[Congressional Record (Bound Edition), Volume 155 (2009), Part 6]
[Senate]
[Pages 6889-6914]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

       NOMINATION OF DAVID W. OGDEN TO BE DEPUTY ATTORNEY GENERAL

  The PRESIDING OFFICER (Mr. Casey). Under the previous order, the 
Senate will proceed to executive session to consider the following 
nomination, which the clerk will report.
  The assistant legislative clerk read the nomination of David W. 
Ogden, of Virginia, to be Deputy Attorney General.
  The PRESIDING OFFICER. Under the previous order, the time until 4:30 
p.m. will be equally divided and controlled between the leaders or 
their designees.
  The Senator from Vermont.
  Mr. LEAHY. Mr. President, I am opening this debate in my capacity not 
only as a Senator from Vermont but as chairman of the Judiciary 
Committee.
  We are here today to consider President Obama's nomination of David 
Ogden to be Deputy Attorney General, the number two position at the 
Department of Justice. This is a picture, incidentally, of David Ogden. 
I had hoped we could vote on this nomination soon--although apparently, 
because of objections on the other side, we will not be able to vote 
until tomorrow. This is unfortunate. Every day we delay the appointment 
of the Deputy Attorney General is a day we are not enhancing the 
security of the United States.
  In this case, we have a nominee who I had hoped to have confirmed 
weeks

[[Page 6890]]

ago. Mr. Ogden is a highly qualified nominee who has chosen to leave a 
very successful career in private practice--one I might say 
parenthetically pays considerably more than the Department of Justice 
does--to return to the Department, where he served with great 
distinction. His path in many ways reflects that of the Attorney 
General, Eric Holder, who, of course, also was a highly successful and 
respected partner in one of the major law firms in Washington. And he 
left to become Attorney General of the United States at the request of 
President Obama to serve his Nation. Mr. Ogden is doing the same thing.
  Interestingly enough, once Mr. Ogden's nomination was announced, the 
letters of support started to come in from leading law enforcement 
organizations across the country. Let me put a few of these up on this 
chart. As you can see, Mr. Ogden's nomination received support from 
leading law enforcement organizations; children's advocates; civil 
rights organizations; and former Government officials from both 
Republican and Democratic administrations.
  Indeed, Larry Thompson, the former Deputy Attorney General under 
President George W. Bush, a highly respected former public official, 
has endorsed David Ogden to be Deputy Attorney General.
  The Boys and Girls Clubs of America, an organization I have spent a 
lot of time with and one I highly respect. This organization provides 
alternative programs and a great mentoring system for children in many 
cities to keep them out of trouble. And this fine organization has 
endorsed David Ogden.
  A dozen retired military officers who serve as Judge Advocates 
General have endorsed Mr. Ogden's nomination.
  The Fraternal Order of Police and the Federal Law Enforcement 
Officers Association, two major law enforcement organizations, have 
endorsed him.
  The Major Cities Chiefs Association have endorsed him.
  The National Center for Missing and Exploited Children, another 
organization I have worked a great deal with, and one that has done 
such wonderful things to help in the case of missing and exploited 
children, has also endorsed him.
  The National Association of Police Organizations has endorsed David 
Ogden.
  The National District Attorneys Association has endorsed him, which I 
was particularly pleased to see. I once served as vice president of the 
National District Attorneys Association. As an aside, I should note 
that I gave up the honor and glory of becoming president of the 
National District Attorneys Association for the anonymity of the 
Senate.
  The National Narcotics Officers' Associations' Coalition has endorsed 
David Ogden.
  The National Sheriffs' Association has endorsed David Ogden.
  The Police Executive Research Forum has endorsed David Ogden.
  The National Center for Victims of Crime has endorsed David Ogden.
  Why have they endorsed him? Because he is an immensely qualified 
nominee, and he has the obvious priorities that we want in a Deputy 
Attorney General. His priorities will be the safety and security of the 
American people and to reinvigorate the traditional work of the Justice 
Department in protecting the rights of all Americans. That is why he 
will be a critical asset to the Attorney General. He will help us 
remember it is the Deputy Attorney General of the United States, and it 
is the Department of Justice for all Americans.
  With all of these endorsements, including all of the major law 
enforcement groups endorsing him, and all the endorsements from both 
Republicans and Democrats, what is astonishing for all these law 
enforcement organizations wanting him there is that Republicans 
threatened to filibuster this nomination. They refused to agree to this 
debate and a vote on the nomination, and they required the majority 
leader to file a cloture motion, which he did on Monday. For more than 
a week we were told that Republicans would not agree to a debate and 
vote and would insist on filibustering this nomination.
  It is amazing. I don't know if Republicans are aware of what is going 
on in this country--the rising crime rates which began rising in the 
last year or so and the critical nature working families are facing. 
And yet they want to filibuster a nominee, one of the best I have seen 
for this position in my 35 years in the Senate.
  I noted that development and the threat of a filibuster at a 
Judiciary Committee business meeting last Thursday, after a week of 
fruitless efforts to try to move this nomination forward by agreement 
and obviate the need for a filibuster. I noted my disappointment that, 
despite the bipartisan majority vote in favor of the nomination by 
Republicans and Democrats on the committee, despite the support from 
law enforcement groups, despite the support from children's advocates, 
and despite the support from former Government officials for Republican 
and Democratic administrations, we have been stalled in our ability to 
move forward to consider this nomination. And, of course, the Justice 
Department, which is there to represent all Americans--Republicans and 
Democrats, Independents, and everybody--is left without a deputy for 
another week.
  Quite frankly, I found the news of an imminent Republican filibuster 
incomprehensible. I could not think of any precedent for this during my 
35 years in the Senate. A bipartisan majority--14 to 5--voted to report 
this nomination from the Judiciary Committee to the Senate. The ranking 
Republican member of the committee, Senator Specter, voted to support 
this nomination. The assistant Senate Republican leader, Senator Kyl, 
and the senior Senator from South Carolina, Mr. Graham, voted in favor 
of Mr. Ogden. And yet, in spite of this bipartisan support, someone or 
a group of Senators on the Republican side of the aisle were intent on 
filibustering this nominee to stop us from having a Deputy Attorney 
General who might actually be there to help fight crime in America.
  Why there was this attempt of filibustering President Obama's 
nomination for Deputy Attorney General of the United States, and 
depriving law enforcement in this country of his support, I cannot not 
understand.
  Two weeks ago, we debated and voted on the nomination in the 
Judiciary Committee. Those who opposed the nomination had the 
opportunity to explain their negative vote. I urge all Senators to 
reject these false and scurrilous attacks that have been made against 
Mr. Ogden. I also held out hope that they would reject applying an 
obvious double standard when it comes to President Obama's nominees. 
Remember, these are the same people who voted unanimously for one of 
the worst attorneys general in this Nation's history, former Attorney 
General Gonzales.
  I am glad some semblance of common sense has finally prevailed on the 
Republican side of the aisle. I guess somebody looked at the facts and 
said: ``This makes absolutely no sense whatsoever, and there is no way 
of justifying this to Americans, other than to the most partisan of 
Americans,'' and they reversed their position. They now say they will 
not filibuster this nomination.
  It was disturbing to see the President's nomination of Mr. Ogden to 
this critical national security post being held up this long by Senate 
Republicans apparently on some kind of a partisan whim.
  I voted for all four of the nominees that the Senate confirmed and 
President Bush nominated to serve as the Deputy Attorney General during 
the course of his Presidency. In fact, each of the four was confirmed 
by voice vote. Not a single Democratic Senator voted against them and 
some may not have been the people we would have chosen had it been a 
Democratic President. But we respected the fact the American people 
elected a Republican President and he deserved a certain amount of 
leeway in picking his nominees.
  Of course, we heard the same preaching from the Republican side. 
Suddenly their position has now changed since the American people, by a 
landslide, elected a Democratic President. What

[[Page 6891]]

Republicans are essentially saying is President Obama does not get the 
same kind of credit that President Bush did. That amounts to a double 
standard, especially after every Republican Senator supported each of 
President Bush's nominees, as they did the nomination of Alberto 
Gonzales.
  Today, however, there will be no more secret and anonymous Republican 
holds. Any effort to oppose the President's nominees--executive or 
judicial--will have to withstand public scrutiny. There can be no more 
anonymous holds. We can turn at last to consideration of President 
Obama's nomination of David Ogden to be Deputy Attorney General, the 
No. 2 position at the Department.
  Let me tell you a little bit about David Ogden. As a former high-
ranking official at both the Defense Department and the Justice 
Department, he is the kind of serious lawyer and experienced Government 
servant who understands the special role the Department of Justice must 
fulfill in our democracy. It is no surprise that his nomination has 
received strong support from leading law enforcement organizations, 
children's advocates, civil rights organizations, and former Government 
officials from Republican and Democratic administrations.
  The confirmation of Mr. Ogden to this critical national security post 
should not be further delayed. The Deputy Attorney General is too 
important a position to be made into a partisan talking point for 
special interest politics.
  Now, I understand some people want to do fundraising as they talk 
about their ability to block nominations of President Obama. I wonder 
if they know how critical the situation is in this country. This is not 
the time for partisan political games. This is a time where all of us 
have a stake in the country getting back on track and we ought to be 
working to do that. Stop the partisan games. The Deputy Attorney 
General is needed to manage the Justice Department with its many 
divisions, sections, and offices and tens of thousands of employees. As 
Deputy Attorney General, Mr. Ogden would be responsible for the day-to-
day management of the Justice Department, including the Department's 
critical role of keeping our Nation safe from the threat of terrorism.
  I want to thank Mark Filip, the most recent Deputy Attorney General 
and a Republican. Judge Filip came from Chicago last year motivated by 
public service. He had a lifetime appointment as a Federal judge where 
he served with distinction as a conservative Republican. He gave up his 
lifetime appointment after the scandals of the Gonzalez Justice 
Department, where not only did the Attorney General resign but 
virtually everybody at the top echelon of the Department of Justice 
resigned because of the outrageous scandals at that time. I urged his 
fast and complete confirmation and he was confirmed just over one year 
ago, unanimously, by voice vote.
  Now, are Judge Filip and I different politically? Yes, of course we 
are. We differ in many areas. Yet, I saw a man dedicated to public 
service. He gave up his dream of a lifetime position on the Federal 
bench. He saw the scandals of the former Attorney General and all the 
people who had to be replaced by President Bush because of the 
scandalous conduct, and he came in for the good of the country to help 
right it. I admire him for that. I was chairman of the committee that 
unanimously endorsed his nomination. As chairman of the committee, I 
came to the floor of the Senate and urged his support.
  On February 4, after 11 months of dedicated and commendable service 
to us all he left the Justice Department. It is time, over a month 
later, that his replacement be confirmed by the Senate.
  The Senate's quick consideration of Mr. Filip's nomination was 
reflective of how Senate Democrats approached the confirmations of 
nominees for this critical position. President Bush's first nominee to 
serve as Deputy Attorney General, Larry Thompson, received similar 
treatment. At the beginning of a new President's term, it is common 
practice to expedite consideration of Cabinet and high level nominees. 
I remember that nomination very well. I was the ranking Democrat on the 
committee at that time. His hearing was just 2 weeks after his 
nomination. He was reported by the Judiciary Committee unanimously. 
Every Democratic Senator voted in favor of reporting his nomination. 
And he was confirmed that same day by voice vote by the Senate. No 
shenanigans. No partisanship. No posturing for special interests.
  His replacement was James Comey. He, like Mr. Ogden, was a veteran of 
the Department of Justice. The Democratic Senators in the Senate 
minority did not filibuster, obstruct or delay that nomination. We knew 
how important it was. We cooperated in a hearing less than 2 weeks 
after he was nominated. He was reported from the committee unanimously 
in a 19-0 vote, and he was confirmed by the Senate in voice vote.
  Even when President Bush nominated a more contentious choice, a 
nominee with a partisan political background, Senate Democrats did not 
filibuster. Paul McNulty was confirmed to serve as the Deputy Attorney 
General in 2006 in a voice vote by the Senate. While there were 
concerns, there was no filibuster. As it turned out, Mr. McNulty 
resigned in the wake of the U.S. attorney firing scandal, along with 
Attorney General Gonzales and so many others in leadership positions at 
the Department of Justice.
  I voted for all four of the nominees that the Senate confirmed and 
President Bush appointed to serve as the Deputy Attorney General during 
the course of his presidency. In fact, each of the four was confirmed 
by voice vote. Not a single Democratic Senator voted against them. And, 
of course, every Republican Senator supported each of those nominees as 
they did the nomination of Alberto Gonzales and the other nominations 
of President Bush to high ranking positions at the Justice Department.
  I bring up this history to say let us stop playing partisan games. 
Mr. Ogden's nomination to be Deputy Attorney General, a major law 
enforcement position, is supported by Republicans and Democrats, at a 
time when we need the best in our law enforcement in this country.
  The Justice Department is without a confirmed deputy at a time when 
we face great threats and challenges. Indeed, one of the 
recommendations of the bipartisan 9/11 Commission was that after 
Presidential transitions, nominees for national security appointments, 
such as Mr. Ogden, be accelerated. In particular, the 9/11 Commission 
recommended:

       A president-elect should submit the nominations of the 
     entire new national security team, through the level of 
     undersecretary of cabinet departments, not later than January 
     20.

  The commission also recommended that the Senate:

     should adopt special rules requiring hearings and votes to 
     confirm or reject national security nominees within 30 days 
     of their submission.

  President Obama did his part when he designated Mr. Ogden to be the 
Deputy Attorney General on January 5, more than 2 months ago. We now 
are at March 11. It is time for the Senate to act. Stop the partisan 
games, stop the holding up, stop the holds and the threats of 
filibusters and all the rest. The problems and threats confronting the 
country are too serious to continue to delay and to play partisan 
games, no matter which fundraising letter somebody wants to send out. 
Forget the fundraising letters for a moment; let us deal with the needs 
of our Nation.
  Scurrilous attacks against Mr. Ogden have been launched by some on 
the extreme right. David Ogden is a good lawyer and a good man. He is a 
husband and a father. The chants that David Ogden is somehow a 
pedophile and a pornographer are not only false, they are so wrong. 
Senators know better than that. Forget the fundraising letters, let us 
talk about a decent family man, an exceptional lawyer. Let us talk 
about somebody who answered every question at his confirmation hearing, 
not only about those he represented legally but about his personal 
views.
  I questioned Mr. Ogden at his hearing and he gave his commitment to 
vigorously enforce Federal law, regardless of

[[Page 6892]]

the positions he may have taken on behalf of his clients in private 
practice. I asked him if he had the right experience to be Deputy 
Attorney General and he pointed out his extensive experience managing 
criminal matters at the Department and in private practice. I asked him 
to thoroughly review the practice of prosecutors investigating and 
filing law suits on the eve of elections, and he said he would. I asked 
him to work with me on a mortgage and financial fraud law, and he was 
agreeable. I asked about his experience in the type of national 
security matters that have become more than ever before central to the 
mission of the Justice Department, and he highlighted his extensive 
national security experience and lessons he learned as General Counsel 
for the Department of Defense. On all these matters he was candid and 
reassuring.
  That is why Mr. Ogden's nomination has received dozens of letters of 
support, including strong endorsements from Republican and Democratic 
former public officials and high-ranking veterans of the Justice 
Department, from the National Center for Missing and Exploited 
Children, the Boys and Girls Clubs of America, and from nearly every 
major law enforcement organization.
  As one who began his public career in law enforcement, I would not 
stand here and endorse somebody for such a major law enforcement 
position if I did not feel it was a person who should do this. Larry 
Thompson, a former Deputy Attorney General himself, and somebody I 
worked with on law enforcement matters when he was here as a Republican 
nominee, described Mr. Ogden as

       A brilliant and thoughtful lawyer who has the complete 
     confidence and respect of career attorneys at Main Justice. 
     David will be a superb Deputy Attorney General.

  Chuck Canterbury, who is the national president of the Fraternal 
Order of Police, wrote that Mr. Ogden

       . . . possesses the leadership and experience the Justice 
     Department will need to meet the challenges which lay before 
     us.

  A dozen retired military officers who served as judge advocates 
general have endorsed Mr. Odgen's nomination, calling him

       . . . a person of wisdom, fairness, and integrity, a public 
     servant vigilant to protect the national security of the 
     United States, and a civilian official who values the 
     perspective of uniformed lawyers in matters within their 
     particular expertise.

  I know something about law enforcement, not only from my past career 
but the 35 years I have served in this body, most of that time on the 
Senate Judiciary Committee dealing with law enforcement matters. I know 
that David Ogden is an immensely qualified nominee whose priorities 
would be the safety and security of the American people, but also to 
reinvigorate the traditional work of the Justice Department in 
protecting the rights of Americans--all Americans. We do not want to go 
back to the scandalous time of a former Attorney General, where the 
rights of only certain Americans were protected, and political and 
partisan decisions were made about whose rights would be protected. 
This is the Department of Justice. It is the Deputy Attorney General of 
the United States. It is not the Deputy Attorney General of the 
Republican Party or the Democratic Party, but the Deputy Attorney 
General for all of us. That is why he is going to be a critical asset 
to the Attorney General.
  I urge all Senators to support him. Give the same kind of support to 
Mr. Ogden as Democrats did to Judge Filip when he came in to try to 
clean up the mess created by a former Attorney General.
  One of the joys of being chairman of the Senate Judiciary Committee 
are the people I get to serve with. Over the years, I have served with 
numerous Senators, including the father of one of our current Senators. 
For a lawyer, it is an intellectually exhilarating committee to serve 
on, but again because of some of the great people who serve here.
  The Senator from Delaware is the newest member of the committee 
because the former Senator from Delaware--whom I served with for well 
over 30 years on that committee. Part of the time he was chairman and 
part of the time he was ranking member; part of the time I was chairman 
and part of the time he was ranking member--has left the Senate to be 
involved in the Senate now only as the presiding officer, because he 
went on to become Vice President of the United States. His replacement, 
Senator Kaufman of Delaware, moved into that seat on the Senate 
Judiciary Committee as though he had served there for all those 
decades. In a way, he did, as a key person working for former Senator 
Biden.
  I have often joked that Senators are merely constitutional 
impediments or constitutional necessities to the staff, who do all the 
work. Now we have somebody who has both the expertise of having been 
one of the finest staff people I have ever served with and now one of 
the best Senators I have served with, and a great addition to the 
Senate Judiciary Committee.
  So as not to embarrass him further, I will yield to the distinguished 
Senator from Delaware.
  I reserve the remainder of my time.
  The PRESIDING OFFICER. The Senator from Delaware.
  Mr. KAUFMAN. Mr. President, people have asked me what it is like to 
be a Senator as opposed to being chief of staff, and one of the great 
things is getting to work with a chairman such as Chairman Leahy on the 
Judiciary Committee; someone who knows what he is about, knows the 
Senate, and is a former prosecutor. We are truly fortunate to have him 
as chair and also to have a truly great staff on the Senate Judiciary 
Committee, led by Bruce Cohen. So it is a great and a genuine pleasure. 
Pleasure is used a lot of times on the floor. Sometimes it is not too 
pleasurable. But this is truly pleasurable, to work with the chairman 
and the staff of the Judiciary Committee, but especially the chairman. 
So I thank the chairman for his kind remarks.
  I do agree with so much of what he has to say about David Ogden for 
Deputy Attorney General. I, along with him, am deeply disappointed that 
the nomination of David Ogden for Deputy Attorney General has been so 
needlessly delayed. This has real consequences for the administration 
of law in our country during a challenging time. Depriving the 
Department of Justice of senior leadership at this critical juncture is 
much more than unfortunate.
  As we saw from his confirmation hearings in the Judiciary Committee 
more than a month ago, David Ogden has excellent academic credentials 
and broad experience in law and government. He fully understands the 
special role of the Department of Justice and is deeply committed to 
the rule of law. He has broad support from lawyers of all political and 
judicial philosophies.
  President Obama designated Mr. Ogden be Deputy Attorney General on 
January 5, which seems like an eternity ago--over 2 months ago. We held 
his confirmation hearing in the Judiciary Committee over a month ago 
and, on February 26, after thorough consideration, a bipartisan 
majority of the committee, 14 to 5, voted to report his nomination. The 
ranking member, the Senate minority whip and the well-respected senior 
Senator from South Carolina, voted in favor of his nomination.
  Despite that bipartisan vote and broad support from law enforcement 
groups, children's advocates, civil rights organizations, former 
Democratic and Republican officials, his nomination has faced 
unwarranted delay. This delay is unfortunate in itself, particularly 
when the nominee has impeccable credentials and broad support. However, 
as important, this delay has come at a critical time for the Department 
of Justice. Without a Deputy Attorney General, the Department is forced 
to deal with some of the most important issues facing this Nation with 
one hand tied behind its back.
  The Deputy Attorney General holds the No. 2 position at the 
Department of Justice and, as we all know, is responsible for the day-
to-day management of the Department, including critical national 
security responsibilities. The Deputy Attorney General, for example,

[[Page 6893]]

signs FISA applications. These are essential to ensuring that our 
intelligence services get the information they need to protect us from 
terrorism and other national security threats. The Deputy Attorney 
General will also play an important role in overseeing the Guantanamo 
Bay detainee review, to make sure we assess each of the remaining 
detainees and make sure they are safely and appropriately transferred--
I know an issue that everyone in this body shares a concern about.
  One of the recommendations of the bipartisan 9/11 Commission was that 
after Presidential transitions, nominations for national security 
appointments, such as Mr. Ogden's, be accelerated. The delay we are 
seeing now, to put it mildly, is not helping those who are sworn to 
protect our country. The Deputy Attorney General manages the criminal 
division of the FBI, which helps keep Americans safe, not only from 
violent crime but also from financial fraud. In the aftermath of the 
financial fraud meltdown that has thrown the American economy into a 
serious recession, we must ensure that lawbreakers will be identified 
and prosecuted for financial fraud. Punishing complex financial crimes 
and deterring future fraud are vital in restoring confidence in our 
decimated financial markets. How can people be expected to go back in 
the market again when they do not know or cannot have confidence that 
the people who perpetrated these crimes are not still there but are in 
jail? This is important. As we know in dealing with crime, the sooner 
you deal with it after the crime happens the better your chance of 
catching the people involved. Getting the Deputy Attorney General 
involved as soon as possible is essential for our financial well-being.
  The Deputy Attorney General also oversees efforts to fight waste and 
corruption in Federal programs by means of the False Claims Act. As we 
expend vast sums in two wars and work to stimulate the economic 
recovery, we must do everything we can to make sure the taxpayer 
dollars are well spent. Along the same line, the Deputy Attorney 
General oversees the distribution of billions of dollars in economic 
recovery funds in support of critical State and local law enforcement 
initiatives. Everyone agrees that to fulfill the promise of the 
economic recovery package, we need to get the funds out the door 
quickly. Again, depriving the Department of Justice of senior 
leadership at this critical time is bad policy.
  The American people need a Deputy Attorney General in place now, to 
meet all these critical efforts. The problems and threats confronting 
the country are too serious to delay.
  We know David Ogden is extraordinarily well qualified. We know the 
Judiciary Committee fully vetted his background, experience and 
judgment and reported out his nomination with a bipartisan majority. We 
know the Attorney General needs his second in command as well as other 
members of his leadership team in place and working as soon as 
possible. We know further delay in this crucial nomination is 
inexcusable.
  I hope on this nomination, and going forward, we do better.
  I yield the floor, suggest the absence of a quorum, and ask the time 
be charged equally.
  The PRESIDING OFFICER. Without objection, it is so ordered. The clerk 
will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. SPECTER. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER (Mrs. Hagan). Without objection, it is so 
ordered.
  Mr. SPECTER. Madam President, at the outset in addressing the Chair, 
may I note that it is my distinguished colleague, Senator Casey from 
Pennsylvania. Nice to see you acting as Vice President, Senator Casey.
  May I just say that in the 2 years plus that you have been here, I 
have admired your work and found it very gratifying to be your 
colleague in promoting the interests of our State and our Nation.
  I have sought recognition to comment on the nomination of David W. 
Ogden to be Deputy Attorney General. In reviewing the pending 
nomination, I have noted Mr. Ogden's academic and professional 
qualifications. I have also noted certain objections that have been 
raised by a number of organizations. As a matter of fact, some 11,000 
contacts in opposition to the nomination have been received by our 
Judiciary Committee offices.
  As to Mr. Ogden's background, his resume, his education, and his 
professional qualifications--he received his undergraduate degree from 
the University of Pennsylvania in 1976, Phi Beta Kappa, and his law 
degree from Harvard, magna cum laude, where he was an editor of the Law 
Review.
  I know it is difficult to get a Phi Beta Kappa key at the University 
of Pennsylvania. I know that being on the Law Review at a school like 
Harvard is an accomplishment. He then clerked for Judge Sofaer on the 
United States District Court for the Southern District of New York. I 
came to know Judge Sofaer when he was counsel to the New York 
Department of State. I have a very high regard for him.
  Mr. Ogden then clerked for Harry Blackmun on the Supreme Court. That 
is a distinguished achievement. Then he worked for Ennis Friedman 
Bersoff & Ewing and became a partner there. Then he was a partner at 
Jenner & Block and was an adjunct professor at Georgetown University 
Law Center from 1992 to 1995. He then had a string of prestigious 
positions in the Department of Justice: Associate Deputy Attorney 
General, Counselor to the Attorney General, Chief of Staff to the 
Attorney General, Acting Assistant Attorney General for the Civil 
Division, and Assistant Attorney General for the Civil Division--all 
during the administration of President Clinton.
  We have seen quite a series of nominees come forward when the current 
administration selects people from a prior administration. There have 
been quite a few people who served in President Reagan's administration 
who later served in President George H.W. Bush's administration. Then 
some of those individuals served in the administration of President 
George W. Bush. Similarly, individuals from President Carter's 
administration came back with President Clinton, and the people from 
President Clinton are now serving in President Obama's administration. 
So it is a usual occurrence.
  Contrasted to the resume Mr. Ogden has, I have noted the objections 
raised by the Family Research Council headed by Mr. Tony Perkins, who 
wrote the committee expressing his concerns about Mr. Ogden's 
nomination because, as Mr. Perkins puts it:

       Mr. Ogden has built a career on representing views and 
     companies that most Americans find repulsive . . . Mr. Ogden 
     has also profited from representing pornographers and in 
     attacking legislation designed to ban child pornography.

  It was also noted by those opposing his nomination that a brief filed 
by Mr. Ogden in Planned Parenthood v. Casey argued that ``women who 
have had abortions suffer no detrimental consequences and instead 
should feel `relief and happiness' after aborting a child.'' Fidelis, a 
Catholic-based organization, Concerned Women of America, Eagle Forum, 
and the Alliance Defense Fund have also written the committee in 
opposition to Mr. Ogden's nomination based on similar concerns; 
specifically, his representation of several entities in the pornography 
industry and organizations that oppose restrictions on abortions.
  As I noted earlier, the committee has received an unprecedented 
number of opposition phone calls and letters for a Department of 
Justice nominee. In total, the committee has received over 11,000 
contacts in opposition to the nomination.
  The objections raised call into focus the issue as to whether an 
attorney ought to be judged on the basis of arguments he has made in 
the representation of a client. I believe it is accurate to say that 
the prevailing view is not to bind someone to those arguments. I note 
an article published by David Rivkin and Lee Casey, who served in the 
Justice Department under President Reagan and President George H.W. 
Bush, that advances the thesis

[[Page 6894]]

that a lawyer is not necessarily expressing his own views when he 
represents a client. They point out how Chief Justice Roberts' 
nomination to serve on the U.S. Court of Appeals for the District of 
Columbia Circuit was vociferously opposed by pro-choice groups based 
upon briefs he had filed when he served as Deputy Solicitor General 
under President George H.W. Bush and the arguments for restrictions of 
abortion rights contained in those briefs. I recollect that NARAL had a 
commercial opposing then-Judge Roberts. I spoke out at that time on the 
concern I had about their inference that those were necessarily his own 
views. As I recollect, NARAL withdrew the commercial.
  The article by Mr. Rivkin and Mr. Casey notes the objections of the 
Family Research Council, Focus on the Family, and Concerned Women for 
America, and comes to the conclusion that a persons's representation of 
a client does not necessarily state what a person's views are on an 
issue.
  I further note that Mr. Ogden has been endorsed by very prominent 
people from Republican administrations: Deputy Attorney General Larry 
Thompson, former Assistant Attorney General Peter Keisler, former 
Assistant Attorney General Rachel Brand, and former Acting Assistant 
Attorney General Daniel Levin.
  Professor of law Orin Kerr at George Washington University Law School 
noted that he disagreed with arguments that Mr. Ogden had made, but 
despite his disagreement with Mr. Ogden's arguments, he believed those 
arguments should not be held against him.
  In the consideration of nominees who are now pending before the 
Judiciary Committee, we are taking a very close look at all of them. I 
think it appropriate to note at this point that the nomination of 
Harvard Law School dean Elena Kagan is being analyzed very carefully. 
Without going into great detail at this time because her nomination, 
which has been voted out of committee, will be on the floor at a later 
date, I and others voted to pass on Ms. Kagan because we are not 
satisfied with answers to questions that she has given.
  I ask unanimous consent to put in the Record a letter that I wrote to 
Dean Kagan, February 25, 2009, and her reply to me on March 2, 2009.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                      U.S. Senate,


                                   Committee on the Judiciary,

                                Washington, DC, February 25, 2009.
     Dean Elena Kagan,
     Harvard Law School,
     Cambridge, MA.
       Dear Dean Kagan: I write to express my dissatisfaction with 
     many of the answers you provided to the Committee in response 
     to my written questions following your confirmation hearing. 
     I believe these answers are inadequate for confirmation 
     purposes.
       In a 1995 review of a book entitled The Confirmation Mess, 
     you made a compelling case for senatorial inquiry into a 
     nominee's judicial philosophy and her views on specific 
     issues. You stated, ``when the Senate ceases to engage 
     nominees in meaningful discussion of legal issues, the 
     confirmation process takes on an air of vacuity and farce, 
     and the Senate becomes incapable of either properly 
     evaluating nominees or appropriately educating the public.'' 
     You further asserted that the Senate's inquiry into the views 
     of executive nominees, as compared to Supreme Court nominees, 
     should be even more thorough, stating, ``the Senate ought to 
     inquire into the views and policies of nominees to the 
     executive branch, for whom `independence' is no virtue.'' I 
     agree with the foregoing assessment, and, therefore, am 
     puzzled by your responses, which do not provide clear answers 
     concerning important constitutional and legal issues.
       For example, in response to several questions related to 
     the constitutionality of the imposition of the death penalty, 
     you offer only the following: ``I do not think it comports 
     with the responsibilities and role of the Solicitor General 
     for me to say whether I view particular decisions as wrongly 
     decided or whether I agree with criticisms of those 
     decisions. The Solicitor General must show respect for the 
     Court's precedents and for the general principle of stare 
     decisis. If I am confirmed as Solicitor General, I could not 
     frequently or lightly ask the Court to reverse one of its 
     precedents, and I certainly would not do so because I thought 
     the case wrongly decided.'' You repeatedly provide this 
     answer verbatim, or a similarly unresponsive answer, to 
     numerous questions regarding the First and Second Amendments, 
     property rights, executive power, habeas corpus rights of 
     detainees, the use of foreign law in constitutional and 
     statutory analysis, and the Independent Counsel statute, 
     among others. I think you would agree that, given the gravity 
     of these issues and the significance of the post for which 
     you are nominated, this Committee is entitled to a full and 
     detailed explanation of your views on these matters.
       Please provide the Committee with adequate answers to these 
     questions so that I may properly evaluate your nomination and 
     determine whether any supplemental questions are necessary.
           Sincerely,
     Arlen Specter.
                                  ____

                                               Harvard Law School,


                                           Office of the Dean,

                                     Cambridge, MA, March 2, 2009.
     Senator Arlen Specter
     U.S. Senate, Committee on the Judiciary, Dirksen Senate 
         Office Building, Washington, DC.
       Dear Senator Specter: I am writing in response to your 
     letter of February 25. I am sorry that you believe some of my 
     answers to written questions to be inadequate. I wish to 
     respond to your request for additional information as fully 
     as possible while still meeting the obligations attendant to 
     a nominee for the Solicitor General's office.
       Let me first say how much I respect the Senate and its 
     institutional role in the nominations process. As the members 
     of a co-equal branch of government charged with the ``advice 
     and consent'' function, you and your colleagues have a right 
     and, indeed, a duty to seek necessary information about how a 
     nominee will perform in her office. By the same token, each 
     nominee has a responsibility to address senatorial inquiries 
     as fully and candidly as possible. But some questions--and 
     these questions will be different for different positions--
     cannot be answered consistently with the responsible 
     performance of the job the nominee hopes to undertake. For 
     that reason, some balance is appropriate, as I remarked to 
     Senator Hatch at my nomination hearing and as you quoted 
     approvingly in the introduction to your written questions.
       I endeavored to strike that proper balance in responding to 
     your and other senators' written questions. I answered in 
     full every question relating to the Solicitor General's role 
     and responsibilities, including how I would approach specific 
     statutes and areas of law. I also answered in detail every 
     question relating to my own professional career, including my 
     relatively extensive writings and speeches. Finally, I 
     answered many questions relating to general legal issues. In 
     short, I did my best to provide you and the rest of the 
     Committee with a good sense of who I am and of how I would 
     approach the role of Solicitor General. The only matters I 
     did not address substantively were my personal views (if any) 
     regarding specific Supreme Court cases and constitutional 
     doctrines. These personal views would play no role in my 
     performance of the job, which is to represent the interests 
     of the United States; and expressing them (whether as a 
     nominee or, if I am confirmed, as Solicitor General) might 
     undermine my and the Office's effectiveness in a variety of 
     ways.
       In answering these questions as I did, I was cognizant of 
     the way other nominees to the position of Solicitor General 
     have replied to inquiries from senators. For example, in 
     answering a question about his views of the use of foreign 
     law in legal analysis, Paul Clement wrote: ``As Solicitor 
     General, my role would be to advance the interests of the 
     United States, and previous statements of my personal views 
     might be used against the United States' interests, either to 
     seek my recusal, to skew my consideration of what position 
     the United States should take, or to impeach the arguments 
     eventually advanced by the United States.'' Similarly, Seth 
     Waxman stressed in responding to questions about his 
     understanding of a statute that ``[i]t is the established 
     practice of the Solicitor General not to express views or 
     take positions in advance of presentation of a concrete 
     case'' and prior to engaging in extensive consultation within 
     and outside the office. The advice I received from former 
     Solicitors General of both parties prior to my nomination 
     hearing was consistent with what the transcripts of their 
     hearings reveal: all stressed the need to be honest and 
     forthcoming, but also the responsibility to protect the 
     interests of the office and of the United States. In my 
     hearing and in my responses to written questions, I believe I 
     have provided at least as much information to the Committee 
     as any recent nominee.
       As you noted to me when we met, I have lived my 
     professional life largely in the public eye. I have written 
     and spoken widely, so the Committee had the opportunity to 
     review many pages of my law review articles and many hours of 
     my remarks. I tried to answer every question put to me at my 
     hearing completely and forthrightly. I met with every member 
     of the Committee who wished to do so in order to give all of 
     you a more personal sense of the kind of person and lawyer I 
     am. I submitted letters from numerous lawyers, who themselves 
     hold views traversing the political and legal spectrum, 
     indicating how I approach legal issues. And as

[[Page 6895]]

     noted above, I answered many written questions from you and 
     other members of the Committee.
       In all, I did my best to provide you and the other members 
     of the Committee with a complete picture of who I am and how 
     I would approach the role of Solicitor General, consistently 
     with the responsibilities of that office and the interests of 
     the client it serves. But I am certainly willing to do 
     anything else I can to satisfy your concerns, including 
     meeting with you again.
       Thank you for your consideration of this letter.
           Sincerely,
                                                      Elena Kagan.

  Mr. SPECTER. The comments that are in Ms. Kagan's letter require 
further analysis. She has, as a generalization, stated that she does 
not think it appropriate to answer certain questions about her views 
because she has the ability as an advocate to disregard her own 
personal views and to advocate with total responsibility to the law, 
even though she may have some different point of view. I think as a 
generalization, that is valid. However, as I discussed at her hearing, 
some of her points of view raise a question as to whether, given the 
very strongly held views she has expressed, she can totally put those 
views aside. When her nomination was before the committee for a vote, I 
passed. I agreed it ought to go to the floor, and we ought not to 
delay; but I wanted to have another talk with her. I have scheduled a 
meeting for tomorrow to go over Dean Kagan's record because I think it 
is important to take a very close look at it.
  I also think it is relevant to comment about the pending nomination 
of Dawn Johnsen for Assistant Attorney General in charge of the Office 
of Legal Counsel. That is the Assistant Attorney General who passes on 
legal questions, a very important position. They all are important, 
whether it is Deputy Attorney General or Solicitor General or Assistant 
Attorney General for the various divisions. But the Office of Legal 
Counsel, OLC as it is called, is especially important. We now have 
challenges in dealing with opinions on the torture issue by people who 
held leadership positions in the Office of Legal Counsel under 
President George W. Bush--whether they were given in good faith and 
whether they went far beyond the law as to what interrogation tactics 
were appropriate.
  With respect to Ms. Johnsen's nomination, she has equated limiting a 
woman's right to choose with slavery in violation of the 13th 
amendment. While I personally believe, as did Senator Goldwater, that 
we ought to keep the Government out of our pocketbooks, off our backs, 
and out of our bedrooms, I am not going to raise the contention that 
abortion restrictions are a violation of the 13th amendment and that it 
constitutes slavery. Her nomination is being subjected to very careful 
analysis, especially the part of her testimony where she disclaimed 
making that the connection between abortion restrictions and the 13th 
amendment because the records and a footnote suggest the contrary.
  I talk about the nominations of Dean Kagan and Ms. Johnsen briefly, 
when considering the nomination of Mr. Ogden, to point out that there 
is very careful scrutiny given to these very important positions. I am 
looking forward to meeting Dean Kagan tomorrow to examine further her 
capabilities to be the Solicitor General and advance arguments with the 
appropriate adversarial zeal. We have an adversarial system. We put 
lawyers on opposite sides of the issue and we postulate that, from the 
adversarial system, the truth is more likely to emerge. An advocate has 
to pursue the cause within the range of advocacy. With Ms. Johnsen, we 
are going to be considering further her qualifications in light of her 
statements to which I have referred.
  But coming back to Mr. Ogden, my net conclusion is that he ought to 
be confirmed. I say that based upon a resume that is very strong, both 
academically and professionally. I think it is important to note that 
when questioned about some of his positions, Mr. Ogden has, one might 
say, backed off some of his earlier views. When asked about some of the 
things he had written, he criticized a 1983 memo he wrote when he was a 
law clerk to Justice Blackmun that referred to the defenders of a 
challenged law in a way that disparagingly suggested their insincerity. 
He told the committee that after maturing, he had some different views.
  In a 1990 tribute to Justice Blackmun, he expressed agreement with 
the Justice's endorsement of affirmative action programs that entailed 
set-asides or quotas. At his hearing, he said he now believes that such 
an approach was inappropriate and instead believes that consideration 
of race, as he put it, ``in limited circumstances'' should be one of 
many factors in affirmative action programs.
  Mr. Ogden also stated he no longer agrees with the position he took 
in a 1980 case comment that ``state expansion of speech rights at the 
expense of property rights does not constitute a taking.'' That case 
comment involved the issue of whether there was an unlimited right of 
speech on private property. So he has maintained a little different 
position. It is fair to raise a question about whether statements made 
in the confirmation amount to a confirmation conversion. That has been 
an expression used from time to time that you have to take statements 
at a confirmation with a grain of salt because of the motivation to be 
confirmed. That has to be taken into account. But I listened to what 
Mr. Ogden had to say, and I think he is entitled to modify his views 
over a substantial period of time from what he did in 1983 and 1990, 
with a maturation process.
  Then there is the consideration that the President is entitled to 
select his appointees within broad limits. The Deputy Attorney General, 
while important, is not a lifetime appointment as a judge. I had a call 
from the Attorney General who raised the issue that he does not have 
any deputies and the Department of Justice has now been functioning for 
more than a month and a half. It is a big, important department, and we 
ought to give appropriate latitude to President Obama and appropriate 
latitude to Attorney General Holder and move ahead with Mr. Ogden's 
confirmation.
  For all of those factors, I intend to vote in favor of Mr. Ogden. I 
think those who have raised objections have done so, obviously, in good 
faith. They are entitled to have their objections considered and to 
know that the Judiciary Committee is giving very careful analysis to 
their facts and will do so, as I have outlined, on the consideration of 
other nominees.
  Madam President, I ask unanimous consent that the full text of an 
article I referred to from Mr. Rivkin and Mr. Casey be printed in the 
Congressional Record, along with the resume of Mr. Ogden.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                         Don't Blame the Lawyer

               (By David B. Rivkin Jr. and Lee A. Casey)

       President Barack Obama's selection of David Ogden as deputy 
     attorney general has drawn fire from conservative family 
     values groups, including the influential Family Research 
     Council, Focus on the Family, and Concerned Women for 
     America. Conservative talk show hosts including Fox News' 
     Bill O'Reilly, have highlighted the story, and there appears 
     to be a real effort under way to derail the nomination.
       This effort undoubtedly has not escaped notice on Capitol 
     Hill, and several Republican senators on the Judiciary 
     Committee--including Orrin Hatch (Utah), Jon Kyl (Ariz.), and 
     Jeff Sessions (Ala.)--have pressed Ogden on some of the 
     issues raised by these groups.
       Unfortunately, much of this opposition from the family 
     values groups is based upon Ogden's representation of 
     controversial clients and the positions he has argued on 
     their behalf. This tactic has been used against conservatives 
     in the past, including Chief Justice John Roberts Jr. 
     Punishing lawyers for who they represent and what they argue 
     before the courts is not in the interest of justice and makes 
     for bad public policy.


                           ``FROM PLAYBOY''?

       Among the principal objections to Ogden's nomination is 
     that he has represented adult magazine, book, and film 
     producers, including Playboy and Penthouse, on whose behalf 
     he has argued for a broad interpretation of First Amendment 
     protections.
       Ogden also represented a number of library directors who 
     filed an amicus brief supporting the American Library 
     Association's challenge to the Children's Internet Protection 
     Act of 2000, which among other things required the use of 
     Internet filtering software by public libraries.

[[Page 6896]]

       In addition, as noted by the Family Research Council, 
     ``Ogden worked for the ACLU and filed a brief in the landmark 
     abortion case Planned Parenthood v. Casey that denied the 
     existence of adverse mental health effects of abortion on 
     women:''
       His participation and arguments in cases involving parental 
     notification, the Pentagon's ``don't ask, don't tell'' 
     policy, and gay rights has also raised conservative hackles. 
     According to the president of an important Catholic values 
     organization, ``David Ogden is a hired gun from Playboy and 
     the ACLU. He can't run from his long record of opposing 
     common-sense laws protecting families, women, and children.''


                         ZEALOUS REPRESENTATION

       The premise of this opposition is a familiar one--that 
     lawyers must be presumed to agree with, or be sympathetic to, 
     the clients they represent or, at a minimum, that they should 
     be held accountable for the arguments they advance on a 
     client's behalf. In fact, of course, lawyers represent 
     clients for many and varied reasons--for money or fame, out 
     of a sense of duty, an interest in a particular subject 
     matter, or for professional growth and development. Sometimes 
     lawyers are motivated by all of the above, and more.
       It is simply inaccuracy to attribute to a lawyer his or her 
     client's beliefs. That is just not the way our legal system 
     works--at least not all the time.
       Sometimes, of course, lawyers do personally agree with the 
     client's substantive views and the legal positions they 
     advance. There is no doubt that lawyers are often drawn to a 
     pardcular area of practice, or undertake to represent 
     particular clients--especially on a pro bono basis--because 
     they do believe in the client's cause. It is possible, 
     however, to believe in a client's cause--a broad application 
     of free speech rights, for example--and not to approve of the 
     client's personal behavior or business model.
       And, just as a lawyer's character cannot be judged based on 
     a client list, neither can a lawyer's policy preferences 
     easily be divined by reading his or her briefs. Lawyers must 
     represent their clients zealously, and this means they often 
     must deploy legal arguments with which they personally 
     disagree.


                         SUBVERTING THE SYSTEM

       Moreover, even in cases where a lawyer does share the 
     client's opinions, or where he or she personally believes 
     that the law means, or should mean, what the briefs say, 
     there are very good reasons why this should not disqualify 
     such individuals from high government office.
       Lawyers are human beings, and punishing them in this way 
     would result in many avoiding controversial clients and 
     causes. Indeed, this is often the purpose and intent of such 
     opposition, but it also is subversive of our legal system. 
     That system is adversarial and works only if both sides of an 
     issue are adequately represented. If there are clients or 
     causes, be they the adult entertainment industry, tobacco 
     companies, or Guantanamo detainees, that are classified as 
     being so disreputable or radioactive that their lawyers are 
     later personally held to account for representing them, the 
     quality of justice will suffer.
       Conservatives and Republicans who are tempted in that 
     direction now that a liberal Democrat is in office should 
     recall that similar arguments about supposedly disreputable 
     clients and unacceptable arguments have been raised against 
     their own nominees in the past. For example, now-Chief 
     Justice Roberts' nomination to serve on the U.S. Court of 
     Appeals for the D.C. Circuit was vociferously opposed by pro-
     choice groups based upon briefs he had filed--and the 
     arguments for restriction of abortion rights they contained--
     when he served as deputy solicitor general under President 
     George H.W. Bush.


                           CLEARLY QUALIFIED

       Although there are many issues on which conservatives can 
     and should disagree with Ogden as ideological matters, those 
     disagreements are not good reasons why he should not be 
     confirmed as deputy attorney general. His views of the law 
     and legal policy are certainly legitimate topics of inquiry 
     and debate, both for the Senate and the public in general, 
     but only in the context of what they may mean about Obama's 
     own beliefs and plans.
       Like his presidential predecessors, Obama is entitled to 
     select the men and women who will run the federal government, 
     including the Justice Department, exercising the executive 
     authority vested in him as president by the Constitution.
       It is entirely appropriate that Obama's appointees share 
     his policy preferences and ideological inclinations. If their 
     legal views are considered by some to be out of the 
     ``mainstream,'' that is the president's problem. If they push 
     for extreme policies, it will be up to Obama to curtail them. 
     If not, there will be another election in 2012, at which time 
     the country can call him to account.
       In the meantime, so long as the individuals Obama chooses 
     to serve in the executive branch have sufficient integrity, 
     credentials, and experience to perform the tasks they will be 
     assigned, they should be confirmed.
       This is the case with Ogden. He is clearly qualified for 
     the job. His training and experience are outstanding, 
     including a Harvard law degree and a Supreme Court clerkship. 
     Ogden has practiced at one of the country's premier law 
     firms. He served as Attorney General Janet Reno's chief of 
     staff and as assistant attorney general in charge of the 
     Justice Department's Civil Division--its largest litigating 
     unit--in the Clinton administration. This service is 
     important. The deputy attorney general is, in large part, a 
     manager, and Ogden clearly understands the Justice 
     Department, its role in government, its career lawyers, and 
     its foibles.
       Significantly, his nomination has been endorsed by a number 
     of lawyers who served in the Reagan and two Bush 
     administrations, including one who preceded, and one who 
     succeeded, Ogden as head of the Civil Division. They are 
     right; he should be confirmed.
                                  ____


                             David W. Ogden


                        Deputy Attorney General

       Birth: 1953; Washington, DC.
       Legal Residence: Virginia.
       Education: B.A., summa cum laude, University of 
     Pennsylvania, 1976, Phi Beta Kappa; J.D., magna cum laude, 
     Harvard Law School, 1981, Editor, Harvard Law Review.
       Employment: Law Clerk, Hon. Abraham D. Sofaer, U.S. 
     District Court Judge for the Southern District of New York, 
     1981-1982; Law Clerk, Hon. Harry A. Blackmun, U.S. Supreme 
     Court, 1982-1983; Associate, Ennis, Friedman, Bersoff & 
     Ewing, 1983-1985, Partner and Attorney, 1986-1988; Partner 
     and Attorney Jenner & Block, 1988-1994; Adjunct Professor, 
     Georgetown University Law Center, 1992-1995; Deputy General 
     Counsel and Legal Counsel, Department of Defense, 1994-1995; 
     Department of Justice, 1995-2001, Associate Deputy Attorney 
     General, 1995-1997, Counselor to the Attorney General, 1997-
     1998, Chief of Staff to the Attorney General, 1998-1999, 
     Acting Assistant Attorney General for the Civil Division, 
     1999-2000, Assistant Attorney General for the Civil Division, 
     2000-2001; Partner and Attorney, Wilmer Cutler Pickering Hale 
     and Dorr LLP, 2001-present; Agency Liaison for the Department 
     of Justice, Presidential Transition Team, 2008-2009.
       Selected Activities: Member, American Bar Association, 
     1983-present, Ex officio member and governmental 
     representative, Council of the Section of Litigation, 1998-
     2001; Member, First Amendment Lawyers Association, 1991-1994; 
     Fellow, American Bar Foundation, 2002-present; Member of 
     Advisory Board, Bruce J. Ennis Foundation, 2002-2009; Member 
     of Advisory Board, Washington Project for the Arts, 2004-
     2007; Member, Senior Legal Coordinating Committee, Barack 
     Obama's Presidential Campaign, 2007-2008.

  Mr. SPECTER. I thank the Chair and yield the floor to my 
distinguished colleague from Montana.
  The PRESIDING OFFICER. The Senator from Montana.
  Mr. BAUCUS. Madam President, I ask unanimous consent that I be 
allowed to speak as in morning business and that the time be charged 
against the time under the control of the majority on the nomination.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                           Health Care Reform

  Mr. BAUCUS. Madam President, on February 24, President Obama said:

       [N]early a century after Teddy Roosevelt first called for 
     reform, the cost of our health care has weighed down our 
     economy and the conscience of our nation long enough. So let 
     there be no doubt: Health care reform cannot wait, it must 
     not wait, and it will not wait another year.

  I could not agree more with our President. Our next big objective is 
health care reform. Comprehensive health care reform is no longer 
simply an option, it is an imperative. If we delay, the problems we 
face today will grow even worse. If we delay, millions more Americans 
will lose their coverage. If we delay, premiums will rise even further 
out of reach. And if we delay, Federal health care spending will soak 
up an even greater share of our Nation's income.
  In the Finance Committee, we have now held 11 hearings preparing for 
health care reform. We held our latest hearing yesterday. The Director 
of the Office of Management and Budget, Dr. Peter Orszag, testified to 
the Finance Committee about the President's health care budget.
  Yesterday, Director Orszag told the committee the cost of not 
enacting health care reform is enormous. He said:

       The cost of doing nothing is a fiscal trajectory that will 
     lead to a fiscal crisis over time.

  Director Orszag said if we do not act, then we will further 
perpetuate a system in which workers' take-home pay is unnecessarily 
reduced by health care costs. Director Orszag said if we do not act, 
then 46 million uninsured Americans will continue to be denied adequate 
health care. According to the

[[Page 6897]]

Center for American Progress, the ranks of the uninsured grow by 14,000 
people every day--14,000 more people uninsured every day. And Director 
Orszag said if we do not act, then a growing burden will be placed on 
State governments, with unanticipated consequences. For example, health 
care costs will continue to crowd out State support of higher 
education. That would have dire consequences for the education of our 
Nation's young people.
  We must move forward. Senator Grassley and I have laid out a schedule 
to do just that. Our schedule calls for the Finance Committee to mark 
up a comprehensive health care reform bill in June. We should put a 
health care bill on the President's desk this year.
  The President's budget makes a historic downpayment on health care 
reform. Over the next 10 years, the President's budget invests $634 
billion to reform our health care system.
  Reforming health care means making coverage affordable over the long 
run. It means improving the quality of the care. And I might say, our 
quality is not as good as many Americans think it is, certainly 
compared to international norms. It means expanding health insurance to 
cover all Americans. We need fundamental reform in cost, quality, and 
coverage. We need to address all three objectives at the same time. 
They are interconnected. If you do not address them together, you will 
never really address any one of them alone.
  Costs grow too rapidly because the system pays for volume, not 
quality. Quality indicators such as lifespan and infant mortality 
remain low. Why? Because too many are left out of the system. Families 
do not get coverage because health costs grow faster than wages. And 
without coverage, health insurance costs increase because providers 
shift the cost of uncompensated care to their paying customers. It is a 
vicious cycle. Each problem feeds on the others.
  We need a comprehensive response. Let us at long last deliver on the 
dream of reform Teddy Roosevelt called for nearly a century ago. Let us 
at long last lift the burden of health care costs on our economy and on 
the conscience of our Nation. And let us at long last enact health care 
reform this year.
  Madam President, I suggest the absence of a quorum and ask unanimous 
consent that the time consumed during the quorum call be charged 
equally against 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. GRASSLEY. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. GRASSLEY. Madam President, I would like to say a few words in 
opposition to the nomination of David Ogden to be Deputy Attorney 
General at the U.S. Department of Justice.
  There is no doubt that Mr. Ogden is an experienced lawyer. However, I 
have serious concerns about Mr. Ogden's views and some of the cases he 
has argued. Mr. Ogden is an attorney who has specialized in first 
amendment cases, in particular pornography and obscenity cases, and has 
represented several entities in the pornography industry. He has argued 
against legislation designed to ban child pornography, including the 
Children's Internet Protection Act of 2000 and the Child Protection and 
Obscenity Enforcement Act of 1998. These laws were enacted to protect 
children from obscene materials in public libraries and to require 
producers of pornography to personally verify that their models are not 
minors. I supported both these important pieces of legislation.
  In addition, Mr. Ogden authored a brief in the 1993 case Knox v. 
United States, where he advocated for the same arguments to shield 
child pornography under the first amendment that the Senate unanimously 
rejected by a vote of 100 to 0 and the House rejected by a vote of 425 
to 3. In the Knox case, the Bush I Justice Department successfully had 
prosecuted Knox for violating Federal antipornography laws; but on 
appeal to the U.S. Supreme Court, the Clinton Justice Department 
reversed course and refused to defend the conviction. After significant 
public outrage, President Clinton publicly chastised the Solicitor 
General, and Attorney General Reno overturned the position. At the 
time, I was involved in the congressional effort opposing this switch 
in the Justice Department's position on child pornography.
  Mr. Ogden also has filed briefs opposing parental notification before 
a minor's abortion, opposing spousal notification before an abortion, 
and opposing the military's policy against public homosexuals serving 
in uniform.
  Significant concerns have been raised in regard to Mr. Ogden's 
nomination. I have heard from a very large number of Iowa constituents, 
including the Iowa Christian Alliance, who are extremely concerned with 
Mr. Ogden's ties to the pornography industry and the positions he has 
taken against protecting women and children from this terrible scourge. 
The Family Research Council, Concerned Women of America, Eagle Forum, 
Fidelis, the Alliance Defense Fund, and the Heritage Foundation, among 
others, have all expressed serious concerns about Mr. Ogden's advocacy 
against restrictions on pornography and obscenity.
  The majority of Americans support protecting children from 
pornography exploitation, protecting children from Internet pornography 
in libraries, and allowing for parental notification before a minor's 
abortion. So do I. I feel very strongly about protecting women and 
children from the evils of pornography. I have always been a strong 
supporter of efforts to restrict the dissemination of pornography in 
all environments. As a parent and grandparent, I am particularly 
concerned that children will be exposed to pornographic images while 
pursing educational endeavors or simply using the Internet for 
recreational purposes. Throughout my tenure in Congress I have 
supported bills to protect children from inappropriate exposure to 
pornography and other obscenities in the media, and I support the 
rights of parents to raise children and to be active participants in 
decisions affecting their medical care. Mr. Ogden has consistently 
taken positions against these child protection laws and this troubles 
me.
  Because of my concerns, I must oppose the nomination of David Ogden.
  Madam President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. GRASSLEY. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. GRASSLEY. Madam President, I didn't make a complete request, as I 
should have, for a quorum, so I ask unanimous consent that the time be 
evenly divided.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. GRASSLEY. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. DORGAN. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DORGAN. Madam President, I ask unanimous consent to speak in 
morning business for as much time as I may consume.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                        Transportation Troubles

  Mr. DORGAN. Last evening, I was driving from the Capitol and 
listening to Jim Lehrer News Hour. They had a report about transit 
systems in this country that are facing significant financial problems. 
The report was fairly interesting. It turns out to be a subject with 
which I am fairly familiar. The report was that there are more than a 
couple dozen transit agencies in some of America's largest cities that 
are in deep financial trouble. Why? Because

[[Page 6898]]

they had sold their subway system or bus system to a bank in order to 
raise needed revenue. Under what is called a SILO, a sale in/lease out 
transaction, a city can sell its property to a bank, so the bank takes 
title to the property. The bank then leases it back to the city, and 
the bank gets a big tax writeoff because it can depreciate the 
property. So the city still gets to use its subway system because they 
are leasing it back.
  All of a sudden, a couple dozen cities discovered that this 
transaction they entered into, which I think is kind of a scam, landed 
them in huge trouble because the transaction was insured with a 
derivative that went through AIG. AIG's credit rating collapsed, and 
now the banks are calling in substantial penalties on the part of the 
transit system that they cannot meet. So they are in trouble.
  Surprised? I am not particularly surprised. I have been on the floor 
of the Senate talking about what is happening with respect to these so-
called sale in/lease out, SILO practices. I have talked about banks and 
about Wachovia Bank, by the way, which was buying German sewer systems. 
I will describe a couple of these transactions. These are cross-border 
leasing provisions, sale and lease back.
  Wachovia Bank buys a sewer system in Bochum, Germany. Why? Is it 
because it is a sewer specialist? Do they have executives who really 
know about sewers in Germany? I don't think so. This is a scam. It has 
always been a scam. An American bank buys a sewer system in a German 
city so it can depreciate the assets of that sewage system and then 
lease it back to the German city. The Germans were scratching their 
heads, saying: This seems kind of dumb, but as long as we are on the 
receiving end of a lot of money, we are certainly willing to do it.
  I am showing this example of a bank called Wachovia, which used to be 
First Union, that originally started some of these transactions. I 
believe Wachovia itself, which was in deep financial trouble, has now 
been acquired by Wells Fargo. First Union was involved in a cross-
border lease of Dortmund, Germany, streetcars. What is an American bank 
doing leasing streetcars in a German city? To avoid paying U.S. taxes, 
that is why.
  We have seen all kinds of these transactions going on. I have 
described them on the floor of the Senate previously.
  This one is the transit system railcars in Belgium. Since many of 
these transactions are confidential, I don't know which American 
company bought Belgium National Railway cars. One of our corporations 
bought the Liefkenshoek Tunnel under the river in Antwerp, Belgium. 
Why? To save money on taxes. Some companies don't want to pay their 
taxes to this country.
  PBS Frontline's Hedrick Smith did a piece on it. The cross-border 
leasing contracts appear particularly hard to justify because all the 
property rights remain as they were even after the deal was signed. The 
Cologne purification plant keeps cleaning Cologne's sewage water. In 
the words of Cologne's city accountant:

       After all, the Americans should know themselves what they 
     do with their money. If they subsidize this transaction, we 
     gratefully accept.

  I mention this because the tax shelters that big American banks and 
some cities have discovered are unusual and, I think, raise very 
serious questions about whether they are fair to do.
  Here is a Wall Street Journal article about how the city of Chicago 
actually sold Chicago's 9-1-1 emergency call system to FleetBoston 
Financial and Sumitomo Mitsui Banking. Why would a city sell its 9-1-1 
emergency call system? Why would somebody buy it? It is in order to 
avoid paying U.S. taxes.
  The reason I mention all of this is, last evening, I heard about the 
transit systems being in trouble in this country. Why? They are engaged 
in this. They were engaged in exactly the same thing. A transit system 
that is established by a city to provide transportation for folks in 
that city decides it wants to get involved in a transaction to sell its 
transit system to a bank someplace and then lease it back, allowing the 
bank to avoid paying U.S. taxes and, all of a sudden, they are in 
trouble. Do you know what? I do not have so much sympathy for people 
who are involved in those kinds of transactions. It reminded me, last 
evening, listening to this issue of cross-border leasing, SILOs and 
LILOs, and all these scams going on for a long time, many established 
by U.S. companies who apparently, in their boardrooms, are not only 
trying to figure out how to sell products but how to avoid taxes 
through very sophisticated tax engineering.
  I think it raises lots of questions about the issue of economic 
patriotism and what each of us owes to our country. It reminded me 
again of another portion of this financial collapse and financial 
crisis that we now face in this country. It reminded me of the work 
that the attorney general of New York, Andrew Cuomo, is doing and 
something he disclosed. We should have disclosed it, but we didn't know 
it. We know it because Andrew Cuomo, the attorney general of New York, 
dug it out. Let me tell you the story.
  Last year, Merrill Lynch investment bank was going belly up. So the 
Treasury Secretary arranged a purchase of Merrill Lynch by Bank of 
America in September to be consummated in January. And it happened. 
What we now understand and learn is that Merrill Lynch, which lost $27 
billion last year, in December, just prior to it being taken over by 
Bank of America, paid 694 people bonuses of more than $1 million each. 
I will say that again. They paid 694 people bonuses of more than $1 
million each, with the top four executives sharing $121 million.
  Moments later--that is, in a couple of weeks--the American taxpayers, 
through the TARP program, put tens of billions of dollars more into the 
acquiring company, Bank of America. At least a portion of that would 
have been attributable to the takeoff of Merrill Lynch, which just lost 
$15 billion the previous quarter. It appears to me that this was an 
arrangement, and Bank of America understood it was buying Merrill 
Lynch. Merrill Lynch lost a ton of money--$27 billion--last year but 
wanted to pay bonuses to its executives. So 694 of their folks got more 
than $1 million each--just prior to the American taxpayer coming in and 
providing the backstop to the acquiring company, Bank of America, at 
least in part because of the purchase.
  Is there any wonder the American people get furious when they read 
these kinds of things? The top four executives received $121 million. 
The top 14 received $250 million. I describe this because we didn't 
know this. We are the ones who are pushing TARP money. This Congress 
appropriated TARP money--now $700 billion. This Congress has 
appropriated that money, but we don't know what is going on. That is 
why I introduced, with Senator McCain, a proposal for a select 
committee to investigate the narrative of what happened with respect to 
this financial crisis. These tax scams are just a part of it. It is the 
way everything was happening around here, with some of the biggest 
institutions in the country.
  There is plenty of blame to go around. The Federal Government was 
running deficits that were far too large. Corporate debt was increasing 
dramatically. Personal debt, household debt, doubled in a relatively 
short time. It is not as if everybody doesn't have some culpability. 
Our trade deficit, $700 billion a year, is unsustainable. You cannot do 
that year after year. There were a lot of reasons.
  Then the subprime loan scandal--this unbelievable scandal. At the 
same time the subprime loan scandal ratchets up, we have a circumstance 
where regulators, who were appointed by the previous administration, 
essentially advertised they were willing to be willfully blind and not 
look. ``Self regulation'' is what Alan Greenspan called it.
  So then there grew a substantial pot of dark money that was traded 
outside of any exchanges. Nobody knew what they were. The development 
of newly engineered products, credit default swaps, CDOs--you name it, 
was very complicated--so complicated that many could not understand 
them. I was asked by a television interviewer 2

[[Page 6899]]

days ago: If you did a select committee to investigate all of this, 
with due respect, do you think Members of the Senate could understand 
these very complicated products?
  I said: I think if your question is could we understand them as well 
as the heads of financial institutions who steered their companies into 
the ditch with these products, can we understand them as well as they 
did, yes, I think so. I think we are capable of figuring out what 
caused all this, but we would not do it without looking. We would not 
do it, in my judgment, without the establishment of a select committee 
with subpoena power to develop the narrative of what happened, who is 
accountable, what do we do to make sure this never happens again.
  I believe we ought to go back a ways, go back to 1999, when the 
Congress passed something called the Financial Services Modernization 
Act that took apart the Glass-Steagall Act that was put in place after 
the Great Depression, and it separated banking from risk. It said you 
cannot be involved in deposit-insured banking and then involved in real 
estate and securities as well.
  In 1999, Congress passed legislation that said that is old-fashioned. 
Let's get rid of Glass-Steagall. Let's abolish Glass-Steagall. Let's 
create big financial holding companies for one-stop financial 
capabilities for everybody. I was one of eight to vote no. I said on 
the floor of the Senate 10 years ago that I think this will result in a 
big taxpayer bailout. I said that during the debate, not because I knew 
it but because I felt it. You cannot take apart the protections that 
existed after the Great Depression and somehow believe you are doing 
the country a favor. We were not.
  We have to reconnect some of those protections and separate banking 
from the substantial risks that are involved in things such as the 
derivatives and some of the complex products with great risk that now 
exist as something called toxic assets deep in the bowels of some of 
the largest financial institutions of our country.
  We have a lot to do and a lot to do in a hurry to try to fix what is 
wrong in this country. I said before that I do not think you can fix 
what is wrong unless you clean up the banking system. I understand a 
banking system is a circulatory system for an economy. You have to have 
a working system of finance.
  I was asked the other day: Do you believe in nationalizing the banks?
  I said: That is a word that is thrown around. I don't know what words 
to use. But I think perhaps for the biggest banks in the country that 
have failed that are loaded with massive, risky toxic assets and are 
now saying to the American taxpayers: Bail me out, but keep me alive 
because I have a right to exist because I am too big to fail, I said I 
think instead we ought to run it through a banking carwash. Start at 
the front end--I know ``banking carwash'' is a goofy idea--start at the 
front end and when they come out new, you have gotten rid of the bad 
assets, keep the good assets, change the name, perhaps change their 
ownership, put them back up. We need banks, I understand that. But 
there is no inherent right with all the banks with the current names to 
exist if they ran into the ditch, taking on very big risks and then 
decide the taxpayers have to retain them because it is their inherent 
right to exist. I don't believe that is the case.
  I do believe all of us have to find a way to put together this 
banking and financial system in a manner that works because business 
cannot exist without credit. We have plenty of businesses out there 
right now that have the capability to make money, have the capability 
to survive and get through this but cannot find credit. We have to find 
a way to put that together so our financial system works.


                                  Cuba

  I wish to make a couple points about a subject I did not talk about 
in recent days because there was a lot of controversy on the floor of 
the Senate over some provisions that I included in the omnibus bill 
dealing with Cuba. I wish to make a couple comments because much of the 
discussion has been inaccurate.
  Fifty year ago, Fidel Castro walked up the steps of the capitol in 
Havana, having come from the mountains as a revolutionary. Fidel Castro 
turned Cuba into a Communist country. I have no time for Fidel Castro 
or the Communist philosophy of Cuba. But it has always been my interest 
to try to understand why we treat Cuba differently than we do other 
Communist countries.
  China is Communist, Communist China. What is our policy with China? 
Engagement will be constructive; allow people to travel to China; trade 
with China; constructive engagement will move China in the right 
direction. That has always been our policy with respect to Communist 
China. I have been to China.
  Vietnam is a Communist government. What is our policy? Engagement is 
constructive; travel to Vietnam; trade with Vietnam; constructive 
engagement will move Vietnam toward better human rights and greater 
freedoms. I have been to Vietnam.
  That is our constructive approach with respect to Communist 
countries. Cuba? Different, an embargo with respect to Cuba, a complete 
embargo, which at one time even included food and medicine which, in my 
judgment, is immoral. In addition to an embargo, we said: We don't like 
Fidel Castro; so we are going to slap around the American people as 
well because we are going to prevent them from traveling to Cuba. So we 
have people in the Treasury Department in a little organization called 
the Office of Foreign Assets Control, called OFAC, that at least until 
not long ago was spending 20 to 25 percent of its time tracking 
American citizens who were suspected of vacationing in Cuba.
  Can you imagine that? The organization was designed to track 
terrorist money. But nearly a quarter of its time was spent trying to 
track whether Americans went to Cuba to take a vacation illegally. Let 
me show you some of what they have done.
  This woman is named Joan Slote. I have met Joan. Joan is a senior 
Olympian bike rider. Joan went to Cuba to ride bicycle with a Canadian 
bicycling group. Canadians can go to Cuba, and she assumed it was legal 
for Americans also. She answered an ad in a bicycling magazine and 
said: Yes, I would like to bicycle in Cuba. So she went.
  For going to bicycle in Cuba, she was fined $7,630 by the U.S. 
Government under the Trading with the Enemy Act. Think of that, the 
Trading with the Enemy Act. This senior citizen bicyclist was fined by 
her Government. Then, because her son had a brain tumor and she was 
attending to her son in another State, she did not get this notice. So 
the Government took steps to threaten to attach her Social Security 
check. Unbelievable. This is unbelievable, in my judgment.
  This is Joni Scott, a young woman who came to see me one day. She 
went to Cuba with a religious group to pass out free Bibles. You can 
guess what happened to her. Her Government was tracking her down to try 
to fine her for going to Cuba to pass out free Bibles. Why? Because we 
decided to punish Fidel Castro by not allowing the American people to 
travel to Cuba.
  Here is Leandro. He is a Cuban American but he could not attend his 
father's funeral in Cuba. President Bush, by the way, changed the 
circumstances that Cuban Americans living in this country could travel 
to Cuba so they can go only once in 3 years rather than once in 1 year. 
Your mother is dying? Tough luck. Your father is dying? Tough luck. You 
can't go there. That policy is unbelievable to me.
  This is a man I met, SGT Carlos Lazo. SGT Carlos Lazo fled from Cuba 
on raft and went to Iraq to fight for this country. He won a Bronze 
Star there. He is a great soldier. His sons were living in Cuba with 
their mother. One of his sons was quite ill. He came back from fighting 
in Iraq, and was denied the opportunity see his sick son in Cuba 90 
miles away from Florida. That is unbelievable to me. In fact, we even 
had a vote on the floor of the Senate--we did it because I forced it--
whether we were going to let this soldier go to Cuba to see his sons. 
We fell only a few votes short of the two thirds we needed to change 
the law.

[[Page 6900]]

  My point is, our policies make no sense at all. We are going to slap 
around the American people because we are upset with Castro and Cuba. I 
am upset with Castro. I am upset with Cuba's policies. But with 
Communist China and Communist Vietnam, we say travel there, trade with 
them, constructive engagement moves them in the right direction.
  John Ashcroft and I, when John Ashcroft was in the Senate, passed the 
first piece of legislation that opened a crack for American farmers to 
be able to sell food and for us to sell medicine in Cuba. We opened 
just a crack. There was a time a few years ago when the first train 
carloads of dried peas from North Dakota went to a loading dock to be 
shipped to Cuba.
  President Bush decided: I am going to tighten up all that. I am going 
to tighten up family visits; I am going to tighten up and try to thwart 
the ability of farmers to sell food into Cuba. It made no sense to me. 
So in this omnibus legislation, I made the changes we have been talking 
about and debating for years; that is, restoring the right of family 
visits once a year rather than once in 3 years and a couple other 
changes to make it easier to export food and medicine to Cuba.
  But I wish to make the point that some people on the floor of the 
Senate have claimed this legislation that was in the omnibus would 
extend U.S. credit to Cuba. It is flat out not true. There is nothing 
in these provisions that would extend credit to Cuba. In fact, the 
Ashcroft-Dorgan or Dorgan-Ashcroft legislation that allowed us to sell 
food into Cuba explicitly prohibits U.S. financing for food sales to 
Cuba. They cannot purchase food from us unless it is in cash, and the 
payments cannot even be conducted directly through an American bank. 
They have to run through a European bank for a cash transaction to buy 
American farm products. But at least the law allows us to compete with 
the Canadians, the Europeans, and others who sell farm products into 
Cuba.
  These policies, in my judgment, have been a failure, dating back to 
1960. There is no evidence at all that this embargo has been helpful.
  I have been to Cuba. I have been to Havana. I talked with the 
dissidents who take strong exception and fought the Castro regime every 
step of the way, and a good number of those dissidents said to me this 
embargo we have with respect to Cuba is Castro's best excuse. Castro 
says: Sure our economy is in shambles. Wouldn't it be? Wouldn't you 
expect it to be if the 500-pound gorilla north of here has its fist 
around your neck? That is what the Castro regime says to excuse its 
dismal record--the economy, human rights, and all of it.
  I, personally, think it is long past the time to take another look. I 
know Senator Lugar also published some recommendations on Cuba policy 
recently. Sometime soon, Senator Enzi and I and others are going to 
talk about legislation we have introduced on this subject. It is long 
past the time to take another look at this issue and begin to treat 
Cuba as we treat Communist China and Communist Vietnam.
  I think constructive engagement is far preferable because now the 
only voice the Cuban people hear effectively is the Castro voice, 
whether it is Raul or Fidel--I guess it is now Raul. That is the only 
thing they hear, and they need to hear more. Hearing more from a flock 
of tourists who go to a country such as Cuba would, in my judgment, 
open a substantial amount of new dialog. So I think travel and trade 
will be constructive, not just with China and Vietnam. I think there is 
evidence in both cases--I have been to both countries--that 
constructive engagement has moved forward in both countries in a 
measurable way.
  Has engagement resulted in a quantum leap with china and Vietnam? No, 
but it is measurable. I think the same would be true with respect to 
Cuba.
  What persuaded me to come to the floor to talk about this today was a 
discussion this past week on the floor regarding the provisions I 
sponsored on the bill we passed last night. I didn't engage in that 
discussion because we needed to move the omnibus bill.
  I did want the Senate Record to understand and show exactly what the 
history has been and what we have done. What we have done, I think, is 
a very small step in the right direction. Much more needs to be done, 
whether it is saying to American farmers: You have a right to compete, 
you have a right to sell farm products without constraints. By the way, 
one of the provisions in the bill authorizes a general license that 
would make it easier for farm groups like the Farmers Union and Farm 
Bureau to go to an agriculture expo in Cuba to be able to sell their 
products. That is not radical. That is not undermining anything. That 
is common sense.
  The drip, drip, drip of common sense in this Chamber could be helpful 
over a long period of time. This is just a couple small drops of common 
sense that I think will help us as we address the issue of Cuba.
  I yield the floor, and 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. ALEXANDER. Madam President, I ask unanimous consent that the 
order for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                               The Budget

  Mr. ALEXANDER. Madam President, I ask the Chair to let me know when I 
have 2 minutes remaining. I believe we have 30 minutes allocated to us 
at this stage.
  The PRESIDING OFFICER. The Chair will notify the Senator.
  Mr. ALEXANDER. I thank the Chair.
  Madam President, this is an important next 3 or 4 weeks for the 
United States. The President of the United States has outlined his 10-
year blueprint for our country's future in the form of a budget. The 
budget is now before the Congress, and it is our job to consider it. We 
are doing that every day in hearings, and we are looking forward to the 
details the President will send later this month. But for the next 4 
weeks, including this week, the major subject for debate in this Senate 
Chamber is this: Can we afford the Democrats' proposals for spending, 
taxes, and borrowing? And our view--the Republican view--is the answer 
is no.
  As an example, in the 1990s, President Clinton and the Congress 
raised taxes, but they raised taxes to balance the budget. This 
proposal--and we will be discussing it more as we go along--will raise 
taxes to grow the government.
  Not long ago, the President visited our Republican caucus, and we 
talked some about entitlement reform--the automatic spending that the 
government says we don't appropriate; mostly all of it is for Social 
Security, Medicare, and Medicaid--and he talked about the importance to 
him of dealing with entitlement spending. Senator McConnell, the 
Republican leader, made a speech at the National Press Club to begin 
this Congress in which he said that he was going to say to this 
President: Let's work together to bring the growth in entitlement 
spending, automatic spending, under control. We had a summit at the 
White House, which we were glad to attend, about that.
  But I say to Senator Gregg, the Senator from New Hampshire, who is 
the ranking Republican on the Budget Committee, I was disappointed to 
come back from the excellent meeting we had at the White House on 
fiscal responsibility and find, for example, that in this budget we 
have $117 billion more for entitlement spending on Pell grants. So my 
question to the Senator from New Hampshire is: Does this budget 
actually reform entitlement spending, or does it not?
  Mr. GREGG. I thank the Senator from Tennessee. I know the Senator 
from Tennessee will not be surprised to learn that there is no 
entitlement reform in this budget; that this budget, regrettably, 
dramatically increases entitlement spending.
  The chart I have here reflects that increase. If you would use the 
present baseline on entitlement spending, that would be the blue. Now 
that is going up pretty fast. During this period, it

[[Page 6901]]

would go from $1.2 trillion up to almost $2.4 trillion. That is the 
baseline, if you did nothing. Now one would have presumed with that 
type of increase in entitlement spending, and the fact that this 
budget, as it is proposed, is going to run up a public debt which will 
double in 5 years and triple in 10 years, that it will create a deficit 
this coming year of $1.7 trillion and a deficit in the last year of the 
budget of $700 billion--deficits which are larger in the last years of 
this budget than have historically been those that we have borne as a 
nation over the last 20 years, and a debt which will go from $5.8 
trillion to $15 trillion plus. One would have presumed that in that 
area where the budget is growing the fastest, and which represents the 
largest amount of cost, that this administration would have stepped 
forward and said: Well, we can't afford that; we have to try to slow 
the rate of growth of spending in that area, or at least not have 
increased it. But what the President's budget has done is they have 
proposed to dramatically increase the amount of spending in the 
entitlement accounts.
  Most of this increase will come in health care. Now, people say, and 
legitimately so, that we have to reform our health care delivery system 
in this country; that we have to get better with health care in this 
country. But does that mean we have to spend a lot more money on it? 
No. We spend 17 percent of our national product, of what we produce as 
a nation, on health care. The closest country to us in the 
industrialized world only spends 11\1/2\ percent of their product on 
health care. So we have a massive amount of money we are spending on 
health care as an industrialized nation that is available to correct 
our health care system. We don't have to increase it even further.
  What the President is proposing is to increase health care spending. 
As a downpayment, they are saying $600 billion, but actually what they 
are proposing is $1.2 trillion of new entitlement spending in health 
care. No control there. In addition, as the Senator from Tennessee 
noted, they are taking programs which have traditionally been 
discretionary, which have therefore been subject to some sort of fiscal 
discipline around here, because they are subject to what is known as 
spending caps on discretionary programs, and taking these programs and 
moving them over to the entitlement accounts. Why? Because then there 
is no discipline. You spend the money, and you keep spending the money, 
and there is no accountability. So they are taking the entire Pell 
program out of discretionary accounts and moving it over to entitlement 
accounts. As the Senator from Tennessee noted, this is over $100 
billion of new entitlement spending.
  If we keep this up, what is it going to do? Essentially, what it is 
going to do is bankrupt our country, but it will certainly bankrupt our 
kids. We are going to pass on to them a country which has this massive 
increase in debt--something our children can't afford, as I mentioned 
earlier--a debt which will double in 5 years because of the spending, 
and triple in 10 years. Almost all of this growth in debt is a function 
of the growth of the entitlement spending in this program. Although 
there is a considerable amount of growth in discretionary, the vast 
majority of this increase is in spending for entitlement programs.
  To put it another way, and to show how much this is out of the 
ordinary and how much this is a movement of our government to the 
left--an expansion of government as a function of our society--this 
chart shows what historically the spending of the Federal Government 
has been. It has historically been about 20 percent of gross national 
product. That has been an affordable number. Granted, we have run 
deficits during a lot of this period, but at least it has been 
reasonably affordable. But this administration is proposing in their 
budget that we spike the spending radically next year, which is 
understandable because we are in the middle of a very severe recession 
and the government is the source of liquidity to try to get the economy 
going. So that is understandable. Maybe not that much, but maybe 
understandable. It is more than I would have suggested, but I will 
accept that. The problem is out here, when you get out to the year 
2011, 2012, and 2013, when the recession is over. When the recession is 
over, they do not plan to control spending. They plan to continue 
spending on an upward path so it is about 23 percent of gross national 
products.
  What does that mean? That means we are going to run big deficits, big 
debt, and all of that will be a burden and fall on the shoulders of our 
children. Our children are the ones who have to pay this cost.
  Mr. ALEXANDER. At this point, let me ask the Senator from New 
Hampshire a question. I have heard you say, and I believe I said a 
moment ago, that in the 1990s, President Clinton raised taxes, as 
President Obama is planning to raise taxes, but that President Clinton 
used it to reduce the deficit.
  Mr. GREGG. Yes. When President Clinton raised taxes in the mid 1990s, 
and a Republican Congress came into play, we controlled spending. He 
got his tax increase, the deficit went down, because the tax increase 
was put to reducing the deficit. What President Obama is proposing is 
that he increase taxes by $1.4 trillion--the largest tax increase in 
the history of our country. Is it going to be used to reduce the 
deficit? No, just the opposite. It is going to be used to grow the 
government and allow the government to now take 23 percent of gross 
national product instead of the traditional 20 percent.
  So you can't close this gap. Basically, all the new taxes in this 
bill--and there are a lot of them. There is a national sales tax on 
everybody's electric bill, a tax which is basically going to hit most 
every small business in this country and make it harder for them to 
hire people; and a tax which limits the deductibility of charitable 
giving and of home mortgages. All these new taxes are not being used to 
get fiscal discipline in place, to try to bring down the debt, or limit 
the rate of growth of the debt, or to limit the size of the deficit. 
They are being used to explode--literally explode--the size of the 
Federal Government, with ideas such as nationalizing the educational 
loan system, ideas such as quasinationalization of the health care 
system, which is in here, and massive expansion of a lot of other 
initiatives that may be worthwhile but aren't affordable in the context 
of this agenda.
  So this budget is a tremendous expansion in spending, a tremendous 
expansion in borrowing, and a tremendous expansion in taxes. And it is 
not affordable for our children.
  Mr. ALEXANDER. I wonder if I may ask the Senator from New Hampshire 
about this. Some people may say, with some justification: You 
Republicans are complaining about spending, yet in the last 8 years you 
participated in a lot of it yourself. How would you compare the 
proposed spending and proposed debt over the next 10 years in this 
blueprint by the Obama administration with the last 8 years?
  Mr. GREGG. That is a good point, and that has certainly been made by 
the other side of the aisle: Well, under the Bush administration all 
this spending was done and this debt was run up.
  In the first 5 years of the Obama administration, under their 
budget--not our numbers, their numbers--they will spend more and they 
will run up the debt on the country more and on our children more than 
all the Presidents since the beginning of our Republic--George 
Washington to George Bush. Take all those Presidents and put all the 
debt they put on the ledger of America, and in this budget President 
Obama is planning to run up more debt than occurred under all those 
Presidents. It is a massive expansion in debt.
  It is also an interesting exercise in tax policy. Now, I know we are 
not talking so much about taxes today, but I think it is important to 
point out that when you put a $1.4 trillion tax increase on the 
American people, you reduce productivity in this country rather 
dramatically. One of the unique things about President Bush's term was 
that he set a tax policy which actually caused us to have 4 years--
prior to this massive recession, which is obviously a significant 
problem and a very difficult situation--but for the runup during the 
middle part of his

[[Page 6902]]

term right up until this recession started, the Federal Government was 
generating more revenues than it had ever generated in its history. Why 
was that? Because we had a tax policy which basically taxed people in a 
way that caused them to go out and be productive, to create jobs, and 
to do things which were taxable events.
  Unfortunately, what is being proposed here, under this 
administration's tax policy, is going to cause people to do tax 
avoidance. Instead of investing to create jobs, they will go out to 
invest to try to avoid taxes, and that is not an efficient way to use 
dollars. The practical effect is it will reduce revenues and increase 
the deficit. So on your point, the simple fact is, as this proposal 
comes forward from the administration, it increases the debt of the 
United States more in 5 years than all the Presidents of the United 
States have increased the debt since the beginning of the Republic.
  Mr. ALEXANDER. I see the Senator from Arizona, who is a longtime 
member of the Senate Finance Committee and pays a lot of attention to 
Federal spending and is the assistant Republican leader. I wonder, 
Senator Kyl, as you have watched the Congress over the years, to what 
do you attribute this remarkable increase in spending? We heard a lot 
of talk last year about change, but this may be the kind of change that 
produces a sticker shock. It may be a little bit more change in terms 
of spending than a lot of Americans were expecting.
  Mr. KYL. Mr. President, I appreciate the question of my colleague 
from Tennessee. I also compliment the ranking member of the Budget 
Committee, the Senator from New Hampshire, who has tried to deal with 
budgets all the time he has been in the Senate.
  If I could begin by just asking him one question: How would you 
characterize this budget proposed by the President as compared with 
others, in terms of the taxes and the spending and the debt created? Is 
there some way to compare it with all of the other budgets that you 
have worked with, including all of the Bush budgets?
  Mr. GREGG. It has the largest increase in taxes, the largest increase 
in spending, and the largest increase in debt in the history of our 
country.
  Mr. KYL. Mr. President, I first would answer my colleague from 
Tennessee. We ought to be spending less and taxing less and borrowing 
less. Our minority leader asked his staff to do some calculations. Just 
from the time that the new President raised his hand and was 
inaugurated as President, how much money have we spent? They calculated 
that we have spent $1 billion every hour. That is just in the stimulus 
legislation, this omnibus bill that was just passed last night, which 
is 8 percent over the stimulus bill, and we have not even added in the 
spending that is going to occur as a result of this budget which, as 
the Senator from New Hampshire said, in just the first year is a third 
more spending than even the previous year--$3.55 trillion.
  In addition to that, it makes much of the so-called temporary 
spending in the stimulus bill permanent. Some of us predicted that 
would happen, that when they have a new program in the stimulus bill 
they surely wouldn't cut it off after 2 or 3 years. We said they will 
probably make it permanent. Sure enough, and the ranking member on the 
Budget Committee can speak to that better than I, but a great many of 
these programs are made permanent. On health care, for example, the 
Senator from New Hampshire talked about that, but there is no effort to 
control entitlements. In fact, Medicare, Medicaid, and Social Security 
all rise between 10 and 12 percent, Medicare itself by $330 billion. 
This is increased spending, and it is permanent programs.
  We also wondered what would happen with respect to the Federal 
Government's growth as a result. According to a March 3 Washington Post 
article, ``President Obama's budget is so ambitious, with vast new 
spending on health care, energy independence, education, services for 
veterans, that experts say he probably will need to hire tens of 
thousands of new Federal Government workers to realize his goals.'' 
According to the article, estimates are as high as 250,000 new 
Government employees will have to be hired to implement all of this 
spending.
  I know we want to create jobs in this economy, but I wonder if the 
American people intended that we create a whole bunch of new Government 
bureaucrats to spend all of this money.
  This is not responsive to my colleague's question, but the one area 
where we do not have high unemployment is Government jobs. The 
unemployment in the country is about 8 percent now. In Government jobs 
it is between 2 percent and 3 percent, so that is not an area we needed 
to grow more jobs.
  Mr. ALEXANDER. I wonder if I might ask the Senator from Arizona, one 
might look at the chart Senator Gregg has up and say that is not too 
big an increase in Federal spending, but of course the United States 
produces about 25 percent of the world's wealth. When we go up on an 
annual basis by a few percentage points, it begins to change the 
character of the kind of country we have.
  How do you see this kind of dramatic increase in spending and taxing 
and debt affecting the character of the country as compared with, say, 
countries in Europe or other countries around the world?
  Mr. KYL. Mr. President, I would say that is getting to the heart of 
the matter. We can talk about these numbers all day. They are mind-
boggling, they are very difficult to take in. But what does it all mean 
at the end of the day? I will respond in two ways.
  First of all, it makes us look a whole lot more like the countries in 
Europe that have been stagnating for years because they spend such a 
high percent of their gross national product on government. As the 
Senator from New Hampshire pointed out, we are headed in that direction 
under this budget. It is a recipe for a lower standard of living in the 
United States and makes us look a lot more like Europe.
  The second way goes back to the policy I think is embedded in this 
budget. The President has been very candid about this. He talks about 
it as his blueprint. He says this budget is not about numbers, it is 
about policies; it is about a blueprint for change. The Wall Street 
Journal on February 27 said:

       With yesterday's fiscal 2010 budget proposal, President 
     Obama is attempting not merely to expand the role of the 
     federal government but to put it in such a dominant position 
     that its power can never be rolled back.

  That is the problem. It is the growth of Government controlling all 
of these segments of our lives. That is what this spending is 
ultimately all about, as the Senator from New Hampshire said, taking 
over the energy policy, taking over the health care, taking over the 
education policy, as well as running our financial institutions. It is 
not just about spending more money and creating more debt and taxing in 
order to try to help pay for some of that. It is also about a huge 
increase in the growth of Government and therefore the control over our 
lives.
  In a way, the Wall Street Journal says, ``In a way that can never be 
rolled back.''
  Mr. ALEXANDER. I wonder if either the Senator from Arizona or New 
Hampshire would have a comment on the way that spending was 
accomplished in the stimulus bill. For example, in the Department of 
Education, where I used to work, the annual budget was $68 billion. But 
the stimulus added $40 billion per year to the department's budget for 
the next 2 years. There were no hearings. There was no discussion about 
this. No one said: Are we spending all the money we are spending now in 
the right way, and if we were to spend more would we give parents more 
choices? Would we create more charter schools? Would we, as the 
President said yesterday, of which I approve, spend some money to 
reward outstanding teachers?
  What about the way this is being spent on energy, education, and 
Medicaid, for example?
  Mr. GREGG. I think the Senator is absolutely right. The stimulus 
package was a massive unfocused effort by people to fund things they 
liked. I don't think it was directed at stimulus. It

[[Page 6903]]

was more directed at areas where people believed there needed to be 
more money, people who served on the Appropriations Committee, and 
therefore they massively funded those areas. Between the stimulus bill 
and the omnibus bill, there were 21 programs which received on average 
an 88-percent increase in funds for 2009 compared to 2008; $155 billion 
more was spent on those programs for this year than last year. That is 
just a massive explosion in the size of the Government. It is 
inconsistent with what the purposes of a stimulus package should have 
been.
  The stimulus package should have put money into the economy quickly 
for purposes of getting the economy going. What this bill did was 
basically, as you mentioned earlier, build programs that are going to 
be very hard to rein in. The obligations are there. They are going to 
have to be continued to be paid for, and, as the Senator from Arizona 
pointed out, that was probably the goal: to fundamentally expand the 
size of Government in a way that cannot be contracted.
  Take simply, for example, a very worthwhile exercise which is NIH. 
They received an extra $10 billion, I believe, on the stimulus package, 
for 2 years of research. Research doesn't take 2 years. Research takes 
years and years and years, so you know if you put in that type of money 
up front you are going to have to come in behind it and fill in those 
dollars in the outyears.
  They basically said you are going to radically expand the size of 
this initiative. The same thing happening in education. The same thing 
happening in health care. That is where this number goes up so much, 23 
percent of gross national product, and it goes up from there. The only 
way you pay for it is basically taxing our children to the point they 
cannot have as high a quality of life as we have.
  Mr. ALEXANDER. I heard the Senator from Arizona say it was not just a 
$1 trillion stimulus package, that by the time you add in all these 
projected costs in the future, it might be much more.
  Mr. KYL. I think the number was $3.27 trillion. I believe that was 
the correct number over the time of the 10 years.
  The Senator from Tennessee certainly knows a bit about education. It 
all was not spent. There were some policies that actually attempted to 
reduce some costs--of a program that works very well, that thousands of 
people in the District of Columbia depend upon to send their kids to 
good schools. That is the program we put into effect to give a voucher 
of $7,500 a year to kids to attend private schools, kids who would 
never have that opportunity otherwise.
  If I could ask a question of my colleague from Tennessee, since as 
former Secretary of Education he knows something about how to make sure 
our kids have the best opportunities for education in this country, 
why, with the District of Columbia costing about $15,000 a year to 
educate children and not doing a very good job of it according to all 
of the test scores, and thousands of parents wishing their kids had an 
alternative choice, somewhere else to go--when we create a program that 
provides a few of them, less than 2,000 a year, I believe, with a 
voucher that returns only half of that much money to the private 
school--$7,500, so it doesn't cost the public anything--why, when it 
gives these kids such a great opportunity, would our colleagues on the 
other side of the aisle, and the President, whose two daughters, by the 
way, attend one of the schools that kids would have to be taken out of 
because they can't afford to go there without the voucher--why would 
they remove that school choice and the voucher program?
  Mr. ALEXANDER. It is very hard to imagine, Senator Kyl. Just to make 
the point we are not being personal about that, my son attended the 
same school that the President's daughters attend when we were here and 
I was Education Secretary.
  School vouchers may not be the solution in every rural county in 
America, but in the District of Columbia, 1,700 children who are low-
income children have a chance to choose among private schools, their 
parents are delighted with the choice, and a study is coming out this 
spring to assess what they are learning. I do not know the motive 
behind this, but I do know the National Education Association has made 
its reputation opposing giving low-income parents the same choices that 
wealthy people have. That is a poor policy and one we ought not to have 
stuck on an appropriations bill like that.
  The President has shown good instincts on education. His Education 
Secretary is a good one. But had we had a chance to debate this in 
committee and to hear from them, perhaps we could have had a bipartisan 
agreement that we need to pay good teachers more, we need more charter 
schools, and we need to give parents some more choices like these 
District of Columbia parents.
  I know our time is running short. I wonder if the Senator from New 
Hampshire has any further thoughts about spending.
  Mr. GREGG. I thank the Senator from Tennessee for taking this time. I 
think it all comes down to these numbers. Really, what does spending 
do? Sure it does a lot of good things, but in the end, if you don't pay 
for it, it makes it more difficult for our country to succeed and for 
our children who inherit the debts to succeed. When you double the debt 
in 5 years because of the spending, and you triple it in 10 years, you 
are absolutely guaranteeing that you are passing on to our children a 
country where they will have less opportunities to succeed than our 
generation. That is not fair. It is simply not fair for one generation 
to do this to another generation. Yet that is what this budget proposes 
to do: to run up bills for our generation and take them and turn them 
over to our children and grandchildren at a rate greater than ever 
before, a rate of spending greater than has ever been seen before, and 
a rate of increasing the debt that has never been conceived of before, 
that you would triple the national debt in 10 years.
  It is not fair, it is not right, it is not appropriate, and it 
certainly is a major mistake, in my opinion.
  Mr. ALEXANDER. Senator Kyl, to conclude our discussion, this is the 
beginning of a process in the Senate in which everyone in this country 
can participate. We are asking that they consider: Can you afford this 
amount of spending, this amount of borrowing, this amount of taxes? 
There is a different path we could take toward the future.
  Mr. KYL. Indeed. Mr. President, I thank the Senator from Tennessee. 
As this debate unfolds, I think our colleagues will see that 
Republicans have some better ideas. We want to spend less and tax less 
and borrow less. We believe we can accomplish great results in the 
field of energy, for example, in the field of education, in the field 
of health care--much more positively, much better results in the long 
run with a lot less burden on our children and our grandchildren in the 
future.
  As this debate unfolds, we are very anxious to present our 
alternative views on how to accomplish these results.
  The PRESIDING OFFICER (Mr. Cardin.) The Senator is notified that 28 
minutes has elapsed.
  Mr. ALEXANDER. I thank the Senator from Arizona for his leadership 
and the Senator from New Hampshire for his views.
  This is the beginning of a discussion about a 10-year blueprint 
offered by our new President about the direction in which our country 
should go. We on the Republican side believe American families cannot 
afford this much new spending, this many new taxes, and this much new 
debt. We will be suggesting why over the next 3 or 4 weeks, and in 
addition to that we will be offering our vision for the future. For 
example, on energy, some things we agree with, such as conservation and 
efficiency; some things we would encourage more of, such as nuclear 
power for carbon-free electricity.
  This is the beginning of a very important debate, and the direction 
in which it goes will dramatically influence the future of this country 
and make a difference to every single family, not just today's parents 
but children and their children as well.

[[Page 6904]]

  I yield the floor, and I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. ALEXANDER. 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. ALEXANDER. Mr. President, I ask unanimous consent that the time 
be equally charged to each side.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Alabama is recognized.
  Mr. SHELBY. Mr. President, I rise today with great concern regarding 
the nomination of Mr. David Ogden to serve as the Deputy Attorney 
General of the United States. There is no doubt that Mr. Ogden has a 
long record of legal experience. He also, however, brings a long 
history of representation of the pornography industry and the 
opposition to laws designed to protect children from sexual 
exploitation.
  He opposed the Children's Internet Protection Act of 2000 that would 
restrict children's exposure to explicit online content. Mr. Ogden 
filed an amicus brief supporting the American Library Association in a 
case that challenged mandatory anti-obscenity Internet filters in 
public libraries. He treated pornography like informative data, writing 
that the ``imposition of mandatory filtering on public libraries 
impairs the ability of librarians to fulfill the purposes of public 
libraries--namely, assisting library patrons in their quest for 
information. . . .''
  Mr. Ogden also argued against laws requiring pornography producers to 
verify that models were over 18 at the time their materials were made. 
Think of that. He challenged the Child Protection and Obscenity 
Enforcement Act of 1988 and a companion law adopted in 1990, the Child 
Protection Restoration and Penalties Enhancement Act. Mr. Ogden argued 
that requiring pornography producers to personally verify that their 
models were over age 18 would ``burden too heavily and infringe too 
deeply on the right to produce First Amendment-protected material.''
  Among the many cases in which Mr. Ogden has advocated interests of 
the pornography industry, none is more egregious than the position he 
took in Knox v. the United States.
  The facts in the next case are straightforward. Steven Knox was 
convicted of receiving and possessing child pornography under the Child 
Protection Act after the U.S. Customs Service found in Mr. Knox's 
apartment several videotapes of partially clothed girls, some as young 
as age 10, posing suggestively. Serving as counsel on an ACLU effort, 
Mr. Ogden argued to strike down the 1992 conviction of Mr. Knox. On 
behalf of the ACLU and other clients, Mr. Ogden submitted a Supreme 
Court brief advocating the same statutory and constitutional positions 
as the Clinton Justice Department. Mr. Ogden's arguments stated that 
while nudity was a requirement for prosecution, nudity alone was 
insufficient for prosecutions under child pornography statutes. Put 
simply, Mr. Ogden argued that the defendant had been improperly 
convicted because the materials in his possession would only qualify as 
child pornography if children's body parts were indecently exposed.
  In response, on November 3, 1993, the Senate, right here, passed a 
resolution by a vote of 100 to 0 condemning this interpretation of the 
law by Mr. Ogden. President Clinton then publicly rebuked the Solicitor 
General, and Attorney General Reno overturned his position. Now the 
Senate is being asked to confirm as Deputy Attorney General someone who 
advocated the same extreme position on a Federal child pornography 
statute that the Senate unanimously repudiated 16 years ago.
  The Supreme Court has ``recognized that there is a compelling 
interest in protecting the physical and psychological well-being of 
minors. This interest extends to shielding minors from the influence of 
literature that is not obscene by adult standards.'' Pornography should 
not be regarded as immune from regulation simply because it is deemed 
``free speech.''
  Furthermore, child pornography in any form should not be tolerated. 
How can Mr. Ogden's clear position on the right to unfettered access to 
pornography not interfere with the Justice Department's responsibility 
to protect children from obscene material and exploitation?
  When asked about this very issue at the Senate hearing on his 
nomination, Mr. Ogden said he hoped he would not be judged by arguments 
made for clients. If we cannot judge him on his past positions, what 
can we judge him on? Past performance is a great indicator of future 
action.
  David Ogden is more than just a lawyer who has had a few unsavory 
clients. He has devoted a substantial part of his career, case after 
case for 20 years, in defense of pornography. Ogden has profited from 
representing pornographers and in attacking legislation designed to ban 
child pornography. Should a man with a long list of pornographers as 
past clients, with a record of objection to attempts to regulate this 
industry in order to protect our children, be confirmed for our 
Nation's second highest law enforcement position? Is he the best choice 
to actively identify and prosecute those who seek to harm our children?
  Highlights of the Department of Justice's budget request for the year 
2010 indicate an increased focus on educating and rehabilitating 
criminals, while neglecting funding for vital child-safety programs 
such as the Adam Walsh Act. I believe Mr. Ogden's past positions, 
coupled with the Department's growing trend to prioritize criminal 
rehabilitation over child safety, cause me great concern this 
afternoon.
  There is not a quick and easy solution to the problems of child 
exploitation, but I can state unequivocally that we need a proactive 
and aggressive Department of Justice to take the steps necessary to 
attack this problem and demonstrate that protecting our children is a 
top priority. I am not certain David Ogden will bring that leadership 
to the Department; therefore, I must oppose this nomination.
  This vote is made with the belief that a person's past legal 
positions do mean a great deal. I think if most Americans knew what 
this man has worked for and whom he has willingly represented, support 
for his nomination would disappear. I do not believe his legal 
philosophy, illustrated in the clients he freely chose to represent, 
reflects the majority's views on the issue of child exploitation. I 
know certainly they do not reflect mine.


                           Tragedy in Alabama

  Mr. SHELBY. Mr. President, I want to get into something else you have 
been reading about what happened in my State of Alabama yesterday. I 
offer my condolences to the families and friends of the victims killed 
in Samson, AL.
  Yesterday, my State of Alabama suffered the worst mass shooting in 
our State's history. As this tragedy unfolded, our law enforcement 
responded bravely. I commend them for their actions and efforts. I also 
offer my sincere sympathies to the victims, their families, and the 
community. This is a tragedy that did not have to happen.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Michigan is recognized.
  (The remarks of Mr. Levin and Mr. Grassley pertaining to the 
introduction of S. 569 are printed in today's Record under ``Statements 
on Introduced Bills and Joint Resolutions.'')
  Mr. GRASSLEY. I suggest the absence of a quorum and ask unanimous 
consent that the time be equally divided.
  The PRESIDING OFFICER (Mrs. Shaheen). Without objection, it is so 
ordered.
  The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. BROWNBACK. I ask unanimous consent that the order for the quorum 
call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BROWNBACK. Madam President, I rise to speak about the nomination 
of David Ogden to be Deputy Attorney General of the Department of 
Justice.

[[Page 6905]]

To summarize what I see in the Record, what I have read, I am very 
disappointed in the Obama administration for nominating this individual 
who is obviously talented but has also obviously chosen to represent, 
sometimes on a pro bono basis, groups that push pornography. He even 
represented interests against child pornography laws that we have 
passed by unanimous votes in the Senate.
  Here is a gentleman who has taken up these causes as a lawyer. I 
appreciate his skill and ability as a lawyer. I appreciate his 
willingness to represent a client. But he has chosen to consistently 
represent pornography companies and groups. Even against the unanimous 
opinion of this body on child pornography cases, he has taken the other 
side. The message that sends across the country to people--when we are 
struggling with a huge wave of pornography, and then, at the worst end 
of it, child pornography--the message it sends around the rest of the 
country is this is a Justice Department that is not going to enforce 
these child pornography laws or is not concerned about this, when we 
have an epidemic wave of pornography, and particularly of child 
pornography, that is striking across the United States, and that this 
is harming our children. It is harming our society overall. Now, at the 
second to the top place of enforcement, you are putting your Deputy 
Attorney General who has taken on these cases, and sometimes in a pro 
bono manner.
  I have no doubt of his legal skills. But the message this sends 
across the country to parents, who are struggling to raise kids, is not 
a good one. Our office has been receiving all sorts of calls opposed to 
Mr. Ogden's nomination because of that very feature--and deeply 
concerned calls because they are struggling within their own families 
to try to raise kids, to try to raise kids responsibly, and to try to 
raise them in a culture that oftentimes is very difficult with the 
amount of violent material, sexual material that is out there, and 
hoping their Government can kind of back them a little bit and say: 
These things are wrong. Child pornography is wrong. It should not take 
place. It should not be on the Internet. And you should not participate 
in it.
  Instead, to then nominate somebody who has represented groups 
supporting that dispirits a number of parents and says: Is not even my 
Government and its enforcement arms going to take this on? Are they not 
going to be concerned about this, as I am concerned about it as a 
parent? I see it pop up on the Internet, on the screen, at our home way 
too often, and I do not want to see this continue to take place. Then 
along comes this nominee, who knocks the legs out from under a number 
of parents.
  I want to give one quick fact on this that startled me when I was 
looking at it. It is about the infiltration of pornography into the 
popular culture, and particularly directly into our homes, and now it 
is an issue that all families grapple with, our family has grappled 
with. My wife and I have five children. Three of them are out of the 
household now. We still have two of them at home. We grapple and 
wrestle with this. Once relatively difficult to procure, pornography is 
now so pervasive that it is freely discussed on popular, prime-time 
television shows. The statistics on the number of children who have 
been exposed to pornography are alarming.
  A recent study found that 34 percent of adolescents reported being 
exposed to unwanted--this is even unsolicited; unwanted--sexual content 
online, a figure that, sadly, had risen 9 percent over the last 5 
years. Madam President, 9 out of 10 children between the ages of 8 and 
16 who have Internet access have viewed porn Web sites--9 out of 10 
children between the ages of 8 and 16 who have Internet access have 
viewed porn Web sites--usually in the course of looking up information 
for homework.
  It is a very addictive situation we have today. I held a hearing 
several years back about the addictiveness of pornography, and we had 
experts in testifying that this is now the most addictive substance out 
in the U.S. society today because once it gets into your head, you 
cannot like dry off or dry out of it.
  The situation is alarming on its impact on marriages. There is strong 
evidence that marriages are also adversely affected by addiction to 
sexually addictive materials. At a past meeting of the American Academy 
of Matrimonial Lawyers, two-thirds of the divorce lawyers who attended 
said that excessive interest in online pornography played a significant 
role in divorces in the previous year. That is two-thirds of the 
divorce lawyers saying this is getting to be a situation that is 
impacting so many of our clients and is so pervasive.
  While David Ogden possesses impressive academic credentials, and he 
certainly is a talented lawyer, he has also represented several 
clients, significant clients, with views far outside the mainstream, 
and he has not, to my satisfaction, disavowed the views of these 
clients. He was given every chance to in hearings. He was trying to be 
pinned down by people on the committee about: What are your views? I 
understand your clients' views. What are your views? And he would not 
respond to those.
  He said: Well, these are views of my clients. I understand the views 
of your clients. If they are pushing pornography, child pornography, 
want to have access to this, I understand that. What are your views? 
And he demurred each time and would not respond clearly.
  Based on that record, I am led to believe it is highly likely David 
Ogden may share the views of some of his clients--of those who have 
supported pornography--and I cannot trust him to enforce some of our 
Nation's most important antichild pornography laws--laws that he has a 
history of arguing are unconstitutional. That is a position he took as 
a lawyer: that these are unconstitutional, antichild pornography laws.
  In an amicus brief David Ogden filed in United States v. American 
Library Association, he argued that the Children's Internet Protection 
Act, which requires libraries receiving Federal funds to protect 
children from online pornography on library computers, censored 
constitutionally protected material and that Congress was violating the 
first amendment rights of library patrons. Now, that was the position 
David Ogden took.
  In a response to written questions submitted by Senator Grassley 
after his confirmation hearing, David Ogden indicated he served as pro 
bono counsel--for people who are not lawyers, that means he did it for 
free--in this case, further calling into question his personal views. 
If you are willing to represent a client for free, it seems to me there 
is some discussion or possibility you may really share your client's 
views on this issue regarding access to online pornography at 
libraries.
  The Children's Internet Protection Act passed this body, the Senate, 
by a vote of 95 to 3 back in 2000. Ninety-five Members of this body 
believed the Children's Internet Protection Act was an appropriate 
measure to protect children from Internet filth and was constitutional 
because our duty, as well, is to stand for the Constitution and to 
abide by the Constitution and uphold it.
  How can we trust David Ogden to enforce this law when he argued 
against it as a pro bono counsel?
  In another very disturbing case, Knox v. the United States, in which 
Stephen Knox was charged and convicted for violating antichild 
pornography laws--these are child pornography laws but child 
pornography laws which I think are in another thoroughly disgusting 
category--David Ogden filed a brief on behalf of the ACLU and others 
challenging the Federal child pornography statutes. At issue in this 
case was how child pornography is defined under the Federal statutes.
  I am sure many of my colleagues will remember the controversy that 
surrounded this case. As you may recall, Stephen Knox was prosecuted by 
the Bush Justice Department--during the first Bush Presidency--and 
ultimately convicted, after U.S. Customs intercepted foreign videotapes 
he had ordered. By the time his conviction was appealed, however, 
President Clinton was in office, and the Justice Department changed its 
position on Knox's

[[Page 6906]]

conviction. Drew Days, Clinton's Solicitor General at the time, chose 
not to defend the conviction of Knox.
  The Clinton Justice Department said: Yes, he is convicted, but we are 
not going to prosecute this. But the Senate, by a vote of 100 to 0--
which is really rare to get around this place--and the House, by a vote 
of 425 to 3, rejected the Clinton Justice Department's interpretation 
of the child porn laws. The Senate unanimously said: Prosecute this. 
Prosecute this child pornography case.
  David Ogden was on the wrong side of this case. I urge my colleagues 
to consider whether a man who has taken such extreme positions on 
pornography, and especially child pornography, can be trusted to 
enforce Federal laws prohibiting this cultural toxic waste. I am not 
convinced that David Ogden does not share the views he advocated in the 
Knox case, and I am concerned that at the very least he may be 
sympathetic to the views of his former clients.
  I hope David Ogden proves me wrong and he demonstrates a strong 
willingness to enforce Federal child pornography and obscenity laws. 
These laws are on the books. I hope he enforces them. But I cannot in 
good conscience vote in favor of his nomination given his past record 
and the positions he has taken. His past positions have been far too 
extreme and outside of the mainstream for me, or I think for most 
Americans, and certainly for most parents, to be able to support him to 
be No. 2 in command of the Justice Department that enforces these laws.
  I realize many of my colleagues, and likely the majority, are going 
to cast their votes in favor of David Ogden. Before they do, I ask them 
to please consider the negative impact pornography has had--and 
particularly child pornography has had--on this society and the 
important role the Justice Department plays in protecting children from 
obscene and pornographic material, particularly child pornography.
  The infiltration of pornography into our popular culture and our 
homes is an issue that every family now grapples with. Once relatively 
difficult to procure, it is now so pervasive that it is freely 
discussed all over. Pornography has become both pervasive and intrusive 
in print and especially on the Internet. Lamentably, pornography is now 
also a multibillion-dollar-a-year industry. While sexually explicit 
material is often talked about in terms of ``free speech,'' too little 
has been said about its devastating effects on users and their 
families.
  According to many legal scholars, one reason for the industry's 
growth is a legal regime that has undermined the whole notion that 
illegal obscenity can be prosecuted. The Federal judiciary continues to 
challenge our ability to protect our families and our children from 
gratuitous pornographic images, and we must have a Justice Department 
that is committed to combating this most extreme form of pornography.
  Perhaps the ugliest aspect of the pornographic epidemic is child 
pornography. This is where Mr. Ogden's record is most disturbing 
because he is outside of even the minimal consensus on pornographic 
prosecutions that exist. Children as young as 5 years old are being 
used for profit in this, regrettably, fast-growing industry. While 
there has been very little consensus on the prosecution of even the 
most hard-core adult pornography, there has been widespread agreement 
on the necessity of going after the purveyors of child porn. Despite 
this agreement, this exploitive industry continues to thrive. Every 
day, there are approximately 116,000 online searches for child 
pornography--116,000. I think we can all agree that we have a duty to 
protect the weakest members of our society from exploitation and from 
abuse.
  I fear David Ogden will be a step backward--and certainly sends that 
signal across our society and to our parents and our families in this 
effort to combat this most dangerous form of pornography. For those 
reasons, I will be casting a ``no'' vote on his confirmation.
  Madam President, I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  The PRESIDING OFFICER. The Senator from Utah is recognized.
  Mr. HATCH. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                              Obama Budget

  Mr. HATCH. Madam President, a couple weeks ago the Obama 
administration released an outline of its budget plan for fiscal year 
2010. The budget is a plan that reflects the President's agenda and 
priorities for the fiscal year.
  The document with which most of our colleagues are quite familiar 
with by now is entitled, ``A New Era of Responsibility--Renewing 
America's Promise.'' While this is a nice title for which I commend the 
President, it does not sound like the appropriate name for a work of 
fiction. Because of the impact of the policies outlined in this budget, 
a more fitting title might be, ``How To End America's Global Leadership 
and Prosperity Without Really Trying.'' Even better, it sounds more 
like a 1973 Disney animation entitled ``Robinhood.''
  In this Oscar-nominated movie about a legendary outlaw, I think a 
colloquy between Little John and Robinhood sums it up best. Little John 
said:

       You know somethin', Robin? I was just wonderin', are we 
     good guys or bad guys? You know, I mean our robbing the rich 
     to give to the poor.

  Robinhood responded:

       Rob? Tsk, tsk, tsk. That's a naughty word. We never rob. We 
     just sort of borrow a bit from those who can afford it.

  Simply stated, this budget declares war on American jobs and on the 
ability of American businesses to save or create them. It is bitingly 
ironic, since on the first page of the budget message the President 
said that the time has come, ``not only to save and create new jobs, 
but also to lay a new foundation for growth.''
  The only thing this budget lays the foundation of growth for is more 
Government spending and more taxes.
  Indeed, this budget is so bad, it is hard to know where to begin to 
describe what is wrong with it. But let's start with the tax provisions 
beginning on page 122 of the budget. Right there in black and white are 
the administration's plans to increase taxes on American businesses--
the only entities that can create and save jobs on a permanent basis--
by a minimum of $1.636 trillion over 10 years. I say ``minimum'' 
because the total amount may be much higher, as I will explain a little 
later in my remarks.
  This budget is a masterpiece of contradiction. For example, it 
promises the largest tax increases known to humankind while promising 
tax cuts to 95 percent of working families. In reality, the President 
wants to play Robinhood by redistributing trillions of dollars from 
those who already pay the lion's share of this Nation's income taxes 
and give a significant portion of it, through refundable tax credits, 
to those who now pay no income taxes at all.
  The budget promises millions of jobs to be saved or created but takes 
away the very means for the private sector to perform this job creation 
through increases in capital gains taxes, carried interest, and the top 
individual rates where most business income is taxed.
  The budget is also contradictory to stimulating the economy. On one 
hand, it claims to provide $72 billion in tax cuts for businesses, but 
on the other hand, the budget raises $353 billion in new taxes on 
businesses, not counting the hundreds of billions--perhaps trillions--
more in so-called ``climate revenues.''
  The budget decries the role of housing in bringing about our economic 
crisis. It reduces the value of millions of homes by reducing the value 
of the home mortgage interest deduction. The budget talks about 
struggling families but reduces the incentive for taxpayers with the 
means to donate to charity to do so.
  The President claims this budget is free from the trickery and budget 
gimmicks that have characterized those of previous administrations, but 
he then

[[Page 6907]]

assumes the extension of all the 2001 and 2003 tax relief and the AMT 
patch into the baseline and then eliminates some of the same tax relief 
and counts it as new revenue. I could go on and on about other 
contradictions and ironies in this budget outline, and this is likely 
just a preview. Wait until we get all the details.
  The budget outline indicates tax increases of $990 billion over the 
next 10 years in so-called ``loophole closers'' and ``upper income tax 
provisions dedicated to deficit reduction.'' This is in addition to at 
least $646 billion more in so-called ``climate revenues.''
  In short, President Obama is proposing to raise taxes at a time when 
we are in a recession. The last time we raised taxes during a 
recession, we went into a depression.
  The President claims these tax hikes will not take effect until 2011, 
when he believes the economy will recover. This is in itself a huge 
contradiction. Why is it not a good idea to raise taxes this year, but 
it is OK to do so 2 years hence, when most economists believe we will 
just begin to recover from the most serious downturn since the 1930s? 
Huge new taxes in 2011 may be as dangerous to our long-term recovery as 
putting them in place right now. I find it very interesting that the 
new administration and many of our colleagues on the other side of the 
aisle recognize tax increases have a negative effect on economic 
growth. So please explain again why they would be a good idea 2 years 
from now. If the President believes the economy will have recovered by 
2011, then why does he keep using the fear of a looming, deep recession 
to push forward his spending projects? Is it because he knows the 
economy will rebound with or without the ``Making Work Pay'' tax credit 
for funding for infrastructure? This budget would make the Making Work 
Pay tax credit permanent. If this credit, which costs the taxpayers 
$116 billion for just 2 years in the stimulus bill and would cost more 
than half a trillion dollars over 10 years in this budget, is a 
stimulus measure, as we were told, why is it included in the 
President's budget beyond 2011, when he predicts the economy to 
recover?
  Let us take a look at the single largest tax increase proposal in the 
history of the world--a huge tax on middle-income people--the so-called 
``climate revenues'' that are listed at $646 billion over 10 years. The 
proponents of this job-killing idea call it a ``cap-and-trade'' 
auction, but it is, in reality, nothing more than a gargantuan new tax 
on American businesses. Moreover, a close look at the footnotes of the 
tables reveals that this $646 billion is not even the extent of this 
new tax on American industry. The footnotes indicate this is just the 
portion of the new tax hike that will be used to pay for the Making 
Work Pay credit permanent and for clean energy initiatives. Additional 
revenues will be used to ``further compensate the public.'' It sounds 
like more income distribution to me.
  In a briefing of staff last week, top administration officials 
admitted these revenues could be two to three times higher than the 
$646 billion listed in the budget. That means this tax could reach as 
high as $1.9 trillion--a $1.9 trillion tax increase. That is insane. So 
what we have in this first part is a brandnew tax increase on the 
industrial output of the United States of America, a tax that has never 
been levied before and which could raise as much as $1.9 trillion over 
10 years, and this budget says it is all right because the proceeds of 
the new tax will go to ``compensate the public.''
  Now, this $1 trillion-plus tax increase will mean businesses will 
have less money to hire new employees or pay salaries of existing 
employees. How are we going to compensate the hundreds of thousands or 
perhaps millions of workers who are employed by these industries when 
they lose their jobs because their companies can no longer compete 
because of this new tax? Will that be part of ``compensating the 
public''?
  The next highest category of tax increases is almost as bad. The 
budget outline indicates it would raise $637 billion over 10 years by 
allowing some of the job-creating tax cuts from 2001 and 2003 to expire 
at the end of 2010. Now, these massive tax increases are touted as 
hitting only the so-called wealthy in our society; those who, in 
another part of the budget--page 14--are referred to as the few ``well 
off and well connected'' on whom the Government ``recklessly'' showered 
tax cuts and handouts over the past 8 years.
  What this gross mischaracterization does not say is, many of these 
same individuals are the ones who have the ability to save or create 
the very jobs we need to turn our economy around.
  What the Obama administration and many Democrats in Congress refuse 
to recognize is the fact that a majority of the income earned by small- 
and medium-sized businesses in America is taxed through the individual 
tax system. In other words, many of these small businesses pay their 
taxes as individuals, and they will thus be subject to these huge tax 
increases.
  According to the National Federation of Independent Businesses, over 
half the Nation's private sector workers are employed by small 
businesses. Moreover, 50 percent of the owners of these businesses fall 
into the top two tax brackets which are the ones being targeted for big 
tax increases by the Obama budget. Let me repeat that. Fifty percent of 
the owners of these small businesses fall into the top two tax 
brackets, which are the ones being targeted for the big tax increases 
by the Obama budget.
  The Small Business Administration tells us that 70 percent of all new 
jobs each year are created by small businesses. Why in the world would 
we want to harm the ability of America's job creation engines--small 
businesses--to help us create or save the jobs we so badly need right 
now? Why would we want to harm their ability? This is sheer folly.
  President Obama claims he is providing tax relief to 95 percent of 
Americans. If you look closely, you will see that the budget raises the 
cost of living for lower wage earners. How? The budget raises $31 
billion in taxes from domestic oil and gas companies. At a time when we 
are trying to decrease our dependence on foreign oil, we are forcing 
oil companies to raise the price of gas at the pump. This increase in 
gas prices at the pump will have a greater impact on lower income wage 
earners than on anyone else.
  I think this cartoon illustrated by David Fitzsimmons of the Arizona 
Daily Star, with a few of my edits, says it best: We will create 4 
million jobs out of one side, and we will raise taxes on those who 
create those jobs on the other. That is a little harsh, but it kind of 
makes its point. I don't like to see our President depicted this way, 
but I have to admit it is a pretty good cartoon.
  The budget outline also opens the door to universal health care by 
creating a 10-year, $634 billion ``reserve fund'' to partially pay for 
the vast expansion of the U.S. health care system, an overhaul that 
could cost as much as $1 trillion over 10 years. This expansion is 
financed, in part, by reducing payments to insurers, hospitals, and 
physicians. Already I am being deluged by hospitals and physicians. How 
are they going to survive if they get hammered this way? Now, most 
people don't have much sympathy for hospitals and physicians, but it 
does take money to run those outfits, and to take as much as $1 
trillion over 10 years by reducing payments in part to insurers and 
hospitals is pretty serious. Highlights of these reductions include 
competitive bidding for Medicare Advantage, realigning home health 
payment rates, and by lowering hospital reimbursement rates for certain 
admissions.
  Almost one-third of the health reserve fund would be financed by 
forcing private health plans participating in the Medicare Advantage 
Program to go through a competitive bidding process to determine annual 
payment rates. I wish to remind my colleagues that in the past, 
Medicare managed care plans left rural States due to low payments. Utah 
was one of the States that was severely impacted. I know my State was 
hurt by it.
  Many other States were hurt as well, especially rural States. To 
correct this situation, Members of Congress on both sides of the aisle 
worked with both the

[[Page 6908]]

Clinton and Bush administrations to address this issue in a bipartisan 
manner by creating statutory language to create payment floors for 
Medicare Advantage Plans. As a result, Medicare beneficiaries across 
the country have access to Medicare Advantage Plans, and 90 percent of 
them seem to be happy with those plans.
  By implementing a competitive bidding process for Medicare Advantage, 
choice for beneficiaries in the Medicare Advantage program will be 
limited.
  It is unclear whether Medicare Advantage programs will continue in 
rural parts of our country--areas such as Utah, where Medicare payments 
are notoriously low. You can go on and on with the many small States 
that are represented by Senators on the Finance Committee--including 
me.
  I served as a key negotiator on the House-Senate conference that 
created the Medicare Advantage program. I cannot support any initiative 
that I believe will limit beneficiaries' choices in coverage under this 
program.
  Another outrage and irresponsible attack on U.S. jobs is contained in 
the proposal the budget calls ``implement international enforcement, 
reform deferral, and other tax reform policies.'' This line item is 
estimated to raise $210 billion over 10 years. This vague description 
can really mean only one thing: The Obama administration plans to tax 
the foreign subsidiaries of all U.S.-owned businesses on their earnings 
whether they send the money back to the United States or keep it 
invested in a foreign country. This is similar to requiring individual 
taxpayers to pay taxes each year if the value of their home or 
investments goes up even if they do not sell them.
  The real danger of this proposal, however, is its impact on U.S. 
companies and their ability to compete in the global marketplace. 
Almost all of our major trading partners tax their home-based 
businesses only on what they earn at home. The rest of the world taxes 
it that way. They don't tax their businesses for moneys earned overseas 
that don't come back. Those moneys are taxed there. The U.S. system is 
practically the only worldwide system in the industrialized world.
  What this means is that an American company that is competing for 
business in some other nation--let's say India--may have competitors 
from France, the UK, and Germany. Because these other nations don't tax 
their companies on profits earned in countries other than the home 
country, they would enjoy a significant competitive advantage over any 
U.S. company, which, under the Obama proposal, would have to pay U.S. 
taxes on any profits earned. The result would simply be that 
multinational businesses would shun the United States and relocate 
elsewhere, as many have already done. A lot of Fortune 500 companies 
have left our country, in part because of tax ideas such as this. They 
don't want to go. U.S. firms will become ripe for international 
takeovers, and we would lose our global leadership, prestige, market 
share, jobs, and the bright future our country has enjoyed for decades.
  In 1960, 18 of the world's largest companies were headquartered in 
the United States. Today, just eight are based in the United States. We 
have the largest corporate tax rates of any major country in the world. 
Can you imagine, if we reduced those rates, as I and other Republicans 
have suggested, from 35 to 25 percent, the jobs that would be 
automatically created? I cannot begin to tell you.
  In 1960, we had 18 of the world's largest companies right here in the 
United States. Today, we only have eight based in the United States, 
partly because of these stupid, idiotic tax changes. If we pass this 
proposal, within a short time, there will be none. I predict that. The 
United States will be the last place on Earth businesses will want to 
locate.
  I will show you this poster: Effect of Taxing U.S.-owned 
Subsidiaries. The United States has the second highest corporate tax 
rate. Again, in 1960, 18 of the world's largest companies were 
headquartered here. Today, only eight of the world's largest companies 
are headquartered in the United States. This is part of the reason.
  The President believes our Tax Code includes incentives for U.S. 
businesses to ship jobs overseas, and this proposal is an attempt to 
end this practice. However, the evidence shows that our tax laws do not 
lead to U.S. job loss but to increases in U.S. employment when 
companies invest overseas.
  We have all heard the accusations, time after time, right here on the 
Senate floor. It goes something like this: U.S. companies close their 
plants here, laying off all of their workers, just to move their 
production to a lower wage paying country, where those same goods are 
made with cheap labor and then shipped right back into the United 
States. Well, these accusations are largely unfounded. In 2006, just 9 
percent of sales of U.S.-controlled corporations were made back to the 
United States. Our companies are not sending production jobs for U.S. 
products overseas. Instead, they are making products overseas for the 
overseas market, and they are doing it for solid business reasons, such 
as transportation savings, not for tax reasons.
  Moreover, the evidence shows that the U.S. plants of companies 
without foreign operations pay lower wages than domestic plants of 
U.S.-owned multinational companies. This means companies that have 
overseas operations pay more to their U.S. workers than those that do 
not invest in other nations.
  Studies by respected economists show that increasing foreign 
investment is associated with greater U.S. investment and higher U.S. 
wages. Overseas investment by U.S. companies is generally a good thing 
for the U.S. economy and for U.S. jobs. Attacking the deferral rule, as 
the Obama budget proposes, would do horrendous damage to our ability to 
compete in an increasingly global economy and will lead to our loss of 
world industrial leadership.
  Just this week, I talked to one of the leading pharmaceutical CEOs in 
America. This leader and his family all came to America. They love this 
country. They don't want to leave. He made it very clear that if this 
type of tax law goes through, he is going to move to a more fair 
country. He will have to in order to compete. He probably will move his 
operations to Switzerland, where they are not treated like this. He 
doesn't want to do that--leave this beloved country--but to compete he 
would have to. All those jobs would go from here to there. I don't know 
who is thinking about this in the Obama administration, but they better 
start thinking about it.
  I could go on about why this is the worst budget proposal I have seen 
in all of my nearly 33 years in this body. However, I will simply focus 
on one more reason.
  President Obama has said this budget would allow us to reduce the 
Federal deficit by half over the next 4 years. While this is a noble 
goal, unfortunately, it is not one he can claim. Using the only common 
baseline there is, which assumes no change to current law, the deficit 
would decline--if we had no changes in current law--from $1.428 
trillion in 2009 to $156 billion in 2013. That is including the 
expiring tax cuts. To put it in other words, if we do nothing, 
according to CBO, the deficit would decline by 90 percent over the next 
4 years. Let me say that again. If we do nothing, the Federal deficit 
would decline by 90 percent, according to the estimates. President 
Obama proposes to reduce that decline to 50 percent by adding more 
Government spending.
  I wish President Obama would follow his own lofty rhetoric. He says 
he wants to save and create jobs. We all do. But the way to do it is 
not through the job-killing policies found in this budget. He said it 
is time for honest and forthright budgeting. But this document is just 
a means for him to put forth his ultraliberal philosophy while claiming 
to be fiscally responsible. As you can see from this cartoon, the 
President talks the talk, but this budget doesn't walk the walk. Again, 
I know he probably laughs at these things, as I do when they do it to 
me. I don't want to treat the President like that, but it does make the 
point. He talks bipartisanship, he talks fiscal responsibility, but 
everything they are

[[Page 6909]]

doing can be called irresponsible by good people who understand 
economics.
  Look, I happen to like this President. I happen to want him to 
succeed. I care for the man. He is bright, articulate, and charismatic. 
I think that is apparent by the way the general public treats him. They 
want him to succeed. I do too. He doesn't write this budget himself. I 
don't blame him for this, except it is under his auspices that it is 
being touted. He has bright people around him. It is tough to find 
people brighter than Larry Summers; I think a lot of him. Joe Biden is 
very bright, and he knows a little bit about this. Joe admits that he 
is a self-confessed liberal. They are allowing this to go forward at a 
time when they are going to hurt this country rather than help it. I 
think we have to point some of these things out, and hopefully the 
President will see some of these things and say: Holy cow, I didn't 
realize this was in the budget. It is pretty hard because most people 
don't know what is in the budget. I doubt he has had a chance to read 
it. I want him to succeed, but he is not going to succeed with this 
kind of a budget.
  This country is resilient, and maybe the country will pull out of 
this no matter what he does. I think we are in very trying times. This 
is the greatest country in the world. I don't want to see it diminished 
in any way. I am prepared to do things--people know that around here--
to bring people together on both sides and help this President be 
successful. He has made overtures to me, and I very much respect him 
and I appreciate that. I want to help him.
  I have to tell you that one of the reasons I am giving these remarks 
today is because I am very concerned about this type of a budget. We 
have put up with this kind of stuff in both Democratic and Republican 
administrations. It is time to quit doing it and start facing realities 
in this country. I see as much as a $5 trillion deficit in the near 
future. It is hard to even conceive of that. Yet that is where we are 
headed.
  I want Mr. Geithner to succeed. Everybody knows I stood firmly for 
him in spite of all of the problems. He is a very bright guy, and I 
hope he succeeds. I will do what I can to help him, as a member on the 
Finance Committee and other committees as well.
  They are not going to succeed with this type of budget. If they do, 
it will only be temporary. Our kids are going to pay these costs. They 
are going to pay for this mess. Elaine and I have 23 grandchildren I am 
concerned about, and 3 great-grandchildren. I don't want to stick them 
like this. I hope the President will get into it a little bit more, and 
I hope Larry Summers will get into it a little bit more. I think they 
have been taking advantage of a crisis to pass a huge welfare agenda 
that is going to hurt this country.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. INHOFE. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. INHOFE. Madam President, I have been watching the nominations 
from President Obama with quite a bit of concern. When I go back to my 
State of Oklahoma, people say: What would happen to us if we didn't pay 
our taxes? And I thought it couldn't get much worse than that.
  I am here today to make sure everyone focuses attention on a couple 
of nominations that I think are outrageous.
  First is my opposition to the nomination of David Ogden to be the 
U.S. Deputy Attorney General. Last year, Congress passed a significant 
piece of legislation, the Protect Our Children Act, to address a 
growing problem of child pornography and exploitation. Both sides of 
the aisle hailed it as a great success. Democrats and Republicans 
thought that was great; we are going to protect our kids against child 
pornography and exploitation. While I proudly supported that 
legislation, I am shocked President Obama has nominated a candidate to 
serve in the No. 2 position in the Department of Justice who has 
repeatedly represented the pornography industry and its interests.
  As we are witnessing a significant increase in the exploitation of 
children on the Internet, we do not need a Deputy Attorney General who 
will be dedicated to protecting children with that kind of a 
background. David Ogden has represented the pornography industry for a 
long period of time.
  In United States v. American Library Association, Ogden challenged 
the Children's Internet Protection Act of 2000. I remember that well. 
We passed it here. He filed a brief with the Supreme Court opposing 
Internet filters that block pornography at public libraries. He 
challenged provisions of the Child Protection and Obscenity Enforcement 
Act of 1988 which seeks to prevent the exploitation of our Nation's 
most vulnerable population; that is, our children. He instead fought 
for the interests of the pornography industry.
  As a grandfather of 12 grandchildren, I am confident that I stand 
with virtually all of the parents and grandparents around this country 
in opposing gross misinterpretations of our Constitution some use to 
justify the exploitation of women and children in the name of free 
speech. That is what was happening. That is David Ogden.
  Some claim Ogden is simply serving his clients. Yet his extensive 
record in representing the pornography industry is pretty shocking, 
especially considering he has been nominated to serve in the Government 
agency that is responsible for prosecuting violations of Federal adult 
and children pornography laws.
  Let's keep in mind, he is in the position of prosecuting the 
offenders of these laws, and yet he has spent his career representing 
the pornography industry.
  Additionally, his failure to affirm the right to life gives me a 
great concern. I don't think that is uncharacteristic of most of the 
nominees of this President. No one is pro-life that I know of, that I 
have seen.
  In the Hartigan case, Ogden coauthored a brief arguing that parental 
notification was an unconstitutional burden for a 14-year-old girl 
seeking to have an abortion. In the case of abortion, parents have the 
right to know.
  Furthermore, as a private attorney, Ogden filed a brief in the case 
of Planned Parenthood v. Casey in opposition to informing women of the 
emotional and psychological risks of abortion. In the brief, he denied 
the potential mental health problems of abortion on women. This is what 
he wrote. The occupier of the chair is a woman. I think it is 
interesting when men are making their interpretation as to what 
feelings women have.
  He wrote this. Again, this is the same person we are talking about, 
David Ogden. He said:

       Abortion rarely causes or exacerbates psychological or 
     emotional problems . . . she is more likely to experience 
     feelings of relief and happiness, and when child-birth and 
     child-rearing or adoption may pose concomitant . . . risks or 
     adverse psychological effects . . .

  What he is saying is it is a relief. This is something he finds not 
offensive at all. He is actually promoting abortions.
  We have to be honest. We need to talk about the mounting evidence of 
harmful physical and emotional effects that abortion has on women.
  For these reasons, I oppose his nomination.
  I also want to address my opposition to the nomination of Elena Kagan 
to serve as Solicitor General. Because of its great importance, quite 
often they talk about the Solicitor General as the tenth Supreme Court 
Justice and, therefore, it requires a most exemplary candidate. She 
served as the dean of Harvard Law School, which is no doubt an 
impressive credential. However, in that role, she demonstrated poor 
judgment on a very important issue to me.
  While serving as the dean of Harvard Law School, Kagan banned the 
military from recruiting on campus. We have to stop and remember what 
happened in this case. In order to protect the rights of people to 
recruit--we are talking about the military now--on campuses to present 
their case--nothing mandatory, just having an option

[[Page 6910]]

for the young students--Jerry Solomon--at that time I was serving in 
the House of Representatives with him--had an amendment that ensured 
that schools could not deny military recruiters access to college 
campuses. Claiming the Solomon amendment was immoral, she filed an 
amicus brief with the Supreme Court in Rumsfeld v. FAIR opposing the 
amendment. The Court unanimously ruled against her position and 
affirmed that the Solomon amendment was constitutional.
  It is interesting, for a split division it might be different. This 
is unanimous on a diverse Court.
  I also express my opposition to two other Department of Justice 
nominees--Dawn Johnsen and Thomas Pirelli. Dawn Johnson, who has been 
nominated to serve as Assistant Attorney General in the Office of Legal 
Counsel, has an extensive record of promoting a radical pro-abortion 
agenda. She has gone to great lengths to challenge pro-life provisions, 
including parental consent and notification laws. She has even inserted 
on behalf of the ACLU that ``Our position is that there is no `father' 
and no `child'--just a fetus.''
  As a pro-life Senator who believes each child is the creation of a 
loving God, I believe life is sacred. I cannot in good conscience 
confirm anyone who has served as the legal director for the National 
Abortion and Reproductive Rights Action League. The right to life is 
undeniable, indisputable, and unequivocal. It is a foundational right, 
a moral fiber fundamental to the strength and vitality of this great 
Nation.
  For a similar reason I can't support the nomination of Thomas 
Perrelli to serve as Associate Attorney General. Keep in mind now, we 
are talking about the four top positions in the Justice Department. And 
like other nominees I have discussed today, Mr. Perrelli has failed to 
affirm and protect the dignity of all human life, as an advocate for 
euthanasia, and I think we know the background of that.
  I would only repeat that these are not people with just an opinion, 
they are extremists. We are talking about someone in the No. 2 position 
of the Department of Justice who actually has been involved in 
representing the pornography industry, and this is something that is 
totally unacceptable.
  I think as we look at these nominations, I suggest that those 
individuals who are supporting these look very carefully, because 
people are going to ask you the question: How do you justify putting 
someone who supports pornography, who has worked for it and been paid 
by that industry, in the No. 2 position in the Justice Department?
  With that, Madam President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Minnesota.
  Ms. KLOBUCHAR. Madam President, I ask unanimous consent to speak for 
up to 7 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Ms. KLOBUCHAR. Madam President, I am here to speak in favor of David 
Ogden to be the next Deputy Attorney General of the United States.
  I have listened to my colleague and friend from Oklahoma, and I am 
not going to be able to respond to everything he said about every 
nominee, but I did want to talk today about Mr. Ogden. He is someone 
who I believe should be our next Deputy Attorney General, at a 
Department of Justice that is much in need of a Deputy Attorney 
General, and he is someone who will hit the ground running. He will 
beef up civil rights and antitrust enforcement. He will address white-
collar crime and drug-related violence, as well as help to keep our 
country safe from terrorist attacks.
  We know the to-do list and the demands on the next Deputy Attorney 
General will be great. Part of why it will be so great is something 
that I saw in my own State. We had a gem of a U.S. Attorney General 
Office in Minnesota, and we still do, but there was a period of time 
where I saw its destruction and rot by putting one political appointee 
in charge of that office. It was a huge mistake. The office was in an 
uproar. They got away from their regular mission. Luckily, Attorney 
General Mukasey put in a career prosecutor, Frank McGill, who has put 
the office back on track, and I thank him for that. We have suggested--
recommended--a new name to the Attorney General and the President for 
the next U.S. Attorney in Minnesota. But I tell you that story for a 
reason, and that is justice is important and order is important and 
management is important in our criminal justice system. We went so far 
away from that when Alberto Gonzalez was the Attorney General. That is 
why it is so important to have David Ogden in there to work with Eric 
Holder.
  David Ogden has demonstrated intelligence and judgment, leadership 
and strength of character and, most importantly, a commitment to the 
Department of Justice. He has the experience and the integrity, I say 
to my colleagues, to serve as the next Deputy Attorney General. One of 
the most important roles of a Deputy Attorney General is to make sure 
that the day-to-day operations of the Department run smoothly and to 
provide effective and competent management guided by justice. I know 
David Ogden can do that. His experience both as Chief of Staff and 
counselor to former Attorney General Reno, as well as his experience as 
Assistant Attorney General for the Department's civil division under 
President Clinton proves that David Ogden has experience and the 
integrity to do the job.
  I have heard all these allegations made, including by my colleague. I 
want to tell you some of the people who are supporting David Ogden. His 
nomination is supported by a number of law enforcement and community 
groups, including among others, the Fraternal Order of Police--not 
exactly a radical organization. He is supported by the National 
District Attorneys Association, the Partnership for a Drug Free 
America, and the National Sheriffs' Association.
  The National Center for Missing and Exploited Children is a strong 
supporter. In fact, they sent a letter saying they gave David Ogden 
their enthusiastic support. In particular, they wrote:

     . . . during Mr. Ogden's tenure as Chief of Staff and Counsel 
     to the Attorney General, we worked closely with the Attorney 
     General in attacking the growing phenomenon of child sexual 
     exploitation and child pornography. As counselor to the 
     Attorney General, Mr. Ogden was intricately involved in 
     helping to shape the way our group responded to child 
     victimization challenges and delivered its services.

  It is seconded by the Boys and Girls Clubs of America, which also 
supports David Ogden's nomination. In addition to these law enforcement 
and child protective groups, David Ogden has received broad bipartisan 
support from a number of former Department officials, including Larry 
Thompson, a former Deputy Attorney General under President George W. 
Bush, and George Terwilliger, who served in the same role under 
President George H. W. Bush.
  There are so many things on the Justice Department's plate, and we 
need someone to be up and running. But I want to respond specifically 
to some of the things we have heard today. There was a statement by one 
of Senators that Mr. Ogden opposed a child pornography statute that we 
passed in 1998. That is simply not correct, and I hope my colleagues 
know that. In fact, as head of the Civil Division of the Department of 
Justice, he led the vigorous defense of the Child Online Protection Act 
of 1998 and the Child Pornography Prevention Act of 1996.
  There were also mischaracterizations, for political reasons, of Mr. 
Ogden's record. We have already talked about how he is supported by the 
major police organizations in this country. Well, in addition to that, 
he has a general business practice, and before that he served in 
government. His work at the WilmerHale law firm over the past 8 years, 
for example, hasn't centered on first amendment litigation. He has 
represented corporate clients, from Amtrak to the Fireman's Fund.
  They also said that somehow Mr. Ogden took some position taken by Mr. 
Ogden's clients, who were America's librarians and booksellers. Rather, 
the Senate rejected the Clinton administration's interpretation, and 
Mr. Ogden

[[Page 6911]]

made clear to the Judiciary Committee that he disagreed with that 
interpretation. In his testimony, he made clear that he is comfortable 
with the ruling of the Court and agreed with the Senate resolution.
  You can go on and on about some of these misstatements about Mr. 
Ogden's record, but let us look at what is going on here. As I 
mentioned before, the child protection community supports Mr. Ogden 
based on his strong record of protecting children. Now, I tend to 
believe the people who deal every day with helping families with 
missing children more than I believe some statement that is made in a 
political context. I will be honest with you, I tend to believe the 
Fraternal Order of Police when they give an endorsement more than I 
believe some statement made in a political context.
  Let me tell you this. Why is this so important? Why can we not go 
back and forth and back and forth and have all these political partisan 
attacks? Well, we need a Deputy Attorney General now. We need a Deputy 
Attorney General right now. The Department of Justice has more than 
100,000 employees and a budget exceeding $25 billion. Every single 
Federal law enforcement officer reports to the Deputy Attorney General, 
including the FBI, the DEA, the ATF, the Bureau of Prisons, and all 93 
U.S. Attorney's Offices. The Attorney General needs the other members 
of his Justice Department leadership team in place.
  Look what we are dealing with: the Madoff case and billions of 
dollars stolen. We are dealing with childcare cases. We are dealing 
with administering this $800 billion in money and making sure people 
aren't ripped off. We are dealing with murders and street crimes across 
this country. Yet people are trying to stop the Justice Department from 
operating? That can't happen.
  I want to end by saying I was a prosecutor for 8 years, and always my 
guiding principle was that you put the law above politics. That is what 
I am asking my colleagues to do here. We need to get David Ogden in as 
a Deputy Attorney General. Now is the time.
  Madam President, I yield the floor, and I suggest the absence of a 
quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. DURBIN. Madam President, I ask unanimous consent the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DURBIN. Madam President, pending before the Senate is the 
nomination of David Ogden to be the Deputy Attorney General. I rise to 
speak in support of that nomination.
  The Justice Department and our Nation are fortunate that President 
Obama has put forward this nomination. Mr. Ogden has the experience, 
the talent, and the judgment needed for this critical position.
  The Deputy Attorney General is the No. 2 person at the Justice 
Department. He is the day-to-day manager of the entire agency. This 
includes supervising key national security and law enforcement offices 
such as the FBI and our counterterrorism operations. Mr. Ogden is a 
graduate of Harvard Law School, former law clerk to a Supreme Court 
Justice, which is one of the most prestigious jobs in the legal 
profession. He had three senior positions in the Janet Reno Justice 
Department and served as her Chief of Staff, Associate Deputy Attorney 
General, and also served as Assistant Attorney General in the Civil 
Division, a position for which he received unanimous confirmation by 
this Senate. Mr. Ogden also served as the Deputy General Counsel at the 
Defense Department.
  Given this excellent background, it is not surprising that David 
Ogden gained the support of many prominent conservatives. At least 15 
former officials of the Reagan and both Bush administrations have 
announced their support for his nomination. They include Larry 
Thompson, the first Deputy Attorney General of the most recent Bush 
administration; Peter Keisler, former high-level Justice Department 
official; and Rachel Brand, another high-level Justice Department 
official in the Bush administration. Their words are similar. I will 
not read into the Record each of their statements, but they give the 
highest possible endorsement to David Ogden.
  Due to a scheduling conflict, I could not attend his hearing, but I 
asked him to come by my office so we could have time together and I 
could ask my questions face to face. We talked about a lot of subjects, 
including criminal justice reform, human rights, and the professional 
responsibilities of the Department of Justice lawyers. I was impressed 
by Mr. Ogden's intellect, his management experience, and his commitment 
to restoring the Justice Department's independence and integrity.
  We talked about the Senate Judiciary Committee's Subcommittee on 
Crime and Drugs, a subcommittee I will chair in the 111th Congress, and 
the issues we are going to face--including the Mexican drug cartels, 
which will be the subject of a hearing in just a few days, racial 
disparities in the criminal justice system in America, and the urgent 
need for prison reform. That is an issue, I might add, that is near and 
dear to the heart of our colleague, Senator Jim Webb of Virginia. I am 
going to try to help him move forward in an ambitious effort to create 
a Presidential commission to look into this.
  The Justice Department will play an important role in reclaiming 
America's mantle as the world's leading champion for human rights. Mr. 
Ogden and I discussed the Justice Department's role in implementing 
President Obama's Executive orders in relation to the closure of the 
Guantanamo Bay detention facilities and review of detention and 
interrogation policies. We discussed the investigation by the Justice 
Department's Office of Professional Responsibility, as to the attorneys 
in that Department who authorized the use of abusive interrogation 
techniques such as waterboarding. Senator Sheldon Whitehouse of Rhode 
Island and I requested this investigation. Mr. Ogden committed to us 
that he would provide Congress with the results of the investigation as 
soon as possible. This is the kind of transparency and responsiveness 
to congressional oversight we expect from the Justice Department and 
something that we have been waiting for.
  We also discussed the Justice Department's role in ensuring that war 
criminals do not find safe haven in the United States. I worked with 
Senator Coburn who is a Republican from Oklahoma, on the other side of 
the aisle. We passed legislation allowing the Justice Department to 
prosecute the perpetrators of genocide and other war crimes in the U.S. 
courts. I believe Mr. Ogden appreciates the importance of enforcing 
these human rights laws.
  At the end of our meeting, I felt confident David Ogden will be an 
excellent Deputy Attorney General.
  I want to make one final point. There is some controversy associated 
with his appointment that I would like to address directly. I am aware 
there has been some criticism that David Ogden represented clients whom 
some consider controversial. He has been criticized in his 
representation of libraries and bookstores who sought first amendment 
free speech protections, and for his representation of a client in an 
abortion rights case.
  I would like to call to the attention of those critics a statement 
that was made by John Roberts, now Chief Justice of the U.S. Supreme 
Court, when he appeared before the Senate Judiciary Committee several 
years ago at his confirmation hearing.
  He was asked about the positions he had advocated on behalf of his 
clients as an attorney. Here is what the Chief Justice told us:

       It's a tradition of the American Bar Association that goes 
     back before the founding of the country that lawyers are not 
     identified with the positions of their clients. The most 
     famous example probably was John Adams, who represented the 
     British soldiers charged in the Boston Massacre. He did that 
     for a reason, because he wanted to show that the Revolution 
     in which he was involved was not about overturning the rule 
     of law, it was about vindicating the rule of law.

  And he went on to say:

       That principle, that you don't identify the lawyer with the 
     particular views of the client, or the views that the lawyer 
     advances

[[Page 6912]]

     on behalf of a client, is critical to the fair administration 
     of justice.

  You practiced law, Madam President. I have too. Many times you find 
yourself in a position representing a client where you do not 
necessarily agree with their position before the court of law. But you 
are dutybound to bring that position before the court so the rule of 
law can be applied and a fair outcome would result. If we only allowed 
popular causes and popular people representation in this country, I am 
afraid justice would not be served.
  Chief Justice Roberts made that point when he was being asked about 
his representation of legal clients. I would say to many on the other 
side of the aisle who are questioning David Ogden's reputation, they 
owe the same fairness to him that was given to Chief Justice Roberts in 
that hearing.
  I would remind the conservative critics of Mr. Ogden, look carefully 
at that testimony. What is good for the goose is good for the gander.
  After 8 years of a Justice Department that often put politics over 
principle, we now have a chance to confirm a nominee with strong 
bipartisan support who can help restore the Justice Department to its 
rightful role as guardian of our laws and the protector of our 
liberties.
  David Ogden has the independence, integrity, and experience for the 
job. I urge my colleagues to join me in voting for his nomination to be 
Deputy Attorney General.


                      Clean Coal Research Project

  Mr. DURBIN. Madam President, it was about 7 years ago when the Bush 
administration announced what they said was the most significant coal 
research project in the history of the United States. The name of the 
project was FutureGen. The object was to do research at a facility to 
determine whether you could burn coal, generate electricity, and not 
pollute the environment. It is an ambitious undertaking.
  The way they wanted to achieve it was to be able to capture the 
CO2 and other emissions, virtually all of them coming out of 
a powerplant burning coal, and to sequester them; that is, to stick 
them underground, find places underground where they can be absorbed by 
certain geological foundations, safely held there. Of course, it was an 
ambitious undertaking. It had never been done on a grand scale anywhere 
in the country.
  Well, the competition got underway and many States stepped forward to 
compete for this key research project on the future of coal. There were 
some five to seven different States involved in the competition. My 
State of Illinois was one of them. The competition went on for 5 years.
  Each step of the way, the panel of judges, the scientists and 
engineers would judge the site. Is this the right place to build it? Is 
it going to use the right coal? Can they actually pump it underground 
and trap it so that it will not ever be a hazard or danger at any time 
in the future? Important and serious questions.
  My State of Illinois spent millions of dollars to prove we had a good 
site. When it finally came down to a decision, there were two States 
left: Texas and Illinois. Well, I took a look around at our President 
and where he was from, and I thought, we do not have a chance. Yet the 
experts made the decision and came down in favor of Illinois. They 
picked the town of Mattoon, IL, which is in the central eastern part of 
our State, in Coles County, and said that is the best place to put this 
new coal research facility.
  We were elated. After 5 years of work, we won. After all of the 
competition, all of the different States, all of the experts, all the 
visits, everything that we put into it, we won the competition.
  Within 2 weeks, the Secretary of the U.S. Department of Energy, Mr. 
Bodman, came to my office on the third floor of the Capitol and said: I 
have news for you.
  I said: What is that?
  He said: We are canceling the project.
  I said: You are cancelling it? We have been working on this for 5 
years.
  He said: Sorry, it cost too much money. The original estimate was 
that this was going to cost $1 billion. When the President first 
announced it, we knew inflation would add to the construction costs 
over some period of time. But here was Mr. Bodman saying it cost almost 
twice as much as we thought it would cost; therefore, we are killing 
the project.
  Well, I was not happy about it. In fact, I thought it was totally 
unfair, having strung us along for 5 years, made my State and many 
others spend millions of dollars in this competition, go through the 
final competition and win, and then be told, within 2 weeks: It is 
over; we are not going to go forward with it.
  So I said to Mr. Bodman: Well, you are going to be here about a year 
more, and I am going to try to be here longer. At the end of that year, 
when you are gone, I am going to the next President, whoever that may 
be, and ask them to make this FutureGen research facility a reality.
  I told the people back home: Do not give up. Hold on to the land we 
have set aside. Continue to do the research work you can do. Bring 
together the members of the alliance--which are private businesses, 
utility companies, coal companies--not only from around the United 
States but around the world interested in this research and tell them: 
Don't give up.
  So we hung on for a year, literally for a year, and a new President 
was elected. It happened to be a President I know a little bit about, 
who was my colleague in the Senate, Senator Obama. When we served 
together, he knew all about this project and had supported it.
  So now comes the new administration and a new chance. The Obama 
administration has said to me and all of us interested in this project: 
There is one man who will make the decision: it is the Secretary of 
Energy, Dr. Chu. He is a noted scientist who will decide this on the 
merits. He is going to decide whether this is worth the money to be 
spent. So we made our appeal to him, we presented our case to him, and 
left it in his hands. We are still worried about this whole issue of 
cost.
  Bart Gordon, a Congressman from the State of Tennessee and serves on 
the House Science Committee, he sent the Government Accountability 
Office to take a look at FutureGen to find out what happened to the 
cost, why did it go up so dramatically.
  Well, the report came out last night. Here is what the report found. 
The report found the Department of Energy had miscalculated the cost of 
the plant, overstating its cost by $500 million because they made a 
mathematical error--$500 million.
  Taking that off the ultimate cost brings it down into the ordinary 
construction inflation cost. And so many of us who argued their 
estimate of cost was exaggerated now understand why. They made a basic 
and fundamental error calculating the cost of this project.
  Here is what we face. Now, 53 percent of all the electricity in 
America is generated by coal. Burning coal can create pollution. 
Pollution can add to global warming and climate change, and we have to 
be serious about dealing with it.
  This plant is going to give us a chance to do that. When the GAO took 
a look at the Department of Energy documentation, they also discovered 
a memo which said: If we kill the FutureGen coal research plant, we 
will set coal research back 10 years with all of the time they put into 
it. All of the effort they put into it would have been wasted and could 
not be replicated.
  So that is what is at stake. The ultimate decision will be made by 
Dr. Chu at the Department of Energy. I trust that he will find a way to 
help us move forward, but I want him to do it for the right scientific 
reasons.
  If we are successful, we will not only be able to demonstrate this 
technology for America but for the world. The reason why foreign 
countries are joining us in this research effort is what we discover 
will help them. China is building a new coal-fired plant almost every 
week and is going to be adding more pollution to the environment than 
we can ever hope to take care of in the United States alone.
  But if we can find a way, a technology, a scientific way, using the 
best

[[Page 6913]]

engineering and capture that pollution before it goes into the air, it 
is a positive result not just for the United States but for the world.
  From a parochial point of view, we happen to be sitting on a 
fantastic energy reserve right here in America. There are coal reserves 
all across the Midwestern United States, and almost 75 percent of my 
State of Illinois has coal underneath the soil. It is there to be had 
and used. But we want to use it responsibly.
  We want to make sure at the end of the day that we can use coal and 
say to our kids and grandkids: We provided the electricity you needed 
but not at the expense of the environment you need to survive.
  So this finding by the GAO has given us a new chance. We are looking 
forward to working with the Department of Energy. For those back in 
Illinois who did not give up hope, we are still very much alive, and 
this latest disclosure gives us a chance to bring the cost within 
affordable ranges. I hope the Department of Energy will decide to move 
forward on this critical research project.
  I yield the floor, and I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk called proceeded to call the roll.
  Mr. WEBB. Madam President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (The remarks of Mr. Webb pertaining to the introduction of S. 572 are 
printed in today's Record under ``Statements on Introduced Bills and 
Joint Resolutions.'')


                                Earmarks

  Mr. WEBB. Madam President, I rise to address the recent debate we 
have had on the Omnibus appropriations bill with respect to earmarks. 
The premise seems to be, for those who have criticized the earmarks 
process, that this is pork. Sometimes it is; sometimes it is not. But I 
would start first with the Constitution.
  There is nothing in the Constitution that says the executive branch 
of Government should appropriate funds or decide which funds should be 
spent. That is a procedure that has evolved over the centuries because 
of the complexities of Government, where the executive branch looks at 
its needs and comes to the Congress and asks for appropriations. 
Earmarks take place when individual Members of Congress, exercising 
their authority to appropriate under the Constitution, decide and 
recommend that worthwhile programs in an ideal case should be included 
in a budget process, programs that have not been considered or included 
by the executive branch or through other processes.
  For instance, I was able, last year, along with Senator John Warner, 
now retired, to bring $5 million into a rural area of Tidewater, VA, so 
they could put broadband in. Broadband is something we know all 
Americans who want to compete for their future and contribute equally 
need to have. It didn't make it into anybody's bill. Who is thinking 
about sparsely populated areas such as rural Virginia? Yet we were able 
to bring a lot of benefit to those who otherwise would not have 
received it.
  What I would ask my colleagues, particularly those who have become so 
adamant in their concern over the earmarks process, to consider is, 
let's take a look at the budget that comes to the Congress. Is there 
pork in the budgets that come over, pork that comes through, in some 
cases, unnecessary influence or individual discretion? You bet there 
is.
  I say that as someone who spent 5 years in the Pentagon, 4 years of 
which I was on the Defense Resources Board where on any given day we 
were implementing a budget, arguing a budget in the Congress, and 
developing the next year's budget. I offer an example of a situation 
that my staff has been following for the last 10 months and use it as 
an invitation to colleagues to join me in looking at where there can be 
abuses of discretion and where there can be a lot of money that can be 
saved.
  Ten months ago, on May 21, there was an article in the Wall Street 
Journal that talked about Blackwater Worldwide attempting to obtain 
local approval for a new training center in San Diego, CA. We all 
remember Blackwater. They are an independent contractor that has done 
more than a billion dollars of business since the Bush administration, 
the most recent Bush administration took office. I became curious about 
this project, first, because I had seen reports of what a very high 
percentage of the Blackwater contracts had been awarded were either 
noncompete or minimal compete and the high volume number, more than a 
billion of them. And also the fact that having at one time been 
Secretary of the Navy, they were apparently wanting to build a training 
center so they could train Active-Duty sailors how to defend themselves 
onboard a ship.
  Having spent time in the Marine Corps, I immediately started thinking 
about what it would have been like to have a nonmilitary contractor 
teaching me how to do patrolling when I was going through basic school 
in Quantico all those years ago. It didn't fit.
  I started asking around. The first thing I found out was, this was a 
contract from the Navy that was worth about $64 million. I wrote a 
letter to Secretary Gates. I said: Is this Blackwater program in any 
way authorized or funded by U.S. tax dollars? The answer came back, 
yes, obviously. I asked: Is there specific legislative authorization 
for it? Because I couldn't find any, as a member of the Armed Services 
Committee. The answer was no. According to Secretary Gates, this 
activity falls under the broad authorization provided to the Secretary 
of Defense and the Secretaries of the military departments to procure 
goods and services using appropriated funds and prescribed procedures 
for those procurements.
  Then I asked him in this letter: Is there a specific appropriation, 
either in an appropriations bill or through an earmark? The answer is: 
No, there was no specific appropriation or earmark directing this 
effort.
  As we started to peel this back, here is what we found. An 
individual, an SCS, midlevel individual in the Department of the Navy 
had the authority to approve this type of a program up to the value of 
$78 million, without even having a review by the Secretary of the Navy. 
This was not an authorized program. It was not an appropriated program. 
It was money that came out of a block of appropriated funds for 
operation and maintenance that then somebody in the Navy said was 
essential to the needs of the service, the needs of the fleet, which is 
a generic term.
  I ask my colleagues who are so concerned about some of the pork 
projects or earmarks process here, which has gained a great deal of 
visibility since I have been here over the past 2 years and 
transparency, to join me in taking a look at these sorts of contracts. 
When a midlevel person in the Pentagon has the authority to approve a 
program that hasn't been authorized and hasn't been appropriated up to 
the value of $78 million and not even have the oversight of the 
Secretary of that service, that is where you see the potential for true 
abuse of the process. That is where we need to start focusing our 
energies as a Congress.
  Mr. REID. Madam President, today we debate the nomination of David 
Ogden to be the Deputy Attorney General of the United States.
  Mr. Ogden is highly qualified for this important job. He is a 
graduate of Harvard Law School and clerked on the Supreme Court for 
Justice Harry Blackmun. During the Clinton Administration, he served as 
the Assistant Attorney General for the Civil Division and as chief of 
staff to the Attorney General.
  He also previously served as Deputy General Counsel at the Department 
of Defense, so he has a keen appreciation for the national security 
issues that he will face at DOJ. He has an excellent reputation among 
his fellow lawyers and is supported by a number of former Republican 
Justice Department officials.
  It is surprising to me that we need to spend more than a full day 
debating

[[Page 6914]]

 this obviously qualified nominee. Mr. Ogden was favorably reported by 
the Judiciary Committee by a vote of 14-5, so it seems clear he will be 
confirmed. But apparently some far-right advocates have made this 
nomination more controversial than it should be.
  As I understand it, those who oppose this nominee disagree with 
positions he took on behalf of some of his clients, including media 
organizations. In my view, that is a very unfair basis for opposing a 
nominee. As a former practicing lawyer, I feel strongly that a lawyer 
should not be held personally responsible for the views of his clients.
  President Obama deserves to have his advisors, especially members of 
his national security team, in place as quickly as possible. I urge 
confirmation of this outstanding nominee.
  Mr. LEAHY. Madam President, even after abandoning their the ill-
conceived filibuster of President Obama's nomination of David Ogden to 
be Deputy Attorney General, we still hear Republican Senators making 
scurrilous attacks against Mr. Ogden, launched by some on the extreme 
right.
  As I said on the Senate Floor earlier, David Ogden is a good lawyer 
and a good man. He is a husband and a father. Yet, regrettably and 
unbelievably, we still hear chants that he is a pedophile and a 
pornographer. Those charges are false and they are wrong. Senators know 
better than that.
  Special interests on the far right have distorted Mr. Ogden's record 
by focusing only on a narrow sliver of his diverse practice as a 
litigator spanning over three decades. Dating back to the 1980s, Mr. 
Ogden's practice has included, for example, major antitrust litigation, 
counseling, representation and authorship of a book on the law of trade 
and professional associations, international litigation and dispute 
resolution, False Claims Act and Export Controls Act investigations, 
and a significant practice in administrative law. In other words, he 
has been a lawyer, representing clients. For the last 8 years, since 
leaving Government service, Mr. Ogden has represented corporate clients 
in a range of industries, including transportation clients like Amtrak 
and Lufthansa, insurance and financial institutions like Citibank and 
Fireman's Fund, petrochemical companies like Shell and BP and 
pharmaceutical concerns like PhRMA and Merck.
  Here are the facts that underlie the overheated rhetoric: As a young 
lawyer in a small firm with a constitutional practice, along with other 
lawyers in that respected DC law firm, Mr. Ogden represented a range of 
media clients. He represented the American Library Association, the 
American Booksellers Association, and Playboy Enterprises.
  In the early 1990s, while at the respected firm of Jenner & Block, 
Mr. Ogden represented a Los Angeles County firefighter. The firefighter 
was being prohibited from possessing or reading Playboy magazine at the 
firehouse, even when on down time between responding to fires. The 
Federal Court reviewing the matter held that the first amendment 
protected the firefighter's right to possess and read the magazine. 
That representation does not make Mr. Ogden a pornographer, a pedophile 
or justify any of the other epithets that have been thrown his way.
  He also challenged a prosecution strategy that threatened 
simultaneous indictments in multiple jurisdictions with the goal of 
negotiating plea agreements that put companies out of business without 
ever having to prove that the materials they were distributing were 
obscene. That sounds like the kind of overreaching prosecution strategy 
that Senator Specter and other Republican Senators would condemn, just 
as they have the excesses of the ``Thompson memo'' pressuring 
investigative targets to waive their attorney-client privilege.
  Those who have argued that Mr. Ogden has consistently taken positions 
against laws to protect children ignore Mr. Ogden's record and his 
testimony. What these critics leave out of their caricature is the fact 
that Mr. Ogden also aggressively defended the constitutionality of the 
Child Online Protection Act and the Child Pornography Prevention Act of 
1996 while previously serving at the Justice Department. This work has 
led to support and praise from the National Center for Missing and 
Exploited Children. He has the support of the Boys and Girls Clubs of 
America. In private practice he wrote a brief for the American 
Psychological Association in Maryland v. Craig in which he argued for 
protection of child victims of sexual abuse. In his personal life, he 
has volunteered time serving the Chesapeake Institute, a clinic for 
sexually abused children.
  Nominees from both Republican and Democratic administrations and 
Senators from both sides of the aisle have cautioned against opposing 
nominees based on their legal representations on behalf of clients. 
When asked about this point in connection with his own nomination, 
Chief Justice Roberts testified, ``it has not been my general view that 
I sit in judgment on clients when they come'' and, ``it was my view 
that lawyers don't stand in the shoes of their clients, and that good 
lawyers can give advice and argue any side of a case.'' Part of the 
double standard being applied is that the rule Republican Senators urge 
for Republican nominees--that their clients not be held against them--
is turned on its head under a Democratic President.
  As recently as just over 1 year ago, every Senate Republican voted to 
confirm Michael Mukasey to be Attorney General of the United States. 
That showed no concern that one of his clients, and one of his most 
significant cases in private practice as identified in the bipartisan 
committee questionnaire he filed, was his representation of Carlin 
Communications, a company that specialized in what are sometimes called 
``dial-a-porn'' services. It is more evidence of a double standard.
  Senators should reject the partisan tactics and double standards from 
the extreme right and support David Ogden's nomination. The last Deputy 
Attorney nominee to be delayed by such a double standard was Eric 
Holder, whose nomination to be Deputy Attorney General in 1997 was 
delayed for three weeks by an anonymous Republican hold after being 
reported favorably by the Judiciary Committee before being confirmed 
unanimously. Like now Attorney General Holder, Mr. Ogden is an 
immensely qualified nominee whose priorities will be the safety and 
security of the American people and reinvigorating the traditional work 
of the Justice Department in protecting the rights of Americans.
  Mr. CARDIN. Mr. President, I ask unanimous consent that on Thursday, 
March 12, the Senate resume consideration of the Ogden nomination at 12 
noon and that it be considered under the parameters of the order of 
March 10; that the vote on the confirmation of the nomination occur at 
2 p.m.; further, that upon confirmation of the Ogden nomination, the 
Senate remain in executive session and consider Calendar No. 23, the 
nomination of Thomas John Perrelli to be Associate Attorney General; 
that debate on the nomination be limited to 90 minutes equally divided 
and controlled between the leaders or their designees; that upon the 
use or yielding back of time, the Senate proceed to a vote on 
confirmation of the nomination; that upon confirmation, the motion to 
reconsider be laid upon the table, no further motions be in order; that 
the President be immediately notified of the Senate's action; and that 
the Senate then resume legislative session.
  The PRESIDING OFFICER (Mr. Nelson of Florida). Without objection, it 
is so ordered.

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