[Congressional Record (Bound Edition), Volume 155 (2009), Part 19]
[Senate]
[Pages 25317-25327]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           EXECUTIVE SESSION

                                 F_____
                                 

 NOMINATION OF ROBERTO A. LANGE TO BE UNITED STATES DISTRICT JUDGE FOR 
                      THE DISTRICT OF SOUTH DAKOTA

  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 bill clerk read the nomination of Roberto A. Lange, of South 
Dakota, to be U.S. District Judge for the District of South Dakota.
  The PRESIDING OFFICER. Under the previous order, there will be 2 
hours of debate equally divided and controlled between the Senator from 
Vermont, Mr. Leahy, and the Senator from Alabama, Mr. Sessions, or 
their designees.
  The Senator from South Dakota.
  Mr. JOHNSON. Mr. President, a few weeks ago I stood here on the floor 
and offered my support for Jeff Viken to be a District Judge for South 
Dakota. That nomination passed with a vote of 99 to 0. Today, I am here 
to encourage my colleagues to offer the same support for Roberto Lange, 
also a nominee to be a District Judge for South Dakota. I spoke at that 
time of the importance of Federal judgeships and the lifetime tenure of 
these appointments. The lifetime appointment of a Federal judge is a 
very serious decision; one that has a lasting impact on our democracy.
  When I last spoke on the floor nearly a month ago, only two judges 
had been confirmed--including now-Justice Sotomayor. That day, we 
confirmed a third judge. That confirmation was Jeff Viken to fill a 
vacancy in my home State of South Dakota. Since that time no other 
judges have been confirmed by the Senate. I am proud to have both the 
third and the fourth judges confirmed by the Senate this Congress to be 
for the District of South Dakota. However, it is my understanding that 
there are currently ten other judicial nominations pending on the 
Executive Calendar. We are lucky in South Dakota to have our vacancies 
filled so quickly, but I encourage my colleagues to act swiftly to fill 
these other vacancies.
  Mr. Lange has an impressive background. He has over 20 years of 
experience practicing law in South Dakota. Before that, he clerked for 
the very same docket that he has been nominated for. He attended 
Northwestern University School of Law on a full tuition scholarship 
where he was on the dean's list every semester. Prior to that, he 
completed his undergraduate degree at the University of South Dakota, 
my law school alma mater. In addition, Bob has received a well-
qualified rating from the American Bar Association.
  I am proud to have put Bob's name forward for this post. It is a 
great honor that President Obama has placed on Bob with this 
nomination. South Dakota will be well served by this selection. I 
congratulate Bob and his family on this accomplishment.
  It is with great confidence in his abilities that I will cast my vote 
today for the confirmation of Roberto Lange to be the next U.S. Federal 
District Judge for South Dakota. I urge my colleagues to support this 
very qualified nominee.
  Mr. President, I suggest the absence of a quorum, and I ask unanimous 
consent that the time under the quorum call be equally divided.
  The PRESIDING OFFICER. Without objection, it is so ordered. The clerk 
will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. BOND. 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. BOND. Mr. President, I ask unanimous consent to speak up to 15 
minutes as in morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                     Afghanistan/Pakistan Strategy

  Mr. BOND. Mr. President, I rise today to renew my call for President 
Obama to give full support to his top military commander in 
Afghanistan, GEN Stanley McChrystal.
  Several weeks ago, I stood in this Chamber and made the case for our 
Congress and the American people to hear directly, and as soon as 
possible, from General McChrystal to ensure that political motivations 
here in Washington do not override the vital needs of our commanders 
and troops on the ground. I was concerned then, as I am now, that 
continued wavering by the administration and others in Washington could 
unravel the hard work by our military and intelligence professionals on 
the battlefields of Afghanistan.
  As the ``friendly'' death toll continues to rise in Afghanistan, 
political indecision here in Washington persists. We have heard no firm 
commitment from the administration to the fully resourced 
counterinsurgency strategy the President forcefully outlined last 
spring. I came to the floor and I supported the President's 
counterinsurgency strategy fully; and with General McChrystal's recent 
report to implement that strategy to deal with the situation in 
Afghanistan, I fully supported President Obama's statements in March.
  But instead of commitment, the past few weeks have brought a flurry 
of internal debate in the administration and in the media about the 
basic tenets of the strategy and assessment--counterinsurgency versus 
counterterrorism; clear, build and hold, or fire and fall back; more 
troops versus fewer strategy; crafting a strategy or crafting a 
strategic message. In what must be a historic first, it appears I am 
more supportive of the President's own strategy than the President is.
  Amidst this indecision, our Afghan people, our NATO, ISAF, regional 
allies, and our own troops wait. The Afghans wait to hear if the United 
States will continue to stand beside them in spite of the growing 
threats of the insurgent violence of the resurgent Taliban control. Our 
allies wait to see if they were wrong to put trust and confidence in 
the U.S. leadership in the region. Our military forces and brave 
civilians who serve in Afghanistan under constant stress and mortal 
danger wait to see if their sacrifices and those of their fallen 
comrades will have been in vain.
  We have heard excuse after excuse, constant attempts to justify 
delay. Over the past week, another red herring was floated by some 
officials--we have to wait until the dispute surrounding the Afghan 
elections are resolved. This red herring--and those people peddling it 
as an excuse--has missed a truth even more applicable to the mountains 
and villages, and our towns and cities here in America--all politics is 
local, and so is the security that the Afghan people need.
  While we would all like to see a pristine election in Afghanistan--
something we still haven't accomplished 100 percent in our own Nation--
the Taliban is not waiting for election results as they continue to 
kill our troops and attack the people of Afghanistan and gain momentum. 
Security in Afghanistan will not come from

[[Page 25318]]

Kabul. It will have to be built village by village and valley by 
valley. That is what the counterinsurgency strategy is designed to do.
  Even if the naysayers continue to ignore this important truth about 
security in Afghanistan, yesterday's announcement that a run-off 
election will now be held on November 7 has made that red herring of an 
excuse gone and useless. In light of this electoral process in 
Afghanistan and the progress that has been made, what are we hearing 
from the White House? As though this decision seemed something to be 
applauded, the administration continues to proclaim its indecision. 
Today, the White House press secretary said, ``It's possible,'' but 
there are no guarantees that a decision may be made before the 
election--17 days from now. More people killed, more progress for the 
Taliban, more wondering and hesitancy by the Afghans we are trying to 
serve.
  It is a simple question: Will we support President Obama's commanding 
general, Stan McChrystal, or not?
  I have heard some pundits opine that delaying a few more weeks won't 
make any difference because it will take some time for troops to get 
there anyway. Using that logic, no decisions need to be made for 
months. But it is pretty clear postponing any decision simply postpones 
the date of actual engagement. And even the right strategy won't work 
if it is not implemented on time. We are losing time, and it can never 
be recovered. It certainly won't work if it is never acknowledged as 
our strategy.
  Defense Secretary Gates waved a red flag recently, noting that the 
United States cannot wait for questions surrounding the legitimacy of 
the Afghan Government to be resolved before a decision on General 
McChrystal's troop request is made. He understands what I believe is a 
simple truth: The longer we wait, the stronger and more determined the 
enemy gets.
  Read the papers. Violence is up this season over last. Violence is up 
this year over the last. The Taliban continues to gain influence in 
parts of Afghanistan. We keep fighting with what we have, but the 
insurgents keep getting stronger. We cannot and must not wait any 
longer for a decision.
  It comes down to this: Delay leads to defeat, not victory. Our 
commanders in the field--the real experts who see firsthand what is 
required for victory--have asked for more boots on the ground, and 
there is no reason not to give them those troops now. While politicians 
and pundits debate here, the enemy is building strength and 
establishing even greater control over Afghanistan, the Afghan people, 
and future generations of potential terrorists. While we talk here, 
American heroes and our ISAF and Afghan allies are dying in increasing 
numbers in the barren regions of Afghanistan.
  In a war where winning hearts and minds is critical, delay in 
Washington is a public diplomacy disaster in Afghanistan and abroad. It 
advertises our lack of resolve to our allies and the people of 
Afghanistan. The Afghan people have been disappointed by the United 
States before. Now they need to know with certainty that the United 
States will not abandon them again in this fight against terrorism. Our 
allies, who are at this very moment being urged by the Secretary of 
Defense to contribute to the Afghan campaign, need to know that we will 
remain by their sides to defeat this enemy together. Instead, the 
message we are sending is one of absurdity.
  Imagine this diplomatic sales job: We send a diplomat out and say: 
``Friends in Afghanistan, we would like to keep fighting the good fight 
against the terrorists and insurgents, but we haven't yet decided how 
strong our commitment is.'' I would like to see that message sell. And 
to our allies around the world: ``We would really like for you to 
contribute more troops and resources for this fight, but we need a few 
more weeks to decide what our contributions will be.'' That message 
isn't going to work either.
  I strongly doubt this new brand of public diplomacy will sell for 
much in the streets of Kabul or the villages of Nangarhar. What this 
message does tell the people of Afghanistan and the key Shura leaders 
across the country is: Don't trust the Americans, and instead look to 
the Taliban as the most likely force for the future in Afghanistan. A 
disaster.
  Perhaps even more troubling is the message this wavering sends to our 
terrorist enemies. If they simply wait us out, we will go home in 
defeat. While the administration dithers, the terrorists have honed 
their own message of hatred and extremism. Radical Islamic terrorists 
have staged suicide attacks for maximum publicity, propagandized their 
message on the Internet, and convinced their fellow terrorists-at-arms 
that they will defeat the international community.
  In the years leading up to the 9/11 attacks, al-Qaida--operating 
under the Taliban control in Afghanistan--was emboldened by our 
lukewarm response to their attacks and provocations. Failing to commit 
to victory now will only embolden these enemies of freedom that much 
more to stage more attacks.
  Let there be no doubt, from all that I have read and all that I have 
learned in my travels to the region, and heard here, if we fail now, if 
the Taliban returns to power in Afghanistan, the price we pay in the 
future will be far greater than any price General McChrystal is asking 
us to pay now. We have to decide which price we are going to pay.
  The stakes are high. General McChrystal's strategic assessment makes 
clear the situation in Afghanistan is deteriorating and the Taliban is 
gaining momentum. The causes of this deterioration have been debated by 
my colleagues countless times over the past several years. Pointing 
fingers for past judgments or even past mistakes, however, does nothing 
to solve the problems of today in Afghanistan. For this reason, I was 
disappointed to learn yesterday of the House majority leader's 
criticism of Members of Congress who are calling on President Obama to 
make a decision now. Well, I am one of them.
  The majority leader, in trying to justify the administration's 
wavering, accused Republicans of abandoning their focus for the past 7 
years. I don't happen to think that is true. But whatever your opinion 
on the matter is, it is simply no longer relevant. The actions of one 
administration do not justify handing victory to terrorists through the 
indecisiveness of another administration. The battle before us in the 
Afghan/Pakistan region is today. General McChrystal has laid out an 
implementation of the winning strategy for Afghanistan, which the 
President set out, and the President's decision is simple: Do we 
implement it or not?
  The answer should be simple. By announcing publicly his unequivocal 
support for General McChrystal's request, agreeing to send the troops 
that are needed, the President can send a message of firm resolve to 
our enemies and to our allies. He can give our commanders on the 
ground--the same military experts he chose for this mission--the 
resources they have requested. He can create a strategic communications 
plan that tells our enemies, our allies, and the American people of our 
intentions for the region.
  The last point is particularly important. We are at a crossroads in 
Pakistan. We can take the road of expedience and continue to listen to 
Pakistani officials, who claim they have no control over the Taliban, 
have no idea where Mullah Omar is, and have only limited capability to 
decrease terrorist safe havens in their country or we can take the 
better path and encourage our Pakistani allies to reclaim their 
national sovereignty in the tribal areas and provide the stability and 
security that is the right of a people to expect from their government. 
I believe I speak for many of my colleagues when I say we should expect 
more from our allies to whom we give so much. But they need to hear 
that we are serious about our mission there as well. Pakistan has the 
right to be concerned when the United States appears to be faltering in 
its determination to remain in the fight. We failed in this region in 
the past, so we should not be surprised if our continued wavering 
instills heightened insecurity. I have spoken in this Chamber before 
about the importance of including Pakistan in

[[Page 25319]]

our efforts to defeat terrorism in the region. Afghanistan and Pakistan 
are inextricably linked. More aggressive action may become a good thing 
in Pakistan, but such action should be in addition to, not as a 
substitute for, giving our troops in Afghanistan all the resources they 
need.
  While denying al-Qaida and Taliban militants sanctuary in the border 
regions of Pakistan is critical, a fire-and- fall-back-only approach 
focusing on one part of this regional conflict will ultimately hand 
victory to the world's most violent and feared terrorists--the same 
terrorists whom our Nation witnessed firsthand attack so brutally, 
violently, and with such deadly force on September 11.
  We have seen polls that signal wavering support among the American 
people for this war in Afghanistan. But I have faith in the American 
people. They are resilient, they are proud of their country, and they 
understand the price of doing nothing. They are determined the 
sacrifices of their sons and daughters, husbands, wives, and children 
serving in Afghanistan will not be in vain. We owe them no less.
  I call on President Obama to end this indecision and to show the 
American people and our allies the same resolve and determination I 
heard in his words of last spring. It is time for him to speak out, to 
make the decision, explain why it is important, and to carry that 
message not just to Americans but to allies and enemies throughout the 
world. Last spring he said:

       Our spirit is stronger and cannot be broken; you cannot 
     outlast us, and we will defeat you.

  General McChrystal has said we must act quickly to defeat the 
terrorists and insurgents. Now is the time for President Obama to 
support his commanders on the ground and silence the pessimistic 
political winds whispering defeat in Washington.
  Mr. President, I yield the floor.
  I suggest the absence of a quorum, and I ask unanimous consent that 
the time during the quorum be charged equally to both sides.
  The PRESIDING OFFICER. Without objection, it is so ordered. The clerk 
will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. CARDIN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. CARDIN. Mr. President, I ask unanimous consent that during debate 
on the nominees, all time during quorum call and recess be charged 
equally to the majority and minority sides.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. CARDIN. Mr. President, I take this time to bring to the attention 
of my colleagues the effect these holds--in most cases anonymous holds 
that are being placed by Senators on judicial appointments--are having 
on the lives of judicial officials and on the effectiveness of the 
judicial branch of government.
  So far, President Obama has nominated four circuit court judges who 
are awaiting confirmation. One of those is Andre Davis to the Fourth 
Circuit of Maryland. I mention his name because he was appointed by 
President Obama early this year. The Judiciary Committee held a hearing 
in April of this year. In June, the Judiciary Committee recommended his 
confirmation by a strong bipartisan vote of 16 to 3.
  When we finally get a chance to vote on Judge Davis' confirmation to 
the court of appeals for the circuit court, I am confident it is going 
to be a lopsided vote among the Members of the Senate. Yet we have been 
denied the opportunity to confirm his appointment because some Senators 
put on a hold. Every time we tried to get a time agreement, which 
everybody says is reasonable, there was an objection. I do not believe 
it is aimed at Judge Davis; I believe it is a strategy by my Republican 
colleagues to slow down the confirmation process of judges. I don't 
know why. I really do not understand. When we have a judge who is 
qualified, who is not controversial, why would we deny the judicial 
branch of government the judge it needs in order to carry out its 
responsibility? Why would we put people through this process of waiting 
for the Senate to confirm when it is clear the overwhelming majority is 
in support of the confirmation? I think Judge Davis presents an 
example. Let me try to put a face on it. You hear the numbers, you hear 
the statistics, but each one of those holds represents another person 
being denied the opportunity to serve as a judge.
  Judge Davis has an extremely long and distinguished career in the 
Maryland legal community. He graduated from the University of 
Pennsylvania cum laude and with a JD degree from the University of 
Maryland School of Law, where he still teaches classes as a faculty 
member. He has been a judge on the District Court of Maryland since 
1995 when he was confirmed by the Senate. He has had a long career--22 
years--as a district court judge. He has presided over literally 
thousands of cases. Many of these have gone to verdict and judgment. 
His record is one which lawyers and his colleagues on the bench praise 
as being well balanced, as that of a judge who understands the 
responsibilities of the judicial branch of government. He tries to call 
the cases as the law dictates, and there is absolutely no blemish on 
his record as a trial court judge. He has been praised by lawyers in 
Maryland as smart, evenhanded, fair, and openminded. He has received a 
``well qualified'' rating from the American Bar Association Standing 
Committee on the Federal Judiciary. He will add diversity to the Fourth 
Circuit. When confirmed, he will be the third African-American judge to 
serve in the Fourth Circuit.
  I bring to your attention and to the attention of my colleagues Judge 
Davis because we have to bring an end to these holds where a judge is 
being held not because he is controversial, not because there is a 
problem, not because you want additional information, but just to slow 
down the process. That is wrong. That is an abuse of the 
responsibilities of each one of us, of the power each Senator has. I 
think it is important that we all speak out, whether Democrats or 
Republicans. It is just wrong. It is time to move these nominations to 
the floor of the Senate and to have votes up or down on these nominees.
  I urge my colleagues to let us get on with the business we were 
elected to do, to advise and consent to the President's appointments. 
If we have a problem with an appointment, let's speak out against it 
and let's have that type of debate. But delay for delay's sake is not 
befitting the Senate. I urge my colleagues to allow these appointments 
to go forward with up-or-down votes on the floor of the Senate.
  I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. CARDIN. 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. CARDIN. Mr. President, I ask unanimous consent that the final 30 
minutes prior to the 2 p.m. vote be reserved for the chair and ranking 
member of the Judiciary Committee or their designees, with Senator 
Leahy controlling the final 15 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. CARDIN. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Ms. STABENOW. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Ms. STABENOW. Mr. President, I ask consent to speak as in morning 
business.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                    Medicare Physician Fairness Act

  Ms. STABENOW. Mr. President, I rise today to speak about a motion we 
will be voting on after the nomination

[[Page 25320]]

that is currently before the Senate, and that is the motion to proceed 
to a very important bill for seniors on Medicare coverage, for the 
disabled, for those who are in our military and their families. It 
relates to the way we reimburse physicians under Medicare and under 
TRICARE. It is called the Medicare Physician Fairness Act.
  This is an effort to eliminate what has become a very flawed formula 
for determining the payments for physicians under Medicare.
  We, in fact, know it is flawed because in the last 7 years, the last 
seven times that proposals have come forward from this formula to cut 
physician pay under Medicare and TRICARE, this Congress has chosen to 
reject that recommendation, that cut.
  We want to make sure seniors can have access to their doctors, that 
Medicare is a quality system that allows the kind of reimbursements so 
we can continue to have the quality of providers, physicians, and 
others we have today.
  This bill, S. 1776, would allow us to do away with what has become a 
very flawed process. Every year we postpone the cuts that have been 
proposed because we know they are flawed. We know this time of year, if 
we do not take action, there would be a 21-percent cut in Medicare for 
physicians who serve our seniors and people with disabilities. Because 
Medicare and TRICARE are tied together, that cut would also affect our 
military men and women and their families and retirees from the 
military. So, of course, we do not want that to happen. We are not 
going to allow that to happen. But rather than every year--every year, 
every year--deciding at the last minute we are going to stop these 
devastating cuts, putting physicians in the situation where they are 
not sure how to plan, worrying our seniors, worrying those in our 
military and retired military personnel, now is the time to change the 
formula to stop it.
  By doing that, by passing this legislation, we then set the stage for 
health care reform where, in fact, under health care reform, we have a 
different set of incentives. We focus on strengthening Medicare in a 
way that improves quality access for seniors. We focus on incentivizing 
prevention. We focus on incentivizing primary care doctors with a 
different system that will provide bonuses and payments for our primary 
care doctors.
  So we have a new system. We have a new vision for strengthening 
Medicare, strengthening our health care system. But right at the 
moment, we also have this failed system in place that we are kind of 
stuck with unless we can say: We are done. We are going to start again. 
We are going to start from a different budget baseline, and then move 
forward on health care reform.
  That is exactly what I have been wanting to do with this legislation. 
That is why I am so appreciative of the fact that our majority leader, 
Senator Reid, understands and is committed to making this change. His 
commitment to Medicare, his commitment to our seniors, our military 
personnel, and to our physicians is the reason we are here today. So I 
am so grateful to him for all of his commitment and all of his work. 
But this needs to be changed right now.
  As I indicated, we have a system that supports our Medicare system, 
covers seniors, the disabled. We also tie it to our military health 
care system, members of the U.S. military, surviving spouses, families, 
military retirees, and their families. All of them are extremely 
supportive. In fact, it is not an exaggeration to say this is a top 
priority, if not the top priority, of the AARP and those who advocate 
for seniors right now to give seniors the peace of mind to know they 
are going to be able to have access to their doctors and that their 
doctors are going to have the resources they need to be able to treat 
them.
  This bill would make sure that happened by rejecting what has been a 
failed system. We can go right on down the list. We not only have 
strong support from the American Medical Association and other 
physician groups but those who represent our military. Military 
officers and their families and retirees are extremely supportive.
  I am very proud of the work that over 20,000 physicians in Michigan 
do every day providing to more than 1.4 million seniors and people with 
disabilities in Michigan the quality care they need and deserve.
  We have over 90,000 TRICARE beneficiaries, men and women in our 
military, retirees who are receiving high-quality medical services in 
conjunction with the Medicare system. We are very proud of that, and we 
want to make sure we are maintaining that as well.
  Let me go through again what we are trying to make sure we can fix. 
One, this legislation would repeal the current broken system. It would 
stop a 21-percent cut to our physicians under Medicare and TRICARE, 
which would be devastating. It would stop what is a Band-aid approach 
every year. We know we are going to fix it. We fix it every year 
individually for that year, always at the last minute.
  It is time to change that process. I believe this is honest budgeting 
because we know we are not going to allow these cuts to take place. So 
we should do away with this process that even proposes these cuts every 
year and lay the foundation for real physician payment reform, which is 
in the legislation.
  Let me share with you a letter from a medical clinic in southwest 
Michigan where physicians wrote to me.

       Every year we have to wait to the last minute to see if the 
     rates will get cut or fixed. This makes it impossible to 
     budget and project for the next year. Especially for 
     practices like ours, with nearly 50 percent of our patients 
     are Medicare patients. With the uncertainty and the increases 
     that we do get not keeping up with the cost of living, we 
     have to err on the side of caution, which leads us to job 
     cuts. Though we need the staff to provide the best patient 
     care between Medicare and Medicaid we can't afford to keep 
     them and stay in business. If the uncertainty continues we 
     will be forced to re-evaluate our patient population as well, 
     leaving the Medicare patients with no choices for the care 
     that they need.

  This is really the bottom line. We want to make sure physicians are 
fully participating in caring for our senior citizens, for people with 
disabilities in this country. We want to make sure Medicare is strong. 
We want to make sure we are protecting it going forward. In order to do 
that, we have to start from the premise that we will not be allowing 
these cuts or the possibility of these cuts to go forward year after 
year after year.
  The vote we are going to have in front of us is a vote to proceed to 
the bill. I know there are those with amendments they would like to 
offer. I would hope that we would see a strong bipartisan vote to 
simply go to this bill. I think the seniors of this country deserve 
that.
  I think all of those who care about health care for our senior 
citizens and the disabled, our families, our military personnel deserve 
that; to have the opportunity to go to this bill, to be able to work on 
it together, and to be able to pass this bill and permanently solve 
this problem.
  I am very grateful for the fact that the President of the United 
States not only supports this effort, his administration's budget, the 
budget he gave us at the beginning of this year, his very first budget, 
he put forward a budget that did not include going forward with the 
cuts in this flawed formula.
  His budget baseline started from a premise that we would not be 
making these cuts going forward. I believe that is where we should be. 
We should be making sure we stop the Band-aid approach. Stop this 
effort that has gone on year after year and create an honest budgeting 
process so that we can make sure our seniors have confidence in the 
future; that they are going to be able to see their doctor under 
Medicare, and that physicians have the confidence of knowing they are 
supported by a strengthened Medicare system.
  So I am very hopeful we will see a strong bipartisan vote to allow us 
to move to this very important measure to strengthen and protect 
Medicare of the future.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Connecticut.
  Mr. LIEBERMAN. Mr. President, I rise to declare to my colleagues that 
I intend to vote against cloture to proceed on the motion to proceed to 
this

[[Page 25321]]

measure regarding the sustainable growth rate.
  I want to explain why. I thank Senator Stabenow for her leadership, 
and to say this is one of those moments where substantially I agree 
with just about everything she had to say about the inadequacies of the 
sustainable growth rate formula which was put in in the late 1990s as 
part of what turned out to be a very effective attempt to bring fiscal 
responsibility, budget balancing, even a surplus.
  Believe it or not, at the end of the Clinton administration, 
historians may note, perhaps people will forget, we actually had a 
Federal Government surplus. But it turned out that this sustainable 
growth rate formula for the reimbursement of doctors was not workable 
and unfair and has resulted in the refusal of a lot of doctors to treat 
patients under Medicare.
  So why would I not vote for cloture to proceed to take up this 
matter, and then vote for it? It is because there are larger questions 
involved. In some sense, I think this is a precautionary tale, the vote 
on this matter. It is a precautionary tale of what we will face in 
succeeding votes in the Senate and most immediately in the health care 
reform debate we will soon take up on the Senate floor.
  We did not get into this terrible situation with our Federal deficit 
and debt because there were people in the House or in the White House 
over the last several years who had bad motives or bad values. In fact, 
in most of the cases, such as this, when money has been allocated, 
appropriated for programs, it has been done with the best of 
intentions. But the ultimate effect has been bad for our country and 
our future because it has put us into a position of national debt that 
is unsustainable, that threatens to cripple our economic recovery and 
burden our children and grandchildren and beyond so that they do not 
live in a country with the kind of economic dynamism and opportunity in 
which we were blessed to be raised.
  In some sense, if I would be allowed to paraphrase, I would say the 
road to an unsustainable, damaging, American national debt is paved 
with good intentions, with votes for good programs. It just is time for 
us together, across party lines, to sound the alarm, blow the whistle, 
and make choices regarding priorities.
  We cannot have, no matter how good or worthwhile, programs for which 
we are not prepared to pay. The numbers are stunning. I am privileged 
to be serving my 21st year in the Senate. The numbers of our Federal 
indebtedness today are so shockingly high that if you told me that 21 
years ago or 10 years ago or even 5 years ago, I simply would not have 
believed it.
  The fiscal year that ended on September 30, fiscal year 2009, we now 
know, learned about a week ago, America ran a deficit of $1.4-plus 
trillion. We know America now has an accumulated long-term debt of $12 
trillion.
  We know the Congressional Budget Office has projected that over the 
next 10 years, we will run deficits that will add $9 trillion to the 
long-term debt. So $12 trillion now, add $9 trillion, and that is $21 
trillion of debt. It is unbelievable. We say it is unsustainable. That 
is a big word. What does ``unsustainable'' mean? It means that at some 
point this size debt is going to cripple the economic recovery that is 
just beginning. It is going to create hyperinflation because at some 
point people are going to stop buying our debt and we will have to 
raise interest to get more people to do so. At some point, if we don't 
fix this, the government is going to be left with no alternative but to 
print more money. That is the road to inflation, to lost jobs, and to a 
lower quality of life.
  All these things we have done, which seemed necessary at the time, 
which are good, we have to pay for them or else this will not be the 
country we want it to be for succeeding generations. We are going to 
reach a point where we will not have the money to do the first thing 
the Federal Government is supposed to do, which is to defend the 
security of the country, to provide for the common defense in what is, 
obviously, a dangerous world.
  This is a precautionary tale, a precautionary vote. We are coming to 
a big debate on health care reform. I am for health care reform, but it 
is not the only thing I am for. In fact, at this moment in our history, 
it seems there are two things that matter more to our country than 
health care reform, although I wish we could do them all. One is to 
sustain the recovery from the deepest recession this country has had 
since the Great Depression of the 1930s. We are just beginning to crawl 
our way out of it. Gains in gross domestic product look as though they 
are coming, but it is fragile. It is not robust. Of course, almost 10 
percent of the American people are out of work. In fact, it is higher 
than 10 percent. To me, the top priority we all should have--and I 
speak for myself--is to sustain the economic recovery to get people 
back to work, to keep our economy strong.
  The second--and it is related to the first--is to begin to deal with 
the terrible imbalances in our Federal books that will compromise the 
economic recovery and cripple our economic future and the opportunity 
our children and grandchildren will have in the future. It means we 
have to make choices. In the coming health care debate, we have to make 
sure, as the President said, that there is not one dime added to the 
deficit as a result. We have to make sure that what we do within the 
context of health care reform not only doesn't increase the deficit and 
the long-term debt but doesn't add cost and increase premiums, for 
instance, on working people, middle-class families to pay for their 
health insurance and on businesses for which we need to provide every 
incentive to add workers, to grow, to sustain the recovery as it exists 
now.
  Those are the standards I will apply to my own action on the health 
care reform proposal. I want to be for health care reform. I am for 
health care reform. I know the system needs to be changed. But this is 
a precautionary vote coming up because while the Medicare Physicians 
Fairness Act, which would repeal the sustainable growth rate formula, 
is substantively just, it is not paid for. It adds almost $250 billion 
to the debt for the coming years. I don't think we can do that anymore.
  I am relieved to know, in terms of the immediate impact of my vote 
against cloture on this matter, that if cloture is not obtained, the 
health care reform bill that came out of the Senate Finance Committee 
does take care of the problem with the sustainable growth rate for 
another year. That gives everybody--doctors and, most important, 
Medicare recipients--breathing room. We can't go on spending without 
paying for what we are spending, no matter how good or right it is, 
because there is a greater harm being done to our country.
  The speed with which this Medicare Physician Fairness Act has come to 
the floor and taking it out of health care reform where it certainly 
belongs is also a precautionary tale.
  I have said I am against the public option for health care insurance, 
essentially a government-owned health insurance plan, one, because we 
believe in a market economy and a regulatory government. We believe a 
market economy is the best way to create economic growth and wealth. It 
serves the American people very well. We also know that a market 
economy of itself doesn't, as somebody long ago said, have a 
conscience. So the government sets rules. We have oversight. We have 
regulatory rules. We have antitrust laws, for instance. That is the way 
we maintain fairness in the economy, in the marketplace. I don't 
remember another case where our answer to a concern about fairness in 
the marketplace--in this case, whether there is real competition in the 
health insurance business, whether the health insurance companies are 
being fair in their rates, et cetera, which are all reasonable 
questions--I don't remember another case where the answer was to create 
a government-owned corporation to compete with the private sector.
  I spent 6 great years serving as attorney general of Connecticut. We 
sued a lot of businesses for unfair trade practices, for bid rigging, 
for price fixing.

[[Page 25322]]

We appeared before regulatory commissions on behalf of the people of 
the United States, all sorts of businesses. But nobody ever had the 
idea that instead of us doing that, we should create a government oil 
company, a government car company, a government company to sell 
automobiles, a government company to take care of roof contracting. I 
could go on and on. One of the reasons is, particularly now, I don't 
have confidence that we can discipline ourselves from making it into 
another cause of the skyrocketing Federal deficit.
  This bill is evidence of that. Here is a good cause, a group we all 
respect, the doctors, saying: We need this 10-year fix to the problem. 
And we just did it. This really ought to be done as part of overall 
Medicare reform. We have to have a commission. We have to have some 
system to deal with the great threats to our economic future. Medicare 
is going to run out of money in 2017, 8 years from now. Social Security 
is already dipping into the trust funds, taking more out than we are 
getting in. It may change in a year or two, but that is the way it is.
  With respect to the sponsors of this proposal, the Medicare Physician 
Fairness Act, the doctors' associations that I know would like us to 
vote for it, I think 1 year is enough; 1 year paid for is enough. To do 
more than that now is wrong and irresponsible, and therefore I will 
vote against the cloture motion on the motion to proceed to the 
Medicare Physician Fairness Act.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from South Carolina.
  Mr. GRAHAM. Mr. President, I will vote against the motion to proceed. 
Before Senator Lieberman leaves the floor, I want to say again, of all 
the people I have met in the Senate, he constantly amazes me, because 
there is no doubt he is doing this because he believes passionately 
that America is at a crossroads and this is making the problem worse, 
not better. I am on a bill with him--there are seven Republicans and 
seven Democrats--that is a comprehensive solution to our health care 
needs. It is the Wyden-Bennett bill. It mandates coverage, but we do it 
through the private sector.
  I want colleagues to know that Senator Lieberman has been 
constructive in trying to find a bipartisan compromise that will allow 
us to deal with health care inflation, which is a problem in the 
private sector. He practices what he preaches, trying to solve 
problems. As he explained it, the Senator from Mississippi and I were 
sitting here talking. There is not much of that around here in politics 
now, where one would come out and take on an issue that is being pushed 
by leaders of the Democratic Party. He is an independent Democrat, but 
he articulated the reason in a way most Americans really appreciate.
  Doctors have a problem. In 1997, we tried to balance the budget with 
President Clinton, the Balanced Budget Act of 1997. When we looked at 
how we could sustain a balanced budget, we had to go to where the 
growth was in the budget. The big programs were Medicaid and Medicare, 
the entitlements. Eventually, those two programs will cost the 
equivalent of the entire Federal budget today in 20 or 30 years. If we 
want to balance the budget, we have to slow down entitlement growth.
  Medicare is one of those programs that have grown dramatically. When 
it first came about, it was a $4 billion safety net. They projected 
that Medicare would cost $37 billion in 1990. It was like $90-something 
billion. It is $400 billion today. Those who designed the Medicare 
Program as a safety net for senior citizens without health care did a 
good thing, but from then until now, it has become a $400 billion item 
that is eating up the entire budget.
  In 1997, we recalculated the growth rates to be paid to doctors and 
hospitals. Since then, doctors and hospitals have been saying that we 
cut reimbursements to the point that they can't take Medicare and 
Medicaid patients and it is hurting their ability to stay in business. 
About 60 percent of their income comes from the Federal Government. I 
don't doubt that is true. What we did is just nickel and dime doctors 
and hospitals and never reform Medicare.
  So Senator Lieberman is right. To help doctors and hospitals and the 
country achieve a balanced budget, we will have to fundamentally reform 
Medicare, and the doctor fix should be part of that effort.
  What we are doing here is making a promise we can't afford to pay. We 
are going to tell the doctors: Don't worry ever again about Medicare 
reimbursements being cut because for a 10-year period, we are going to 
hold you harmless.
  That is beyond cynical. We need to look at the doctor fix in terms of 
comprehensive Medicare reform. It is a $245 billion item designed to 
get the medical community to support the leadership version of health 
care. It is transparent. It is wrong. It is bad politics. It is bad 
policy. I hope my colleagues will reject it.
  The bill coming out of the Finance Committee--and I congratulate 
Senators who are trying to fix health care because it needs to be 
fixed--is about an $800 billion expenditure, a little bit more. It is 
revenue neutral over a 10-year period because it is going to be paid 
for. Four hundred billion in Medicare cuts are part of the payoff, the 
pay-fors.
  How do we take $800 billion of expense and make it revenue neutral? 
We offset it. One of the offsets is a $400 billion-plus reduction in 
Medicare spending over a 10-year window. I argue that not only is that 
not going to happen because the Congress hasn't reduced Medicare 
spending anywhere near that, it is just politically not going to 
happen. Two years ago, we tried to slow down the growth of Medicare to 
$33.8 billion over a 4- or 5-year period and got 24 votes. If 
colleagues think this Congress is going to have the political will and 
courage to reduce Medicare by $400 billion over 10 years, show me in 
the past where we have had any desire to do that.
  The doctors fix is the best evidence yet of what will come in the 
future. We are contemplating doing away with the reduction in physician 
payments that was part of the balanced budget agreement because our 
medical community has been hit hard and is complaining. Look at the 
$400 billion. Do we think if people are going to be on the receiving 
and of a $400 billion cut over a period of time, they are going to 
accept it happily? Do you think they are not going to complain? What do 
you think we are going to do when one group of the medical community or 
the insurance community says, ``You are putting me out of business.''
  These $400 billion cuts are never going to happen because, you see, 
with the doctors fix, where every year we relieve the doctors from the 
imposition of that agreement in 1997--and in many ways we should 
because the 1997 agreement was not comprehensive--but to those who 
believe we are going to cut $400 billion in Medicare, have the courage 
to tell the doctors we are going to do to them what we said we would do 
back in 1997. Nobody wants to do that, and I am sympathetic as to why 
we do not want to do that because we are asking too much of doctors and 
hospitals and we did not reform the system as a whole.
  Mr. President, $245 billion added to the debt is no small thing. What 
I hope will happen is we can find a bipartisan pathway forward on 
health care reform that deals with inflation, deals with better access 
to preventive medicine, has some medical liability reform, is truly 
comprehensive, with give-and-take, and mandates coverage. I am willing 
to do that as a Republican. But if we go down the road our leadership 
has set for us here and basically tell the doctors ``Don't worry 
anymore, you are going to be held harmless for the next 10 years,'' 
then what group will follow who will want the same deal and to whom 
will we begin to say no? I do not know. I do not know to whom we will 
have the ability to say no if we do this. And if you say no to them, 
what the heck do you tell them--``You are not a doctor, so it does not 
matter what we do to your business.''
  If we do this, we have lost the ability, in my view, to provide the 
necessary solutions to the hard problems

[[Page 25323]]

facing the country. We will have given in to the most cynical nature of 
politics. We will have destroyed our ability to engage with the public 
at large in a credible way to fix hard problems. And when it comes time 
to ask people to sacrifice, they are going to look at us and say: What 
do you mean ``sacrifice?'' Aren't you the people who just basically 
wiped out what the doctors had to do because you were afraid of them?
  I am not afraid of doctors. God bless them. I am glad we have them. 
What we have done in the name of reform has been unfair because we 
picked on them and not the system as a whole. So to the doctors out 
there, Lindsey Graham gets it, that your reimbursement rates as they 
exist today under Medicare make it very difficult for you to do 
business. But I hope you will understand that my obligation is beyond 
just to the doctors in South Carolina; it is to what Senator Lieberman 
said: the next generation as well as to the here and now.
  Every politician has a problem: How do you affect the here and now, 
people who can vote for you, and how can you secure the future? Well, 
you just have to ask the people who are here and now to be willing to 
make some changes for the benefit of the country long term. I am 
confident that if we ask and we do it in a smart way, people will join 
with us. I want to give the doctors better reimbursement rates, and the 
only way we can achieve that is to reform Medicare from top to bottom 
and make it more efficient.
  One of the things I am willing to do is ask a person like myself to 
pay more. As a Senator, I make about $170,000 a year. I am not saying 
we are worth it, but that is what we pay ourselves. I would like to 
think we earn our money because it is not an easy job, but there are a 
lot of jobs harder than being a Senator, I can assure you. But right 
now, the system we have to fund Medicare, the trust fund, will run out 
of money in about 4 years. But basically I am paying the same amount 
for Part B premiums that cover doctors and hospital payments out of 
Medicare as my aunt and uncle who worked in the textile mill and made 
$25,000 a year. I am willing for people like myself to have to pay more 
to keep Medicare solvent.
  We are making some changes but not nearly enough. Mr. President, $3 
out of $4 of Medicare spending comes from the General Treasury, the 
taxpayers. One-fourth of the money to cover Medicare expenses comes 
from the patient population being served. There are plenty of Americans 
who are paying about $100 a month once they get into retirement who can 
afford to pay $450 a month for the Medicare services they receive. 
Nobody is asking them to do it. I am willing to ask, and I am willing 
to do it myself. It is those types of changes that will lead this 
country to a brighter future and will correct the imbalance we have.
  Finally, Medicare is $34 trillion underfunded. If you had $34 
trillion sitting in an account today, it would earn interest over 75 
years. You would need all the money--the $34 trillion plus the 
interest--to make the payments we have promised people in the future.
  When I was born in 1955, there were 16 workers for every retiree. 
Today there are three, and in 20 years there will be two. There will be 
two workers paying into the Social Security and Medicare trust funds 
where there used to be 16 when I was born. There are more baby boomers 
retiring every day than anyone ever anticipated. We are living far 
beyond 65.
  The question for the country is, Will people in my business go to 
you, the public, and say change is required? We cannot run the system 
assuming things that do not exist. We have to come to grips with the 
fact that we have an aging population, we live longer, there are more 
retirees than ever, and there are fewer workers. Once we come to grips 
with that dynamic and ask those who can afford to give, to give--hold 
those harmless who cannot afford to give--America's best days are 
ahead.
  If we do not reform these systems and we continue to do what is being 
proposed today--try to buy a constituency off: Doctors, we will fix 
your problem if you will support our bill; the $254 billion it will 
cost to get you onboard, do not worry about it.
  To the doctors who may be listening, you better worry about it. You 
need to worry about not only the viability of your medical practice but 
the ability of your government to make payments it has promised to the 
next generation, the ability of your government to be able to continue 
to operate, the ability of our country to pass on to the next 
generation a sound and secure America.
  We are about to borrow ourselves into oblivion. There is a theory out 
there, long held, that democracies are doomed to fail because 
democracies over time will lose the ability to say no to themselves; 
that we in the government will continue to grow the government based on 
the needs of the next election cycle and make promises that make sense 
for our political future but really over time are unsustainable. We 
have reached that point, and we are about to go over the edge.
  The only way America can self-correct is to make sure our political 
leadership is rewarded when we ask for change we can believe in. This 
is not change we can believe in. This is the old way of doing business. 
This is buying off a constituency that is important for the here-and-
now debate of health care and not giving a damn about the consequences 
to the country down the road. This is how we got in this mess.
  If we pass this bill, not only have we destroyed this new hope from a 
new President of ``change we can believe in,'' we will have reinforced 
the worst instincts of politics, sold the country short, and made it 
impossible to say no to the next group we want to sacrifice who needs 
to help us solve this problem.
  With that, I yield back.
  I suggest the absence of a quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  The ACTING PRESIDENT pro tempore. The Senator from Iowa is 
recognized.
  Mr. GRASSLEY. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.


                Medicare Physician Payment System Reform

  Mr. GRASSLEY. Mr. President, reforming the Medicare physician payment 
system is one of the most difficult issues we face in Medicare today. 
The name of the formula is the sustainable growth rate. Generally 
around here we refer to that as the SGR. It is the formula for the 
reimbursement of doctors under Medicare. It was designed in the first 
instance to control physician spending and to determine annual 
physician payment updates by means of a targeted growth rate system. 
The SGR is not the only problem with the Medicare physician payment 
system. Everyone who knows anything about physician payments and 
Medicare knows that this SGR formula is not working. It is a fee-for-
service system that rewards volume instead of quality or value. This 
means that Medicare simply pays more and more as more and more 
procedures and tests and services are provided to patients. Providers 
who offer higher quality care at a lower cost get paid less. Somehow, 
it is a backward system, a perverse system. It is one of the driving 
forces behind rising costs and overutilization of health care, 
particularly in some parts of the United States.
  In addition, the sustainable growth rate formula itself is flawed. 
The SGR is designed to determine annual physician payment updates by 
comparing actual expenditures to expenditure targets.
  The purpose of the SGR was to put a brake on runaway Medicare 
spending. The SGR was intended to reduce physician payment updates when 
spending exceeded growth targets. In recent years, Medicare physician 
spending has exceeded those SGR spending targets. That has resulted, 
naturally, in physician payments being cut. As the magnitude of these 
payment cuts has increased over time, Congress has stepped in to avert 
these scheduled cuts in reimbursement to doctors.

[[Page 25324]]

  In a roundabout way, the SGR has been serving its purpose. Numerous 
improvements in Medicare payments in other areas have been implemented 
over the years to offset or to pay for the various so-called doc fixes 
we have had to do and generally do them on an annual basis. Presently 
they are done on an 18-month basis, expiring December 31 this year.
  We should, in fact, be reforming physician payments. That is why I 
supported the SGR amendments offered by my colleague, the Senator from 
Texas, during the Senate Finance Committee markup that concluded 8 days 
ago. Those amendments would have provided a fully offset, positive 
physician update for the next 2 years. And if we erroneously take up a 
debate on this flawed Stabenow bill, I will have an alternative to 
offer with my good friend, the chairman of the Senate Budget Committee, 
Senator Conrad. A Conrad-Grassley amendment would be a bipartisan 
approach to this.
  Realigning incentives in the Medicare Program and paying for quality 
rather than quantity of services is, of course, an essential part of 
physician payment reform. But as fundamentally flawed as the physician 
payment system is, S. 1776, the bill before us, is just as 
fundamentally flawed. S. 1776 would add--can my colleagues believe 
this--a $\1/4\ trillion cost to the national debt. A quarter of a 
trillion, obviously, is $250 billion. But worse yet, it does not fix 
the problems we have with the physician payment system. It simply gives 
a permanent freeze to those payments. The American Association of 
Neurological Surgeons and the Congress of Neurological Surgeons oppose 
the Stabenow bill for precisely that reason, and I applaud them for 
having the courage to say so.
  My esteemed colleague, the majority leader, claims this bill has 
nothing to do with health reform. I think it has everything to do with 
health reform. He says the $247 billion cost of this bill is just 
correcting, in his words, ``payment discrepancy;'' merely, in his 
words, ``a budgetary problem,'' a problem that needs to be fixed. But I 
don't believe anybody is going to buy that argument, not even the 
Washington Post. I have here a recent editorial. They said:

       $247 billion . . . is one whopper of a discrepancy.

  S. 1776 isn't being offered to fix a budget payment discrepancy, it 
is being offered as one whopper of a backroom deal to enlist the 
support of the American Medical Association for a massive health reform 
bill that is being written behind closed doors.
  Nobody is being fooled about what is going on in this body, the most 
deliberative body in the world, the Senate.
  When President Obama spoke to a joint session of Congress last 
month--the week after we came back from our summer break--he made a 
commitment to not add one dime to the deficit now or in the future. 
Those are his words, not mine. But as this Washington Post editorial 
notes, S. 1776 would add 2.47 trillion dimes to the deficit.
  We go to chart 2 now. That would be 2.47 trillion dimes, enough to 
fill the Capitol Rotunda 23 times.
  Now we have chart 3. I wholeheartedly agree with the editorial's 
conclusion. The Post editorial said:

       A president who says that he is serious about dealing with 
     the dire fiscal picture cannot credibly begin by charging 
     this one to the national credit card . . .

  This quote is highlighted out of that same editorial.
  The Office of Management and Budget and the Treasury Department 
announced that the fiscal year 2009 deficit hit a record of $1.4 
trillion. According to the Government Accountability Office, public 
debt is projected by the year 2019 to surpass the record that was set 
in 1946, 1 year after the end of World War II. That debt was 
attributable to the war, which was the war to save the world for 
democracies because of the dictatorial governments of Italy, Germany, 
and Japan, as we recall from history.
  There is no doubt that fixing the flawed physician payment system is 
something that must be addressed. But the problem--this problem--with 
the physician payments is one of the biggest problems in health care 
that needs fixing. But at a time when the budget deficit has reached an 
alltime high of $1.4 trillion, this situation demands fiscal 
discipline.
  As the Washington Post has correctly pointed out, S. 1776 is, indeed, 
a test of the President's pledge to pay for health care reform.
  Repealing the SGR without any offsets, as S. 1776 would do, is a 
flagrant attempt to try and hide the true cost of comprehensive health 
care reform.
  Let me suggest to the American people that bill, comprehensive health 
care reform--at least the one that came out of the Senate Finance 
Committee--is thick, at 1,502 pages that we all are committed to 
reading before it goes to the floor. That bill, of course, will not go 
to the floor because now it is being merged in secrecy with the Senate 
HELP Committee bill, and so it may come out thicker. Who knows. We are 
talking about a great deal of cost connected with that and the SGR fix 
being connected with that as well.
  We have in the Senate Finance Committee bill, that was reported out, 
significant payment system reform. That bill takes savings of almost 
$\1/2\ trillion to fund a new entitlement program outside Medicare. The 
priority for Medicare savings should be fixing Medicare problems, and 
the physician payment issue and the SGR is the biggest payment system 
problem in Medicare today. It should get fixed in health care reform 
with those Medicare savings.
  I must, therefore, object not to fixing the SGR and improving the 
system for physician payments--which clearly must be done--but to this 
very flawed bill. It is only a permanent payment freeze. It does not 
fix the problem. It is not paid for. It should be a part of health care 
reform. It adds $\1/4\ trillion to the deficit. It is one whopper of a 
discrepancy. It is not credible.
  I urge my colleagues to oppose cloture on this train wreck of a bill.
  I yield the floor and, since I do not see any of my colleagues 
waiting to speak, I suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Begich). The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. LEAHY. 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. LEAHY. Mr. President, today, the Senate will finally consider the 
nomination of Roberto A. Lange to the District of South Dakota. It has 
been 3 weeks since Mr. Lange's nomination was unanimously reported by 
the Judiciary Committee to the Senate. It should not take 3 weeks to 
confirm a consensus nominee. I will be interested to hear from Senate 
Republicans who have stalled this confirmation for the last 3 weeks why 
they did so.
  There are 10 other judicial nominations reported favorably by the 
Judiciary Committee to the Senate that remain pending without consent 
from Senate Republicans to proceed to their consideration. These are 10 
other judicial nominations on the Senate Executive Calendar awaiting 
action and being stalled by Republican holds. All 10 were reported 
favorably by the Senate Judiciary Committee. Two were reported in June 
and have been waiting for more than 4 months for Senate consideration. 
These are things that we have always done by voice vote when there is 
no controversy.
  It is not only a dark mark on the Senate for holding us up from doing 
our work, but it means that the nominees have their lives on hold. They 
have been given this nomination, and everything has to come to a stop. 
They know they are going to be confirmed. They know that whenever the 
Republicans allow a vote, it will be virtually unanimous. It makes the 
Senate look foolish, and I wish my colleagues would allow these people 
to move quickly.
  The American Bar Association's Standing Committee on the Federal 
Judiciary reported that its peer review of the President's nomination 
of Mr. Lange resulted in the highest rating possible, a unanimous 
rating of well qualified. His nomination has the support of both home 
State Senators, Senator Johnson, a Democrat, and Senator

[[Page 25325]]

Thune, a Republican, and was reported out of the Judiciary Committee by 
unanimous consent on October 1. I expect the vote on the President's 
nomination of Mr. Lange to be overwhelmingly in favor, as was the 99-0 
vote for the only other district court confirmation so far this year, 
that of Judge Viken. I will be listening intently to hear why then 
Senate Republicans--despite the support of Senator Thune, the head of 
the Republican Policy Committee and a member of the Senate Republican 
leadership--have stalled this confirmation needlessly for 3 weeks.
  This is one of the 13 judicial nominations reported favorably by the 
committee to the Senate since June to fill circuit and district court 
vacancies on Federal courts around the country. Ten of those 
nominations were reported without a single dissenting voice. This is 
unfortunately only the third of those judicial nominations to be 
considered all year.
  It is October 21. By this date in the administration of George W. 
Bush, we had confirmed eight lower court judges. By this juncture in 
the administration of Bill Clinton, we had likewise confirmed eight 
circuit and district court nominations. The Senate has confirmed just 
three circuit and district court nominees this year less than half of 
those considered by this date during President Bush's tumultuous first 
year in office and confirmed by this date during President Clinton's 
first year. This is despite the fact that President Obama sent nominees 
with bipartisan support to the Senate two months earlier than did 
President Bush. Moreover, President Clinton's term also began with the 
need to fill a Supreme Court vacancy.
  The first of these circuit and district court confirmations this year 
did not take place until September 17, months after the nomination of 
Judge Gerard Lynch had been reported out of committee with no dissent. 
Finally, after months of needless delay, the Senate confirmed Judge 
Lynch to serve on the Second Circuit by an overwhelming vote of 94 to 
3. That filled just one of the five vacancies this year on the Second 
Circuit. The Second Circuit bench remains nearly one-quarter empty with 
four vacancies on its 13-member bench.
  Judge Viken, the first of just two district court judges the Senate 
has been allowed to vote on this year, was confirmed on September 29, 
by a unanimous 99-0 vote. Today, the Senate is finally being allowed by 
Republicans to vote to confirm Roberto Lange, who was reported by the 
committee on October 1. It took 3 weeks to proceed to Mr. Lange's 
nomination despite the fact that he, like Judge Viken, had the support 
of both his home State Senators, one a respected Democratic Senator and 
the other a Republican Senator who is a member of the Republican Senate 
leadership.
  South Dakota has had its two vacancies filled this year but vacancies 
in 35 other States remain unfilled and the Senate's constitutional 
responsibilities are going unfulfilled. There was--there is--no reason 
for the Republican minority to impose these unnecessary and needless 
delays to judicial confirmations. When will Senate Republicans allow 
the Senate to consider the nominations of Judge Hamilton to the Seventh 
Circuit, Judge Davis to the Fourth Circuit, Judge Martin to the 
Eleventh Circuit, Judge Greenaway to the Third Circuit, Judge Berger to 
the Southern District of West Virginia, Judge Honeywell to the Middle 
District of Florida, Judge Nguyen to the Central District of 
California, Judge Chen to the Northern District of California, Ms. Gee 
to the Central District of California and Judge Seeborg to the Northern 
District of California?
  In a recent column, Professor Carl Tobias wrote:

       President Obama has implemented several measures that 
     should foster prompt appointments. First, he practiced 
     bipartisanship to halt the detrimental cycle of accusations, 
     countercharges and non-stop paybacks. Moreover, the White 
     House has promoted consultation by seeking advice on 
     designees from Democratic and GOP Senate members, especially 
     home state senators, before official nominations. Obama has 
     also submitted consensus nominees, who have even temperaments 
     and are very smart, ethical, diligent and independent.

  I ask unanimous consent that a copy of Professor Tobias's column be 
printed in the Record following my statement.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 1.)
  Mr. LEAHY. When I served as chairman of the Senate Judiciary 
Committee during President Bush's first term, I did my best to stop the 
downward spiral that had affected judicial confirmations. Throughout my 
chairmanship I made sure to treat President Bush's judicial nominees 
better than the Republicans had treated President Clinton's. During the 
17 months I chaired the Judiciary Committee during President Bush's 
first term, we confirmed 100 of his judicial nominees. At the end of 
his Presidency, although Republicans had chaired the Judiciary 
Committee for more than half his tenure, more of his judicial nominees 
were confirmed when I was the chairman than in the more than 4 years 
when Republicans were in charge.
  In spite of President Obama's efforts, however, Senate Republicans 
began this year threatening to filibuster every judicial nominee of the 
new President. They have followed through by dragging out, delaying, 
obstructing and stalling the process. The result is that 10 months into 
President's Obama's first term, the Senate has confirmed only three of 
his nominations for circuit and district courts while judicial 
vacancies skyrocket around the country. The delays in considering 
judicial nominations pose a serious problem in light of the alarming 
spike in judicial vacancies on our Federal courts.
  There are now 96 vacancies on Federal circuit and district courts and 
another 24 future vacancies already announced. These vacancies are at 
near record levels. Justice should not be delayed or denied to any 
American because of overburdened courts. We can do better. The American 
people deserve better.
  Professor Tobias' observations about the Second Circuit hold true 
throughout the country and with respect to this President's efforts to 
work cooperatively with respect to judicial nominations. President 
Obama made his first judicial nomination, that of Judge David Hamilton 
to the Seventh Circuit, in March, but it has been stalled on the 
Executive calendar since early June, despite the support of the senior 
Republican in the Senate, Senator Lugar. The nomination of Judge Andre 
Davis to the Fourth Circuit was reported by the committee on June 4 by 
a vote of 16 to 3, but has yet to be considered by the Senate. The 
nomination of Judge Beverly Baldwin Martin to the Eleventh Circuit has 
the support of both of Georgia's Senators, both Republicans, and was 
reported unanimously from the committee by voice vote on September 10 
but has yet to be considered or scheduled for consideration by the 
Senate. The nomination of Joseph Greenaway to the Third Circuit has the 
support of both Pennsylvania Senators, and was reported unanimously 
from the committee by voice vote on October 1, but has yet to be 
considered or scheduled for consideration by the Senate. All of these 
nominees are well-respected judges. All will be confirmed, I believe, 
if only Republicans would consent to their consideration by the Senate. 
Instead, the President's good efforts are being snubbed and these 
nominees stalled for no good purpose.
  President Obama has been criticized by some for being too solicitous 
of Senate Republicans. As Wade Henderson, the executive director of the 
Leadership Conference on Civil Rights, said to The Washington Post 
recently: ``I commend the President's effort to change the tone in 
Washington. I recognize that he is extending an olive branch to 
Republicans on the Judiciary Committee and in the Senate overall. But 
so far, his efforts at reconciliation have been met with partisan 
hostility.'' As usual, Wade has it right. The efforts the President has 
made have not been reciprocated.
  The Senate can and must do a better job of restoring our tradition of 
regularly considering qualified, noncontroversial nominees to fill 
vacancies on the Federal bench without needless and harmful delays. 
This is a tradition followed with Republican

[[Page 25326]]

Presidents and Democratic Presidents. We should not have to overcome 
filibusters and spend months seeking time agreements to consider 
consensus nominees.
  In addition, four nominations to be Assistant Attorneys General at 
the Department of Justice remain on the Executive calendar, three of 
them for many months. Republican Senators have also prevented us from 
moving to consider the nomination of respected Federal Judge William 
Sessions of Vermont to be Chairman of the United States Sentencing 
Commission for over 5 months, even though he was twice confirmed as a 
member of that Commission. The majority leader has been forced to file 
a cloture motion in order to end the obstruction of that nomination.
  Four out of a total of 11 divisions at the Department of Justice 
remain without Senate-confirmed Presidential nominees because of 
Republican holds and delays--the Office of Legal Counsel, the Tax 
Division, the Office of Legal Policy, and the Environment and Natural 
Resources Division. Earlier this month, with the hard work of Senator 
Cardin, we were finally able to move forward to confirm Tom Perez to 
head the Civil Rights Division at the Justice Department. His 
nomination was stalled for 4 months, despite the fact that he was 
approved 17 to 2 by the Judiciary Committee. At the last minute, Senate 
Republicans abandoned an ill-fated effort to filibuster the nomination 
and asked that the cloture vote be vitiated. He was finally confirmed 
with more than 70 votes in the Senate.
  During the 17 months I chaired the Judiciary Committee during 
President Bush's first term, we confirmed 100 of his judicial nominees 
and 185 of his executive nominees referred to the Judiciary Committee. 
And yet 10 months into President's Obama's first term, we have 
confirmed only 2 of his nominations for circuit and district courts and 
40 of the executive nominees that have come through our committee.
  I hope that, instead of withholding consents and filibustering 
President Obama's nominees, the other side of the aisle will join us in 
treating them fairly. We should not have to fight for months to 
schedule consideration of the President's judicial nominations and 
nomination for critical posts in the executive branch.
  I look forward to congratulating Mr. Lange and his family on his 
confirmation today. I commend Senator Johnson for his steadfastness in 
making sure his State is well served.

                               Exhibit 1

  Commentary: Second Circuit Appeals Court Openings Need To Be Filled

                            (By Carl Tobias)

       The country's attention was recently focused on the Senate 
     confirmation vote for U.S. Second Circuit Court of Appeals 
     Judge Sonia Sotomayor, President Barack Obama's initial 
     Supreme Court nominee and judicial appointment. This emphasis 
     was proper because the tribunal is the highest court in the 
     nation and decides appeals involving fundamental 
     constitutional rights.
       Nonetheless, the same day that Justice Sotomayor received 
     appointment, Second Circuit Judge Robert Sack assumed senior 
     status, a type of semi-retirement, thereby joining his 
     colleague, Guido Calabresi, who had previously taken senior 
     status. Moreover, on Oct. 10, Judge Barrington Parker also 
     assumed senior status. These developments mean that the 
     Second Circuit will have vacancies in four of its thirteen 
     authorized judgeships.
       Operating without nearly 25 percent of the tribunal's 
     judicial complement will frustrate expeditious, inexpensive 
     and equitable disposition of appeals. Thus, President Obama 
     should promptly nominate, and the Senate must swiftly 
     confirm, outstanding judges to all four openings.
       The numerous vacancies can erode the delivery of justice by 
     the Second Circuit, which is the court of last resort for all 
     but one percent of appeals taken from Connecticut, New York 
     and Vermont. The tribunal resolves more critical business 
     disputes than any of the 12 regional circuits and decides 
     very controversial issues relating to questions, such as free 
     speech, property rights and terrorism.
       Among the appellate courts, the Second Circuit needs more 
     time to conclude appeals than all except one, which is a 
     useful yardstick of appellate justice. The August loss of two 
     active judges and the October loss of a third will exacerbate 
     the circumstances, especially by additionally slowing the 
     resolution of cases that are essential to the country's 
     economy.
       There are several reasons why the tribunal lacks almost one 
     quarter of its members. Judge Chester Straub took senior 
     status in July 2008, and President George W. Bush nominated 
     Southern District of New York Judge Loretta Preska on Sept. 9 
     after minimally consulting New York's Democratic Senators 
     Charles Schumer and Hillary Clinton. September was too late 
     in a presidential election year for an appointment, and the 
     110th Senate adjourned without affording the nominee a 
     hearing.
       Moreover, President Obama has nominated no one for the 
     Calabresi or Sack opening, although both jurists announced 
     that they intended to take senior status last March. In 
     fairness, Judge Calabresi did not actually assume senior 
     status until late July, while Judge Sack only took senior 
     status and Justice Sotomayor was confirmed in August.
       President Obama has implemented several measures that 
     should foster prompt appointments. First, he practiced 
     bipartisanship to halt the detrimental cycle of accusations, 
     countercharges and non-stop paybacks. Moreover, the White 
     House has promoted consultation by seeking advice on 
     designees from Democratic and GOP Senate members, especially 
     home state senators, before official nominations. Obama has 
     also submitted consensus nominees, who have even temperaments 
     and are very smart, ethical, diligent and independent. The 
     Executive has worked closely with Senator Patrick Leahy (D-
     Vt.), the Judiciary Committee chair, who schedules hearings 
     and votes, and Senator Harry Reid (D-Nev.), the Majority 
     Leader, who arranges floor debates and votes, and their GOP 
     counterparts to facilitate confirmations.
       Emblematic is the President's nomination of U.S. District 
     Judge Gerard Lynch, who served with distinction on the U.S. 
     District Court for the Southern District of New York since 
     2000. New York Democratic Senators Schumer and Kirsten 
     Gillibrand expeditiously suggested the superb trial judge to 
     Obama, who nominated Lynch on April 2. By mid-May, the panel 
     conducted Lynch's confirmation hearing, and on June 11, the 
     committee approved Lynch. In mid-September, the Senate 
     confirmed Lynch on a 94-3 vote.
       Senator Schumer's Sept. 9 announcement that he had 
     recommended District Judge Denny Chin to the White House and 
     the jurist's Oct. 6 nomination are precisely the correct 
     approaches. The New York and Connecticut senators must 
     continue suggesting excellent candidates for the three Second 
     Circuit openings which remain. Obama must swiftly consider 
     their proposals and nominate outstanding prospects. The 
     Judiciary Committee should promptly afford hearings and 
     votes, while the Majority Leader ought to expeditiously 
     schedule floor debates and votes.
       Judge Sotomayor's Supreme Court elevation, the assumption 
     of senior status by Judges Calabresi, Parker and Sack and 
     Judge Lynch's recent Senate confirmation mean there are four 
     openings in the Second Circuit's thirteen judgeships. 
     President Obama should cooperate with the Senate to quickly 
     fill the vacancies with superior judges, so that the tribunal 
     can deliver appellate justice.

  Mr. LEAHY. Mr. President, I ask unanimous consent that my further 
remarks be charged against my time in connection with this nomination.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (The remarks of Mr. Leahy are printed in today's Record under 
``Morning Business.'')
  Mr. LEAHY. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. 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 briefly make a few comments 
about the confirmation vote we will soon be having on supporting this 
nominee. I saw him, as a member of the Judiciary Committee, and we made 
inquiry of him. I liked him. He handled himself well.
  He has been a strong and ardent Democrat all his life--an active 
Democrat. He was educated, I believe, at the University of South Dakota 
and has practiced law a long time there. I think he has the ability and 
the commitment--he said he did and I believe him--not to allow his 
politics to influence his decisionmaking once he puts on that robe; 
that he will be objective and fair; that he will comply with the oath a 
judge takes to be impartial; that he will provide equal justice for the 
poor and the rich; and that he will serve the laws of the United States 
under the Constitution. So we moved him forward, and I am glad he will 
be confirmed.

[[Page 25327]]

  I will note that some nominees I will not be able to support, and I 
would expect some others may object as well. It is our responsibility 
to be careful and to be cautious in making decisions about judges 
because they are given a lifetime appointment. They can't be removed 
for bad decisionmaking. I believe the President has submitted two more 
nominees to the district bench. There are 74 vacancies in the Federal 
courts in America as of today. A few days ago, there were 9 nominations 
pending--this is 1 of them--and now there are 11 nominations, I 
understand, pending.
  As the President gets his machine up and running and starts 
submitting nominees, I think we will have good hearings. My view is 
that if they are qualified, it doesn't make any difference to me if 
they are an active, partisan, campaigning Democrat. That is fine. The 
question simply is, once they put on the robe and they are required to 
decide cases, can they put aside their personal feelings, backgrounds, 
emotions, and partisanship? Most judges can.
  I practiced in Alabama, where judges run on a party ticket. They run 
as Republicans and Democrats. Everybody knows which of them--very few--
carry those biases with them.
  The PRESIDING OFFICER. The Senator's time has expired.
  Mr. SESSIONS. I thank the Chair, and I urge my colleagues to support 
the nomination.
  The PRESIDING OFFICER (Mr. Udall of New Mexico). The question is, 
Will the Senate advise and consent to the nomination of Roberto A. 
Lange, of South Dakota, to be United States District Judge for the 
District of South Dakota?
  Mr. SESSIONS. I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The clerk will call the roll.
  The bill clerk called the roll.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 100, nays 0, as follows:

                      [Rollcall Vote No. 324 Ex.]

                               YEAS--100

     Akaka
     Alexander
     Barrasso
     Baucus
     Bayh
     Begich
     Bennet
     Bennett
     Bingaman
     Bond
     Boxer
     Brown
     Brownback
     Bunning
     Burr
     Burris
     Byrd
     Cantwell
     Cardin
     Carper
     Casey
     Chambliss
     Coburn
     Cochran
     Collins
     Conrad
     Corker
     Cornyn
     Crapo
     DeMint
     Dodd
     Dorgan
     Durbin
     Ensign
     Enzi
     Feingold
     Feinstein
     Franken
     Gillibrand
     Graham
     Grassley
     Gregg
     Hagan
     Harkin
     Hatch
     Hutchison
     Inhofe
     Inouye
     Isakson
     Johanns
     Johnson
     Kaufman
     Kerry
     Kirk
     Klobuchar
     Kohl
     Kyl
     Landrieu
     Lautenberg
     Leahy
     LeMieux
     Levin
     Lieberman
     Lincoln
     Lugar
     McCain
     McCaskill
     McConnell
     Menendez
     Merkley
     Mikulski
     Murkowski
     Murray
     Nelson (NE)
     Nelson (FL)
     Pryor
     Reed
     Reid
     Risch
     Roberts
     Rockefeller
     Sanders
     Schumer
     Sessions
     Shaheen
     Shelby
     Snowe
     Specter
     Stabenow
     Tester
     Thune
     Udall (CO)
     Udall (NM)
     Vitter
     Voinovich
     Warner
     Webb
     Whitehouse
     Wicker
     Wyden
  The nomination was confirmed.
  The PRESIDING OFFICER. Under the previous order, the motion to 
reconsider is considered made and laid upon the table. The President 
will be immediately notified of the Senate's action.

                          ____________________