[Congressional Record (Bound Edition), Volume 155 (2009), Part 16]
[Senate]
[Pages 22043-22054]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

 NOMINATION OF GERARD E. LYNCH TO BE U.S. CIRCUIT JUDGE FOR THE SECOND 
                                CIRCUIT

  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 Gerard E. Lynch, of New 
York, to be United States Circuit Judge for the Second Circuit.
  The PRESIDING OFFICER. Under the previous order, there will be 2 
hours of debate, equally divided, between the Senator from Vermont and 
the Senator from Alabama or their designees.
  The Senator from Vermont.
  Mr. LEAHY. Mr. President, today the Senate finally considers the 
nomination of Gerard Lynch to the Second Circuit. I take particular 
interest in this because my own State of Vermont is part of the Second 
Circuit. I am a member of that bar, and I have argued cases before that 
court.
  This is a nomination reported out of the Judiciary Committee over 3 
months ago, on June 11 unanimously by voice vote. There were no 
dissents. When that occurred and the ranking Republican member said 
such glowing things about Judge Lynch, I assumed his nomination was 
going to be confirmed right away as we did with President Bush's 
nominations in similar situations. Now it is nearly 3 months later. In 
almost unprecedented fashion, someone who has had the strong support of 
both the chairman and ranking Republican of the committee is still on 
the Executive Calendar.
  Judge Lynch has served as a highly respected Federal judge from New 
York for almost a decade. He has impeccable legal credentials. His 
nomination received the highest possible rating from the ABA's standing 
committee on the Federal judiciary, unanimously voted ``well 
qualified.''
  The Senate can and must do a better job of restoring our tradition, a 
tradition followed with Republican Presidents and Democratic 
Presidents, of regularly considering qualified, noncontroversial 
nominees to fill vacancies on the Federal bench without needless and 
harmful delays. We should not have to overcome filibusters and spend 
months seeking time agreements to consider these nominations. The 
American public wonders what is going on here.
  It is imperative that we move to fill the growing number of vacancies 
throughout the Federal courts. These vacancies have already risen to 
over 90, including 21 on the circuit courts. I have been here with six 
Presidents. I cannot remember a time we have been this late in the year 
and, even though nominations have been made, nobody has been confirmed, 
all because of holds by the Republicans. Do they object so much to 
having President Obama as President that they will hold up well-
qualified judges? These are supposed to be nonpartisan, outside the 
political area.
  This alarming spike in vacancies is only further fueled by delays and 
inaction. In addition, 26 future vacancies

[[Page 22044]]

have been announced. At this rate, as I said at the judicial conference 
this week with the Chief Justice and leaders of the Federal judiciary, 
the Federal judicial vacancies will soon be close to 120 unless we 
start acting on these nominations in a responsible and fair manner. 
These nominations should not be something where Republicans or 
Democrats might score political points. Our inaction on these 
nominations hurts the average American. They do not care about the 
politics. They want Federal courts that are going to work. They do not 
want cases delayed because we have vacancies in the Federal court that 
we could easily be filling.
  I do not think most Americans, when they go into a court, say: I am 
here as a Republican or a Democrat. They go in and say: I am here as a 
plaintiff or defendant. They are there to seek justice, not to find out 
there is nobody in the courthouse because the minority party does not 
want President Obama filling vacancies.
  During the last Presidency, we worked very hard to fill vacancies. 
When I chaired the Senate Judiciary Committee and we had a President of 
the other party, we were able to reduce overall vacancies by two-
thirds, from over 100 down to 34. We were able to reduce circuit court 
vacancies to single digits. Today, because we are blocked from getting 
judges through, because Republican Senators will not give this 
Democratic President the same courtesies we gave a Republican 
President, those vacancies have nearly tripled. In the 17 months I 
served as Senate Judiciary Committee chairman during President Bush's 
first term, the Senate confirmed 100 of the President's judicial 
nominations. So far this year, 9 months into the year, we have not 
confirmed a single Federal district judge or circuit judge. In fact, 
Judge Lynch will be the first.
  Despite the fact that President Obama sent his first judicial 
nomination to the Senate 2 months earlier than President Bush, despite 
the fact that judicial nominees have the support of Republican home 
State Senators, despite the fact that the Judiciary Committee has 
reported favorably five judicial nominees to the Senate for final 
action, and despite the fact that judicial nominees have been pending 
on the Senate calendar for more than 3 months, we have not been able to 
reach agreement before today to vote on a single judicial nominee for 
either a district court or a circuit court.
  The first of President Obama's nominations, that of Judge David 
Hamilton to the Seventh Circuit, was made in March. It has been on the 
Executive Calendar since early June, despite the support of the most 
senior of Senate Republicans, Senator Lugar. The nomination of Judge 
Andre Davis on the Fourth Circuit was reported by the committee on June 
4 by a vote of 16 to 3 but has yet to receive Senate consideration. We 
should not further delay Senate consideration of these well-respected, 
mainstream Federal judges.
  During the last Congress, we reduced Federal judicial vacancies from 
10 percent, under Republican control of the Senate during the Clinton 
administration, to less than half that level. We cut circuit vacancies 
from 32 to less than 10 last year. Ironically, during President Bush's 
two Presidential terms, more nominees were confirmed with a Democratic 
Senate majority than a Republican majority, and in less time. I am 
urging Republican Senators to work together with the President to fill 
vacancies on the Federal bench.
  I hope that Republican Senators do not seek to return to the 
practices of the 1990s that more than doubled circuit court vacancies. 
The crisis they created led to public criticism of their actions by 
Chief Justice Rehnquist during those years. It is not a good sign that 
already this year Republican Senators threatened a filibuster of the 
Deputy Attorney General and pursued five filibusters, including one for 
Elena Kagan, the Solicitor General, one for Harold Koh to be the Legal 
Adviser to the State Department, and another that was finally broken 
just last week on Cass Sunstein, who heads the White House Office of 
Management and Budget's Office of Information and Regulatory Affairs. 
Nor is it a good sign that in March every Republican Senator signed a 
letter to the President threatening filibusters of his judicial 
nominees before they were even nominated.
  We are supposed to be the conscience of the Nation in the Senate. If 
a Senator does not like a particular nominee, vote against him or her. 
But these are nominees that will probably pass unanimously.
  I hope, instead, that both sides of the aisle will join together to 
treat the nominees of President Obama fairly. I made sure that we 
treated President Bush's nominees more fairly than President Clinton's 
nominees had been treated. We should continue that progress rather than 
ratcheting up the partisanship and holding down our productivity with 
respect to Senate consideration of judicial nominations. Our 
demonstrated ability to work together to fill judicial vacancies will 
go a long way toward elevating public trust in our justice system.
  Another troubling sign is the refusal of every Republican Senator to 
cosponsor the comprehensive judgeship bill. Last week I reintroduced 
that legislation embodying your nonpartisan recommendations for 63 
judgeships needed around the country. Not a single Republican Senator 
would cosponsor the bill. Even traditional cosponsors with whom I have 
worked for years would not join. Not one of the 18 Republican Senators 
whose states would benefit from additional judges yet supports the 
bill. For that matter, Republican Senators obstructed the hearing on a 
similar bill last summer, after they had requested the hearing. As we 
pass legislation that is leading to increased workloads in the Federal 
courts, we need to be cognizant of the increasing workloads and needs 
of the Federal courts.
  Judge Gerard Lynch began his legal career as a Federal prosecutor in 
the U.S. Attorney's Office for the Southern District of New York, where 
he investigated and prosecuted white collar and political corruption 
cases, and argued complex criminal appeals. Through his exemplary hard 
work and considerable skill, he rose to be chief of the criminal 
division in the Southern District of New York, where he managed the 
office's criminal cases and supervised well over 130 Federal 
prosecutors. Judge Lynch has also served as a part-time associate 
counsel for the Office of Independent Counsel and as a counsel to a 
Wall Street New York law firm.
  He also has impeccable legal credentials. Judge Lynch graduated summa 
cum laude and first in his class from both Columbia Law School and 
Columbia University. He clerked for Justice Brennan on the Supreme 
Court of the United States and Judge Feinberg on the Second Circuit 
Court of Appeals. Judge Gerard Lynch began his legal career as a 
Federal prosecutor in the U.S. Attorney's Office for the Southern 
District of New York, where he investigated and prosecuted white collar 
and political corruption cases, and argued complex criminal appeals. 
Through his exemplary hard work and considerable skill, he rose to be 
chief of the criminal division in the Southern District of New York, 
where he managed the office's criminal cases and supervised well over 
130 Federal prosecutors. Judge Lynch has also served as a part-time 
associate counsel for the Office of Independent Counsel and as a 
counsel to a Wall Street New York law firm.
  He also has impeccable legal credentials. Judge Lynch graduated summa 
cum laude and first in his class from both Columbia Law School and 
Columbia University. He clerked for Justice Brennan on the Supreme 
Court of the United States and Judge Feinberg on the Second Circuit 
Court of Appeals.
  While maintaining a full judicial caseload, Judge Lynch has also been 
a distinguished legal scholar who has received praise as one of the 
country's outstanding law professors. For over 13 years, he taught 
criminal law, criminal procedure, and constitutional law as the Paul J. 
Kellner Professor of Law at Columbia University's School of Law. For 5 
years, Judge Lynch also served as the vice dean of that fine legal 
institution. He is nationally known as a criminal law expert and has 
received numerous honors, including the distinction of being the first 
law professor

[[Page 22045]]

to receive Columbia University's President's award for outstanding 
teaching.
  Judge Lynch's nomination has received numerous letters of support, 
including strong endorsements from public officials and law professors 
across the political spectrum. Otto G. Obermaier, who served as 
President George H.W. Bush's U.S. attorney for the Southern District of 
New York, supports Judge Lynch's candidacy to the Second Circuit and 
called him a person of ``superior judgment and intelligence'' who is 
``intellectually gifted.'' Professor Henry P. Monaghan, the Harlan 
Fiske Stone Professor of Law at Columbia University, writes that Judge 
Lynch ``is everything you want in a judge: fair, tough-minded, 
enormously experienced, highly intelligent, and apolitical'' and his 
addition to the Second Circuit would ``strengthen'' that court. He has 
the support of the Senators from New York.
  I congratulate Judge Lynch and his family on his confirmation today.
  Mr. President, I suggest the absence of a quorum.
  I withdraw that request. I see the distinguished senior Senator from 
New York in the Chamber, a man who works so extremely hard in the 
Senate Judiciary Committee, who has worked night and day for Judge 
Lynch, who has made sure we all realize what impeccable credentials he 
has.
  I yield to the Senator, but I ask, first, unanimous consent that if 
there are quorum calls, the time be divided equally.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from New York is recognized.
  Mr. SCHUMER. Mr. President, first, I thank our chairman and leader, 
Senator Leahy, for not just moving this very qualified nominee forward 
but for his diligence and steadfastness and patience as we try to move 
judges to the floor. Senator Leahy, as everyone in this Chamber knows, 
is a very fairminded person. He always goes out of his way to allow 
people to have their time to speak. We had this in the Judiciary 
Committee this morning. He has done an amazing job trying to move our 
judges through. I hope those on the other side of the aisle will hear 
his heartfelt plea that we stop all these dilatory tactics.
  Having said that, today is a very good day because I am so pleased to 
rise in favor of the nomination of the first appointment by President 
Obama to a Federal appellate court that this body will consider. If 
Judge Gerard Lynch is any indication of the quality and temperament and 
intellectual firepower of judges whom President Obama intends to 
nominate, then my friends on both sides of the aisle should have reason 
to rejoice today.
  As Chairman Leahy has already noted, Judge Lynch was referred out of 
committee by a unanimous voice vote. Even my friend and colleague 
Ranking Member Sessions was able to support Judge Lynch despite having 
opposed his nomination to the district court bench in 2000.
  Judge Lynch, who currently sits as a U.S. district judge in the 
Southern District of New York, comes to us today for confirmation much 
as he did in 2000 for his first confirmation: with an unimpeachable 
record of moderation, consistency, intelligence, and dedication to 
exploring all facets of complex legal questions. But since then, he has 
amassed an impressive record of moderation and thoroughness. In his 9 
years on the bench, he has issued nearly 800 opinions, has tried nearly 
90 cases to verdict, and has been overturned by the Second Circuit only 
12 times--and one of those times, the Second Circuit was, in turn, 
reversed by the U.S. Supreme Court.
  There should not be any doubt that Judge Lynch is not an ideologue. 
His opinions and his writings show moderation and thoughtfulness. He is 
pragmatic. His peers and those who practice before him have found him 
to be both probing and courteous--in sum, very judicial in his 
temperament.
  In response to questions before the Senate Judiciary Committee in 
2000, Judge Lynch said:

       A judge who comes to the bench with an agenda, or a set of 
     social problems he or she would like to solve, is in the 
     wrong business.

  As his record has shown, Judge Lynch is in the right business.
  I have said many times that my criteria for selecting good judges are 
three: excellence--they should be top of the line legally; moderation--
judges should not be too far right or too far left; and diversity.
  As is somewhat known, despite the fact that President Bush and I 
clashed on Supreme Court nominees and some of these circuit court 
nominees, within New York and within the Second Circuit we had a very 
amiable arrangement where he would nominate two and then we would get--
Senator Clinton and I would get to nominate one. We each had veto power 
on the other.
  I am proud to say that Judge Lynch was one of my first choices to put 
on the district court bench. It was because of the recommendations of 
his peers, the lawyers with whom he practiced, and just how good the 
general legal community thought he was.
  That stands true today. He still, more than ever before, meets the 
qualifications of excellence, moderation, and diversity.
  There is no question of his excellence. He was first in both his 
classes at Columbia, undergraduate and law school--first, not even 
second or third. Pretty good. His opinions are scholarly, and one that 
was overturned by the Second Circuit was lauded by the panel as ``a 
valiant effort by a conscientious district judge.''
  There is also no question that Judge Lynch is, in fact, a moderate. 
His impressively low reversal rate should give the lie to any argument 
that he is outside the legal mainstream.
  Now, the rap on Judge Lynch in 2000 among those 36 who voted against 
him was that he would be an ``activist.'' This view rose from out-of-
context outtakes from two law review articles he had written. I repeat 
now what I said then: In both of these articles, then-Professor Lynch 
expressed the moderate view that the Constitution cannot as a practical 
matter remain frozen in the 18th century--the Constitution should not 
be expanded but it must be interpreted.
  To illustrate my point about why Judge Lynch should be accepted as a 
paragon of moderation, I want to read two quotes.
  First:

       Text is the definitive expression of what was legislated.

  Second:

       A text should not be construed strictly, and it should not 
     be construed leniently; it should be construed reasonably, to 
     contain all that it fairly means.

  The second quote was written by Associate Justice Antonin Scalia. The 
first quote was from our nominee, Judge Lynch.
  So the entirety of Judge Lynch's copious opinions and rulings bears 
out the conclusion that he does not intend to legislate from the bench. 
He has been the definition of law enforcing and justice seeking. He has 
ruled for the State against prisoners, but he has also ruled that the 
State must protect the due process rights of those it seeks to detain. 
He has sentenced defendants convicted of horrible crimes to life 
without parole, and he has also expressed concern when he thinks a 
sentence might be too long--while imposing the sentence in complete 
accordance with the law. He has issued complex and scholarly opinions 
in securities and antitrust cases. Judge Lynch imposed the sentence 
that was required by law.
  In sum, Judge Lynch is excellent, and he represents moderation.
  Now let me say a word about diversity. Judge Lynch obviously is not a 
nominee who fits this bill. But I want to note another kind of 
diversity that I believe deserves mention. Before he went on the bench, 
Judge Lynch sought out opportunities to be more than a smart professor 
living in an ivory tower. He spent 5 years in the U.S. Attorney's 
Office in the Southern District of New York as Chief of the appellate 
section and Chief of the Criminal Division. He worked as counsel to a 
prominent law firm. He took numerous pro bono cases. In short, he lived 
the life of a real lawyer while teaching and writing. Driven by his own 
conscience, he even registered for the draft during the Vietnam war 
rather than seek a college

[[Page 22046]]

deferment. Very few do that. This is someone who has sought out a 
diversity of experiences which he now brings to the table as a judge.
  I look forward to this new chapter in Judge Lynch's service to our 
country. I hope he will get a unanimous vote, or close to it, from the 
Members of this Chamber.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER (Mr. Burris). The Senator from Pennsylvania.
  Mr. CASEY. Mr. President, I ask unanimous consent that I be permitted 
to speak as in morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                           Health Care Reform

  Mr. CASEY. Mr. President, as you can tell from the chart on my left, 
I rise today to speak about the issue that is probably the No. 1 
challenge we face in the Congress today, which is debating and devising 
solutions for the improvement of our health care system in so many 
ways. I rise today to talk about some aspects of that and especially 
not only where we are headed in terms of focusing on both those with 
insurance and those without insurance but also to focus on some of the 
goals here.
  From the beginning, both President Obama and Members of Congress have 
focused on a couple of priorities--first of all, to reduce costs. We 
cannot go forward with any health care bill that does not do that, and 
I think we will do that.
  We have to reduce costs, but we also have to ensure choices. We have 
to continue to give the American people the kind of choice they should 
have a right to expect and give them a sense of a peace of mind in 
terms of what that choice will mean. We ought to make sure this bill, 
for example, leads to the following conclusion: You get the treatment 
you need from the doctor you choose. I think we can do that in the 
Congress.
  Thirdly, I think we have to make sure, as we are controlling costs 
and ensuring choice, that we ensure quality and that we put both 
quality and prevention in the final bill. They are in the bill I voted 
for already this summer.
  The Health, Education, Labor, and Pensions Committee, as people know, 
debated all summer, with hours and hours and hours of debate, accepting 
Republican and Democratic amendments, sometimes not agreeing, but we 
voted out a bill that did a lot of what I just talked about. It focused 
on making sure we are covering more Americans. It protected Americans 
who have coverage.
  So many people, as the Presiding Officer knows--whether it is in the 
State of Illinois or the State of Pennsylvania or any State in the 
country--even those with insurance, are not secure, even those with 
insurance feel a sense of instability, a lack of control over their own 
destiny, sometimes because an insurance company says: We are going to 
deny you coverage because of a preexisting condition. Why have we 
permitted that? Why have we tolerated that year after year? Instead of 
just talking about preventing them from doing that, why haven't we 
literally made it illegal for an insurance company to do that? We are 
going to make sure this year we do not just talk about it but we 
legislate about it and make that part of our law.
  So we will go through some of those issues, but the first thing I 
want to highlight is where we are headed if we do not do anything.
  There are some people in Washington who, to be candid or blunt about 
it, want to scratch their heads for a couple more years or maybe 10 
more years.
  Here, as shown on this chart, is where we are headed by one 
estimation. The New America Foundation is the source for this 
information. But here we are in 2008. When you talk about the cost of 
an annual premium, OK, it is roughly--and actually we found out the 
other day that number is a little higher--we can say it is a little 
more than $13,000 for family coverage. If you look between 2008 and 
2016--just 8 years in that estimation, and we are already into 2009--
that premium will rise by more than 83 percent. Why should we allow 
that to happen when we know we can do something about it this year? So 
that is one way to look at this in terms of the cost of doing nothing.
  Also, often people with insurance will say: Well, I have some 
problems with my insurance. I worry about a preexisting condition, I 
worry about exorbitant out-of-pocket costs, and I am glad you are 
working on that and I will support that part of the bill. But they say: 
Look, if I have coverage, I am worried about giving millions of more 
Americans coverage without some adverse effect to those who have 
coverage.
  Well, let's look at this chart for a little bit of a discussion about 
this topic: families paying 8 percent surcharge on premiums. If we look 
at this chart, what this red or red-orange part of the chart shows is a 
$1,100 hidden tax to cover the cost of uncompensated care for the 
uninsured. So the idea that those with insurance right now are not 
paying for those without insurance is ridiculous. Fortunately, in 
Pennsylvania, that number is a little lower, but it is still 900 bucks. 
So the idea that somehow if we change the system, improve the existing 
system, build upon what works but improve the system, that somehow that 
is going to adversely impact in a cost sense those with insurance--the 
Center for American Progress did this research--this chart and others 
show if you have insurance today, you are paying for those without 
insurance. Right now you are paying for them. We know that right now.
  So, if anything, broadening the number of Americans who have coverage 
will actually reduce costs. It will be one of the contributors, I 
should say, of reducing costs--not the only way but one of the ways we 
do that.
  Let me go to the next chart which is a depiction in very simple 
colors, red and green, about what the existing system does adversely as 
it relates to women. There are a lot of things that insurance companies 
do today that we don't like and we have complained about, but now we 
can do something about it. One is a preexisting condition problem and 
another one is the out-of-pocket costs and another one is how often 
insurance policies definitively discriminate against some Americans.
  This map shows in the orange or red section: gender rating allowed. 
In other words, insurance practices that lead to policies in States 
that result in discrimination against women. So you want this chart to 
show all in the green States where gender rating is banned.
  What we would like to do with our legislation, one of the goals--and 
it is in our bill and in the bill we passed this summer, the Affordable 
Health Choices Act--is to make sure the whole country is green on this 
issue, green in the sense that we have banned gender rating; that an 
insurance company can't say, when they are trying to determine how they 
make up their policy, that if you happen to be a woman, a policy would 
discriminate against you.
  Unfortunately, Pennsylvania is a State that has permitted this 
discrimination, along with all of these other States. So we ought to 
have a national standard. Very simply: No more discriminating insurance 
policies against women. It is that simple, folks.
  What I voted for this summer in the bill we passed was this, along 
with other provisions. So that is something we shouldn't just talk 
about for another year or 2 or 5 or 10; let's do something about this 
now. Let's make this practice illegal this year, and we can do it with 
the legislation.
  The next one is an enlarged version of some language. I mentioned 
preexisting conditions in my remarks today, and we are going to keep 
mentioning this because this is a reality for millions of Americans in 
the individual market, the people who have to go it alone. They are not 
part of the big pool of people getting insurance. They have to go it 
alone to get insurance. They are the ones who are often most adversely 
affected by preexisting conditions. Why should we tolerate that?
  The other point about this chart is, I purposefully put legislative 
language on it because a lot of people here want to say: Well, this 
legislation and language gets complicated. Admittedly,

[[Page 22047]]

some of it does, but this is pretty easy. This is in the bill we passed 
this summer. I will just read this one sentence. Anyone can understand 
this. This isn't some complicated legislative language:

       A group health plan and a health insurance issuer offering 
     group or individual health insurance coverage may--

  We know what they are; we know exactly what we are talking about 
here--

     not impose any preexisting condition exclusion--

  That is in our bill--

     with respect to such plan or coverage.

  Let's do it this year. Let's make it illegal for insurance companies 
to do this to an individual or to a family or to those who happen to be 
employees of a small business.
  So some of this debate gets lost in detail, but this is very simple 
language taken right out of the bill.
  Let's go to the next one and our final chart before I conclude. I am 
going to spend more time on this issue, but I just wanted to spend a 
couple of minutes on this issue.
  What happens at the end of this road with regard to health care as it 
pertains to children, especially children who happen to be poor or 
children with special needs? What will happen? At the end of the road, 
when we pass a bill and send it to the President and he signs it--and 
that is what I hope will happen, of course--will poor children and 
children with special needs be better off or worse off? That is still a 
question. That is still an open question we are debating right now.
  Children are different than those of us who happen to be adults. They 
are not smaller versions of adults; they are different. Their treatment 
needs are different. We have to give them different kinds of preventive 
care. In Medicaid, for example, we give what they call early periodic 
screening and diagnostic testing, known by the acronym EPSDT. We focus 
on the special needs of children and give them early diagnosis, early 
treatment. That is what I am talking about in general. So they aren't 
small adults. It seems like a simple concept, but we have to say it 
more than we do. It is clear they have different needs, particularly 
the ones who are the most disadvantaged. The poor are the ones who 
could potentially be a lot sicker with the threat of sickness and 
disease. We make sure they get the highest quality care throughout 
their childhood. That is a resolution I introduced as a statement of 
policy.
  So we are going to continue to debate not just a question of bringing 
down costs--that is central to what we are trying to do--not just a 
question of quality, and not only the question of enhancing choice and 
giving people some stability over their own lives with insurance and 
those who don't have insurance, giving them some affordable choices--
that is all important, and we are going to spend a lot more time on 
those questions, but another question we have to address is, what 
happens at the end of the road for poor children or children with 
special needs?
  The rule ought to be very simple: No child in those categories, no 
child worse off. Four words: No child worse off at the end of this.
  So we will have a lot more time to continue to debate the legislation 
and a lot of these important issues. I think the American people want 
us to act. They don't want us to just debate and not get something 
done.
  With that, I yield the floor.
  The PRESIDING OFFICER. The Senator from Arizona.
  Mr. McCAIN. Mr. President, I ask unanimous consent to speak as in 
morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                            Missile Defense

  Mr. McCAIN. Mr. President, I rise today to express my deep 
disappointment with the administration's decision to cancel plans for 
fully developing missile defenses in Eastern Europe. This decision 
calls into question security and diplomatic commitments the United 
States has made to Poland and the Czech Republic. I believe it has the 
potential to undermine American leadership in Eastern Europe.
  Given the strong and enduring relationships we have forged with the 
region's Nations since the end of the Cold War, we should not take 
steps backward in strengthening these ties. Yet I fear the 
administration's decision will do just that, and at a time when Eastern 
European nations are increasingly wary of renewed Russian aggression.
  The administration's decision to abandon these sites comes at a time 
when the United States is in the midst of negotiations with Russia on 
reducing strategic nuclear weapons. Russia has long opposed the planned 
missile defense sites in Europe and has on numerous occasions tried to 
link reductions in offensive strategic nuclear arms with defensive 
capabilities such as missile defense. In fact, President Putin, on many 
occasions, has stated in very belligerent tones his opposition to this 
agreement that was already made between the United States and Poland 
and the Czech Republic.
  The United States should reject the Russian attempt to further this 
argument and capitalize on these ongoing negotiations.
  As rogue nations, including North Korea and Iran, push the nuclear 
envelope and work tirelessly to develop weapons capable of reaching 
America and its allies, we must aggressively develop the systems 
necessary to counter such belligerent efforts and enhance our national 
security, protect our troops abroad, and support our allies. Enhancing 
missile defense capabilities in Europe is an essential component to 
addressing threats we currently face and expect to face in the future. 
As Iran works to develop ballistic missile capabilities of all ranges, 
the United States must reaffirm its commitments to its allies and 
develop and deploy effective missile defense systems.
  I wish to point out two important factors. The United States of 
America does not believe missile defense systems are in any way a 
threat to any nation. They are defensive in nature, and I believe they 
were a key component and factor in ending the Cold War.
  Intelligence assessments apparently have changed rather dramatically 
since January 16. According to Eric Edelman, the Under Secretary of 
Defense for Policy under Secretary Gates during the Bush 
administration, intelligence reports on the Iranian threat as recently 
as January of this year were more troubling than what is being 
portrayed by the current administration. Mr. Edelman maintains that:

       Maybe something really dramatic changed between January 16 
     and now in terms of what the Iranians are doing with their 
     missile systems, but I don't think so.

  You know what. I don't think so either. I think the fact is that this 
decision was obviously rushed. The Polish Prime Minister, according to 
news reports, was called at midnight. The agreement was made and 
ratified by these countries after consultation, discussion, and a 
proper process. They were not even notified of this decision. The 
decision to abandon the missile defense sites in Poland and the Czech 
Republic came as a surprise to them.
  I understand that administration officials were on a plane supposedly 
to arrive in Poland today. I might add that Members of Congress were 
also not briefed on this decision prior to reading about it in the 
newspaper. I was not informed. I didn't know what ``new technology'' 
was being recommended to be put in the place of the agreement. As short 
a time ago as August 20, the United States said:

       The United States is committed to the security of Poland 
     and of any U.S. facilities located on the territory of the 
     Republic of Poland. . . . The United States and Poland intend 
     to expand air and missile defense cooperation--et cetera.

  We all know the Iranian ballistic missile threat is real and growing. 
We all know the administration is seeking the cooperation and help of 
the Russians. Now we will see. Now we will see.
  Why was this agreement rushed into--or the abrogation of an 
agreement? Why the abrogation of this agreement between the United 
States with Poland and the United States with the Czech Republic 
rescinded in such a dramatic and rushed fashion? We all know the 
Iranian ballistic missile threat is real and growing. How many times 
have the ``intelligence estimates'' been wrong dating back to

[[Page 22048]]

and including the Cold War? As many times as they have been right, I 
tell my colleagues--whether it be their assessment about the war in 
Iraq or whether it be the capabilities of many of our adversaries, 
including the Korean buildup, which we have been consistently wrong on.
  The last administration reached out to the governments of Poland and 
the Czech Republic and asked that they make what many at the time 
perceived as an unpopular agreement. Despite threats from Russia, both 
governments recognized the importance such a defense capability would 
provide to their citizens and to Europe as a whole and agreed to allow 
the United States to place ground-based interceptors in Poland and a 
midcourse radar site in the Czech Republic. What are these countries 
going to do the next time we want to make an agreement with them, in 
view of the way this decision was made and announced or, shall I say, 
made known to the media before they were even told about it. It will be 
very interesting to see what we get in return.
  According to a Christian Science Monitor's global news blog:

       ``We see this as a pragmatic decision,'' says Pavel 
     Zolotaryov, deputy director of the official institute of USA-
     Canada Studies, suggesting that internal U.S. factors mainly 
     account for Mr. Obama's choice. ``Obama's sober approach is 
     understandable, given the [economic] crisis, because this 
     project would have given nothing but trouble.''
       If it sounds like Moscow has already discounted this 
     sweeping strategic concession from Washington, experts 
     suggest that's because Russia's foreign policy establishment 
     had been expecting such a decision, at least since Obama 
     hinted that he might give up the missile defense scheme 
     during his summit with Russian President Dmitry Medvedev in 
     Moscow last July.
       ``We've been getting signals since last Spring that made it 
     seem almost certain that the missile defense plan would be 
     set aside,'' said Fyodor Lukyanov, editor of Russia in Global 
     Affairs, a leading Moscow foreign policy journal.

  The Russians seem to have anticipated this decision. Unfortunately, 
the Polish Government and the Czech Government did not. Members of 
Congress were certainly not informed of this decision until after 
reading about it in the media. That is not the way to do business. I 
think it sends the wrong signal to the Russians and to our friends and 
allies.
  There are consequences with every decision. I believe the 
consequences of this decision may--albeit unintentionally--encourage 
further belligerence on the part of Russians and a distinct lack and 
loss of confidence on the part of our friends and allies in the word of 
the United States and the commitments of the United States of America.
  I ask unanimous consent that articles in the Wall Street Journal and 
the Christian Science Monitor be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

             [From the Wall Street Journal, Sept. 17, 2009]

U.S. To Shelve Nuclear-Missile Shield--Defense Plans for Poland, Czech 
Republic To Be Dropped as Iran Rocket Threat Downgraded; Moscow Likely 
                            to Welcome Move

                           (By Peter Spiegel)

       Washington.--The White House will shelve Bush 
     administration plans to build a missile-defense system in 
     Poland and the Czech Republic, according to people familiar 
     with the matter, a move likely to cheer Moscow and roil the 
     security debate in Europe.
       The U.S. will base its decision on a determination that 
     Iran's long-range missile program has not progressed as 
     rapidly as previously estimated, reducing the threat to the 
     continental U.S. and major European capitals, according to 
     current and former U.S. officials.
       The findings, expected to be completed as early as next 
     week following a 60-day review ordered by President Barack 
     Obama, would be a major reversal from the Bush 
     administration, which pushed aggressively to begin 
     construction of the Eastern European system before leaving 
     office in January.
       The Bush administration proposed the European-based system 
     to counter the perceived threat of Iran developing a nuclear 
     weapon that could be placed atop its increasingly 
     sophisticated missiles. There is widespread disagreement over 
     the progress of Iran's nuclear program toward developing such 
     a weapon, but miniaturizing nuclear weapons for use on long-
     range missiles is one of the most difficult technological 
     hurdles for an aspiring nuclear nation.
       The Bush plan infuriated the Kremlin, which argued the 
     system was a potential threat to its own intercontinental 
     ballistic missiles. U.S. officials repeatedly insisted the 
     location and limited scale of the system--a radar site in the 
     Czech Republic and 10 interceptor missiles in Poland--posed 
     no threat to Russian strategic arms.
       The Obama administration's assessment concludes that U.S. 
     allies in Europe, including members of the North Atlantic 
     Treaty Organization, face a more immediate threat from Iran's 
     short- and medium-range missiles and will order a shift 
     towards the development of regional missile defenses for the 
     Continent, according to people familiar with the matter. Such 
     systems would be far less controversial.
       Critics of the shift are bound to view it as a gesture to 
     win Russian cooperation with U.S.-led efforts to seek new 
     economic sanctions on Iran if Tehran doesn't abandon its 
     nuclear program. Russia, a permanent member of the U.N. 
     Security Council, has opposed efforts to impose fresh 
     sanctions on Tehran.
       Security Council members, which include the U.S. and 
     Russia, will meet with Iranian negotiators on Oct. 1 to 
     discuss Iran's nuclear program.
       Current and former U.S. officials briefed on the 
     assessment's findings said the administration was expected to 
     leave open the option of restarting the Polish and Czech 
     system if Iran makes advances in its long-range missiles in 
     the future.
       But the decision to shelve the defense system is all but 
     certain to raise alarms in Eastern Europe, where officials 
     have expressed concerns that the White House's effort to 
     ``reset'' relations with Moscow would come at the expense of 
     U.S. allies in the former Soviet bloc. ``The Poles are 
     nervous,'' said a senior U.S. military official.
       A Polish official said his government wouldn't 
     ``speculate'' on administration decisions regarding missile 
     defense, but said ``we expect the U.S. will abide by its 
     commitments'' to cooperate with Poland militarily in areas 
     beyond the missile-defense program.
       Last week, Russian Foreign Minister Sergei Lavrov said he 
     expected the Obama administration to drop the missile-defense 
     plans. He said that Moscow wouldn't view the move as a 
     concession but rather a reversal of a mistaken Bush-era 
     policy.
       Still, the decision is likely to be seen in Russia as a 
     victory for the Kremlin. Russian President Dmitry Medvedev 
     will meet with Mr. Obama at next week's meetings of the U.N. 
     General Assembly and Group of 20 industrialized and 
     developing nations.
       Although a center-right government in Prague supported the 
     Bush missile-defense plan when it was first proposed, the 
     Czech Republic is now run by a caretaker government. A Czech 
     official said his government was concerned an announcement by 
     the White House on the missile-defense program could 
     influence upcoming elections and has urged a delay. But the 
     Obama administration has decided to keep to its original 
     timetable.
       European analysts said the administration would be forced 
     to work hard to convince both sides the decision wasn't made 
     to curry favor with Moscow and, instead, relied only on the 
     program's technical merits and analysis of Iran's missile 
     capabilities.
       ``There are two audiences: the Russians and the various 
     European countries,'' said Sarah Mendelson, a Russia expert 
     at the Center for Strategic and International Studies. ``The 
     task is: How do they cut through the conspiracy theories in 
     Moscow?''
       The Obama administration has been careful to characterize 
     its review as a technical assessment of the threat posed by 
     the Iranian regime, as well as the costs and capabilities of 
     a ground-based antimissile system to complement the two 
     already operating in Alaska and central California. Those 
     West Coast sites are meant to defend against North Korean 
     missiles.
       The administration has also debated offering Poland and the 
     Czech Republic alternative programs to reassure the two NATO 
     members that the U.S. remains committed to their defense.
       Poland, in particular, has lobbied the White House to 
     deploy Patriot missile batteries--the U.S. Army's primary 
     battlefield missile-defense system--manned by American troops 
     as an alternative.
       Although Polish officials supported the Bush plan, U.S. 
     officials said they had indicated their primary desire was 
     getting U.S. military personnel on Polish soil. Gen. Carter 
     Hamm, commander of U.S. Army forces in Europe, said 
     Washington has begun talks with Polish officials about 
     starting to rotate Europe-based American Patriot units into 
     Poland for month-long training tours as a first step toward a 
     more permanent presence.
       ``My position has been: Let's get started as soon as we can 
     with the training rotations, while the longer-term stationing 
     . . . is decided between the two governments,'' Gen. Hamm 
     said in an interview.
       For several years, the Pentagon's Missile Defense Agency 
     has been pushing for breaking ground in Poland and the Czech 
     Republic, arguing that construction must begin so the system 
     would be in place to counter Tehran's emerging long-range-
     missile program, which intelligence assessments determined 
     would produce an effective rocket by about 2015.
       But in recent months, several prominent experts have 
     questioned that timetable. A

[[Page 22049]]

     study by Russian and U.S. scientists published in May by the 
     East-West Institute, an international think tank, downplayed 
     the progress of Iran's long-range-missile program. In 
     addition, Gen. James Cartwright, the vice chairman of the 
     Joint Chiefs of Staff and an expert in missile defense and 
     space-based weapons, said in a speech last month that long-
     range capabilities of both Iran and North Korea ``are not 
     there yet.''
       ``We believed that the emergence of the intercontinental 
     ballistic missile would come much faster than it did,'' Gen. 
     Cartwright said. ``The reality is, it has not come as fast as 
     we thought it would come.''
       It is not an assessment that is shared universally. Eric 
     Edelman, who oversaw missile-defense issues at the Pentagon 
     as undersecretary of defense for policy in the Bush 
     administration, said intelligence reports he reviewed were 
     more troubling.
       ``Maybe something really dramatic changed between Jan. 16 
     and now in terms of what the Iranians are doing with their 
     missile system, but I don't think so,'' Mr. Edelman said, 
     referring to his last day in office.
       There is far more consensus on Iran's ability to develop 
     its short- and medium-range missiles, and the administration 
     review is expected to recommend a shift in focus toward 
     European defenses against those threats. Such a program would 
     be developed closely with NATO.
                                  ____


          [From the Christian Science Monitor, Sept. 17, 2009]

         Russia's Response to U.S. Missile Defense Shield Shift

                             (By Fred Weir)


   Moscow has long opposed a missile shield in Poland and the Czech 
       Republic. But the U.S. shouldn't expect too much in return

       Moscow.--President Barack Obama's decision to shelve plans 
     for a missile defense shield in Eastern Europe could be seen 
     as a major concession to Moscow. But given years of vehement 
     opposition to the controversial plan, Russian reaction to the 
     move appears surprisingly lukewarm.
       So what does it mean for U.S.-Russia relations?
       There are indications that Russia might support tougher 
     sanctions on Iran, and fresh START talks, as well as more 
     cooperation with the war in Afghanistan. The Kremlin also 
     expects the U.S. to back off on expanding NATO, say Russian 
     analysts.
       ``We see this as a pragmatic decision,'' says Pavel 
     Zolotaryov, deputy director of the official Institute of USA-
     Canada Studies, suggesting that internal U.S. factors mainly 
     account for Mr. Obama's choice. ``Obama's sober approach is 
     understandable, given the [economic] crisis, because this 
     project would have given nothing but trouble.''
       If it sounds like Moscow has already discounted this 
     sweeping strategic concession from Washington, experts 
     suggest that's because Russia's foreign policy establishment 
     had been expecting such a decision, at least since Obama 
     hinted that he might give up the missile defense scheme 
     during his summit with Russian President Dmitry Medvedev in 
     Moscow last July.
       ``We've been getting signals since last Spring that made it 
     seem almost certain that the missile defense plan would be 
     set aside,'' says Fyodor Lukyanov, editor of Russia in Global 
     Affairs, a leading Moscow foreign policy journal.


        New arms deal now within reach, but concessions on Iran?

       Mr. Lukyanov says the only predictable result of key 
     importance is that negotiations for a new strategic arms 
     reduction treaty to replace the soon-to-expire 1991 START 
     accord are now likely to meet the December deadline for a 
     fresh deal.
       ``Now we can be sure the new START agreement will be 
     completed on time, because the vexing issue of missile 
     defense and how it affects the strategic balance has been 
     removed for the time being,'' he says. ``That's quite an 
     important matter.''
       But while Russian experts say the move can only contribute 
     to a warmer dialogue between Moscow and Washington, they say 
     no one should expect any reciprocal concessions from the 
     Kremlin on issues of key concern to the U.S., such as Iran.


                 Why Russia has opposed missile defense

       Washington has consistently argued since news of the 
     proposed missile defense shield emerged in 2006 that it was 
     intended to protect Europe and the U.S. from a rogue missile 
     attack from Iran or North Korea and not to undermine Russia's 
     strategic deterrent.
       Moscow has retorted that those threats are merely 
     theoretical, but Russia's dependence upon its aging Soviet-
     era nuclear missile force for its national security would be 
     deeply affected if the American scheme were to go forward.
       ``Iran isn't going to have any long-range missiles in the 
     near future anyway,'' says Alexander Sharavin, director of 
     the independent Institute of Military and Political Analysis 
     in Moscow.
       ``The U.S. evidently doesn't want to quarrel with Russia, 
     now that Moscow is collaborating in such areas of importance 
     to the U.S. as Afghanistan,'' where Moscow has enabled a 
     resupply corridor through former Soviet territory to 
     embattled NATO forces, and offered other forms of 
     cooperation, he says.


       Russians expect another U.S. concession--on NATO expansion

       Mr. Lukyanov says ``it's possible'' Russia may be more 
     pliable on the issue of tough sanctions against Iran, a 
     measure it has strongly resisted in the past. He says that in 
     a recent meeting with foreign policy experts, President 
     Medvedev introduced a new tone by remarking on his contacts 
     with Arab leaders who are deeply worried about Iran's alleged 
     drive to obtain nuclear weapons.
       ``It may be that Russia will be more amenable, but this is 
     a deeply complicated issue,'' he says. ``On Iran, and other 
     regional conflicts, the differences between Moscow and 
     Washington are deep, and that hasn't changed.''
       Russian experts also say they believe the Obama 
     administration will quietly set aside the other issue that 
     has infuriated Moscow over recent years: the effort to expand 
     NATO into the former USSR by including Ukraine and Georgia.
       ``I wouldn't expect any formal statements to this effect, 
     but it's more or less clear that the issue of NATO 
     enlargement is off the table for the time being,'' says 
     Lukyanov.


                        Postponed, not canceled

       So why isn't sunshine breaking and a new era of strategic 
     accord dawning between Moscow and Washington?
       ``Nothing has been canceled, missile defense has just been 
     postponed,'' says Lukyanov. ``For awhile this topic is off 
     the agenda, but later it will return. So, for now the 
     political situation may improve, but the underlying pattern 
     of relations is unlikely to change in any basic way.''
       And Russian hawks might see the dropping of the missile 
     shield as weakness in Washington and press the Kremlin for 
     even less compromise on key U.S.-Russia issues.
       ``I think the reaction of Russia's leadership will be 
     positive on the whole,'' says Mr. Sharavin. ``But Russian 
     hawks are very likely to find faults, and use this to build 
     up their own positions.''
       Who's the new right-wing prophet advising the Kremlin?

  Mr. McCAIN. Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Montana is recognized.
  Mr. TESTER. Mr. President, I ask unanimous consent that I be 
permitted to speak as in morning business for up to 10 minutes and that 
the time be charged against Senator Leahy's time.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                      Financial Regulatory Reform

  Mr. TESTER. Mr. President, I rise to say a few words about an issue 
that has been front and center in my office for the past 12 months--
reforming regulation of our financial markets.
  I am a family farmer. In my neck of the woods, farmers usually don't 
sit around and talk about economic policy and Wall Street financial 
institutions.
  But I do guarantee you that where I come from, everybody talks about 
common sense and why so much common sense seemed to be missing when 
America's financial industry almost collapsed a year ago.
  Everyone in my State felt the impact of what happened when Lehman 
Brothers caved in, when Fannie and Freddie hit a dead end, when AIG 
went belly up, and when we saw daily headlines about bank mergers and 
bailouts.
  We all paid a price because of a few greedy actors on Wall Street and 
no refs on the playing field. That price was $700 billion of taxpayer 
money. I opposed that bailout because it rewarded the wrong people, and 
I was concerned about its ability to create a single job for our small 
businesses or help one family farmer. I think it was a bad deal for 
Main Street.
  Last year, I asked Treasury Secretary Paulson--a former chairman of 
Goldman Sachs--about why this happened. His answer: ``I don't know.''
  Where I come from, answers such as that aren't good enough, and terms 
such as ``too big to fail'' don't make any sense at all. It is time to 
make some changes.
  After what we have been through over the past year, it is clear we 
need to reform the rules that keep America's financial industry on our 
side.
  How? Well, it is going to take a lot of hard work, honesty, and 
common sense.
  We have already started. I have teamed up with some of my friends in 
the Senate, from both parties, to cosponsor the TARP Transparency Act. 
Our bill will better track the money being used to get the financial 
industry

[[Page 22050]]

back on its feet because it is taxpayer money and because taxpayers 
deserve no less.
  Over the course of the past year, the Senate Banking Committee has 
held countless hearings on regulatory modernization. The administration 
has put forth a good-faith effort in working with Congress in the 
massive legislative overhaul. Government has worked with the financial 
industry and consumers to outline the goals of sweeping new financial 
regulatory reform.
  I don't believe comprehensive financial reform will guarantee we are 
safe from financial crises, but, if done right, it can provide folks 
with adequate protection, it can bring confidence back into the 
marketplace, and it can minimize the risk of a financial meltdown 
similar to the one we barely weathered last fall.
  Unfortunately, there are those who don't believe comprehensive reform 
should be on the front burner. They are now lobbying to protect their 
own self-interests, their own profits, and the status quo over consumer 
protection.
  That is why we need to use this one year anniversary as a reminder to 
act now to protect consumers and investors, to close the loopholes in 
our regulatory framework, and to ensure that no company is too big to 
fail.
  We must regulate derivatives; supervise financial companies that have 
been outside the scope of regulation, thereby creating a level playing 
field; ensure that there is strong supervision of all financial firms--
not just depository institutions; build on the bipartisan success of 
the credit card legislation and pass mortgage reform to protect 
consumers; combine the numerous banking regulators into a more simple, 
streamlined, commonsense structure that is capable of supervising 21st 
century financial institutions; create an entity that will protect 
taxpayers from future financial corporate failures and minimize the 
need for further government action; increase capital standards to 
prohibit institutions from growing too big to fail; and we must ensure 
that those companies selling mortgages and securities keep some skin in 
the game by holding onto a portion of the underlying asset to keep them 
honest.
  As we move forward with regulatory reform, I will be working hard to 
eliminate any unintended consequences, specifically as it relates to 
community banks and credit unions.
  In Montana, when we talk about the banking industry, we are talking 
about community banks and credit unions. They are the good actors. They 
don't live on the edge. They didn't get into the Wall Street 
shenanigans that caused this mess.
  Montana's community banks and credit unions serve their towns and 
communities reliably and safely. We are fortunate in Montana to not 
have had a bank fail in over 10 years. We also have one of the lowest 
rates of mortgage defaults and foreclosures in the Nation. We have had 
very few problems as it applies to predatory subprime loans.
  The community banks and credit unions are not the problem. I wish to 
make sure we do not place excessive fees or regulatory burdens on these 
small but very important institutions, such as the community banks.
  Over the course of the coming weeks and months, I plan to work with 
Senator Dodd, the chairman of the Senate Banking Committee, and all my 
colleagues toward commonsense reform that will increase supervision and 
transparency of the financial markets, that will bring back investor 
confidence, and that will protect consumers and safeguard us from 
another situation where the greed of Wall Street penalizes hard-working 
families.
  Earlier this week, the President spoke on Wall Street. He said:

       We are beginning to return to normalcy.

  But he warned that:

       Normalcy cannot lead to complacency.

  I couldn't agree more. That is what we in Montana call common sense.
  Mr. President, I yield the floor. I suggest the absence of a quorum 
and ask that the time during the quorum call be charged equally to both 
sides.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. SESSIONS. 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. SESSIONS. Mr. President, I wish to speak today on President 
Obama's nominee for the Second Circuit Court of Appeals--a court one 
step below the U.S. Supreme Court--Judge Gerard Lynch.
  I have carefully reviewed Judge Lynch's background and his rulings as 
a district court judge. He is a Columbia law graduate and a former 
Federal prosecutor in the Southern District of New York. For the most 
part, he has been a very good district judge. He is exceedingly capable 
and a man of high integrity.
  After reviewing his record and responses to questions from the Senate 
Judiciary Committee, I decided to support his nomination. I do so 
because I believe he will adhere to his judicial oath which requires 
judges to administer justice without respect to persons, to do equal 
right to the poor and the rich, and to faithfully and impartially 
discharge and perform their duties under the Constitution and laws of 
the United States and not above it.
  In responses to my questions, Judge Lynch affirmed that circuit 
courts have no greater freedom than district courts to decide law 
outside the bounds of precedent, but they must apply the law and the 
precedent to which they are bound.
  Judge Lynch also stated that a judge is to ``apply the law 
impartially'' and ``should not identify with either side'' in a case.
  Even though I will support Judge Lynch and admire him and enjoyed 
meeting with him, I want to share some concerns about his rulings and 
some statements he has made over the years that I think are matters 
that ought not go unremarked before his confirmation.
  The role of a judge is to follow the law regardless of personal 
politics, feelings, preferences, or ideology. I think, for the most 
part, he has done that in his cases.
  One case that is troubling, however, is U.S. v. Pabon-Cruz in which 
Judge Lynch attempted to get around the jury process and the sentencing 
process because he believed a mandatory minimum sentence required by 
Congress of 10 years for a conviction of receiving and distributing 
child pornography was unduly harsh.
  He announced that he would tell the jury about the penalties in the 
case, which is not appropriate. In its order prohibiting Judge Lynch 
from informing the jury about what the punishment would be in the case, 
the Second Circuit, on which he now seeks to sit, expressly stated that 
Judge Lynch's ``proposed jury instruction regarding the penalties the 
defendant faces if convicted is a clear abuse of discretion in light of 
binding authority.''
  Judge Lynch disagreed with the Second Circuit's decision, calling it 
a ``mistaken conclusion.'' Judge Lynch clearly believed he had the 
right to ignore precedent and established law and inform the jury about 
the penalties that were applicable upon their verdict of guilty so that 
the jurors, in effect, would have an opportunity to ignore the law and 
choose not to apply it because he did not think the penalty was fair, 
apparently.
  I am disappointed by the fact that Judge Lynch appears to believe 
this sentence was inappropriate, but more importantly, that he should 
have been allowed to invite jury nullification, which is, in effect, to 
say to a jury: You don't find the defendant guilty if you think the 
punishment is inappropriate.
  In response to one of my written questions, Judge Lynch said that 
while he accepts the ruling of the Second Circuit, he continues to 
believe his instincts were correct. He stated:

       The rationale for this decision--

  Of the Second Circuit which reversed him--

     which I fully accept, in light of the ruling of the Second 
     Circuit, was erroneous--was that unlike most cases in which 
     the jury fully understands the seriousness of the crime 
     charged, in that case the jury may have

[[Page 22051]]

     misperceived the relative seriousness of the two overlapping 
     charges in the case.

  Judge Lynch's actions in that case are especially disconcerting when 
considered in light of his written remarks criticizing the textualist 
approach to constitutional interpretation.
  In a 2001 speech on the Supreme Court's decision in Apprendi v. New 
Jersey, Judge Lynch stated:

       I would like to welcome--

  Talking here about Justice Scalia and Justice Thomas--

     also to a more realistic, more flexible, and in the end more 
     honest way of protecting the constitutional values they 
     share.

  Judge Lynch, in effect, endorsed this flexible judicial philosophy 
and advocated it previously.
  Concern over his statements in previous years contributed to my vote 
against his nomination to the U.S. District Court on that occasion.
  In a 1997 law review article entitled ``In Memoriam: William J. 
Brennan, Jr., American''--that is, of course, Justice William Brennan 
for whom he formerly clerked--Judge Lynch admonished the successors of 
Justice Brennan that they must also engage in constitutional 
interpretation ``in light of their own wisdom and experience and in 
light of the conditions of American society today.''
  In that same article, Judge Lynch stated he personally believed it 
was a ``simple necessity'' that the Constitution ``be given meaning for 
the present.'' Judge Lynch's praise for Brennan's ``present-day 
meaning'' approach included the opinion that Justice Brennan's ``long 
and untiring labor to articulate the principles found in the 
Constitution in the way he believed made most sense today seems far 
more honest and honorable than the pretense that the meaning of those 
principles can be found in eighteenth- or nineteenth-century 
dictionaries.''
  So I have a problem with that speech from 1997 and that strong 
statement of adherence to the doctrine that Justice Brennan was the 
foremost advocate of a living constitution and that words don't have 
fixed meanings; that you can make them say what you want them to say to 
affect the result you think is appropriate today.
  The Constitution is a contract with the American people. We have 
every right to amend it through the amendatory process, but judges 
don't have a right to amend it based on what they perceive it to mean. 
Based on what? What information have they received that makes them 
think they have a better idea of what the Constitution ought to mean 
than how it has been interpreted for 200 years?
  This is a serious matter because judges are unelected. They have a 
lifetime appointment, and we give them that because we want unbiased, 
objective analyses. But it doesn't mean they are empowered to update 
the Constitution to make it say what they would like it to say today. 
They are not empowered to do that. In fact, it erodes democracy when 
they do that because the elective branches, those of us in this Senate, 
are accountable. Judges aren't accountable.
  Another of Judge Lynch's cases that bears mention is United States v. 
Reyes. In that case, a police officer asked a defendant drug dealer, 
who had not yet been read his Miranda rights, whether he had anything 
on him that could hurt the officer or his field team. Even though the 
defendant had not been frisked, Judge Lynch concluded the defendant was 
the subject of a custodial interrogation under Miranda, and that before 
the police officer could ask whether he had anything to endanger the 
officers, he had to warn him of his Miranda rights. As a result, Judge 
Lynch excluded from the record statements that the defendant made at 
that time which implicated him in the crime.
  The Second Circuit--the circuit which he will now serve on--reversed 
Judge Lynch, holding that the public safety exception was in fact 
applicable and that the cases Judge Lynch had relied upon in his ruling 
were distinguishable. The court noted that drug dealers often have 
hypodermic needles or razor blades on their person that could pose a 
danger to police officers. Additionally, the defendant was not 
handcuffed at the time of the arrest and could have reached for a 
concealed weapon. The Second Circuit also noted that the questions 
asked by the officer were ``sufficiently limited in scope and were not 
posed to elicit incriminating evidence,'' and the police ``cannot be 
faulted for the unforeseeable results of their words or actions.''
  Judge Lynch has also advocated that Miranda warnings be administered 
for searches, which has never been the case. In a symposium commentary, 
Judge Lynch proposed a Miranda-type rule for searches that would 
invalidate consents to search unless the party whose consent is sought 
is first advised that he or she has the constitutional right to refuse 
such consent.
  Well, Miranda was never required by the Constitution. It was a 
prophylactic protective rule the Court conjured up. Somehow the system 
has survived it, but it has done some damage in terms of not getting 
the kind of admissions and confessions you might otherwise get. That is 
just a fact. At any rate, to expand that now to searches, which has 
never been done, I think is an unhealthy approach.
  You might say: Well, theoretically, if you are going to do these 
Miranda interviews you could do it on searches. But I would just note 
that Miranda itself is a protective rule, not a mandated constitutional 
rule.
  I mentioned the foregoing issues because they are of great concern to 
me. It appears, notwithstanding, in the vast majority of his cases, 
Judge Lynch has been a very careful judge who has followed the law. He 
has stated that he understands that circuit judges are ``bound by 
Supreme Court and prior circuit precedent, and their job is to apply, 
fairly and accurately, the holdings and reasoning of such precedent.''
  Given his commitment to do that, I will vote for him, and I hope he 
will continue his excellent service on the bench, but that he will 
interpret the law as written and will refrain from imposing personal 
views in his decisions.
  It is unfortunate, and I am concerned also, that the President, in 
his nominations, is moving a number of people for the Federal bench 
that are clearly activists. Many of them don't have the length of time 
on the bench that Judge Lynch does, or his skills as a judge, frankly, 
and it is causing us some concern, and we will have some real debate 
about it.
  The nomination of Judge David Hamilton for the Seventh Circuit Court 
of Appeals raises that issue and concern with me. The White House has 
said it intended to send a message with his appointment, and I would 
say that it did. Judge Hamilton's appointment is significant. Instead 
of embracing the constitutional standard of jurisprudence, Judge 
Hamilton has embraced President Obama's empathy standard. Indeed, he 
said as much in his answers to questions for the record following his 
confirmation hearing in the Judiciary Committee.
  He rejects the idea that the role of a judge is akin to that of an 
umpire who calls balls and strikes in a neutral manner. Rather, he 
believes a judge will ``reach different decisions from time to time . . 
. taking into account what has happened and its effect on both parties, 
what are the practical consequences.''
  Judge Hamilton also appears to have embraced the idea of a living 
constitution. The last time I was at the Archives Building, I saw a 
parchment from 1789--not breathing. It is a document. It is a contract. 
It guarantees certain rights to every American, and judges aren't 
empowered to rewrite it, to make it say what they think it ought to say 
today.
  In a speech in 2003, Judge Hamilton indicated a judge's role included 
writing footnotes to the Constitution. When Senator Hatch questioned 
him about these comments in a follow-up question, he retreated 
somewhat, but then gave a disturbing answer to the next question about 
judges amending the Constitution or creating new rights through case 
law and court decisions. This judicial philosophy has clearly impacted 
Judge Hamilton's rulings during his time as a district court

[[Page 22052]]

judge. He has issued a number of controversial rulings and has been 
reversed in some noteworthy cases.
  For example, he ruled against allowing a public, sectarian prayer in 
the Indiana State Legislature and was reversed by the Seventh Circuit.
  He ruled against allowing religious displays in public buildings and 
was unanimously reversed by a panel of the Seventh Circuit.
  He blocked the enforcement of a reasonable informed consent law 
dealing with abortion matters for 7 years. He continued to block 
enforcement of that law and was eventually firmly and forcefully 
overruled by the Seventh Circuit for being in violation of the law.
  Judges, the State, and other people spent all kinds of money, and 
attorney generals of the State spent money and time and effort to 
litigate these matters, and finally winning, but, in effect, the people 
of the State, for 7 years, were unable to enforce a constitutional 
statute their duly elected representatives had passed.
  That is the power of an unelected Federal judge sometimes, and we 
need to be sure judges who go on the bench understand they are not 
allowed to do that. They are supposed to be a neutral umpire. If the 
case law and the Constitution say this is a good statute, they need to 
affirm it whether they like it or not, whether they would have voted 
differently or not. If he wants to be in the legislature and vote on 
the statutes, let him seek that office.
  A Federal judge must be able to dispense rulings in a neutral fashion 
so the emblem that hangs over the Supreme Court, which has been 
embraced by the American people--equal justice under law--can be 
carried out in every aspect of a legal proceeding. A judge must put 
aside political views which may be appropriate as a legislator, 
executive, or an advocate, and interpret the law as it is written. He 
must keep his oath to uphold the Constitution first and foremost.
  As I have said before, the Constitution is a contract between the 
American people, especially in a government of limited powers that is 
established by the people. It is a judge's duty to abide by the 
Constitution and protect and defend it and all the laws duly passed by 
Congress that are consistent with that Constitution. We have preserved 
our Nation well by insisting that our judiciary remain faithful to the 
plain and simple words of the Constitution and the statutes involved.
  So, Mr. President, I am impressed with the skill, the legal ability 
of Judge Lynch, whose nomination is before us today. I have reviewed 
his record carefully. I have listened to his answers. I have seen some 
of his speeches. In a few cases, they cause me concern. But I think 
giving deference--and appropriate deference--to the President's 
nomination, he should be confirmed. I will ask my colleagues to support 
the confirmation.
  But I want to say that all of us in this body, as well as judges, 
have a duty to preserve and defend our Constitution. You can erode the 
Constitution in a number of ways, and one way it can be changed and 
altered impermissibly is when judges redefine the meaning of words. So 
when a judge says we shouldn't resort to 18th century dictionaries, 
that makes me nervous. What does that mean? You just give a new 
definition to the word, the one that people ratified--the amendment 
they passed and ratified, which had a certain meaning and was 
understood to have that meaning? Now that you are on the bench, and you 
think it shouldn't be enforced that way, and you would like to see a 
different result, you just sort of amend it or write a footnote to it? 
I don't think that is good judicial policy, and I feel an obligation--I 
think a number of us in this Senate do--to confirm good judges--men and 
women of character and ability and faithfulness to our laws and 
Constitution--but also raise the concerns that we have and to use every 
bit of our ability and strength to oppose nominees who won't be 
faithful to those high ideals that have made us a nation of laws and 
made us prosperous and free.
  I thank the Chair, and I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER (Mrs. McCaskill). The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. DeMINT. Madam President, I ask unanimous consent the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                     Transportation Appropriations

  Mr. DeMINT. Madam President, I wish to speak to an amendment of mine 
that is to be on the floor on the transportation bill in a few minutes. 
It is an amendment that would cut funding to a particular airport in 
Pennsylvania. I wish to discuss why we are targeting this particular 
cut.
  As all of us know, all over America for the last several months, 
millions of Americans have come out to TEA parties and townhalls, 
expressing concern and even anger over the level of spending and 
borrowing and debt we are incurring here in Congress; the concern about 
all the new taxes we are talking about; the takeover of everything from 
General Motors to insurance companies. People are concerned, I think 
for a lot of good reasons.
  The question is now, particularly after the hundreds of thousands of 
people gathered in front of the Capitol last Saturday from all over the 
country, expressing many of those same concerns: Is anybody listening? 
Is anyone here listening?
  It reminds me of a couple of weeks ago when my 2\1/2\-year-old 
grandson was spending the night with my wife and me. He was sleeping in 
another room, and we have these intercoms that everyone knows about. He 
knows about the intercom and how it works, so when he got up in the 
morning, as usual about 6:30 or something, he said: I am up. Is anybody 
home?
  He kept saying: Is anybody home? Is anybody home? I knew he was going 
to keep saying it until I got up and went in and got him up.
  I think that is the question Americans are asking us here in 
Congress: Is anybody home? A lot of people last weekend, when I was 
here, said: Keep speaking for us. Someone has to speak for us. These 
were not mobsters, they were not the right wing. They were Americans, 
moms and dads with kids in strollers, grandpas and grandmas, here from 
all over the country, of all political parties, who know enough to say 
we cannot keep spending and borrowing, and the more we spend, the more 
waste and fraud there is.
  All of us here seem to agree, especially at campaign time: Oh, we 
need to cut out the waste and fraud. But no matter what we bring up to 
cut, even if we pick the most egregious waste the Government 
Accountability Office comes up with every year and says these are the 
most wasteful and inefficient programs, we can put them on the floor of 
the Senate for a vote and we cannot cut them.
  Where do we begin, when all we seem to do, week after week, month 
after month, year after year, when all of us come in from all around 
the country and for every problem we see we have a new government 
program or an earmark or something that is supposed to fix it? 
Everything adds to the deficit. We never make those tough decisions 
about cutting anything.
  My amendment actually cuts something. It was not my invention. I have 
learned about it over countless television documentaries on the 
Congressman John Murtha Airport in Johnstown, PA. It is a small airport 
that over the last 20 years has received $200 million in taxpayer 
funds. This is an airport that only has 3 flights a day, an average of 
a total of 20 passengers a day. All of those three flights come to 
Washington and they are always mostly empty. The people who buy the 
tickets spend about the same amount per ticket as the taxpayers' 
subsidy for those tickets.
  Earlier in the year, after we passed the stimulus package, another 
$800,000 went to this airport to pave the alternate runway that is 
seldom used. After I brought up this amendment to discontinue funding--
and I want to make this clear; this is on this bill, the

[[Page 22053]]

transportation bill, and it only discontinues funding for 1 year. It is 
not permanent. It does not discontinue any funding related to defense 
or the military, so the National Guard and others continue to use it. 
The Defense Department can spend whatever they want on this airport. It 
is just that the Department of Transportation cannot spend any more 
money to subsidize air traffic from this airport.
  It also does nothing to cut any safety funds for air traffic control. 
It is a couple of paragraphs that say enough is enough, this airport 
has received an inordinate amount of money. It has equipment it doesn't 
even use, millions for radar equipment that is not even staffed. Again, 
3 flights a day, only to Washington, DC, with less than an average of 
20 passengers a day. Most of the time there are more airport security 
people in this airport than there are passengers.
  This is not some partisan attack. In fact, if you will remember, the 
bridge to nowhere, which was a Republican project, was exposed by 
Republicans. It helped America see an example of waste and abuse. That 
is what this amendment is about. It is not an attack on any party or 
any State, it is just an example that has been brought to light by 
countless media sources all over the country of us wasting money--not 
just one time but year after year.
  If my amendment is not agreed to, another $1.5 million of subsidies 
will go to this one airport because their Congressman likes to fly back 
and forth from a local airport. Many Americans have to drive an hour or 
two to get to an airport. Folks in Johnstown could drive an hour to 
Pittsburgh Airport if the tickets were too expensive from Johnstown. 
This is not a particular attack on a Congressman or a State or 
community. It is a beginning. It is a demonstration that here in the 
Senate we get the message. We are listening. We are actually home and 
we are going to speak for those millions of Americans who say enough is 
enough, we cannot keep spending and borrowing and creating debt.
  For every dollar we spend here, about half of it now is borrowed. We 
are actually on our knees begging countries such as China to loan us 
some money so we can pay some of the debt that is coming due. Yet we 
keep creating cash for clunkers and ``Fannie Travel,'' which is a 
travel promotion agency we created a couple of weeks ago. Now we are 
passing a spending bill that is about 23 percent over what it was last 
year. At a time with down economics, Americans out of jobs, we are 
increasing spending that much.
  With this amendment we are saying we can make a tough decision. We 
can begin the process of starting to cut waste and fraud. But the 
reason so many people are going to vote against this amendment is there 
is a code here: I will support your spending for your State if you will 
support mine. I will not mess with the spending in your State if you 
won't mess with mine. We have been doing it for years, so we have been 
adding earmarks and projects in all of our States, supporting each 
other, and the budget and the spending get bigger and bigger and no one 
has the courage to say no, we have to stop.
  A few of us did on the bridge to nowhere. Thanks to millions of 
Americans saying you are right, we were able to stop that one project. 
But we are still spending like there is no tomorrow.
  I am asking my colleagues to agree we can cut one thing, one thing 
that is obviously wasteful and unfair. It is not fair to ask taxpayers 
all over the country to subsidize half of every ticket that is bought 
in a little airport in Johnstown, PA. They are not helping all the 
other Americans around the country or all the other small airports. 
Certainly small general aviation airports have gotten Federal funds but 
nothing to this degree.
  We are not interfering with the general aviation function of this 
airport at all or any military use. We are just going to stop for 1 
year subsidizing the tickets and hopefully helping America to focus on 
part of our problem here.
  Part of correcting a problem is admitting you have one. I don't think 
we have done it yet in this Senate. My hope is on this vote a majority 
of the Senators will step up and say we do have a problem and this is 
one amendment where we can show we are beginning to turn it around. I 
encourage all my colleagues to vote for this amendment to cut funding 
for 1 year, at least cut these subsidies and at least demonstrate to 
America that somebody is home.
  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.
  Mrs. MURRAY. Madam President, I ask unanimous consent the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mrs. MURRAY. Madam President, in a few short minutes we are going to 
be going to a series of votes, including a number of them on the 
transportation and housing bill that has been before the Senate for a 
week now. I want to take a few minutes to remind all of our colleagues 
about the importance of this bill that we will be passing here shortly 
this afternoon. This is a bill that has broad bipartisan support 
because it addresses some very real housing and transportation needs of 
families in every region of this country. We worked very hard with our 
colleague, Senator Bond, my ranking member, who has been amazingly 
great to work with this week. We faced some real challenges with our 
bill this year but together we made some important infrastructure 
improvements, including providing over $75 billion for the Department 
of Transportation to support continued investment in our transportation 
infrastructure.
  It includes $11 billion for public transit and $1.2 billion to invest 
in inner-city and high-speed rail.
  This bill also supports the FAA's efforts to develop its next-
generation air transportation system to support projected growth in air 
travel in coming years. It also invests $3.5 billion for capital 
improvement at airports across the country.
  The bill provides nearly $46 billion for the Department of Housing 
and Urban Development, including $100 million for HUD's housing 
counseling program that will help families who are facing foreclosure 
today to stay in their homes. The bill also provides more than $18 
billion for tenant-based rental or section 8, including an increase of 
over $1 billion for the renewal of section 8 vouchers.
  It also provides increased funding for the operation of public 
housing for a total level of $4.75 billion, to make sure our Nation's 
low-income families, which are also, as we all know, among the hardest 
hit in these tough economic times, continue to have access to safe, 
affordable housing.
  The bill includes $75 million for a very important program I worked 
on with Senator Bond, the joint HUD Veterans Affairs Supportive Housing 
Program. This is extremely important to our Nation's veterans. It will 
provide an additional 10,000 homeless veterans and their families with 
housing and supportive services.
  The bill also addresses the needs of some of our most vulnerable 
citizens, by providing increased funding to support affordable housing 
for the elderly, disabled, those suffering from AIDS, and the Nation's 
homeless.
  Finally, the bill provides almost $4 billion for the Community 
Development Block Grant Program to support investments in public 
infrastructure, housing rehabilitation, and public service, assistance 
that is critical to our States and our local governments right now.
  In summary, this bill provides assistance to those who need it most, 
and it directs resources in a responsible and fiscally prudent way. It 
will help our commuters, it will help owners, it will help the most 
vulnerable, and it will help our economy.
  I hope all Senators will support the bill when we move to the final 
vote here shortly this afternoon, after we consider several amendments. 
Before I close, I do wish to take, again, a moment to thank my partner 
and friend, Senator Bond, whom it has been a pleasure to work with 
throughout this

[[Page 22054]]

process, as he and I go to conference now to work hard to make sure we 
find the differences and fix the differences between us and the House 
so we can get this bill to the President.
  I most importantly wish to thank all our staff, from the floor staff 
who have been so generous with their time and help as we have worked 
through this, to all the staff who worked on the transportation and 
housing subcommittee, including John Kamarck, Ellen Beares, Joanne 
Waszczak, Travis Lumpkin, Grant Lahmann, Michael Bain, Dedra Goodman, 
and Alex Keenan, our new staff director on transportation who has done 
an excellent job, and especially Matt McCardle and Mike Spahn for all 
their efforts during floor consideration.
  I am pleased we were able to consider and debate so many amendments 
and have produced a strong bill. But I would be remiss if I did not 
single out and thank two members of our staff, Meaghan McCarthy and 
Rachel Milberg, for all the outstanding efforts they made over the past 
several months under very trying circumstances late at night working so 
diligently.
  I wish to especially thank them for all the work they have done to 
assemble this bill and write the report. I know it was a daunting 
challenge. I am so grateful to them for all the extra effort they have 
had to go through under some very trying circumstances. They have done 
an excellent job. They are a delight to work with.
  With that, I see that my ranking member is on the floor. I wish to, 
again, thank him for being a great partner and for all his help and 
support to get this bill to the floor today.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Missouri.
  Mr. BOND. Madam President, the real kudos and plaudits go to my 
colleague, the chair, Senator Murray, for having worked this through.
  It is also a very interesting and challenging measure. But this year, 
we have advanced a bill, we have had lots of amendments, we have 
adopted some on strong bipartisan votes. I think this is a great 
tribute to the way she has worked with us closely on the committee and 
with the cooperation of all parties on the floor.
  This is a bill in which many people have good ideas, and, as I said, 
we voted on and took a few of them. But I join Senator Murray in 
thanking her staff: Alex Keenan, Meaghan McCarthy, Rachel Milberg, 
Joanne Waszczak and Travis Lumpkin for their work. They have worked 
very closely with us.
  Thanks for the hard work on my side to Ellen Beares and Jon Kamarck. 
The staff contributed. And also the work of the newest member of our 
team who came in at a time when we were badly understaffed, Dedra 
Goodman. But a very special thanks to Matt McCardle for his leadership 
and masterful management on the floor.
  This was due to a lot of unforeseen circumstances. There were lots of 
times when he had to carry the load, and he also did it with good 
humor. When I was frazzled and confused about where things may be 
going, Matt had it under control, and he did a truly outstanding job.
  Again, I thank our colleagues for allowing us to proceed with this 
bill. We did not plan on being here this the eighth day, having started 
last Thursday. But we are very optimistic that this bill can emerge 
from conference as a freestanding bill and be adopted by this body. I 
do not want to see this wind up in an ``ominous'' appropriations bill 
that does not reflect the hard work that went into it. When our work 
goes into what they call an omnibus, what I call an ``ominous,'' 
appropriations bill, strange things happen to it. We hope we can work 
this bill and keep it together as crafted. It is a critical piece of 
legislation.
  It has vitally important safety needs for transportation, 
particularly in aviation. It continues, although not as robustly as I 
would like, the development of more transportation infrastructure. 
There are badly needed elements in the housing part of the bill. We 
have to continue housing for those people who have assisted housing, 
public housing authorities, particularly in this economic downturn, 
when so many people are feeling the pinch, special needs from the 
disabled, the elderly, to veterans, who have particularly been well 
served by the veterans assisted in supportive housing that we have 
provided.
  But also, as I have warned many times before, the FHA program is a 
high-risk program that could subject us to billions of dollars being 
thrown on the taxpayers' credit card. And this bill provides resources 
for HUD to get up the IT systems it needs, to get the people in place. 
It provides for more oversight. It provides increases for the inspector 
general to doublecheck to make sure the predatory lending which 
inflicted the entire economy does not transport itself into FHA-
supported housing.
  So we do have some more amendments. And we look forward to working on 
those this afternoon. We thank all our colleagues for letting us come 
this far. We hope to get it passed and get these badly needed 
appropriations enacted into law.


                    Amendment No. 2403, as Modified

  I ask unanimous consent that the McCain amendment No. 2403 be 
modified with the changes at the desk.
  The PRESIDING OFFICER. As in legislative session, without objection, 
it is so ordered.
  The amendment (No. 2403) as modified is as follows:


                    amendment no. 2403, as modified

       On page 318, between lines 11 and 12, insert the following:
       Sec. 2___.  None of the funds made available by this Act 
     may be used to carry out the Brownfields Economic Development 
     Initiative program (including with respect to any individual 
     property described on page 138, 139, or 141 of Senate Report 
     No. 111-69) administered by the Department of Housing and 
     Urban Development.

  Mr. BOND. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mrs. MURRAY. I ask unanimous consent that the order for the quorum 
call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                          ____________________