.
  Recently, Senators Levin, Grassley, and Specter, in connection with 
the release of a General Accountability Office study analyzing recent 
SEC actions to curb abusive short selling, called for the SEC to 
consider imposing a strict preborrow requirement on short sales as the 
best way to end abusive short selling.
  I strongly agree. As I have said, a preborrow requirement would 
address the problem at its most fundamental level and it should be 
urgently considered by the SEC as it rethinks its regulations and 
enforcement approach in this area.
  Moreover, the system by which stocks currently are loaned and 
borrowed can and should be greatly improved, improving efficiency and 
producing cost savings. For example, centralized systems for loaning 
and borrowing stocks might better enable the SEC to impose fair rules 
on stock loans and borrowers in connection with short sales as well as 
enhance the SEC's ability to provide regulatory oversight to prevent 
naked short selling.
  As one commentator has written in EuroMoney in December 2008, the:

     . . . SEC knows it has to introduce the pre-borrow rule if it 
     wants to eliminate fails to deliver for good. As long as 
     there are companies on the Regulation SHO list, then the 
     problem is not being solved. The only sustainable solution to 
     making naked short-selling is a rule requiring both pre-
     borrow and a hard delivery. . . . for Bear Stearns: only a 
     pre-borrow could put a brake on the naked short-selling.

  I urge the SEC to invite a balanced group of commentators, including 
members of the investing public, to air these issues publicly as it 
continues efforts to draft and promulgate additional rules to end 
abusive short selling.
  I know there are critics of a preborrow requirement who claim it 
would limit liquidity. This is not so, and there is no meaningful 
evidence to support this argument. Indeed, the recent study by Robert 
Shapiro disproves the claim. Other knowledgable sources, such as Harvey 
Pitt, former SEC Chairman and founder of LendEQS, an electronic stock 
loan transaction firm, believe the opposite would occur, because 
lending would increase.
  In Hong Kong, the imposition of a preborrow requirement has been 
quite successful. Hong Kong implemented the preborrow rule after the 
Asian financial crisis of 1997 to 1998, when its markets collapsed. In 
late 2008, while the United States saw an exponential increase in fails 
to deliver, Hong Kong avoided large spikes in short sales almost 
completely. Other countries, such as Australia and many other EU 
members, have also successfully maintained preborrow requirements for 
years. The United States must urgently address the issue of abusive 
short selling. If we want to protect our markets, investors, and 
companies from caustic manipulation, we need better rules.
  In closing, I urge the SEC to act decisively, both by following 
through and reimposing the substance of the prior uptick rule and 
through a pilot program to study the effects of a strict preborrow 
requirement. It is way past time to put an end to naked short selling, 
once and for all.
  Mr. President, I yield the floor, and 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.
  Mr. REID. Mr. President, I ask unanimous consent the order for the 
quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                          ____________________