[Congressional Record (Bound Edition), Volume 156 (2010), Part 11]
[Senate]
[Pages 15517-15525]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

  NOMINATION OF JANE BRANSTETTER STRANCH TO BE UNITED STATES CIRCUIT 
                      JUDGE FOR THE SIXTH CIRCUIT

  The ACTING PRESIDENT pro tempore. 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 Jane 
Branstetter Stranch, of Tennessee, to be United States Circuit Judge 
for the Sixth Circuit.
  The ACTING PRESIDENT pro tempore. Under the previous order, there 
will be 2 hours of debate with respect to the nomination, with the time 
equally divided between the Senator from Vermont and the Senator from 
Alabama or their designees.
  The Senator from Vermont.
  Mr. LEAHY. Mr. President, parliamentary inquiry: I think the 
leadership and others were expecting a vote at 5:30. If the Democratic 
and Republican sides yield back any time to bring the vote at 5:30, 
that would be permissible; would it not?
  The ACTING PRESIDENT pro tempore. The Senator is correct.
  Mr. LEAHY. I thank the distinguished Acting President pro tempore.
  This afternoon, the Senate is going to finally consider and finally 
vote on the nomination of Jane Stranch of Tennessee to the Sixth 
Circuit. She is a native of Nashville, TN. She has practiced law in 
that community for 32 years. She has often appeared before the Sixth 
Circuit, the court to which she is now nominated. Ms. Stranch has 
decades of experience in labor and employment law. Actually, that is an 
expertise she made useful when she taught a class on labor law at 
Nashville's Belmont University.
  Ms. Stranch also has an active appellate practice, as well as 
significant experience with alternative forms of dispute resolution, 
such as mediation and arbitration. She is a leader in her community. 
She dedicates significant time to pro bono work, and that is something 
I always look for in a nominee. She dedicates significant time also to 
civic matters and her church. She has impressive academic credentials. 
She earned both her JD, Order of the Coif, and her BA, summa cum laude 
and Phi Beta Kappa, from Vanderbilt University.
  Her nomination is supported by her home State Senators, both 
Republicans. Her nomination was reported by a bipartisan majority of 
the Judiciary Committee last November. That was nearly 10 months ago. 
Since then, every single Democratic Senator has said--actually they did 
right from the time she was reported--they were prepared to debate and 
vote on this nomination. I have spoken many times about the Democrats' 
willingness and the need to consider this nomination.
  In mid-July, I came before the Senate to take the extraordinary step 
of propounding a unanimous consent request to consider this nomination 
because at that time we had waited months and months and months and 
months, and I felt she should be given a chance to have a vote.
  The senior Senator from Tennessee, who I see on the floor now, 
supported that request. I made very clear at that time--and I will make 
very clear again today--that in no way do I fault the senior Senator 
from Tennessee for the delay. In fact, he has supported this nomination 
from the outset. He spoke to me in favor of the nomination at the time 
it came before the committee. He spoke to me in favor of the nomination 
when it was before the committee and immediately after it came out of 
the committee. He has been most supportive all the way through.
  Indeed, I think this nomination is an example of how President Obama 
has reached out and worked with Senators from both sides of the aisle. 
But I made that request after she had been waiting 8 months for just a 
vote--for a vote up or down. But after being pending on the Executive 
Calendar for those 8 months, there was an objection to my request to at 
least let us go ahead and vote.
  Now, I thank the Senate majority leader and the Republican leader for 
facilitating the agreement that finally allows her consideration this 
evening. I hope now the Senate will be allowed to turn to the other 
judicial nominations that have been stalled before the Senate.
  One nomination is that of Albert Diaz from North Carolina to the 
Fourth Circuit, for example. It was reported unanimously by the 
Judiciary Committee, but it has been stalled since January--since the 
snows of January.
  Others include Scott Matheson of Utah, nominated to the Tenth 
Circuit, and Janet Murguia of Arizona, nominated to the Ninth Circuit. 
I mention these because they are all supported by their Republican home 
State Senators, and they were reported by the Judiciary Committee 
unanimously, with no objections. It is hard to see how, when they are 
supported by Republicans in their State--the President has reached out 
to them, gotten their support--and they go out of the Judiciary 
Committee with no objections, they then sit here forever.
  Another is Ray Lohier of New York, whose nomination to the Second 
Circuit was reported without objection. In addition, there are 12 
district court nominations on the Senate Calendar that should be 
considered and confirmed without further delay. They were reported as 
long as 7 months ago.
  A number of recent newspaper articles have discussed the judicial 
vacancy crisis that has been created by the Republican strategy of 
slow-walking the Senate's consideration of noncontroversial 
nominations. Remember, these are all people who, when they finally get 
a vote after waiting months and months and months, usually get a 
unanimous vote. These include district court nominations, which are 
traditionally considered without delays, and they have never been 
targeted for obstruction by Democrats or Republicans when they have 
been supported by their home State Senators. Last year, the Senate was 
allowed to confirm only 12 Federal circuit and district court judges 
all year. That was the lowest total in more than 50 years. So far this 
year, we have confirmed only 28 more and achieved what one recent news 
story noted is the lowest number of confirmations in more than 40 
years.
  I took serious note of the remarks of Justice Anthony Kennedy--a 
Justice nominated by a Republican President--

[[Page 15518]]

who spoke last month at the Ninth Circuit conference about the cost of 
skyrocketing judicial vacancies not only in California but throughout 
the country. He said:

       It's important for the public to understand that the 
     excellence of the federal judiciary is at risk.

  He further noted that:

       If judicial excellence is cast upon a sea of congressional 
     indifference, the rule of law is imperiled.

  I hope all Senators will heed Justice Kennedy's serious warning 
because he is absolutely correct. We should not let partisan 
calculations stand in the way of doing our job for the American people.
  If, in fact, the action we are taking this evening represents a 
bipartisan willingness to return to the Senate's tradition of offering 
advice and consent without extensive delay, then I welcome it. Because 
in my 36 years in the Senate, I have never seen anything to match the 
delays we have seen over the last year and a half, under either 
Democratic or Republican Presidents. I hope we will promptly consider 
the other 63 nominations that remain on the Executive Calendar, which 
have already been considered and favorably reported by the Judiciary 
Committee.
  I remember President Bush's first year in office. I became chairman 
of the Senate Judiciary Committee halfway through that year. Many said: 
Well, after Senate Republicans had pocket-filibustered more than 60 of 
President Clinton's judicial nominations, then we should do the same to 
President Bush. I said, No; I don't want that kind of tit for tat. 
Because of the 60 pocket filibusters by the Republicans of President 
Clinton's nominations, judicial vacancies skyrocketed to more than 110. 
So what I did, during the only 17 months as chairman of the committee 
during President Bush's first 3 years in office, is I worked hard and 
we proceeded in that 17 months to confirm 100 of his judicial 
nominations. I did that in 17 months. I contrast this to the first 2 
years of President Obama's term. Senate Republicans have allowed only 
40 Federal circuit and district court nominees to be considered by the 
Senate.
  The history of the Sixth Circuit is detailed in my July 29, 2002, 
Senate statement in support of another Tennessee nominee, Judge Julia 
Gibbons. As chairman, I proceeded to a confirmation hearing for Judge 
Gibbons in April of 2002. That was the first hearing for a Sixth 
Circuit nominee in 5 years. Republicans refused to hold any hearings 
for a Sixth Circuit nomination prior to that because they were made by 
a Democratic President, President Clinton. He nominated Judge Helene 
White, an experienced State court judge. They refused to hold a 
hearing. He nominated Kathleen McCree Lewis, an accomplished attorney 
and the daughter of former Solicitor General of the United States and 
former Sixth Circuit Judge Wade McCree. They refused. When the 
President nominated Kent Markus, a law professor and a former Justice 
Department official who had the support of his Republican home State 
Senator, they refused. By proceeding with President Bush's 2002 Sixth 
Circuit nomination of Judge Julia Gibbons of Tennessee and then his 
nomination of Judge Rogers of Kentucky, I wished to break that logjam 
and chose a better way of doing it.
  When I resumed the chairmanship of the Judiciary Committee in 2007, 
we were able to fill the last remaining vacancies on the Sixth Circuit 
when we confirmed President Bush's nominations of Judge Helene White 
and Judge Ray Kethledge of Michigan to the Sixth Circuit. So after 
Republicans kept the Sixth Circuit vacant all those years by pocket-
filibustering President Clinton's nominations, Democrats worked with a 
Republican President to bring it back to full. In fact, overall, 
judicial vacancies were reduced during the Bush years from more than 10 
percent, caused by the pocket-filibustering of 60 of President 
Clinton's nominees, to less than 4 percent. But now, because of the 
blocking of President Obama's nominees, judicial vacancies are now 
again over 10 percent. Mind you, during the Clinton years, Federal 
Circuit vacancies doubled because of the pocket-filibustering by the 
Republicans. During the Bush years, the Federal circuit court vacancies 
reduced from a high of 32 down to single digits. We have not had the 
same cooperation on the Republican side with President Obama.
  During the Bush years, Democrats enabled the reduction of vacancies 
in nine circuits. Since then, vacancies in six circuits have risen. 
During the first 2 years of the Bush administration, the 100 judges 
confirmed and considered by the Senate--and this is when I was chairman 
and President Bush was President, during his first 2 years--we 
considered these judges an average of 25 days after being reported by 
the Judiciary Committee. The average time for confirming circuit court 
nominees was 26 days. By contrast, the average time for the Federal 
circuit and district court judges confirmed since President Obama took 
office is 90 days after being reported. The average time for circuit 
nominees is 147 days. Contrast this with when it was not unusual during 
President Bush's time when we would report them out one day and had 
them confirmed within 2 or 3 days thereafter.
  It would be one thing if he made nominations opposed by home State 
Senators. President Obama has not. Typically, he has reached out. He 
was worked with home State Senators in both parties. Likewise, I have 
respected the minority. I have not brought up people who did not have 
the support of their Republican home State Senators. We have tried to 
strengthen the cooperation between the parties and branches. Frankly, 
it is disappointing that the others take the opposite approach. Again, 
I have been here with half a dozen different Democratic leaders and 
Republican leaders and half a dozen different Presidents. I have never 
seen anything such as this.
  There is no good reason to hold up consideration, for weeks and 
months, of nominees who have been reported unanimously from the 
Judiciary Committee, where every Republican, every Democrat reported 
them favorably. In fact, over the recent recess, tensions increased 
again when someone from the Republican side of the aisle anonymously--
didn't even come forward and say who it was--anonymously objected to 
the standard practice of holding nominations in place during the August 
recess and insisted that five judicial nominees who had been reported 
favorably be returned to the President. Ironically, it was just days 
before that objection that the President and the Republican leader met 
and agreed to work together. I remember when Republicans used to 
contend that any nomination reported by the committee, whether 
unanimous or otherwise, was entitled to an up-or-down vote. That was 
then. I guess this is now. Indeed, 24 judicial nominations favorably 
reported by the Senate Judiciary Committee have not been acted upon by 
the Senate--24--because Republicans have objected.
  We have fallen well off the pace we set for nominations in 2001 and 
2002. When the Senate entered its August recess in 2002, we had 
confirmed 72 of President Bush's circuit and district court 
nominations, including our confirming 8 nominations by voice vote as 
the Senate wrapped up before the recess. I am rather proud of that 
because I had been chairman for barely 12 months when we did those 72. 
Only 6 nominations remained on the Executive Calendar, and all of them 
were later confirmed. No judicial nominations were returned to 
President Bush. By this date in 2002, we had already confirmed five 
more judicial nominations after the August recess, for a total of 77 of 
President Bush's district and circuit nominees confirmed by a 
Democratic Senate.
  What has happened? What has happened? Democrats do not say we are 
going to take revenge after what was done to President Clinton by a 
then Republican majority. We said we will move forward on these because 
the Federal judiciary should be separate from politics. They should be 
able to go forward. We can have elections and we can go and fight each 
other during elections and the voters will decide that one of us will 
get elected and one will not, but the Federal judiciary

[[Page 15519]]

should be outside of that kind of politics.
  So unlike those 77 of President Bush's district and circuit court 
nominees by this time, we have confirmed only 40 of President Obama's 
circuit and district court nominations. In fact, we were permitted only 
four noncontroversial nominations as we headed into recess. Five 
judicial nominations were sent back to the President. So as a result, 
17 judicial nominations remain stalled on the Executive Calendar today. 
It has been different, I would say, in the Judiciary Committee itself, 
and I thank the ranking Republican, Senator Sessions. He has cooperated 
with me and worked with me during the whole process of hearings in 
considering nominations in the Judiciary Committee. He knows I have 
respected and protected every single Republican on that committee when 
they have asked for extra time or asked for extra information. But the 
bottom line is, the Senate has taken more than five times as long to 
consider President Obama's reported circuit court nominations than we 
did to consider President Bush's during his first 2 years in office. It 
is not fair to the Senate judiciary. It is not fair to the nominees. 
They can't go forward with their lives while this is pending. They have 
a law practice. Everything is on hold for month after month after 
month. As we know, there are people who have turned down nominations 
because they said: Why should we wait for a year or so, even though we 
are going to get confirmed unanimously after that time.
  As I have said, if the consent to schedule this debate and vote today 
is a signal that other nominations reported favorably by the Judiciary 
Committee will also be scheduled for final consideration without 
further unnecessary delay, I will be encouraged. We can, and must, do a 
better job responding to the judicial vacancy crisis.
  I spoke a little longer than I normally would, but I am going to be 
speaking to the judiciary conference tomorrow at the invitation of 
Chief Justice John Roberts. I know the concern from the judges is why 
these people get nominated and then they wait for months or never get 
confirmed. Again, I would say, in this regard, it has been a joy to 
work with the senior Senator from Tennessee, somebody I have known in 
his role as Governor and Cabinet member. I consider him a good friend. 
If it had been left to just the two of us, this would have been done 
months and months ago.
  So I yield the floor and reserve the remainder of my time.
  The PRESIDING OFFICER (Mr. Burris). The Senator from Tennessee is 
recognized.
  Mr. ALEXANDER. Mr. President, I thank the Senator from Vermont for 
his remarks. It is my great pleasure today to recommend to the Senate 
Jane Branstetter Stranch, from Nashville. Jane has been nominated to be 
a judge on the U.S. Court of Appeals for the Sixth Circuit, as Senator 
Leahy has said.
  She has a distinguished academic background: summa cum laude with Phi 
Beta Kappa honors from Vanderbilt University, which is not easy to do; 
Vanderbilt School of Law, with top grades there. She has lots of 
practical experience, having taught labor law at Belmont College in 
Nashville.
  Jane's law firm is a family affair. Her father, who I imagine is 
watching today, is one of Nashville's best known and most respected 
attorneys, Cecil Branstetter. As a member of the Tennessee legislature 
during the 1950s he introduced legislation to allow women to serve on 
juries, so I know he has some special pride today to see the Senate 
considering the nomination of his daughter to be a federal judge.
  Maybe more important than any of these other things, Ms. Stranch has 
been very active in her PTA, in her church, and in the Nashville 
community.
  I was Governor of Tennessee for 8 years. As Governor, I appointed 
about 50 judges. I didn't ask them their politics. I didn't ask them 
how they felt about the issues. I tried to determine if they had the 
character and the intelligence and the temperament to be a judge, 
whether they would treat people before the bench with courtesy and, 
most important, whether they were determined to be impartial to 
litigants before the court. I am convinced that Jane Stranch will be 
that kind of judge. For that reason I am pleased to recommend her to my 
colleagues in the Senate.
  I thank Senator Leahy, the chairman of the Judiciary Committee, and 
Senator Reid, the majority leader, and Senator McConnell, the 
Republican leader, for agreeing to schedule this vote today. All three 
have been instrumental in this in what is always a crowded Senate 
schedule. I also want to thank Senator Sessions, the ranking member of 
the Judiciary Committee, for his support of this nomination in 
committee.
  I listened carefully to the Judiciary Committee chairman's remarks. I 
have no intention of getting into a historical debate with him about 
whether Republicans or Democrats are more guilty of holding up 
Presidential nominees. Of course, Members of the Senate have a 
constitutional right to advise and consent on Presidential nominations. 
I know a little bit about that myself. President George H. W. Bush 
nominated me to be the U.S. Education Secretary. As soon as I came to a 
hearing on my nomination, one Senator said: Well, Governor Alexander, I 
have heard a number of things about you that disturb me. I was held up 
anonymously by the other side of the aisle. Then, late one night, I was 
mysteriously confirmed. I went to see a Senator at that time, whose 
name was Warren Rudman, one of the most distinguished Members of our 
Senate. I said: What can I do about these Senators who are holding up 
my nomination? He said: Keep your mouth shut; you have no cards to 
play. Let me tell you a story. So Senator Rudman told me he had been 
nominated by President Ford in the 1970s to, I think, the Interstate 
Commerce Commission, and the incumbent Democratic Senator from New 
Hampshire had held up his nomination and never would say why. It became 
so embarrassing that Rudman finally asked President Ford to withdraw 
the nomination, because he was then Attorney General of New Hampshire 
and people were beginning to wonder what was wrong with him. I said: Is 
that the end of the story? He said: No, I ran against the so-and-so in 
the next election and beat him. That is how Warren Rudman became a 
Senator.
  Senator Sessions, the ranking Republican on the Judiciary Committee, 
was defeated when he was nominated to be a Federal judge by Senators 
who didn't like his point of view. They voted him down in committee and 
didn't let his nomination come before the full Senate. Now, ironically, 
not only is he a Senator, he is the ranking Republican on the committee 
concerning judges.
  I am sure there may have been times when Republican Members have gone 
overboard in the exercise of their constitutional prerogative to advise 
and consent. But as I said, without getting into a tit-for-tat on who 
did what to whom, I can vividly remember when I came to the Senate in 
2003--having appointed nearly 50 judges when I was Governor, as I said, 
in many cases without regard to party--how shocked I was at the 
treatment President Bush's judicial nominees were receiving. This 
included nominees who I knew were perfectly qualified to be members of 
U.S. Courts of Appeals.
  There was Miguel Estrada, against whom Democrats got together and 
said ``we are going to filibuster him,'' and they blocked him 
permanently, even though the new Supreme Court Justice, Elena Kagan, 
said he would be well qualified to be a member of the Supreme Court.
  Charles Pickering was made out to be somehow unacceptable in the 
civil rights movement when, in fact, he was a pioneer in that movement 
in Mississippi in the 1950s and 1960s, when a lot of people were not.
  There was also William Pryor, from Alabama, who was enormously well 
qualified, and he was blocked by a filibuster on the Democratic side 
for two years, even though he could have had a majority of the votes. I 
knew of William Pryor because he and I had both

[[Page 15520]]

been law clerks to Judge John Minor Wisdom of New Orleans, one of the 
finest judges who had ever served on the court of appeals--the man 
whose court ordered that James Meredith be admitted to Ole Miss.
  I was offended by the treatment of Miguel Estrada, Charles Pickering, 
William Pryor, and others. So I said at the time that while I am a 
Senator, my view is going to be that any Presidential nominee to the 
judiciary deserves an up-or-down vote. We had a debate about that and a 
discussion about that in the Senate. Some may remember the Gang of 14 
who came together, Senators on both sides, and they came to an 
agreement to which I subscribe, which is that a President's nominee to 
a judicial position deserves an up-or-down vote within a reasonable 
period of time, except under extraordinary circumstances.
  That is my view today, and I hope the Senate will come back to that 
view, whether we have a Republican President or Democratic President. 
On our side, many are still offended by the treatment of President 
Bush's nominees in 2003, 2004, and 2005. On the other side, as you 
heard Senator Leahy say, there are some charges about Republican 
offenses. I think we should look to the future and recognize that 
Presidents are entitled to respect. They are elected by the people. The 
Constitution gives them the power to nominate and gives us the power to 
say yes or no. We should say yes or no in a reasonable period of time 
and reserve to ourselves the right to say no, as I do, to a nomination, 
or even to filibuster a nomination in an exceptional case--but only in 
an exceptional case.
  In this case, I am glad to support Jane Stranch. She is from 
Tennessee and she is well qualified. I thank the Republican leader, the 
Democratic leader, and the chairman of the Judiciary Committee for 
scheduling this vote this afternoon. I urge my colleagues to vote 
``aye.''
  I thank the Chair and yield the floor.
  The PRESIDING OFFICER. The Senator from Iowa is recognized.


                   Prevention and Public Health Fund

  Mr. HARKIN. Mr. President, I come to the floor today to discuss an 
amendment that Senator Johanns, from Nebraska, will be offering to the 
Small Business Jobs and Credit Act. The amendment to be offered by the 
Senator from Nebraska--a good friend of mine and a former Secretary of 
Agriculture--however, would effectively kill the prevention and public 
health fund that is in the Health Care Act. That would be a grave 
mistake.
  The prevention and public health fund was created by the Affordable 
Care Act that we passed earlier this year. On March 23, when President 
Obama signed that historic bill into law, our Nation made two giant 
strides forward. We ensured that all Americans, regardless of means, 
will have access to quality and affordable health care. We committed 
ourselves to transforming America's current ``sick care'' system into a 
true health care system. I have been saying for years that what we have 
in America is not a health care system, we have a ``sick care'' system. 
Once you get sick, you get care one way or the other--emergency room, 
Medicare, Medicaid, health insurance, whatever. But that is always the 
most expensive--waiting until someone gets sick, and then you help 
them. So I have often said that we have a sick care system. A true 
health care system would put emphasis on keeping someone healthy and 
out of the hospital in the first place.
  One of the most important elements of this transformational bill we 
passed this year--the health care reform bill--was the creation of the 
prevention and public health fund. For the first time in history, we 
have decided not just to pay lip service to wellness and prevention but 
to invest in prevention and wellness in a very robust way.
  We cannot wait any longer to make these investments. By dedicating 
resources to preventing obesity, diabetes, heart disease, and other 
very costly conditions and diseases, we have a tremendous opportunity 
to both improve the health of the American people and to restrain 
health care spending.
  As we can see from the chart I have here, prior to this prevention 
fund, for every dollar spent on health care, 75 cents went to treating 
patients with chronic diseases. During 2005, the United States spent 
almost $2 trillion on health care. For every $1 spent, 75 cents went 
toward ``sick care,'' treating people with chronic diseases. Only 4 
pennies went for prevention.
  This underinvestment in prevention has had devastating consequences. 
Chronic diseases are one of the main reasons health care costs have 
increased so dramatically over the past several decades.
  This chart shows what has happened since 1987. From 1987 to today, 
U.S. health spending has gone up to $628 billion. But of that increase, 
two-thirds of the increase, $211 billion, is due to chronic diseases--
two-thirds of the increase. That is an increase of $211 billion since 
1987 because of chronic diseases, most of which are preventable. Our 
investment in wellness and prevention can save millions of Americans 
needless suffering and early death. It can save countless billions of 
dollars in health care costs. Again, let's have a couple of examples 
here that I have on these charts.
  What is our return on investment? For every dollar spent on childhood 
immunizations, we save $16.50. For every dollar we spend on smoking 
cessation for pregnant women, we save $6. Overall, the return on 
chronic disease prevention, on community-based prevention interventions 
is basically about 5.6 to 1 to 6.2 to 1. These are community-based 
interventions.
  I will say it once and I will keep saying it: Not every preventive 
and wellness measure takes place in a doctor's office. Sometimes they 
take place in other places--where we work, where we go to school, where 
we live. We know now, based on the Trust for America's Health, that the 
return on total savings we would get after 5 years would be $16.5 
billion and 10 to 20 years, $18.5 billion, or a return on investment of 
5.6 dollars for every dollar we put in or 6.2 dollars over 10 to 20 
years.
  That is why funding these types of programs is crucial if we hope to 
slow the growth of health care costs in our country. We will not be 
able to accomplish this if we do not increase our investment in the 
programs that prevent the development of these costly chronic diseases. 
To this end, the new health reform law makes significant new 
investments in wellness, prevention, and public health. For example, it 
requires insurance companies to cover recommended preventive services 
with no copayments or deductibles. Think about that. You now go in, get 
recommended preventive services, no copayments, no deductibles. It also 
ensures seniors have access to free annual wellness visits and a free 
personalized prevention plan under Medicare.
  A critical feature of the new law we passed that I think is essential 
to a sustainable push for wellness is the new Prevention and Public 
Health Fund. As I said earlier, bear in mind that maintaining good 
health is much more than just visits to the doctor's office. Where 
Americans live, go to work, and go to school also has a profound impact 
on our health. That is why, among other things, the fund provides for 
community transformation grants to enable localities to tailor wellness 
and prevention programs to their specific needs and environment. In 
addition, it invests heavily in strengthening the primary care 
infrastructure, including training for physician assistants and nurse 
practitioners, who typically practice in small clinics. That is why for 
fiscal year 2010 the prevention fund dedicated $64 million to State 
public health departments to implement evidence-based prevention 
services.
  This is what we did. There is $64 million just for community and 
State prevention. We can see the others: primary care and public health 
workforce, $273 million; infrastructure, $70 million; obesity 
prevention, $16 million; tobacco prevention, and on and on. That is 
what we did in 2010. It also allocated, as I mentioned, $16 million for 
obesity prevention activities and $15 million for tobacco control 
programs. We also invested $70 million in our public health 
infrastructure.
  For fiscal year 2011, let's see where we go. For fiscal year 2011, 
here is

[[Page 15521]]

where the public health fund has gone under the Senate Appropriations 
Committee: for community prevention, $270 million; chronic disease 
State grants, $140 million; tobacco prevention and cessation, $100 
million; public health infrastructure for disease surveillance, $84 
million; prevention research, $50 million; community health worker 
demonstration project, $30 million. That is just to name a few of the 
investments.
  Given all the evidence we have--and we have a ton of evidence--
prevention saves us money in the long run, not to mention saving us 
from needless suffering and chronic diseases. Why now would we want to 
gut all of this? Why would we want to take all that away when we are 
trying to save money and keep people healthy? Why would we want to take 
all of that out? But that is exactly what the Johanns amendment does. 
The Johanns amendment would wipe all of that out--wipe it all out. It 
would deny any funding at all for prevention and wellness until 2018. 
For example, it takes away funding that keeps teens from starting 
smoking and all of the obesity avoidance and reduction programs we 
have. We know one of the biggest chronic illnesses facing us is the 
increasing rate of obesity among our young people. We know how to get a 
handle on that. We have good programs and evidence-based interventions 
to keep kids from getting obese or by getting them on track to reduce 
obesity. To gut all these programs is the same old penny wise, pound 
foolish, sick care system we have been laboring under for so many 
years. I thought we were going to move away from that. In fact, the 
prevention and wellness provisions of the health care bill we passed 
were some of the provisions that got strong support on both sides of 
the aisle.
  I know a lot of my Republican friends did not support the final bill. 
I understand that. But as we developed the bill in the HELP Committee 
and on the floor, the Prevention and Public Health Fund was widely 
supported. No one came after it. There were no amendments to gut it at 
that time. I think people on both sides of the aisle saw the wisdom, 
regardless of how one may have felt about other aspects of the health 
reform bill--I think every one agreed we have to do more in prevention 
and wellness and public health. For this reason, I say to my 
colleagues: Do not turn around now after we have done all this and gut 
the money to prevent chronic illnesses and diseases and keep people 
healthy. Do not gut that to put the money in the Johanns amendment.
  I am not alone in understanding the importance of this fund. Mr. 
President, I ask unanimous consent to have printed in the Record 
letters from a number of groups--everything from the American 
Association of People with Disabilities to the American Cancer Society, 
the American Heart Association, the Campaign for Tobacco-Free Kids, the 
National Association of Local Boards of Health, and the YMCA. More than 
200 organizations signed a letter to us stating that the 241 
undersigned organizations ``strongly urge you to oppose the use of the 
Prevention and Public Health Fund from the Affordable Care Act as an 
offset for an amendment offered by Senator Johanns. Such an action 
would virtually eliminate the Fund, and mark a severe blow to this 
monumental commitment to prevention and public health under the Act. . 
. .The Fund is a unique opportunity to truly bend the cost curve on 
health care spending. . . .We must ensure that we capitalize on the 
unprecedented opportunity to transform our public health system by 
investing in prevention and public health. We urge you to vote no on 
the prevention fund offset within the Johanns amendment, or any other 
such legislative vehicles.''
  I ask unanimous consent to have these letters printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                              Partnership to Fight


                                              Chronic Disease,

                                               September 13, 2010.
     Hon. Harry Reid,
     Senate Majority Leader, U.S. Senate, Washington, DC.
     Hon. Tom Harkin,
     Chair, Senate Health, Education, Labor and Pensions 
         Committee, U.S. Senate, Washington, DC.
       Dear Senators Reid and Harkin: Good health is more than a 
     result of good medical care. Improvements in primary, 
     secondary, and tertiary prevention in settings outside the 
     medical system--at home, at work, at school, and in the 
     community--are essential to improving health in America and 
     lowering costs. The Affordable Care Act recognizes this and 
     created the Prevention and Public Health Fund (the Fund), 
     which is a key part of our national commitment to creating a 
     healthy America.
       Accordingly, we urge you to oppose any legislative 
     proposals that take money from the Fund to pay for the 
     proposal. Regardless of the merit of such proposals, the 
     Fund, its resources, and the commitment to health they 
     represent must remain inviolate.
       Chronic diseases--often preventable and highly manageable--
     drive health care spending and economic losses. Just the top 
     seven chronic conditions cost the U.S. $1.3 trillion each 
     year. Recently in Health Affairs, Harvard professor David 
     Williams, former CMS Director Mark McClellan, and former CBO 
     Director Alice Rivlin opined that creating a healthy America 
     is attainable. We share their view that attainment requires a 
     ``national commitment to the health and wellness of all 
     Americans.''
       The Partnership to Fight Chronic Disease is a national 
     coalition of more than 100 partner organizations committed to 
     supporting reforms to better prevent, detect, and manage the 
     nation's number one cause of death, disability and rising 
     health costs: chronic disease.
       Preventing and managing chronic diseases effectively 
     depends upon people engaging in healthy behaviors and having 
     access to preventive health care services, diagnostic 
     services that detect chronic disease early, and coordinated 
     care to manage chronic illness once detected. Assuring that 
     all Americans are empowered to make the changes needed to 
     improve their health--to avoid tobacco use, eat nutritiously, 
     engage in physical activity, get screened and seek care as 
     recommended, and follow through to manage and reduce health 
     risks--requires dedicated efforts.
       Unfortunately, we are trending in the other direction. 
     Among adults, one in three is obese. Obesity rates continue 
     to rise among young people, leading many to predict that the 
     next generation of Americans is likely to live shorter lives 
     than their parents. Obesity also drives up costs: the 
     doubling of obesity in the United States since 1987 accounts 
     for nearly 30 percent of the increase in health care 
     spending.
       The Fund also presents a tremendous opportunity to reduce 
     health disparities. Not everyone in America has an equal 
     likelihood of living a long and healthy life. Health status 
     varies by geographic location, gender, race/ethnicity, 
     education and income, and disability, among other factors. 
     Disparities are common, and among Americans with chronic 
     diseases, minorities are more likely to suffer poor health 
     outcomes. Disparities exist across the continuum of health 
     status--from preserving health by making healthy behavioral 
     choices to detecting and addressing health risks to managing 
     chronic conditions to avoid costly complications and 
     disability. The annual price tag of racial and ethnic 
     disparities in health alone is an estimated $309 billion.
       The potential returns on health improvement efforts 
     supported by the Fund are substantial. For example, the 
     Robert Wood Johnson Foundation estimates that if all 
     Americans enjoyed the same level of health as college 
     graduates, the benefit would amount to $1 trillion a year. A 
     model estimating the impact of a modest health status 
     improvement among Medicare beneficiaries projected a savings 
     of $65.2 billion a year or $652 billion of over 10 years. 
     Similarly, a study released by Trust for America's Health, 
     investments in effective community-focused programs to 
     increase physical activity, improve nutrition, and prevent 
     tobacco use have been estimated to generate a return of more 
     than $5 for each $1 invested--for an overall savings of $16 
     billion a year within five years.
       The Fund stands both as means to achieve a healthy America 
     and a symbol of the commitment to do so. We urge you to 
     preserve the resources allocated to the Fund by the 
     Affordable Care Act and oppose any legislative proposals 
     relying on resources from the Fund as pay-fors.
  Sincerely the undersigned PFCD partners and other interested 
organizations:
       Alzheimer's Foundation of America, American Academy of 
     Nursing, American Association of Cardiovascular and Pulmonary 
     Rehabilitation, American College of Preventive Medicine, 
     American Dietetic Association, American Sleep Apnea 
     Association, Association of Maternal & Child Health Programs, 
     Cleveland Clinic, Dialysis Patient Citizens, DMAA: The Care 
     Continuum Alliance, Easter Seals, GlaxoSmithKline, HealthCare 
     Institute of New Jersey, Healthcare Leadership Council, 
     Healthways, Life Science Vendors Alliance, The Milken 
     Institute, National Association of School Nurses, National 
     Association of Chronic Disease Directors, National Business 
     Coalition on Health,

[[Page 15522]]

     National Health Council, National Hispanic Council on Aging, 
     National Hispanic Medical Association, National Latina Health 
     Network, National Patient Advocate Foundation, National 
     Recreation and Park Association, Partnership for Prevention, 
     Prevent Blindness America, South Jersey Pharmaceutical and 
     Medical Technology Industry Alliance, XLHealth, YMCA of the 
     USA.
                                  ____

                                                September 2, 2010.
       Dear Senator: As the Senate considers the Small Business 
     Jobs and Credit Act (H.R. 5297), the 232 undersigned 
     organizations listed below strongly urge you to oppose the 
     use of the Prevention and Public Health Fund from the 
     Affordable Care Act (ACA) as an offset for an amendment 
     offered by Senator Johanns (No. 4596). Such an action would 
     virtually eliminate the Fund, and mark a severe blow to this 
     monumental commitment to prevention and public health under 
     the Act. We will also oppose any other such efforts to use 
     the Fund as an offset.
       ACA included historic reforms that have the potential to 
     transform our health system. For too long, we have focused 
     spending on treating people once they are sick rather than 
     preventing illness in the first place. The Prevention and 
     Public Health Fund (Fund) is urgently needed to address the 
     many emerging health threats our country faces and the 
     persistent chronic disease rates that we must begin to 
     control. The Fund is intended to ensure a coordinated, 
     comprehensive, sustainable, and accountable approach to 
     improving our country's health outcomes through the most 
     effective prevention and public health programs.
       ACA clearly states that the money be used ``for programs 
     authorized by the Public Health Service Act, for prevention, 
     wellness, and public health activities.'' The money would be 
     strategically used to support disease prevention by promoting 
     access to vaccines, building the public health workforce, and 
     investing in community-based prevention. Furthermore, the Act 
     specifically states that community-based prevention funding 
     must only support evidence-based prevention programs which 
     have been shown through scientific research to reduce chronic 
     disease, including behavioral health conditions, and address 
     health disparities. Research has shown that effective 
     community level prevention activities focusing on nutrition, 
     physical activity and smoking cessation can reduce chronic 
     disease rates and have a significant return on investment.
       Already in Fiscal Year 2010, we have seen these funds 
     invested for programs to promote tobacco control and 
     implement tobacco cessation services and campaigns, as well 
     as obesity prevention, better nutrition and physical 
     activity. The fund has been invested to support state, local 
     and tribal public health efforts to advance health promotion 
     and disease prevention, and to build state and local capacity 
     to prevent, detect and respond to infectious disease 
     outbreaks. The funds are also being used to support the 
     training of current and next generation public health 
     professionals.
       The Fund is a unique opportunity to truly bend the cost 
     curve on health care spending. Seventy-five percent of all 
     health care costs in our country are spent on the treatment 
     of chronic diseases, many of which could be prevented. 
     Further, in a public opinion survey conducted just prior to 
     the passage of the Act, Trust for America's Health and the 
     Robert Wood Johnson Foundation (RWJF) found that 71 percent 
     of Americans favored an increased investment in disease 
     prevention and that disease prevention was one of the most 
     popular components of health reform.
       We must ensure that we capitalize on the unprecedented 
     opportunity to transform our public health system by 
     investing in prevention and public health. We urge you to 
     vote NO on the prevention fund offset within the Johanns 
     amendment, or on any other such legislative vehicles.
           Sincerely,
       AARP; ACCESS Women's Health Justice; Advocates for Better 
     Children's Diets; AIDS Action; AIDS Alabama; All Saints Home 
     Care; American Academy of Pediatrics; American Academy of 
     Physician Assistants; American Association for International 
     Aging; American Association of Colleges of Nursing; American 
     Association of Colleges of Osteopathic Medicine; American 
     Association of Colleges of Pharmacy; American Association of 
     People With Disabilities; American Cancer Society Cancer 
     Action Network; American College of Clinical Pharmacy; 
     American College of Gastroenterology; American Congress of 
     Obstetricians and Gynecologists; American College of 
     Occupational and Environmental Medicine; American College of 
     Preventive Medicine; American Counseling Association.
       American Dental Education Association; American Diabetes 
     Association; American Federation of State, County and 
     Municipal Employees; American Foundation for Suicide 
     Prevention; American Heart Association; American Lung 
     Association; American Medical Student Association; American 
     Nurses Association; American Psychological Association; 
     American Public Health Association; American Social Health 
     Association; American Society for Gastrointestinal Endoscopy; 
     American Thoracic Society; Applied Research Center; Arthritis 
     Foundation; Asian and Pacific Islander American Health Forum; 
     Association of American Medical Colleges; Association of 
     Maternal & Child Health Programs; Association for Prevention 
     Teaching and Research; Association of Public Health 
     Laboratories; Association of Schools of Public Health.
       Association of State and Territorial Dental Directors; 
     Association of State and Territorial Directors of Nursing; 
     Association of State and Territorial Health Officials; 
     Association of Women's Health, Obstetric and Neonatal Nurses; 
     Atlanta Regional Health Forum; A World Fit for Kids!; Bazelon 
     Center for Mental Health Law; Boston Public Health 
     Commission; Building Healthier America; C3: Colorectal Cancer 
     Coalition; California Association of Alcohol and Drug Abuse 
     Counselors; California Center for Public Health Advocacy; 
     California Conference of Local Health Department Nursing 
     Directors; California Food Policy Advocates; California 
     Foundation for the Advancement of Addiction Professionals; 
     California Immigrant Policy Center; California Pan-Ethnic 
     Health Network; California Partnership; California School 
     Health Centers Association; Campaign for Community Change; 
     Campaign for Public Health.
       Campaign for Tobacco-Free Kids; CASA de Maryland; C-Change; 
     Center for Biosecurity, University of Pittsburgh Medical 
     Center; Center for Health Improvement; Center for Science in 
     the Public Interest; Cerebral Palsy Association of Ohio; 
     Children and Adults with Attention-Deficit/Hyperactivity 
     Disorder; Children Now; Children's Dental Health Project; 
     City of Philadelphia Department of Public Health; Coalition 
     for Health Services Research; Coalition for Humane Immigrant 
     Rights of LA; Colon Cancer Alliance; Colorado Progressive 
     Coalition; Commissioned Officers Association of the U.S. 
     Public Health Service; CommonHealth ACTION; Community Action 
     Partnership; Community Catalyst; Community Health Councils.
       Community Health Partnership: Oregon's Public Health 
     Institute; Comprehensive Health Education Foundation; 
     Connecticut Certification Board; Connecticut Citizen Action 
     Group; Council of State and Territorial Epidemiologists; 
     County Health Executives Association of California; Crohn's 
     and Colitis Foundation of America; Defeat Diabetes Fund; 
     Digestive Disease National Coalition; Faith Action for 
     Community Equity; Family Voices; Federation of Associations 
     in Behavioral & Brain Sciences; First Five; Friends of AHRQ; 
     Friends of NCHS; Friends of SAMHSA; Georgia AIDS Coalition; 
     Granite State Organizing Project; Grassroots Organizing; 
     Harlem United Community AIDS Center, Inc.
       Having Our Say Coalition; Health Care for America Now; 
     Health Law Advocates of Louisiana, Inc.; Health Promotion 
     Advocates; Health Rights Organizing Project; Hepatitis 
     Foundation International; HIV Medicine Association; Home 
     Safety Council; Idaho Community Action Network; Indian 
     People's Action; Infectious Diseases Society of America; 
     Institute for Health and Productivity Studies; Rollins School 
     of Public Health, Emory University; Institute for Public 
     Health Innovation; International Certification and 
     Reciprocity Consortium (IC&RC); International Health, Racquet 
     & Sportsclub Association; Interstitial Cystitis Association; 
     ISAIAH; JWCH Institute, Inc.; Korean Resource Center; 
     Libreria del Pueblo Inc.
       Louisiana Public Health Institute; Mahoning Valley 
     Organizing Collaborative; Main Street Alliance; Maine 
     People's Alliance; Make the Road New York; March of Dimes 
     Foundation; Maricopa County Dept. of Public Health; Media 
     Policy Center; Mental Health America; Michigan Association 
     for Local Public Health; Montana Organizing Project; National 
     Alliance of State and Territorial AIDS Directors; National 
     Assembly on School-Based Health Care; National Association 
     for Public Health Statistics and Information Systems; 
     National Association of Chain Drug Stores; National 
     Association of Children's Hospitals; National Association of 
     Chronic Disease Directors; National Association of Community 
     Health Centers; National Association of Counties; National 
     Association of County & City Health Officials.
       National Association of Local Boards of Health; National 
     Association of Public Hospitals and Health Systems; National 
     Association of School Nurses; National Association of State 
     Alcohol and Drug Abuse Directors; National Association of 
     State Mental Health Program Directors; National Business 
     Coalition on Health; National Coalition for LGBT Health; 
     National Coalition of STD Directors; National Council of 
     Asian Pacific Islander Physicians; National Council of Jewish 
     Women; National Council of La Raza; National Education 
     Association; National Environmental Health Association; 
     National Family Planning & Reproductive Health Association; 
     National Federation of Families for Children's Mental Health; 
     National Forum for Heart Disease and Stroke Prevention; 
     National Health Council; National Indian Project Center; 
     Northeast Ohio Alliance for Hope; National Korean American 
     Service and Education Consortium.
       National Network of Public Health Institutes; National 
     Nursing Centers Consortium; National Recreation and Park 
     Association;

[[Page 15523]]

     National Rural Health Association; National WIC Association; 
     Nebraska Appleseed; Nebraska Urban Indian Health Coalition 
     Nemours; New Hampshire Public Health Association; NYC 
     Department of Health and Mental Hygiene; New York Immigration 
     Coalition; New York Society for Gastrointestinal Endoscopy; 
     North Carolina Fair Share; Northern Illinois Public Health 
     Consortium; Northwest Federation of Community Organizations; 
     Novo Nordisk; NYU Langone Medical Center; Ocean State Action; 
     Ohio Alliance for Retired Americans; Oregon Action.
       Out of Many, One; Papa Ola Lokahi; Partners for a Healthy 
     Nevada; Partnership for Prevention; Physician Assistant 
     Education Association; Planned Parenthood Federation of 
     America; Prevention Institute; Progress Ohio; Progressive 
     Leadership Association of Nevada; Project Inform; Public 
     Health Association of Nebraska; Public Health Foundation; 
     Public Health Institute; Public Health Law and Policy; Public 
     Health-Monroe County (MI); Public Health--Seattle and King 
     County; Public Health Solutions; Pulmonary Hypertension 
     Association; Rails-to-Trails Conservancy; REACH U.S. 
     SouthEastern African American Center of Excellence for 
     Elimination of Disparities (REACH U.S. SEA-CEED).
       RiverStone Health; Safe States Alliance; Service Employees 
     International Union; Sexuality Information and Education 
     Council of the U.S.; Society for Adolescent Health and 
     Medicine; Society for Healthcare Epidemiology of America; 
     Society for Public Health Education; South Carolina Fair 
     Share; Summit Health Institute for Research and Education, 
     Inc.; TakeAction Minnesota; Tenants and Workers United; Thai 
     Health and Information Services, Inc.; The AIDS Institute; 
     The Amos Project; The Community Heart Health Coalition of 
     Ulster County; The Greenlining Institute; The MetroHealth 
     System; The National Alliance to Advance Adolescent Health; 
     Toledo Area Jobs with Justice; Trust for America's Health.
       UHCAN Ohio; United Action Connecticut; United Ostomy 
     Associations of America; Urban Coalition for HIV/AIDS 
     Prevention Services; U.S. PIRG; Virginia Organizing Project; 
     Washington Health Foundation; West South Dakota Native 
     American Organizing Project; WomenHeart: The National 
     Coalition for Women with Heart Disease; YMCA of the USA.

  Mr. HARKIN. Mr. President, I am sympathetic, I must admit, to the 
broader aims of the Johanns amendment. On a bipartisan basis, Senators 
want to change the information reporting rules for small businesses 
under the health reform law. But the $19.2 billion cost of the Johanns 
amendment is excessive. Moreover, to pay for it by slashing funds from 
wellness and prevention, by gutting this whole program until 2018, is 
deeply misguided. It perpetuates the disastrous notion that we can 
neglect and defund prevention efforts without paying huge long-term 
costs in terms of unnecessary chronic disease and disability and 
skyrocketing health insurance premiums.
  The purpose of the reporting requirement Senator Johanns is going 
after is to prevent fraud where many businesses may lie about the 
income they receive, thereby not paying their taxes. What does that 
mean? It just shifts taxes to the people who are honest and the 
businesses that are honest. Where the IRS has complete information on 
incomes such as salaries, which are covered by W-2 reports, compliance 
is 99 percent. But where there is no reporting, we see the reporting of 
income fall in half in some of the business categories.
  I support the alternative amendment offered by Senator Bill Nelson. 
It provides a balance regarding the reporting requirement. His 
amendment completely eliminates any reporting burden on the great 
majority of small businesses--those with fewer than 25 employees at any 
given point in a year. But the most important point is that the Nelson 
amendment does not take money away from the Prevention and Public 
Health Fund.
  While I appreciate the need to keep paperwork down, I also appreciate 
the need to prevent tax fraud which results in everyone else paying for 
the lost tax dollars. The Nelson amendment does preserve the reporting 
requirement for transactions over $5,000 for larger companies. I think 
very sensibly, the Nelson amendment pays for this lost revenue from 
less rigorous reporting requirements by repealing completely 
unnecessary tax breaks for the largest five oil companies--much better 
there than taking the money out of the Prevention and Public Health 
Fund.
  A long time ago, Ben Franklin taught us that an ounce of prevention 
is worth a pound of cure. The Johanns amendment is an attack on that 
principle, an attack to turn the clock back to say we are going to 
continue a sick care system in America rather than truly transforming 
our system to a health care system.
  I ask my colleagues to vote down the Johanns amendment and to vote 
for the Nelson amendment which accomplishes basically the same thing in 
a more balanced way. But the Nelson amendment does not do anything to 
gut the Prevention and Public Health Fund which we labored so hard to 
put in the health reform bill and which, as I said before, has been so 
supported on both sides of the aisle.
  Mr. President, 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. HARKIN. 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. HARKIN. Mr. President, I ask unanimous consent that any time used 
on the Senate floor during quorum calls be divided equally between both 
sides.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. HARKIN. Mr. President, 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. KYL. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. KYL. Mr. President, I want to speak on the nomination of Jane 
Stranch--a vote we will be taking here in about 45 minutes--nominated 
to the Sixth Circuit Court of Appeals.
  It is always with a great deal of reluctance that I oppose a nominee 
for the bench. Most of the people who are nominated are nominally 
qualified, in that they have records as attorneys or sometimes as 
judges in lower courts, have recommendations from bar associations and 
the like. But occasionally it is necessary to oppose a nominee. And 
while I certainly acknowledge that Jane Stranch has the qualifications 
one would expect of a nominee for a court of this significance, I 
oppose her nomination because of a very troubling development that I 
see in several nominations.
  At some point I think it is important to draw the line and say that 
the President has got to be very careful not to nominate people who 
have--and in this case who have not--taken, in my view, a strong enough 
position against applying foreign law to interpret the American 
Constitution or to interpret American laws that apply to cases before 
them. We have seen this before in nominees, in then-Judge Sonia 
Sotomayor. When she had her Supreme Court hearing, several of us on 
this side of the aisle raised the question with respect to her position 
on foreign law. In many respects she said: Don't worry, I won't apply 
foreign law. Then in one of the cases in her first term as a Supreme 
Court Justice she did exactly that.
  We have raised the same question with regard to people such as Harold 
Koh and others. I want to quote one statement Ms. Stranch made to 
illustrate the point I am trying to make. At some point, unless Members 
vote against nominees who appear to take these positions, I suspect the 
President will keep on nominating people with these views and then 
wonder why we oppose them. So I am going to be clear about why I oppose 
this nominee, even though I am sure many of her other qualifications 
are fine. She said this regarding cases where foreign law was used:

       In these few cases, references to foreign law were made for 
     such purposes as extrapolating on societal norms and 
     standards of decency, refuting contrary assertions, or 
     confirming American views. Roper [a Supreme Court case] 
     specifically noted that the foreign law references were ``not 
     controlling'' and were presented for the purpose of 
     confirmation of the Court's conclusions.

  The problem with that statement--and while I appreciate the fact that 
she

[[Page 15524]]

says foreign law is not controlling--is that the reality is foreign law 
has no place in the interpretation of the American Constitution and yet 
the Court continues to do that, with Justices continually saying it 
isn't controlling. If it is not controlling, why do it? Courts are 
supposed to look at precedent. What is precedent? Precedent is law that 
controls the case. There is no point in going outside of that and 
bringing in extraneous material. If it is not controlling, it is 
extraneous. If it is extraneous, it is redundant. Why bring it in?
  I appreciate her recognition that foreign law is not controlling, but 
interpreting the Constitution doesn't require the application of 
foreign law to develop material on societal norms or standards of 
decency or to refute contrary assertions, and it doesn't have any 
relevance in even confirming American views, as she said in her 
statement. If the American view of the Constitution is X, let's say, 
then it is X. That is the American view. And if it is agreed to by 
other countries, that is fine. If it is not, it is not the judge's 
business to inquire into it and wonder why it does agree or does not 
agree with the American view.
  I think that until enough of us register the view that we are not 
going to vote for judges who subscribe to the views Jane Stranch has 
articulated, as I said, I suspect the President will simply continue to 
nominate those individuals, and that is something I think the majority 
of us--certainly the majority of Americans--would object to.
  Again, I regret having to express my opposition to this nominee, but 
in order to render my objection to the kind of jurisprudence they 
mentioned, the only way I can do that, I gather, is to vote no, which 
is what I intend to do.
  Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mrs. HUTCHISON. Mr. President, I ask unanimous consent the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mrs. HUTCHISON. I thank the Chair.
  (The remarks of Mrs. Hutchison pertaining to the introduction of S. 
3768 are located in today's Record under ``Statements on Introduced 
Bills and Joint Resolutions.'')
  Mrs. HUTCHISON. I yield the floor and suggest the absence of a 
quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. LEAHY. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. CORNYN. Mr. President, I will vote against the nomination of Jane 
Stranch to the Sixth Circuit Court of Appeals. While several aspects of 
Ms. Stranch's record concern me, I will be voting no primarily because 
of Ms. Stranch's responses during her nomination process that 
demonstrate that it is proper for American judges to rely on 
contemporary foreign or international law in interpreting the U.S. 
Constitution.
  Reliance on contemporary foreign law to interpret our Constitution 
undermines democracy, American sovereignty, and the rule of law. In 
American democracy, the people are sovereign. The Constitution was 
``ordained and established'' by ``We the People of the United States.'' 
As Chief Justice Marshall explained in McCulloch v. Maryland, ``[t]he 
government proceeds directly from the people'' and is established ``in 
the name of the people.'' When judges look to foreign nations to find 
new limitations on what laws the American people can enact through 
their elected representatives, they undermine democracy and make the 
will of the American people subservient to the opinions of foreign 
judges. Furthermore, because there are so many sources of foreign law 
available in the world, judges often pick and choose foreign citations 
that correspond with their own personal politics, preferences, and 
feelings in an effort to create the illusion that the judges' personal 
political agenda are somehow mandated by law.
  Under our Constitution, the people's right to govern themselves and 
make laws through their elected representatives is limited only by the 
Constitution itself, not by the opinions of foreign judges. In recent 
years, however, some judges have looked to foreign nations to strike 
down democratically enacted laws. For example, in Roper v. Simmons, the 
Supreme Court ruled that legislatures cannot impose capital punishment 
for heinous crimes committed by individuals under the age of 18. 
Justice Kennedy's majority opinion emphasized the ``weight of 
international opinion'' and cited the United Nations Convention on the 
Rights of the Child, among other sources. Just this year, in Graham v. 
Florida, the Supreme Court relied on ``the overwhelming weight of 
international opinion'' to find that life sentences are 
unconstitutional for juvenile criminals who commit crimes other than 
homicide.
  This trend of American judges overruling the will of the American 
people in favor of the opinions of foreign judges is worrisome. I was 
therefore disappointed in Ms. Stranch's statements to the Judiciary 
Committee that seem to endorse this practice. Specifically, Ms. Stranch 
took the position that American judges may use foreign law in their 
opinions ``for such purposes as extrapolating on societal norms and 
standards of decency, refuting contrary assertions or confirming 
American views.'' She actually praised the Supreme Court for what she 
called its ``restraint'' in citing foreign law, and argued that the 
Supreme Court's recent use of foreign law in cases such as Roper and 
Graham should be a ``model for the lower courts.'' This is a very 
troubling view.
  The Supreme Court's increasing reliance on the opinions of 
contemporary foreign judges has not been restrained, and should not be 
a model for American judges. Rather, American judges interpreting the 
U.S. Constitution should constrain themselves to interpreting the text 
and meaning of that document alone. Because Ms. Stranch's answers 
indicate that she will rely on foreign law as a pretense for imposing 
her personal political beliefs on the American people, and because 
reliance on contemporary foreign law in interpreting the U.S. 
Constitution threatens democracy, American sovereignty, and the rule of 
law, I will vote no on this nomination.
  Mr. LEAHY. Mr. President, at most there is only a minute remaining so 
I yield back all time.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LEAHY. Mr. President, I ask for the yeas and nays on the 
nomination.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The question is, Will the Senate advise and consent to the nomination 
of Jane Branstetter Stranch, of Tennessee, to be United States Circuit 
Judge for the Sixth Circuit?
  The clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. DURBIN. I announce that the Senator from Montana (Mr. Baucus), 
the Senator from Indiana ( Mr. Bayh), the Senator from Maryland (Ms. 
Mikulski), and the Senator from Colorado (Mr. Udall) are necessarily 
absent.
  Mr. KYL. The following Senators are necessarily absent: the Senator 
from Kansas (Mr. Brownback), the Senator from Wyoming (Mr. Enzi), the 
Senator from New Hampshire (Mr. Gregg), and the Senator from Alaska 
(Ms. Murkowski).
  The PRESIDING OFFICER (Mrs. Shaheen). Are there any other Senators in 
the Chamber desiring to vote?
  The result was announced--yeas 71, nays 21, as follows:

                      [Rollcall Vote No. 230 Ex.]

                                YEAS--71

     Akaka
     Alexander
     Begich
     Bennet
     Bennett
     Bingaman
     Boxer
     Brown (MA)
     Brown (OH)
     Burris
     Cantwell
     Cardin
     Carper
     Casey
     Cochran
     Collins
     Conrad
     Corker
     Dodd
     Dorgan
     Durbin

[[Page 15525]]


     Feingold
     Feinstein
     Franken
     Gillibrand
     Goodwin
     Graham
     Hagan
     Harkin
     Hatch
     Inouye
     Johanns
     Johnson
     Kaufman
     Kerry
     Klobuchar
     Kohl
     Landrieu
     Lautenberg
     Leahy
     LeMieux
     Levin
     Lieberman
     Lincoln
     Lugar
     McCain
     McCaskill
     Menendez
     Merkley
     Murray
     Nelson (NE)
     Nelson (FL)
     Pryor
     Reed
     Reid
     Rockefeller
     Sanders
     Schumer
     Sessions
     Shaheen
     Shelby
     Snowe
     Specter
     Stabenow
     Tester
     Udall (NM)
     Voinovich
     Warner
     Webb
     Whitehouse
     Wyden

                                NAYS--21

     Barrasso
     Bond
     Bunning
     Burr
     Chambliss
     Coburn
     Cornyn
     Crapo
     DeMint
     Ensign
     Grassley
     Hutchison
     Inhofe
     Isakson
     Kyl
     McConnell
     Risch
     Roberts
     Thune
     Vitter
     Wicker

                             NOT VOTING--8

     Baucus
     Bayh
     Brownback
     Enzi
     Gregg
     Mikulski
     Murkowski
     Udall (CO)
  The nomination was confirmed.
  The PRESIDING OFFICER. Under the previous order, the motion to 
reconsider is considered made and laid upon the table. The President 
will be immediately notified of the Senate's action, and the Senate 
will resume legislative session.


                            Vote Explanation

 Mr. BAUCUS. Madam President, I was necessarily absent from the 
Senate on Monday, September 13, 2010, because I was holding the Montana 
Economic Development Summit in Butte, MT. Had I been present, I would 
have voted yes on the nomination of Jane Stranch, of Tennessee, to be 
U.S. Circuit Judge for the Sixth Circuit.
  Mr. UDALL of Colorado. Madam President, due to ongoing efforts to 
address the impacts of one of the most destructive Colorado fires in 
decades, I was unable to cast a vote for rollcall No. 230, the 
nomination of Jane Branstetter Stranch to be United States Circuit 
Judge for the United States Court of Appeals for the Sixth Circuit. Had 
I been present, I would have voted ``yea'' to confirm the nominee.
  Mr. BROWN of Ohio. Madam President, I ask unanimous consent that the 
Senate proceed to morning business, with Senators permitted to speak 
therein for up to 10 minutes each.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                          ____________________