[Congressional Record (Bound Edition), Volume 156 (2010), Part 15]
[Senate]
[Pages 23152-23186]
[From the U.S. Government Publishing Office, www.gpo.gov]




    MILITARY CONSTRUCTION AND VETERANS AFFAIRS AND RELATED AGENCIES 
                        APPROPRIATIONS ACT, 2010

  The ACTING PRESIDENT pro tempore. Under the previous order, the 
Senate will resume consideration of the House message to accompany H.R. 
3082, which the clerk will report.
  The bill clerk read as follows:

       Motion to concur in the House amendment to the Senate 
     amendment, with an amendment to H.R. 3082, an act making 
     appropriations for military construction, Department of 
     Veteran Affairs and Related Agencies, for the fiscal year 
     ending September 30, 2010, and for other purposes.

  Pending:

       Reid motion to concur in the amendment of the House to the 
     amendment of the Senate to the bill, with Reid amendment No. 
     4885 (to the House amendment to the Senate amendment), in the 
     nature of a substitute.
       Reid amendment No. 4886 (to amendment No 4885), to change 
     the enactment date.
       Reid motion to refer the message of the House on the bill 
     to the Committee on Apropriations, with instructions, Reid 
     amendment No. 4887, to provide for a study.
       Reid amendment No. 4888 (to (the instructions) amendment 
     No. 4887), of a perfecting nature.
       Reid amendment No. 4889 (to amendment No. 4888) of a 
     perfecting nature.

  Mr. ALEXANDER. Madam President, I suggest the absence of a quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. McCONNELL. Madam President, I ask unanimous consent that the 
order for the quorum call be rescinded.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.


                   Recognition of the Minority Leader

  The ACTING PRESIDENT pro tempore. The minority leader is recognized.


                          Net Neutrality Rules

  Mr. McCONNELL. Madam President, later today the Federal 
Communications Commission is expected to approve new rules on how 
Americans access information on the Internet. There are a lot of people 
rightly concerned. The Internet has transformed our society, our 
economy, and the very way we communicate with others. It has served as 
a remarkable platform for innovation at the end of the 20th century and 
now at the beginning of the 21st century. All of this has been made 
possible because people have been free to create and to innovate, to 
push the limits of invention free from government involvement.
  Now that could soon change. Today, the Obama administration, which 
has already nationalized health care, the auto industry, insurance 
companies, banks, and student loans, will move forward with what could 
be a first step in controlling how Americans use the Internet by 
establishing Federal regulations on its use. This would harm 
investment, stifle innovation, and lead to job losses. That is why I, 
along with several of my colleagues, have urged the FCC Chairman to 
abandon this flawed approach. The Internet is an invaluable resource. 
It should be left alone.
  As Americans become more aware of what is happening here, I suspect 
many will be as alarmed as I am at the government's intrusion. They 
will wonder, as many already do, if this is a Trojan horse for further 
meddling by the government. Fortunately, we will have an opportunity in 
the new Congress to push back against new rules and regulations.
  Madam President, I suggest the absence of a quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. BROWN of Ohio. Madam President, I ask unanimous consent the order 
for the quorum call be rescinded.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mr. BROWN of Ohio. I thank the Chair.
  Mr. INOUYE. Madam President, today the Senate will consider a 73-day 
continuing resolution, which will fund the government through March 4 
of next year. This is a clean CR that is $1 billion above the spending 
level for fiscal year 2010. It meets the most basic needs of the 
Federal Government, and will allow Congress the time necessary to 
reconsider a funding bill next year. Most importantly, this temporary 
funding measure will avoid a government shutdown, which would be a 
terrible thing for the American people. That is the last thing any 
responsible Member of this body should wish for.
  As I have previously stated, it is deeply unfortunate that we were 
unable to take up and pass the omnibus bill. An omnibus, as opposed to 
a CR, assumed responsibility for the spending decisions that are the 
most basic responsibility of Congress. I regret that our colleagues on 
the other side of the aisle, many of whom helped to craft the omnibus, 
failed to support it in the end. It was a far superior alternative to 
this short-term CR. The omnibus better protected our national security 
and would have brought a responsible conclusion to the fiscal year 2011 
appropriations process.
  The CR we have before us allows for a limited number of adjustments 
for programs that would lose either their funding or their 
authorization between now and March 4. The CR will also prevent the 
layoff of thousands of Federal workers and contractors during the 
holiday season.
  When the 112th Congress convenes in January, I hope the Senate and 
the House will find a way to move forward in a responsible manner to 
conclude work on the fiscal year 2011 appropriations process. To do so, 
we will require a good-faith effort from Members of both parties to 
reach reasonable compromises on a range of issues. I hope that despite 
the current political environment, we can find a way to work together 
to fund critical priorities that

[[Page 23153]]

will strengthen our economy and protect our Nation's security. That is 
what the American people expect of us, and they deserve no less. But 
for now, I urge my colleagues to support this 10-week continuing 
resolution.


                             Cloture Motion

  The ACTING PRESIDENT pro tempore. The cloture motion having been 
presented under rule XXII, the Chair directs the clerk to read the 
motion.
  The legislative clerk read as follows:

                             Cloture Motion

       We, the undersigned Senators, in accordance with the 
     provisions of rule XXII of the Standing Rules of the Senate, 
     hereby move to bring to a close debate on the motion to 
     concur in the House amendment to the Senate amendment to H.R. 
     3082, the Full Continuing Appropriations Act, with an 
     amendment.
         Joseph I. Lieberman, John D. Rockefeller, IV, Byron L. 
           Dorgan, John F. Kerry, Richard J. Durbin, Mark L. 
           Pryor, Robert Menendez, Amy Klobuchar, Patty Murray, 
           Kay R. Hagan, Christopher J. Dodd, Daniel K. Inouye, 
           Mark Begich, Al Franken, Robert P. Casey, Jr., Tom 
           Carper.

  The ACTING PRESIDENT pro tempore. By unanimous consent the mandatory 
quorum call has been waived. The question is, Is it the sense of the 
Senate that debate on the motion to concur in the House amendment to 
the Senate amendment to H.R. 3082, with amendment No. 4885, shall be 
brought to a close? The yeas and nays are mandatory under the rule.
  The clerk will call the roll.
  The legislative clerk called the roll.
  Mr. DURBIN. I announce that the Senator from Indiana (Mr. Bayh) and 
the Senator from Oregon (Mr. Wyden) are necessarily absent.
  Mr. KYL. The following Senators are necessarily absent: the Senator 
from Kansas (Mr. Brownback) and the Senator from New Hampshire (Mr. 
Gregg).
  The ACTING PRESIDENT pro tempore. Are there any other Senators in the 
Chamber desiring to vote?
  The yeas and nays resulted--yeas 82, nays 14, as follows:

                      [Rollcall Vote No. 288 Leg.]

                                YEAS--82

     Akaka
     Alexander
     Barrasso
     Baucus
     Begich
     Bennet
     Bennett
     Bingaman
     Bond
     Boxer
     Brown (MA)
     Brown (OH)
     Bunning
     Cantwell
     Cardin
     Carper
     Casey
     Cochran
     Collins
     Conrad
     Coons
     Corker
     Cornyn
     Dodd
     Dorgan
     Durbin
     Ensign
     Enzi
     Feinstein
     Franken
     Gillibrand
     Graham
     Grassley
     Hagan
     Harkin
     Hutchison
     Inouye
     Johanns
     Johnson
     Kerry
     Kirk
     Klobuchar
     Kohl
     Kyl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     Lugar
     Manchin
     McCaskill
     McConnell
     Menendez
     Merkley
     Mikulski
     Murkowski
     Murray
     Nelson (FL)
     Pryor
     Reed
     Reid
     Roberts
     Rockefeller
     Sanders
     Schumer
     Sessions
     Shaheen
     Shelby
     Snowe
     Specter
     Stabenow
     Tester
     Thune
     Udall (CO)
     Udall (NM)
     Voinovich
     Warner
     Webb
     Whitehouse
     Wicker

                                NAYS--14

     Burr
     Chambliss
     Coburn
     Crapo
     DeMint
     Feingold
     Hatch
     Inhofe
     Isakson
     LeMieux
     McCain
     Nelson (NE)
     Risch
     Vitter

                             NOT VOTING--4

     Bayh
     Brownback
     Gregg
     Wyden
  The ACTING PRESIDENT pro tempore. On this vote, the yeas are 82, the 
nays are 14. Three-fifths of the Senators duly chosen and sworn having 
voted in the affirmative, the motion is agreed to.
  Mr. REID. Madam President, I suggest the absence of a quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. REID. I ask unanimous consent that the order for the quorum call 
be rescinded.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mr. REID. Madam President, if I could have the attention of the 
Senators, I have had a number of conversations with the Republican 
leader today. The collective goal is to move forward with the schedule 
as we know what it is. Senator McCain has 15 minutes, Senator Inouye 
has 10 minutes, and the farewell speech of our friend Senator Specter 
is going to be this morning. We hope to have agreement that at around 2 
o'clock today, we will vote on a couple of judges. We will vote on the 
motion to concur on the continuing resolution and vote on cloture on 
the treaty. We don't have that down in writing yet, but that is the 
goal, so everyone understands. We will have four to five votes this 
afternoon around 2 o'clock. That would point us toward the final surge 
on this most important treaty. I had conversations with Senator Kerry 
and Senator Kyl this morning. I think there is a way clear to complete 
this sometime tomorrow.
  The ACTING PRESIDENT pro tempore. The Senator from Pennsylvania.


                         Farewell to the Senate

                            Closing Argument

  Mr. SPECTER. Madam President, this is not a farewell address but, 
rather, a closing argument to a jury of my colleagues and the American 
people outlining my views on how the Senate and, with it, the Federal 
Government arrived at its current condition of partisan gridlock, and 
my suggestions on where we go from here on that pressing problem and 
the key issues of national and international importance.
  To make a final floor statement is a challenge. The Washington Post 
noted the poor attendance at my colleagues' farewell speeches earlier 
this month. That is really not surprising since there is hardly anyone 
ever on the Senate floor. The days of lively debate with many Members 
on the floor are long gone. Abuse of the Senate rules has pretty much 
stripped Senators of the right to offer amendments. The modern 
filibuster requires only a threat and no talking. So the Senate's 
activity for more than a decade has been the virtual continuous drone 
of a quorum call. But that is not the way it was when Senator Chris 
Dodd and I were privileged to enter the world's greatest deliberative 
body 30 years ago. Senators on both sides of the aisle engaged in 
collegial debate and found ways to find common ground on the Nation's 
pressing problems.
  When I attended my first Republican moderates luncheon, I met Mark 
Hatfield, John Chafee, Ted Stevens, Mac Mathias, Bob Stafford, Bob 
Packwood, Chuck Percy, Bill Cohen, Warren Rudman, Alan Simpson, Jack 
Danforth, John Warner, Nancy Kassebaum, Slade Gorton, and I found my 
colleague John Heinz there. That is a far cry from later years when the 
moderates could fit into a telephone booth.
  On the other side of the aisle, I found many Democratic Senators 
willing to move to the center to craft legislation--Scoop Jackson, Joe 
Biden, Dan Inouye, Lloyd Bentsen, Fritz Hollings, Pat Leahy, Dale 
Bumpers, David Boren, Russell Long, Pat Moynihan, George Mitchell, Sam 
Nunn, Gary Hart, Bill Bradley, and others. They were carrying on the 
Senate's glorious tradition.
  The Senate's deliberate cerebral procedures have served our country 
well. The Senate stood tall in 1805 in acquitting Supreme Court Justice 
Samuel Chase in impeachment proceedings and thus preserved the 
independence of the Federal judiciary. The Senate stood tall in 1868 to 
acquit President Andrew Johnson in impeachment proceedings, and that 
preserved the power of the Presidency. Repeatedly in our 223-year 
history, the Senate has cooled the passions of the moment to preserve 
the institutions embodied in our Constitution which have made the 
United States the envy of the world.
  It has been a great privilege to have had a voice for the last 30 
years in the great decisions of our day: how we allocate our resources 
among economic development, national defense, education, environmental 
protection, and NIH funding; the Senate's role in foreign policy as we 
exercise it now on the START treaty; the protection of civil rights, as 
we demonstrated last Saturday, eliminating don't ask, don't tell; 
balancing crime control and defendants' rights; and how we have 
maintained the quality of the Federal judiciary, not only the high-
profile 14 Supreme Court nominations I have participated in but the 112 
Pennsylvanians who have been confirmed during my tenure on the Federal 
district courts or the Third Circuit.

[[Page 23154]]

  On the national scene, top issues are the deficit and the national 
debt. The deficit commission has made a start. When raising the debt 
limit comes up next year, that will present an occasion to pressure all 
parties to come to terms on future taxes and expenditures, to 
realistically deal with these issues.
  The next Congress should try to stop the Supreme Court from further 
eroding the constitutional mandate of separation of powers. The Supreme 
Court has been eating Congress's lunch by invalidating legislation with 
judicial activism after nominees commit under oath in confirmation 
proceedings to respect congressional factfinding and precedents. That 
is stare decisis. The recent decision in Citizens United is 
illustrative. Ignoring a massive congressional record and reversing 
recent decisions, Chief Justice Roberts and Justice Alito repudiated 
their confirmation testimony given under oath and provided the key 
votes to permit corporations and unions to secretly pay for political 
advertising, thus effectively undermining the basic democratic 
principle of the power of one person, one vote. Chief Justice Roberts 
promised to just call balls and strikes. Then he moved the bases.
  Congress's response is necessarily limited in recognition of the 
importance of judicial independence as the foundation of the rule of 
law, but Congress could at least require televising the Court 
proceedings to provide some transparency to inform the public about 
what the Court is doing since it has the final word on the cutting 
issues of the day. Brandeis was right when he said that sunlight is the 
best disinfectant.
  The Court does follow the election returns, and the Court does 
judicially notice societal values as expressed by public opinion. Polls 
show that 85 percent of the American people favor televising the Court 
when told that a citizen can only attend an oral argument for 3 minutes 
in a chamber holding only 300 people. Great Britain, Canada, and State 
supreme courts permit television.
  Congress has the authority to legislate on this subject, just as 
Congress decides other administrative matters such as what cases the 
Court must hear, time limits for decisions, number of Justices, the day 
the Court convenes, and the number required for a quorum. While 
television cannot provide a definitive answer, it could be significant 
and may be the most that can be done consistent with life tenure and 
judicial independence.
  Additionally, I urge Congress to substantially increase funding for 
the National Institutes of Health. When NIH funding was increased from 
$12 to $30 billion annually and $10 billion added to the stimulus 
package, significant advances were made on medical research. It is 
scandalous--absolutely scandalous--that a nation with our wealth and 
research capabilities has not done more. Forty years ago, the President 
of the United States declared war on cancer. Had that war been pursued 
with the diligence of other wars, most forms of cancer might have been 
conquered.
  I also urge colleagues to increase their activity on foreign travel. 
Regrettably, we have earned the title of ugly Americans by not treating 
other nations with proper respect and dignity.
  My experience on congressional delegations to China, Russia, India, 
NATO, Jerusalem, Damascus, Bagdad, Kabul, and elsewhere provided an 
opportunity for eyeball-to-eyeball discussions with world leaders about 
our values, our expectations, and our willingness to engage in 
constructive dialog. Since 1984, I have visited Syria almost every 
year, and my extensive conversations with Hafiz al-Assad and Bashar al-
Assad have convinced me there is a realistic opportunity for a peace 
treaty between Israel and Syria, if encouraged by vigorous U.S. 
diplomacy. Similar meetings I have been privileged to have with Muammar 
Qadhafi, Yasser Arafat, Fidel Castro, Saddam Hussein, and Hugo Chavez 
have persuaded me that candid, respectful dialog with our toughest 
adversaries can do much to improve relations among nations.
  Now I will shift gears. In my view, a principal reason for the 
historic stature of the U.S. Senate has been the ability of any Senator 
to offer virtually any amendment at any time. This Senate Chamber 
provides the forum for unlimited debate with a potential to acquaint 
the people of America and the world with innovative proposals on public 
policy and then have a vote on the issue. Regrettably, that has changed 
in recent years because of abuse of the Senate rules by both parties.
  The Senate rules allow the majority leader, through the right of his 
first recognition, to offer a series of amendments to prevent any other 
Senator from offering an amendment. That had been done infrequently up 
until about a decade ago and lately has become a common practice, and, 
again, by both parties.
  By precluding other Senators from offering amendments, the majority 
leader protects his party colleagues from taking tough votes. Never 
mind that we were sent here and are paid to make tough votes. The 
inevitable and understandable consequence of that practice has been the 
filibuster. If a Senator cannot offer an amendment, why vote to cut off 
debate and go to final passage? Senators were willing--and are 
willing--to accept the will of the majority in rejecting their 
amendments but unwilling to accept being railroaded to concluding a 
bill without being provided an opportunity to modify it. That practice 
has led to an indignant, determined minority to filibuster and to deny 
60 votes necessary to cut off debate. Two years ago on this Senate 
floor, I called the practice tyrannical.
  The decade from 1995 to 2005 saw the nominees of President Clinton 
and President Bush stymied by the refusal of the other party to have a 
hearing or floor vote on many judicial and executive nominees. Then, in 
2005, serious consideration was given by the Republican caucus to 
changing the longstanding Senate rule by invoking the so-called nuclear 
or constitutional option. The plan called for Vice President Cheney to 
rule that 51 votes were sufficient to impose cloture for confirmation 
of a judge or executive nominee. His ruling, then to be challenged by 
Democrats, would be upheld by the traditional 51 votes to uphold the 
Chair's ruling.
  As I argued on the Senate floor at that time, if Democratic Senators 
had voted their consciences without regard to party loyalty, most 
filibusters would have failed. Similarly, I argued that had Republican 
Senators voted their consciences without regard to party loyalty, there 
would not have been 51 of the 55 Republican Senators to support the 
nuclear option.
  The majority leader then scheduled the critical vote on May 25, 2005. 
The outcome of that vote was uncertain, with key Republicans 
undeclared. The showdown was averted the night before by a compromise 
by the so-called Gang of 14. Some nominees were approved, some 
rejected, and a new standard was established to eliminate filibusters 
unless there were extraordinary circumstances, with each Senator to 
decide if that standard had been met. Regrettably, again, that standard 
has not been followed as those filibusters have continued up to today. 
Again, the fault rests with both parties.
  There is a way out of this procedural gridlock by changing the rule 
on the power of the majority leader to exclude other Senators' 
amendments. I proposed such a rule change in the 110th and 111th 
Congresses. I would retain the 60-vote requirement for cloture on 
legislation, with a condition that Senators would have to have a 
talking filibuster, not merely presenting a notice of intent to 
filibuster. By allowing Senators to offer amendments and a requirement 
for debate, not just notice, I think filibusters could be effectively 
managed, as they had been in the past, and still retain, where 
necessary, the opportunity to have adequate debate on controversial 
issues.
  I would change the rule to cut off debate on judicial and executive 
branch nominees to 51 votes, as I formally proposed in the 109th 
Congress. Important positions are left open for months, and the Senate 
agenda today is filled with

[[Page 23155]]

unacted-upon judicial and executive nominees, and many of those 
judicial nominees are in areas where there is an emergency backlog. 
Since Judge Bork and Justice Thomas did not provoke filibusters, I 
think the Senate can do without them on judges and executive 
officeholders. There is a sufficient safeguard of the public interest 
by requiring a simple majority on an up-down vote. I would also change 
the rule requiring 30 hours of postcloture debate and the rule allowing 
the secret hold, which requires cloture to bring the matter to the 
floor. Requiring a Senator to disclose his or her hold to the light of 
day would greatly curtail this abuse.
  While political gridlock has been facilitated by the Senate rules, I 
am sorry to say partisanship has been increased greatly by other 
factors. Senators have gone into other States to campaign against 
incumbents of the other party. Senators have even opposed their own 
party colleagues in primary challenges. That conduct was beyond 
contemplation in the Senate I joined 30 years ago. Collegiality can 
obviously not be maintained when negotiating with someone 
simultaneously out to defeat you, especially within your own party.
  In some quarters, ``compromise'' has become a dirty word. Senators 
insist on ideological purity as a precondition. Senator Margaret Chase 
Smith of Maine had it right when she said we need to distinguish 
between the compromise of principle and the principle of compromise. 
This great body itself was created by the so-called Great Compromise, 
in which the Framers decreed that States would be represented equally 
in the Senate and proportionate to their populations in the House. As 
Senate Historian Richard Baker noted: ``Without that compromise, there 
would likely have been no Constitution, no Senate, and no United States 
as we know it today.''
  Politics is no longer the art of the possible when Senators are 
intransigent in their positions. Polarization of the political parties 
has followed. President Reagan's ``big tent'' has frequently been 
abandoned by the Republican Party. A single vote out of thousands cast 
can cost an incumbent his seat. Senator Bob Bennett was rejected by the 
far right in his Utah primary because of his vote for TARP. It did not 
matter that Vice President Cheney had pleaded with the Republican 
caucus to support TARP or President Bush would become a modern Herbert 
Hoover. It did not matter that 24 other Republican Senators, besides 
Bob Bennett, out of the 49 Republican Senators voted for TARP. Senator 
Bennett's 93 percent conservative rating was insufficient.
  Senator Lisa Murkowski lost her primary in Alaska. Congressman Mike 
Castle was rejected in Delaware's Republican primary in favor of a 
candidate who thought it necessary to defend herself as not being a 
witch. Republican Senators contributed to the primary defeats of 
Bennett, Murkowski, and Castle. Eating or defeating your own is a form 
of sophisticated cannibalism. Similarly, on the other side of the 
aisle, Senator Joe Lieberman, a great Senator, could not win his 
Democratic primary.
  The spectacular reelection of Senator Lisa Murkowski on a write-in 
vote in the Alaska general election and the defeat of other Tea Party 
candidates in the 2010 general elections may show the way to counter 
right-wing extremists. Arguably, Republicans left three seats on the 
table in 2010--beyond Delaware, Nevada, and perhaps Colorado--because 
of unacceptable general election candidates. By bouncing back and 
winning, Senator Murkowski demonstrated that a moderate centrist can 
win by informing and arousing the general electorate. Her victory 
proves that America still wants to be and can be governed by the 
center.
  Repeatedly, senior Republican Senators have recently abandoned long-
held positions out of fear of losing their seats over a single vote or 
because of party discipline. With 59 votes for cloture on this side of 
the aisle, not a single Republican would provide the 60th vote for many 
important legislative initiatives, such as identifying campaign 
contributors to stop secret contributions.
  Notwithstanding the perils, it is my hope more Senators will return 
to independence in voting and crossing party lines evident 30 years 
ago. President Kennedy's ``Profiles in Courage'' shows the way. 
Sometimes a party does ask too much. The model for an elected 
official's independence in a representative democracy has never been 
stated more accurately, in my opinion, than it was in 1774 by Edmund 
Burke, in the British House of Commons, when he said: `` . . . his [the 
elected representative's] unbiased opinion, his mature judgment, his 
enlightened conscience . . . [including his vote] ought not to be 
sacrificed to you, to any man or any set of men living.''
  But, above all, we need civility. Steve and Cokie Roberts, 
distinguished journalists, put it well in a recent column, saying:

       Civility is more than good manners. . . . Civility is a 
     state of mind. It reflects respect for your opponents and for 
     the institutions you serve together. . . . This polarization 
     will make civility in the next Congress more difficult--and 
     more necessary--than ever.

  A closing speech has an inevitable aspect of nostalgia. An 
extraordinary experience for me is coming to an end. But my dominant 
feeling is pride in the great privilege to be a part of this very 
unique body with colleagues who are such outstanding public servants. I 
have written and will write elsewhere about my tenure here, so I do not 
say farewell to my continuing involvement in public policy, which I 
will pursue in a different venue. Because of the great traditions of 
this body and because of its historic resilience, I leave with great 
optimism for the future of our country, a great optimism for the 
continuing vital role of the Senate in the governance of our democracy.
  I thank my colleagues for listening.
  (Applause, Senators rising.)
  The PRESIDING OFFICER (Mr. Udall of New Mexico). Cloture having been 
invoked, the motion to refer falls.
  Mr. WHITEHOUSE. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  The PRESIDING OFFICER. The Senator from Pennsylvania.
  Mr. CASEY. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                      Tribute to Retiring Senators

                             Arlen Specter

  Mr. CASEY. Mr. President, I wish to offer some remarks in furtherance 
of what Senator Specter told us about this great institution. I wanted 
to spend a moment talking about his service to the Commonwealth of 
Pennsylvania.
  When I came to the Senate in 2007 as a Senator-elect, one of the 
first things I did was go to see Senator Specter. He asked me at that 
time to go to lunch. From the moment I arrived in the Senate, he made 
it very clear to me that not only did the people of Pennsylvania 
expect, but he expected as well, that we work together.
  From the beginning of his service in the Senate, way back when he was 
elected in 1980 all the way up to the present moment, he has been a 
Senator who was focused on building bipartisan relationships and, of 
course, focusing on Pennsylvania priorities. I am honored to have 
worked with him on so many priorities, whether it was veterans or 
workers, whether it was dairy farmers or the economy of Pennsylvania or 
whether it was our soldiers or our children or our families. We have 
worked on so many priorities. He has been a champion for our State and 
he has shown younger Senators the way to work together in the interests 
of our State and our country.
  That bipartisanship wasn't just a sentiment; it was bipartisanship 
that led to results. I wish to point to one example of many I could 
list: the funding for the National Institutes of Health, that great 
bulwark and generator of discoveries that cures diseases and creates 
jobs and hope for people often without hope because of a disease or a 
malady of one kind or another. That bipartisanship Senator Specter 
demonstrated every day in the Senate has

[[Page 23156]]

achieved results for Pennsylvania, for sure, in terms of jobs and 
opportunity and hope but also results for the Nation as well.
  I know we are short on time, but I wanted to make one note about the 
history of his service. No Senator in the history of the Commonwealth--
and we have had 55 or so Senators, depending on how you count those who 
have been elected and served, but of those 55, no Senator has served 
longer than Senator Specter. I recall the line--I think it is 
attributed to Abraham Lincoln, but it is a great line about what years 
mean and what service means, and I will apply the analogy to Senate 
service. The line goes something like this: It is not the years in a 
life, it is the life in those years. I am paraphrasing that. The same 
could be said of the life of a Senator. It is not just that he served 
30 years. That alone is a singular, unprecedented achievement. In fact, 
the Senator he outdistanced in a sense in terms of years of service was 
only elected by the people twice. Senator Specter was elected by the 
people of Pennsylvania five times. But it is the life in those Senate 
years, the work in those Senate years, the contribution to our 
Commonwealth and our country in those Senate years that matters and has 
meaning. His impact will be felt for generations--not just decades but 
for generations.
  Let me close with this. There is a history book of our State that 
came out in the year 2002, and it has a series of stories and essays 
and chapters on the history of Pennsylvania. It is a fascinating review 
of the State's history. The foreword to that publication was written by 
Brent E. Glass, at the time the executive director of the Pennsylvania 
Historical and Museum Commission. He wrote this in March of 2002. It is 
a long foreword which I won't read, but he said in the early part of 
this foreword the following:

       One way to understand the meaning of Pennsylvania's past is 
     to examine certain places around the State that are 
     recognized for their significance to the entire Nation.

  Then he lists and describes in detail significant places in 
Pennsylvania that have a connection to our history, whether it is the 
Liberty Bell or the battlefield of Gettysburg; whether it is the farms 
in our Amish communities or whether it is some other place of historic 
significance. I have no doubt whatsoever that if the same history were 
recounted about the people who had an impact on our Commonwealth--the 
people who moved Pennsylvania forward; the people who in addition to 
moving our State forward had an impact on the Nation--if we make a list 
of Pennsylvanians who made such contributions, whether it would be 
William Penn or Benjamin Franklin--and you can fill in the blanks from 
there--I have no doubt that list would include Senator Arlen Specter. 
He is a son of Kansas who made Pennsylvania his home. He is a son of 
Kansas who fought every day for the people of Pennsylvania.
  So it is the work and the achievements and the passion and the 
results in those years in the Senate that will put him on the very 
short list of those who contributed so much to our Commonwealth that we 
love and to our country that we cherish.
  For all of that and for so many other reasons, as a citizen of 
Pennsylvania, a resident of Pennsylvania, a citizen of the United 
States but as a Senator--I want to express my gratitude to Senator 
Arlen Specter for his 30 years of service, but especially for what 
those 30 years meant to the people, sometimes people without a voice, 
sometimes people without power.
  Thank you, Senator Specter.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Illinois.
  Mr. DURBIN. Mr. President, I wish to join my colleagues in noting the 
farewell address of Senator Arlen Specter is an inspiring moment in the 
Senate.
  It has been my great honor to serve with Senator Specter and to be a 
member of the Senate Judiciary Committee with him as well. I think of 
his contribution to the Senate at many levels. I certainly appreciate 
what he did for the Senate and for the Nation when he chaired the 
Judiciary Committee and served on that committee, particularly when it 
came to the hearings involving the appointment of new Supreme Court 
Justices. Without fail, Senator Specter at those hearings would always 
have dazzling insight into the current state of the law and the record 
of the nominee. I couldn't wait for him each time there was a hearing 
to see what his tack would be. It always reflected a thoughtful 
reflection on the historic moment we faced with each nominee. The 
questions he asked, the positions he took, the statements he made, all 
made for a better record for the United States as the Senate proceeded 
to vote on those historic nominations.
  But there is one area he touched on ever so slightly that I believe 
is equal to his mark on the Senate Judiciary Committee. This man, 
Senator Arlen Specter, with the help in some respects and in some 
efforts by Senator Tom Harkin, has done more to advance the cause of 
medical research in his time than virtually any other Member of the 
Congress. He had a single-minded determination to advance medical 
research and to put the investment in the National Institutes of 
Health. On the House side, Congressman John Porter joined him in that 
early effort--John Porter of Illinois--but time and again Arlen Specter 
would have as his last bargaining chip on the table, whenever there was 
a negotiation, that we needed to put more money in the National 
Institutes of Health. I know he was probably inspired to that cause by 
many things, but certainly by his own life experience where he has 
successfully battled so many medical demons and is here standing before 
us as living proof that with his self-determination and the advancement 
of science, we can overcome even some of the greatest diseases and 
maladies that come our way.
  He was, to me, a role model many times as he struggled through cancer 
therapy and never missed a bell when it came to presiding over a 
committee hearing or coming to the floor to vote. There were times when 
all of us knew he was in pain. Yet he never let on. He did his job and 
did it with a gritty determination, and I respect him so much for it. 
That personal life experience, I am sure, played some role in his 
determination to advance medical research.
  So as he brings an end to his Senate career, there are countless 
thousands who wouldn't know the name Arlen Specter who have been 
benefited by this man's public service and commitment to medical 
research. I thank him for that as a person, as does everyone in this 
Chamber who has benefited from that cause in his life.
  I also think, as I look back on his work on the stimulus bill when he 
was on the other side of the aisle, that it took extraordinary courage 
and may have cost him a Senate seat to step forward and say, I will 
join with two other Republicans to pass a bill for this new President 
Obama to try to stop a recession and to give some new life to this 
economy. There were very few with the courage to do it. He was one of 
them. Sitting with him in the meetings where the negotiations were 
underway, then-Republican Senator Arlen Specter drove hard bargains in 
terms of bringing down the overall cost of the project and dedicating a 
substantial portion--$10 billion, if I am not mistaken--to the National 
Institutes of Health. Again, the final negotiation on the stimulus bill 
for America included Arlen Specter's demand that the National 
Institutes of Health have additional research dollars. His commitment 
to make that happen did make it happen. Those three votes from the 
Republican side of the aisle made it happen: a stimulus which averted, 
in my mind, a terrible, much worse recession, maybe even a depression 
in America. It was the best of the Senate, when a Senator had the 
courage to stand up, take a position, risk his Senate seat because he 
believed in it, and do some good for America which would benefit 
millions, as his vote and his effort did.
  When I look at those whom I have served with in the Senate, there are 
precious few who meet the standards for Arlen Specter. I am going to 
miss him for so many reasons, but I know his involvement in public life 
will not quit. That is often a cliche we hear on

[[Page 23157]]

the floor after a farewell address. But I know it because he has been 
hammering away at me every single day about bringing those cameras over 
to the Supreme Court. So even when he leaves this body, if it is not 
done then, I am sure I am going to hear from him again on televising 
the Supreme Court proceedings. I give my word that as long as I am 
around here, Senator, I will carry that banner for you, and if I have a 
chance to help you pass that measure at some point in the future I am 
going to do it because I think it is the right thing to do and I know 
it has meant so much to you.
  The Senate's loss is America's gain as he becomes a public figure in 
a different life. But during his tenure in the Senate he has graced 
this institution with an extraordinary intelligence, a determination, 
and a belief that the national good should rise above any party cause. 
I am going to miss Arlen Specter and I thank him for being my friend.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Mississippi.
  Mr. COCHRAN. Mr. President, I was pleased to have an opportunity to 
hear most of the remarks made this morning by my friend and colleague 
from Pennsylvania and others who have spoken on the occasion of his 
retirement from the Senate.
  I couldn't help but remember when he was campaigning in his first 
race for the Senate and I had been asked to be available to help out in 
some campaigns that year. I was a brandnew Senator and didn't know a 
lot of the protocols, but when I heard Arlen Specter wanted me to come 
up and speak in Pennsylvania somewhere during his campaign, I decided I 
would accept the invitation, although I was a little apprehensive about 
it, about how I would be received as a Republican from Mississippi 
going up and helping this new candidate who was running on the 
Republican ticket too. His wife Joan was a member of the city council 
in Philadelphia, as I recall--very well respected. Anyway, I enjoyed 
getting to know the Senator and his wife better during those early 
campaign events. Then, after he was elected, he asked me to make one 
more trip up.
  He could not go to Erie, PA, and keep an invitation that he wanted to 
accept and speak to a retired group of businessmen. These were older 
gentlemen who had been prominent in Pennsylvania business and political 
life. I worried about it--that they would not think much about me. But 
I went up there and nearly froze to death. I thought this is just a 
payback for the Civil War, I guess, that Arlen never got to express. He 
was going to do his part to help educate me and refine me in the ways 
of modern America. But that led to an entire career here working 
alongside him on both sides of the aisle, which I have enjoyed very 
much.
  We have all learned from him the commitment that he makes to the job, 
the seriousness of purpose that he brings to committee work, and he has 
truly been an outstanding leader in the Senate, through personal 
performance and his serious and impressive record of leadership.
  I am glad to express those thoughts today and wish Arlen well in the 
years ahead. We will still have a friendship that will be appreciated. 
I look forward to continuing that relationship.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Merkley). The Senator from Pennsylvania is 
recognized.


                            New START Treaty

  Mr. SPECTER. Mr. President, I have sought recognition to comment 
briefly about the START Treaty, the consideration of which is now 
pending before the Senate, and to urge my colleagues to move forward to 
ratify this important treaty.
  I have long been interested in the relationship between the United 
States and, at that time, the Soviet Union, following the end of World 
War II, with the emergence of our Nation and the Soviets emerging as 
the two great world powers.
  In college, after the war, I devoted a good bit of study to U.S.-
U.S.S.R. relations. I wrote a senior thesis on it as a major in 
political science and international relations, and I have continued 
that interest throughout my tenure in the Senate. One of my first 
initiatives, in 1982, after being elected in 1980, was to propose a 
resolution calling for a summit meeting between the President of the 
United States and the head of the Soviet Union.
  President Reagan had a practice of making Saturday afternoon 
speeches--or Saturday morning speeches--on the radio. One day I 
listened in and heard him talk about the tremendous destructive power 
which both the U.S. and U.S.S.R. had, and how they had the capacity to 
destroy each other. Of course, that capacity became the basis of the 
mutual assured destruction period. But it seemed to me that what ought 
to be done was there ought to be a dialog and an effort to come to 
terms with the Soviet Union to reduce the tension and reduce the threat 
of nuclear war. I, therefore, offered a resolution to propose that.
  My resolution was resisted by one of the senior Senators, Senator 
John Tower of Texas, who was chairman of the Armed Services Committee. 
When I proposed the resolution, it brought Senator Tower to the floor 
with a very really heated debate, with Senator Tower challenging my 
resolution and challenging my knowledge on the subject.
  Early on, after being elected and starting to serve in 1981, I had 
traveled to Grand Forks, ND, to see the Missileman II. I went to 
Charleston, SC, to see our nuclear submarine fleet, and I went to 
Edwards Air Force Base in California to look at the B1-B, the B-1 
bomber, at that time. I was prepared to take on these issues.
  Senator Tower opposed it, offered a tabling motion, and standing in 
the well of the Senate, as if it was yesterday, I can remember that 
Senator Laxalt walked down the aisle from the door entering this 
Chamber and voted no. He started to walk up the aisle to the Republican 
cloakroom.
  Senator Tower chased him and said: Paul, you don't understand. This 
is a tabling motion. I am looking for an ``aye.''
  Laxalt turned and said: I understand it is a tabling motion, and I 
voted the way I wanted to, no. I want the resolution to go forward.
  Senator Tower said: Well, Arlen Specter is trying to tell the 
President what to do.
  Senator Laxalt replied: Well, why shouldn't he? Everybody else does, 
he said jokingly.
  That tabling motion was defeated 60 to 38. When a vote came up on the 
final resolution, it passed with 90 in favor and 8 in opposition. We 
know what happened. There were negotiations and President Reagan came 
up with the famous dictum, ``trust, but verify.''
  I was then active in the negotiations, the discussions on the Senate 
observer group in Geneva around 1987. Then our record is plain that we 
have approved by decisive numbers three very important treaties. START 
I was approved by the Senate in 1992, with a vote of 93 to 6. The START 
II treaty was approved in 1996 by a vote of 87 to 4. The Moscow Treaty 
of 2003 was approved by a vote of 95 to 0.
  We have heard extensive debate on the floor of the Senate. People 
have questioned the adequacy of the verification. I think those 
arguments have been answered by Senator John Kerry, chairman of the 
Foreign Relations Committee, who has done such an excellent job in 
managing the treaty. Questions have been raised about the missile 
defense, and I think that, too, has been adequately responded to. This 
has nothing to do with the issue of missile defense.
  For me, a very key voice in this entire issue has been the voice of 
Senator Richard Lugar, who has pointed out that this treaty does not 
deal with these collateral issues. This treaty is, directly stated, an 
extension of the treaty which has been in effect up until the present 
time and has worked so very well.
  Strenuous arguments have been made about modernizing our nuclear 
forces. Well, that is a subject for another day and another time. But 
those who have offered that advocacy have found a response from the 
administration with millions of dollars, from $85 million. That, as I 
say, belongs to another day and another analysis. But

[[Page 23158]]

those who have advocated for modernization have gained very substantial 
responses from the administration on that subject. Curious, in that 
context, that notwithstanding that very substantial funding, it hasn't 
won them over, hasn't diminished their resistance to the treaty. Also, 
curious in the context of those expenditures on an issue, which didn't 
directly involve the necessity for modernization, there is a real 
question as to whether there has been adequate debate and study on that 
subject, on the hearings. It isn't part of the START treaty debate and 
discussion about the expenditure of that kind of money, considering the 
kind of a deficit we have, and also considering the advocates of those 
modernization additions with the great expense have been some of the 
loudest voices objecting to governmental expenditures.
  Well, we ought to spend what it takes for defense. That is the 
fundamental purpose of the Federal Government, to protect its citizens. 
But real questions arise in my mind as to whether this was the proper 
place to have that argument, but that has gone by the boards.
  I think the letter which Admiral Mullen, Chairman of the Joint Chiefs 
of Staff, has issued about the conclusion of the military, that this is 
a good treaty; about Admiral Mullen's statement that he personally was 
involved in the negotiations; that if the START treaty was not to be 
ratified there would be U.S. military resources that would have to be 
devoted to certain other issues which were taken by START so that it 
leads to an unequivocal recommendation by our No. 1 military expert, 
the Chairman of the Joint Chiefs of Staff.
  One other very important element that has been discussed, but cannot 
be over emphasized, is the destructive consequence of having this 
treaty rejected in terms of our relations with Russia.
  Russia is vitally important to us as we deal with Iran, vitally 
important to us as we deal with North Korea, vitally important to us as 
we deal with a whole range of international problems. For us to come 
right to the brink and then to say no and reject it and seek to reopen 
it would have a very serious effect on our relations with Russia, which 
are so important to our national security. The other nations of the 
world are watching in the wings what we do here. It would have a domino 
effect on our relationship with other nations.
  It comes in a context where it is subject to being misunderstood as a 
political matter in the United States. I do not question for a moment 
the motivation of those who oppose START. Those who have spoken against 
it have been some of our body's most knowledgeable Members on this 
important subject. But there is so much publicity about some 
questioning whether President Obama can have both the START treaty and 
repeal of don't ask, don't tell at the same time, there has been so 
much public comment about not wanting to see President Obama have 
another victory before the end of the year, so much comment which 
raises a question as to whether opposition is politically motivated.
  If the Russians and the other nations of the world cannot rely upon 
the Senate to make a judgment on the merits without regard to the 
politics or the appearance of politics, it has very serious 
consequences for our standing in the international community of 
nations.
  For those reasons, I do believe we ought to move ahead promptly. We 
ought to ratify this treaty. We ought to continue our strenuous efforts 
to rid the world of the threat of nuclear war. This is part of that 
ongoing process.
  I urge my colleagues to ratify this important treaty.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Udall of New Mexico). The Senator from 
Alabama is recognized.


                             arlen specter

  Mr. SESSIONS. Mr. President, I see my other colleagues. I do wish to 
talk about one or two judicial nominees, but I want to say first how 
much I appreciate Senator Specter.
  I have had the honor to serve on the Senate Judiciary Committee with 
Senator Specter the entire time I have been in the Senate--going on 14 
years, I guess. No one has a clearer legal mind. The clarity of his 
thought and expression is always impressive to me. And as someone who 
practiced law, I see the great lawyer skills he possesses.
  Also, I note that he has not just today but throughout his career 
defended the legitimacy of the powers of the Senate. He was very 
articulate over the past number of years in criticizing the abuse of 
filling the tree, where bills can be brought up and amendments are not 
allowed. He has believed that is an unhealthy trend in the Senate, and 
he has been one of the most effective advocates in opposition to it.
  He sponsored and helped pass the Armed Career Criminal Act. He was 
one of the leaders in that. Having been a longtime prosecutor in 
Philadelphia, I like to tease our good friend Senator Leahy that he was 
a prosecutor, but it was in Vermont. Senator Specter had to deal with a 
lot of crime in Philadelphia and was consistently reelected there for 
his effectiveness and is a true source of insight into crime in America 
and has been an effective advocate for fighting crime.
  I note also that he has a good view about a Senator. He respects 
other Senators. He was talking with me one time or I was sharing with 
him my concern about a matter, and he used a phrase I heard him use 
more than once: Well, you are a U.S. Senator. In other words, if you do 
not like it, stand up and defend yourself. He respected that, even if 
he would disagree.
  I remember another time Senator Specter was on the floor. I had just 
arrived in the Senate. I wanted him to do something--I have long since 
forgotten what.
  I said: Senator Specter, you could vote for this, and back home, you 
could say thus and so.
  He looked right at me, and he said: Senator, I don't need your advice 
on how to conduct myself back home politically.
  I learned a lesson from that. I never told another Senator that, I 
say to Senator Specter. Who am I to tell you how to conduct yourself 
politically back home in the State of Pennsylvania?
  Senator Specter chaired the Judiciary Committee during the 
confirmations of Chief Justice Roberts and Justice Alito. He was the 
leading Republican chair at that time. He raised questions about the 
nominees. But as chairman of the committee, with the votes and support 
of his Republican colleagues, he protected our rights, he protected our 
interests. He did not back down one time on any action by the other 
party that would have denied the ability to move that nomination 
forward to a vote and protect the rights of the parties on our side.
  Those are a few things that come to mind when I think about the 
fantastic service he has given to the Senate. He is one of our most 
able Members, one of our most effective defenders of senatorial 
prerogative and independence, one of our crime fighters without par, 
and one of the best lawyers in the Senate, a person who is courageous 
and strong. Even when he was conducting those very intense Alito and 
Roberts hearings--it was just after he had serious cancer treatment, 
the chemotherapy. I know he didn't feel well, but he was fabulous in 
conducting himself at that time. Throughout all of that treatment, his 
work ethic surpassed by far that of most Senators in this body. It has 
been an honor to serve with him.
  I see my other colleagues. I know Senator Coburn wanted to come down. 
He was told he might be able to speak around noon.


                            Senator Specter

  Mr. BENNET. Mr. President, first, before I get into my remarks, I 
wish to say how much I appreciated the remarks of Senator Specter 
today. I, for one, hope Senators on both sides of the aisle, Democrats 
and Republicans, heed his closing remarks as he described them and also 
the farewell remarks of so many Senators over the last 2 or 3 weeks. I 
think there is a lot of wisdom we can apply to our work going forward.
  I thank Senator Specter very much for his service.

[[Page 23159]]

  I yield the floor.
  The PRESIDING OFFICER. The Senator from Alaska is recognized.


                            New START Treaty

  Mr. BEGICH. Mr. President, I rise in support of the New START treaty. 
I do so for several reasons.
  First, of course, the treaty is essential for national security. It 
promotes transparency and stability between the two countries that 
possess the majority of the world's nuclear weapons. It will decrease 
the likelihood of a nuclear weapon falling into the hands of a rogue 
nation.
  For the residents of my State, the treaty is close to home, 
literally. Alaska and Russia are less than 3 miles apart at the closest 
point in the Bering Sea. Commerce, scientific, educational, and 
cultural exchanges are commonplace between Alaska and our Russian 
neighbors. So peaceful coexistence with Russia is more than an abstract 
concept to my constituents; it is a way of life.
  The second reason this treaty is personal for Alaskans is because of 
our close proximity to North Korea. When North Korea's leader exercises 
his political muscle by firing test missiles or threatening to attack 
the United States, Alaskans get nervous because we are most directly in 
the line of fire.
  Thankfully, my home State is home to the ground-based missile defense 
system. Based at Fort Greely, this sophisticated system of more than 
two dozen ground-based interceptors is maintained and operated by 
highly trained members of the Alaska National Guard. I was pleased to 
show Defense Secretary Robert Gates this state-of-the-art system last 
year. I worked with my colleagues on both sides of the aisle to make 
sure this system gets the resources and funding it warrants to protect 
us. I will continue to do that.
  I would be troubled if the New START treaty impacted our Nation's 
missile defense system. I know some of my colleagues on the other side 
of the aisle would be equally concerned. Fortunately, such concerns are 
unfounded. I am confident nothing in this treaty will limit our ability 
to defend ourselves and our allies against a ballistic missile attack 
from a rogue nation.
  The preamble of this treaty simply acknowledges the relationship 
between offensive and defensive strategic arms and verifies that 
current defensive strategic arms do not undermine the offensive forces. 
The preamble is nonbinding. There is no action or inaction arising from 
this statement.
  The section of the treaty prohibiting conversion of missile silos or 
launchers for ballistic missile defense purposes does not impact us. It 
is not something we are planning to do. In fact, we are in the process 
of completing a missile field in Alaska to field interceptors. The 
field will have seven spare silos to deploy more interceptors if we 
need them. We are moving forward with the phased adaptive approach to 
protect our allies, with the two-stage interceptor as a hedge.
  The unilateral statement by Russia also is nonbinding and is not even 
part of the treaty. Our own unilateral statements make it clear that 
this treaty will not constrain missile defense in any way and that we 
will continue improving and deploying missile defense systems to 
protect us and our allies. These types of statements in a treaty are 
not unprecedented. The right to withdraw has been stated in many 
previous treaties--the nonproliferation treaty and the START treaty. 
Those statements did not stop the Senate from ratifying those treaties. 
The language in the New START treaty should not either. In fact, this 
treaty actually helps missile defense because it lessens restrictions 
on test targets that were in the previous treaty. We will have more 
flexibility in testing.
  We have heard from our national security leaders that this treaty 
does not constrain ballistic missile defense in any way. Secretary of 
State Hillary Clinton, Secretary of Defense Robert Gates, Chairman of 
the Joint Chiefs of Staff Mike Mullen, Missile Defense Agency Director 
LTG Patrick O'Reilly, former Strategic Commander GEN Kevin Chilton, and 
countless others confirm that this treaty in no way limits our 
ballistic missile defense plans. We cannot disregard the views of our 
Nation's most senior military and civilian leaders on this critical 
issue because of politics.
  We have had almost 7 months to consider this treaty. We have had 
numerous hearings and briefings--more on this treaty than any other 
single item I have been involved in since I have been here. In that 
time, I heard no current or former national security leader say this 
treaty is a detriment to ballistic missile defense. What they say and 
what we know is that the New START treaty will strengthen national 
security and will not constrain ballistic missile defense.
  For all of these reasons, I urge a prompt approval of this vital 
treaty for our Nation and our world.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Colorado is recognized.
  Mr. BENNET. Mr. President, I ask unanimous consent that my statement 
and that of Senator Udall appear as in executive session and that the 
time be charged postcloture.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                      Nomination of Bill Martinez

  Mr. BENNET. Mr. President, I rise today to state my strong support 
for the nomination of Bill Martinez to serve on the U.S. District Court 
for the District of Colorado. Having recommended his candidacy to the 
President, along with my colleague Senator Udall, I believe he is 
eminently qualified for the Federal bench.
  Bill was nominated to serve on the U.S. District Court for the 
District of Colorado in February of this year. His nomination cleared 
the Senate Judiciary Committee in April. Since then, he has been in a 
state of limbo awaiting a final vote allowing him to serve. That is why 
I am very grateful for the hard work of the Judiciary Committee, both 
Democrats and Republicans, who have moved this nomination forward and 
are trying to finish it before the end of the 111th Congress.
  Our State has two vacancies on the district court. Both vacancies are 
over 2 years old, with one close to 3 years old. Because there are only 
seven Federal judgeships in our State, the other judges are facing 
ever-growing caseloads, resulting in significant backlogs for those 
seeking justice.
  In fact, the administrative office of the courts has declared the 
vacancy situation in Colorado a judicial emergency. It is important 
that we move these nominations forward to prevent further backlogs and 
judicial emergencies, and I pledge to work with my colleagues on both 
sides of the aisle to make sure we can work together to confirm 
judicial nominees such as Bill Martinez in a timely manner.
  I believe, after careful review of Bill Martinez's experience, my 
colleagues will see this is someone well worth confirming. Bill is 
currently at a law firm in Denver, where he primarily represents 
plaintiffs in Federal and State courts and before arbitrators and 
administrative agencies. He is certified as AAA arbitrator in 
employment disputes.
  Prior to starting his own firm, he was a regional attorney of the 
U.S. EEOC in its Denver district office. Senator Udall will be going 
into more detail regarding this nominee.
  There, Bill had responsibility for the Commission's legal operations 
and Federal court enforcement litigation in the office's six-State 
jurisdiction.
  Before joining the EEOC, Bill worked in private practice on 
employment, securities and commercial litigation.
  I know some want to focus on his pro bono work and try to make 
political assumptions about him from a small portion of his career. But 
I know Bill, and he is the sum of a lot of great work in the public and 
private sectors.
  For example, while at the EEOC Bill was in charge of an age 
discrimination class action suit that resulted in a settlement of 
nearly $200 million for 3,200 laid off engineers. This is one of the 
largest ever age discrimination class actions.
  Bill began his career at the Legal Assistance Foundation of Chicago, 
representing indigent clients and other individuals seeking low- or no-
cost counsel. This is a nominee whose breadth of

[[Page 23160]]

legal experience has spanned the profession, and I think for that 
reason alone he should be confirmed.
  Over the course of his legal career, Bill has been lead or colead 
counsel in complex litigation, resulting in 18 published opinions from 
Federal and State courts in Colorado and Illinois. Bill's time as a 
litigator and advocate has provided him with the necessary skills and 
perspective to deal with the diverse docket that comes before U.S. 
district court judges.
  Beyond his distinguished legal skills, Bill's personal story is a 
tribute to this country and embodies the American dream. He is an 
immigrant success story. Bill was born in Mexico and immigrated with 
his family to the United States at a young age. He was the first in his 
family to attend college and law school. His rise through the legal 
profession is a great example for bright, young law students, and, 
indeed, for us all.
  I urge my colleagues to vote for Bill's nomination. He is a model 
nominee for the Federal district court, an expert in labor and 
employment law who will serve Coloradans well. Bill Martinez has the 
experience and strong sense of civic responsibility we need on the 
Federal bench.
  I thank the chairman for his guidance of this nomination, and I urge 
my colleagues to vote to confirm Bill to Colorado 's Federal bench.
  I also would be remiss, if I didn't thank my senior Senator, Mark 
Udall, for his extraordinary efforts to make sure we had a fair, 
balanced, and thoughtful search process. I think that process for this 
appointment and for the others whom we have done already are a model 
for the country, and it is a real testament to Senator Udall's 
leadership.
  With that, I yield the floor.
  The PRESIDING OFFICER. The Senator from Tennessee.


                            New START Treaty

  Mr. CORKER. Mr. President, I know today is a pretty monumental day as 
it relates to the START treaty we have been discussing for some time, 
and tomorrow will be a big day in that regard too. I think there is 
nothing more we care about than our country being secure. I have two 
daughters who are 21 and 23, a wonderful wife, and extended family, as 
does every Member in this room, and there is nothing I take more 
seriously than making sure our country is secure.
  So as a member of the Foreign Relations Committee, when we entered 
into discussions relating to the START treaty, I attended 11 of the 12 
hearings. I have been in multiple classified meetings, I have spoken to 
military leaders across our country, and I have been in so many 
intelligence briefings that I have begun to speak like an intelligence 
officer. So I have taken this responsibility very seriously.
  I wish to say there are numbers of people who obviously are still 
making up their mind regarding this treaty, and that is why I came to 
the floor. One of the things we do when we end up ratifying a treaty is 
we have something called a resolution of ratification. No doubt this 
treaty was negotiated by the President and his team--the Secretary of 
State and others who work with Secretary Clinton--and no doubt that is 
done by people on the other side of the aisle. But what I would like to 
bring to the attention of my colleagues is that whenever we ratify a 
treaty, we do so through something called a resolution of ratification. 
For those who might not have been involved in the markup, I would like 
for everyone in this body to know this resolution of ratification, 
thanks to the good will of the chairman of our committee, was mostly 
drafted by Republicans. It was drafted, with the approval, certainly, 
of the chairman, but this was drafted by Senator Lugar, by myself, 
Senator Kyl had tremendous input into this, and Senator Isakson.
  So the resolution of ratification we are amending today had 
tremendous Republican input. As a matter of fact, it was done mostly by 
Republicans. As a matter of fact, this resolution of ratification is 
called the Lugar-Corker resolution. This is what came out of committee.
  One of the things that has concerned people on both sides of the 
aisle has been this whole issue of modernization. I have seen something 
of beauty over the last year. About 1 year ago, I met with Senator Kyl 
in the Senate Dining Room, and we began looking at the modernization of 
our nuclear arsenal. Many people have focused during this debate on the 
fact that we have 1,550 warheads as a limitation, if you will, in this 
treaty. But they fail to realize we have over 5,000 warheads in our 
nuclear arsenal, all of which need to be modernized, and all of which 
are getting ready to be obsolete if we don't make the investment.
  As a matter of fact, the Presiding Officer and I have visited some of 
the labs throughout our country. There are seven facilities we have in 
this country that deal with our nuclear arsenal. Many of those are 
becoming obsolete and must have needed investment.
  I have watched Senator Kyl over the last year, in a very methodical 
way--under his leadership, with me as his wing man, and others--working 
to make sure the proper modernization of our nuclear arsenal takes 
place. There is no question in my mind--there is no question in my 
mind--if it were not for the discussion of this treaty, we would not 
have the commitments we have today on modernization.
  This is the 1251 report that is required by Defense authorization. 
This has been updated twice due to the efforts of Republicans, led by 
Senator Kyl, who has done an outstanding job. This has been updated 
twice. First, we had a 5-year update about 60 days ago, and we had a 
10-year update that came thereafter. This is our nuclear modernization 
plan.
  Mr. President, I ask unanimous consent to have printed in the Record 
the nuclear modernization plan as part of this debate.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

   November 2010 Update to the National Defense Authorization Act of 
                       FY2010 Section 1251 Report


      New START Treaty Framework and Nuclear Force Structure Plans

     Introduction
       This paper updates elements of the report that was 
     submitted to Congress on May 13, 2010, pursuant to section 
     1251 of the National Defense Authorization Act for Fiscal 
     Year 2010 (Public Law 111-84) (``1251 Report'').
     2. National Nuclear Security Administration and modernization 
         of the complex--an overview
       From FY 2005 to FY 2010, a downward trend in the budget for 
     Weapons Activities at the National Nuclear Security 
     Administration (NNSA) resulted in a loss of purchasing power 
     of approximately 20 percent. As part of the 2010 Nuclear 
     Posture Review, the Administration made a commitment to 
     modernize America's nuclear arsenal and the complex that 
     sustains it, and to continue to recruit and retain the best 
     men and women to maintain our deterrent for as long as 
     nuclear weapons exist. To begin this effort, the President 
     requested a nearly 10 percent increase for Weapons Activities 
     in the FY 2011 budget, and $4.4 billion in additional funds 
     for these activities for the FY 2011 Future Years Nuclear 
     Security Plan (FYNSP). These increases were reflected in the 
     1251 report provided to Congress in May 2010.
       The Administration spelled out its vision of modernization 
     through the course of 2010. In February, soon after the 
     release of the President's budget, the Vice President gave a 
     major address at the National Defense University in which he 
     highlighted the need to invest in our nuclear work force and 
     facilities. Several reports to Congress provided the details 
     of this plan, including: NNSA's detailed FY 2011 budget 
     request, submitted in February; the strategy details in the 
     Nuclear Posture Review (NPR) (April); the 1251 report (May); 
     and the multi-volume Stockpile Stewardship and Management 
     Plan (SSMP) (June). Over the last several months, senior 
     Administration officials have testified before multiple 
     congressional committees on the modernization effort.
       The projections in the Future Years Nuclear Security Plan 
     (FYNSP) that accompanied the FY 2011 budget submission and 
     the 1251 report by the President are, appropriately called, 
     `projections.' They are not a `fixed in stone' judgment of 
     how much a given project or program may cost. They are a 
     snapshot in time of what we expect inflation and other 
     factors to add up to, given a specific set of requirements 
     (that are themselves not fixed) over a period of several 
     years. Budget projections, whether in the FYNSP and other 
     reports, are evaluated each year and adjusted as necessary.
       Indeed, planning and design, as well as budget estimates, 
     have evolved since the budget for FY 2011 was developed. 
     Notably,

[[Page 23161]]

     stockpile requirements to fully implement the NPR and the New 
     START Treaty have been refined, and the NNSA has begun 
     executing its Stockpile Stewardship and Management Plan 
     (SSMP). This update will discuss, in particular, evolving 
     life extension programs (LEP) and progress on the designs of 
     key facilities such as the Uranium Processing Facility (UPF) 
     and the Chemistry and Metallurgy Research Replacement (CMRR).
       Based on this additional work, and the development of new 
     information and insights, the President is prepared to seek 
     additional resources for the Weapons Activities account, over 
     and above the FY 2011 FYNSP, for the FY 2012 budget and for 
     the remainder of the FYNSP period (FY 2013 through FY 2016).
       Specifically, the President plans to request $7.6 billion 
     for FY 2012 (an increase of $0.6 billion over the planned FY 
     2012 funding level included in the FY 2011 FYNSP). Thus, in 
     two years, the level of funding for this program requested 
     will have increased by $1.2 billion, in nominal terms, over 
     the $6.4 billion level appropriated in FY 2010. Altogether, 
     the President plans to request $41.6 billion for FY 2012-2016 
     (an increase of $4.1 billion over the same period from the FY 
     2011 FYNSPT--).
       Given the extremely tight budget environment facing the 
     federal government, these requests to the Congress 
     demonstrate the priority the Administration's places on 
     maintaining the safety, security and effectiveness of the 
     deterrent.
     3. NNSA--Program Changes and New Requirements since 
         submission of the 1251 Report
       A. Update to Stockpile Stewardship and Sustainment
       Surveillance--Surveillance activities are essential to 
     enabling continued certification of the reliability of the 
     stockpile without nuclear testing. Surveillance involves 
     withdrawing weapons from deployment and subjecting them to 
     laboratory tests, as well as joint flight tests with the DoD 
     to assess their reliability. These activities allow detection 
     of possible manufacturing and design defects as well as 
     material degradation over time. NNSA has also received 
     recommendations from the National Laboratory directors, the 
     DoD, the STRATCOM Strategic Advisory Group, and the JASON 
     Defense Advisory Panel that the nuclear warhead/bomb 
     surveillance program should be expanded.
       In response to this broad-based advice, NNSA has reviewed 
     the stockpile surveillance program and its funding profile. 
     From FY 2005 through FY 2009, funding for surveillance 
     activities, when adjusted for inflation, fell by 27 percent. 
     In recognition of the serious concerns raised by chronic 
     underfunding of these activities, beginning in FY 2010, the 
     surveillance budget has been increased by 50 percent, from 
     $158 million to $239 million. In the FY 2012 budget, the 
     President will seek to sustain this increase throughout the 
     FYNSP. This level of funding will assure that the required 
     surveillance activities can be fully sustained over time.
       Weapon System Life Extension--The Administration is 
     committed to pursuing a fully funded Life Extension Program 
     for the nuclear weapons stockpile. The FY 2011 budget 
     submission and the NPR outlined initial plans. Since May 
     2010, additional work has further defined the requirements to 
     extend the life of the following weapon systems:
       W76--The Department of Defense has finalized its assessment 
     of the number of W76 warheads recommended to remain in the 
     stockpile to carry out current guidance. The number of W76-1 
     life-extended warheads needing completion is larger than NNSA 
     built into its FY 2011 budget plans. NNSA, with the support 
     of the DoD, has adjusted its plan accordingly to ensure the 
     W76-1 build is completed in FY 2018, an adjustment of one 
     year that is endorsed by the Nuclear Weapons Council. This 
     adjustment will not affect the timelines for B61 or W78 life 
     extensions. The LEP will be fully funded for the life of the 
     program at $255 million annually.
       B61--NNSA began the study on the nuclear portion of the B61 
     life extension in August 2010, six months later than the 
     original planning basis. To overcome this delay, NNSA will 
     accelerate the technology maturation, warhead development, 
     and production engineering that is necessary to retain the 
     schedule for the completion of the first production unit in 
     FY 2017. An additional $10 million per year has been added to 
     the FY 2012 FYNSP for this purpose.
       W88 AF&F--The 1251 Report addressed the intent to study, 
     among other things, a common warhead for the W78 and the W88 
     as an option for W78 life extension. Early development of a 
     W88 Arming, Fuzing, and Firing system (AF&F) would enhance 
     the evaluation of commonality options and enable more 
     efficient long-term sustainment of the W88. Approximately 
     $400 million has been added to the FY 2012-16 FYNSP for this 
     purpose.
       Stockpile Systems and Services--NNSA is now seeking to 
     execute a larger program of stockpile maintenance than 
     assumed in planning the FY 2011 budget and than projected in 
     the 1251 Report. The additional work includes an increase in 
     the development/production of the limited life components to 
     support the weapons systems. Consequently, the Administration 
     plans to request increased funding of $40 million in FY 2012 
     for the production of neutron generators and gas transfer 
     systems. NNSA and DoD are aligned for the delivery of 
     essential hardware to ensure no weapon fails to meet 
     requirements.
       New Experiments--NNSA's current science and surveillance 
     activities have been more successful than originally 
     anticipated in ensuring the reliability of our existing 
     stockpile without nuclear testing. As we continue to develop 
     modern life extension programs, however, NNSA and the 
     laboratories are considering even more advanced methods for 
     evaluating the best technical options for life extension 
     programs, including refurbishment, reuse and replacement of 
     nuclear components. One such effort of interest that could 
     aid in our efforts includes expanded subcritical experiments 
     designed to modernize warhead safety and security features 
     without adding new military capabilities or pursuing 
     explosive nuclear weapons testing. This program might include 
     so-called ``scaled experiments'' that could improve the 
     performance of predictive capability calculations by 
     providing data on plutonium behavior under compression by 
     insensitive high explosives. In order to thoroughly 
     understand this issue, to assess its cost-effectiveness and 
     to ensure that there is a sound technical basis for any such 
     effort, the Administration will conduct a review of these 
     proposed activities and potential alternatives.
       B. Updates to Modernization of the Nuclear Weapons Complex
       Modernization of the complex includes reducing deferred 
     maintenance, constructing replacement facilities, and 
     disposing of surplus facilities. The Administration is 
     committed to fully fund the construction of the Uranium 
     Processing Facility (UPF) and the Chemistry and Metallurgy 
     Research Replacement (CMRR), and to doing so in a manner that 
     does not redirect funding from the core mission of managing 
     the stockpile and sustaining the science, technology and 
     engineering foundation. To this end, in addition to increased 
     funding for CMRR and UPF, the FY 2012 budget will increase 
     funding over the FY 2012 number in the 2011 FYNSP for 
     facilities operations and maintenance by approximately $176 
     million.
       Readiness in Technical Base and Facilities (RTBF): CMRR and 
     UPF Construction--These two nuclear facilities are required 
     to ensure the United States can maintain a safe, secure and 
     effective arsenal over the long-term. The NPR concluded that 
     the United States needed to build these facilities; the 
     Administration remains committed to their construction.
       Construction of large, one-of-a-kind facilities such as 
     these presents significant challenges. Several reviews by the 
     Government Accountability Office, as well as a ``root-cause'' 
     analysis conducted by the Department of Energy in 2008, have 
     found that initiating construction before designs are largely 
     complete contributes to increased costs and schedule delays. 
     In response to these reviews, and in order to assure the best 
     value for the taxpayers, NNSA has concluded that reaching the 
     90% engineering design stage before establishing a project 
     baseline for these facilities is critical to the successful 
     pursuit of these capabilities.
       The ten-year funding plan reported in the 1251 Report 
     reflected cost estimates for these two facilities that were 
     undertaken at a very early stage of design (about 10% 
     complete), were preliminary, and could not therefore provide 
     the basis for valid, longer-range cost estimates. The designs 
     of these two facilities are now about 45% completed; the 
     estimated costs of the facilities have escalated. Responsible 
     stewardship of the taxpayer dollars required to fund these 
     facilities requires close examination of requirements of all 
     types and to understand their associated costs, so that NNSA 
     and DoD can make informed decisions about these facilities. 
     To this end, NNSA, in cooperation with the DoD, is carrying 
     out a comprehensive review of the safety, security, 
     environmental and programmatic requirements that drive the 
     costs of these facilities. In parallel with, and in support 
     of this effort, separate independent reviews are being 
     conducted by the Corps of Engineers and the DOE Chief 
     Financial Officer's Cost Analysis Office. In addition, the 
     Secretary of Energy is convening his own review, with support 
     from an independent group of senior experts, to evaluate 
     facility requirements.
       The overriding focus of this work is to ensure that UPF and 
     CMRR are built to achieve needed capabilities without 
     incurring cost overruns or scheduling delays. We expect that 
     construction project cost baselines for each project will be 
     established in FY 2013 after 90% of the design work is 
     completed. At the present time, the range for the Total 
     Project Cost (TPC) for CMRR is $3.7 billion to $5.8 billion 
     and the TPC range for UPF is $4.2 billion to $6.5 billion. 
     TPC estimates include Project Engineering and Design, 
     Construction, and Other Project Costs from inception through 
     completion. Over the FYNSP period (FY 2012-2016) the 
     Administration will increase funding by $340 million compared 
     with the amount projected in the FY 2011 FYNSP for the two 
     facilities.
       At this early stage in the process of estimating costs, it 
     would not be prudent to assume we know all of the annual 
     funding requirements over the lives of the projects.

[[Page 23162]]

     Funding requirements will be reconsidered on an ongoing basis 
     as the designs mature and as more information is known about 
     costs. While innovative funding mechanisms, such as forward 
     funding, may be useful in the future for providing funding 
     stability to these projects, at this early design stage, well 
     before we have a more complete understanding of costs, NNSA 
     has determined that it would not yet be appropriate and 
     possibly counterproductive to pursue such mechanisms until we 
     reach the 90% design point. As planning for these projects 
     proceeds, NNSA and OMB will continue to review all 
     appropriate options to achieve savings and efficiencies in 
     the construction of these facilities.
       The combined difference between the low and high estimates 
     for the UPF and CMRR facilities ($4.4 billion) results in a 
     range of costs beyond FY 2016 as shown in Figure 3. Note that 
     for the high estimate, the facilities would reach completion 
     in FY 2023 for CMRR and FY 2024 for UPF. For each facility, 
     functionality would be attainable by FY 2020 even though 
     completion of the total projects would take longer.
       Readiness in the Technical Base of Facilities (RTBF)--
     Operations and Maintenance
       In order to implement an increased scope of work for 
     stockpile activities, especially surveillance and the ongoing 
     life extension programs (LEPs), the following will be 
     supported:
       NNSS--Full experimental facility availability to support 
     ongoing subcritical and other experiments necessary for 
     certification of life extension technologies.
       Pantex--Funds are included in the FY 2012 request to fully 
     cover anticipated needs for flood prevention.
       SNL--Replacement of aging and failing equipment at the 
     Tonopah Test Range in Nevada to facilitate the increasing 
     pace of operations support for the B61; and Micro-
     electronics, engineering test, and surveillance actions at 
     SNL to support the B61, W76 and W78 that require additional 
     equipment maintenance in facilities and the need to operate 
     engineering test facilities that currently operate in a 
     periodic campaign mode.
       LLNL, LANL, and Y-12--Investments in infrastructure and 
     construction, including support for Site 300, PF-4, and 
     Nuclear Facilities Risk Reduction.
       Kansas City--Investment sufficient to meet LEP needs for 
     the W76-1, B-6I, and W78/88 while preparing and completing 
     the move to the KCRIMS site at Botts Road.
       Savannah River--Sufficient investment to ensure that 
     availability of tritium supplies adequate for stockpile needs 
     is assured.
       RTBF: Other Construction--As the CMRR and UPF projects are 
     completed, NNSA will continue to modernize and refurbish the 
     balance of its physical infrastructure over the next ten 
     years. The FY 2012 budget request includes $67 million for 
     the High Explosive Pressing Facility project that is ongoing 
     at Pantex, $35 million for the Nuclear Facilities Risk 
     Reduction Project at Y-12, $25 million for the Test 
     Capabilities Revitalization Project at Sandia, as well as 
     $9.8 million for the Transuranic Waste Facility and $20 
     million for the TA-55 Reinvestment Project at LANL.
       RTBF: Construction Management--Because of the unprecedented 
     scale of construction that NNSA is initiating, both in the 
     nuclear weapons complex and in non- proliferation activities, 
     the Administration recognizes that stronger management 
     structures and oversight processes will be needed to prevent 
     cost growth and schedule slippage. NNSA will work with DoD, 
     OMB, and other affected parties to analyze current processes 
     and to consider options for enhancements.
       C. Pension Cost Growth and Alternative Mitigation 
           Strategies
       NNSA has a large contractor workforce that is covered by 
     defined-benefit pension plans for which the U.S. Government 
     assumes liability. Portfolio management decisions, market 
     downturns, interest rate decreases, and new statutory 
     requirements have caused large increases in pension costs. 
     The Administration is fully committed to keeping these 
     programs solvent without harming the base programs. The 
     Administration will therefore cover total pension 
     reimbursements of $875 million for all of NNSA for FY 2012, 
     adding $300 million more to the NNSA topline than the amount 
     provided in FY 2011. Over the five year period FY 2012 to FY 
     2016, the Administration will provide a total of $1.5 billion 
     above the FY 2011 level. About three-quarters of this funding 
     is associated with Weapons Activities and is included in the 
     funding totals for those programs noted above.
       The Administration will conduct an independent study of 
     these issues using the appropriate statutory and regulatory 
     framework to inform longer-term decisions on pension 
     reimbursements. The Administration is evaluating multiple 
     approaches to determine the best path to cover pension plan 
     contributions, while minimizing the impact to mission. 
     Contractors are evaluating mitigation strategies, such as 
     analyzing plan changes, identifying alternative funding 
     strategies, and seeking increased participant contributions. 
     Also, contractors have been directed to look into other human 
     resource areas where savings can be achieved, in order to 
     help fund pension plan contributions.
     3. Summary of NNSA Stockpile and Infrastructure Costs
       A summary of estimated costs specifically related to the 
     Nuclear Weapons Stockpile, the supporting infrastructure, and 
     critical science, technology and engineering is provided in 
     Table 1.

                                                          TABLE 1--TEN-YEAR PROJECTIONS FOR WEAPONS STOCKPILE AND INFRASTRUCTURE COSTS
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                    Fiscal year
                    $ Billions                    ----------------------------------------------------------------------------------------------------------------------------------------------
                                                       2010         2011         2012         2013         2014         2015         2016         2017         2018         2019         2020
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Directed Stockpile...............................          1.5          1.9          2.0          2.1          2.3          2.5          2.6          2.6          2.6          2.6          2.6
Science Technology & Engineering Campaigns.......          1.6          1.7          1.8          1.8          1.8          1.8          1.9          2.0          2.1          2.2          2.3
Readiness in Technical Base and Facilities.......          1.8          1.8          2.1          2.3          2.5          2.5          2.5          2.7      2.8-2.9      2.9-3.1      2.9-3.3
    UPF..........................................          0.1          0.1          0.2          0.2          0.4          0.4          0.4     0.48-0.5     0.48-0.5     0.48-0.5     0.38-0.5
    CMRR.........................................          0.1          0.2          0.3          0.3          0.4          0.4          0.4     0.48-0.5      0.4-0.5      0.3-0.5      0.2-0.5
Secure Transportation............................          0.2          0.2          0.3          0.2          0.3          0.3          0.3          0.3          0.3          0.3          0.3
                                                  ----------------------------------------------------------------------------------------------------------------------------------------------
        Defense Programs Subtotal................          5.2          5.7          6.1          6.5          6.9          7.1          7.3      7.5-7.6      7.7-7.9      7.9-8.2      8.0-8.4
Other Weapons....................................          1.2          1.3          1.3          1.3          1.3          1.3          1.4          1.4          1.4          1.4          1.5
                                                  ----------------------------------------------------------------------------------------------------------------------------------------------
        Subtotal, Weapons........................          6.4          7.0          7.4          7.8          8.2          8.5          8.7      8.9-9.0      9.2.9.3      9.4-9.6      9.4-9.8
Contractor Pensions Cost Growth..................  ...........  ...........          0.2          0.2          0.2          0.2          0.2         *TBD         *TBD         *TBD         *TBD
                                                  ----------------------------------------------------------------------------------------------------------------------------------------------
        Total, Weapons...........................          6.4          7.0          7.6          7.9          8.4          8.7          8.9      8.9-9.0      9.2-9.3      9.4-9.6      9.4-9.8
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Numbers may not add due to rounding.
*Anticipated costs for contractor pensions have been calculated only through FY 2016. For FY 2017-2020, uncertainties in market performance, interest rate movement, and portfolio management
  make prediction of actual additional pension liabilities, assets, and contribution requirements unreliable.

     4. Plans for Sustaining and Modernizing U.S. Strategic 
         Delivery Systems
       The Administration remains committed to the sustainment and 
     modernization of U.S. strategic delivery systems, to ensure 
     continuing deterrent capabilities in the face of evolving 
     challenges and technological developments. DoD's estimates of 
     costs to sustain and modernize strategic delivery systems 
     will be updated as part of the President's FY 2012 budget 
     request; until this budget request is finalized, figures 
     provided in the May 2010 1251 report remain the best 
     available cost estimates.
       The following section of this report provides the latest 
     information on DoD's efforts to modernize the Triad, 
     including expected timelines for key decisions.
     Strategic Submarines (SSBNs) and Submarine-Launched Ballistic 
         Missiles (SLBMs)
       As the NPR and the 1251 Report note, the United States will 
     maintain continuous at-sea deployments of SSBNs in the 
     Atlantic and Pacific Oceans, as well as the ability to surge 
     additional submarines in crisis. The current Ohio-class 
     SSBNs, have had their service life extended by a decade and 
     will commence retirement in FY 2027. DoD plans a transition 
     between the retiring Ohio-class SSBNs and the Ohio-class 
     replacement that creates no gap in the U.S. sea-based 
     strategic deterrent capability.
       Current key milestones for the SSBN replacement program 
     include:
       Research, development, test, and evaluation (RDT&E) began 
     in FY 2010 and continues with the goal of achieving 10 
     percent greater design maturity prior to starting procurement 
     than the USS VIRGINIA class had before procurement started;
       In FY 2015, the Navy will begin the detailed design and 
     advanced procurement of critical components;
       In FY 2019, the Navy will begin the seven-year construction 
     period for the new SSBN lead ship;
       In FY 2026, the Navy will begin the three-year strategic 
     certification period for the lead ship; and
       In FY 2029, the lead ship will commence active strategic 
     at-sea service.
       The Analysis of Alternatives (AoA) considered three 
     platforms concepts for the Ohio-class Replacement: VIRGINIA-
     Insert, OHIO-Like, and a New Design. DoD is currently

[[Page 23163]]

     evaluating the advantages and disadvantages of each concept, 
     including cost tradeoffs, with the goal of meeting military 
     requirements at an affordable cost. An initial milestone 
     decision is expected by the end of calendar year 2010 to 
     inform the program and budget moving forward.
       After the initial milestone design decision is made, DoD 
     will be able to provide any adjustments to the estimated 
     total costs for the Ohio-class replacement program. Thus, 
     today's estimated total costs for FY 2011 through FY 2020 
     remain the same as reported in the 1251 Report: a total of 
     approximately $29.4 billion with $11.6 billion for R&D and 
     $17.8 billion for design and procurement.
       As noted in the 1251 Report, the Navy plans to sustain the 
     Trident II D5 missile, as carried on Ohio-class Fleet SSBNs 
     as well as the next generation SSBN, through a least 2042 
     with a robust life-extension program.
     Intercontinental Ballistic Missiles (ICBMs)
       As stated in the Nuclear Posture Review, while a decision 
     on an ICBM follow-on is not needed for several years, 
     preparatory analysis is needed and is in fact now underway. 
     This work will consider a range of deployment options, with 
     the objective of defining a cost-effective approach for an 
     ICBM follow-on that supports continued reductions in U.S. 
     nuclear weapons while promoting stable deterrence. Key 
     milestones include:
       The Capabilities-Based Assessment (CBA) for the ICBM 
     follow-on system is underway.
       By late 2011, the study plan for the AoA, including the 
     scope of options to be considered, will be completed.
       In 2012, the AoA will begin.
       In FY 2014, the AoA will be completed, and DoD will 
     recommend a specific way-ahead for an ICBM follow-on to the 
     President.
       The Air Force is funding the ongoing CBA effort at 
     approximately $26 million per year. Given the inherent 
     uncertainties about missile configuration and basing prior to 
     the completion of the AoA, DoD is unable to provide costs for 
     its potential development and procurement at this time. 
     However, DoD expects to be able to include funding for RDT&E 
     for an ICBM follow-on system in the FY 2013 budget request, 
     based on initial results from the AoA.
       The Air Force plans to sustain the Minuteman III through 
     2030. That sustainment includes substantial ongoing life 
     extension programs, cost data for which was provided to 
     Congress in the May 2010 Section 1251 Report.
     Heavy Bombers
       DoD plans to sustain a heavy bomber leg of the strategic 
     Triad for the indefinite future, and is committed to the 
     modernization of the heavy bomber force. Thus, the question 
     being addressed in DoD's ongoing long-range strike study is 
     not whether to pursue a follow-on heavy bomber, but the 
     appropriate type of bomber and the timelines for development, 
     production, and deployment. The long-range strike study, 
     which is also considering related investments in electronic 
     attack, intelligence, surveillance and reconnaissance, air- 
     and sea-delivered cruise missiles, and prompt global strike, 
     will be completed in time to inform the President's budget 
     submission for FY 2012.
       As stated in the May 2010 1251 Report, pending the results 
     of the long-range strike study, estimated costs for a follow-
     on bomber for FY 2011 through FY 2015 are $1.7 billion and 
     estimated costs beyond FY 2015 are to-be-determined. DoD 
     intends to provide any necessary updates to cost estimates 
     along with the President's budget submission for FY 2012.
       The Air Force plans to retain the B-52 in the inventory 
     through at least 2035 to continue to meet both nuclear and 
     conventional mission requirements. The Air Force will make 
     planned upgrades and life extensions to the fleet. The B-2 
     fleet is being upgraded through three top priority 
     acquisition programs: the Radar Modernization Program (RMP), 
     Extremely High Frequency (EHF) Satellite Communications and 
     Computers, and Defensive Management System (DMS), as well as 
     multiple smaller sustainment initiatives.
     Air Launched Cruise Missile (ALCM)
       DoD intends to replace the current ALCM with the advanced 
     long range standoff (LRSO) cruise missile. The CBA for the 
     LRSO is underway. An AoA will be conducted from approximately 
     spring 2011 through fall 2013. The AoA will define the 
     platform requirements, provide cost-sensitive comparisons, 
     validate threats, and establish measures of effectiveness, 
     and assess candidate systems for eventual procurement and 
     production.
       The Air Force has programmed approximately $800 million for 
     RDT&E over the FYDP for the development of LRSO. Based on 
     current analysis of the program, the Air Force expects low 
     rate initial production of LRSO to being in approximately 
     2025, while the current ALCM will be sustained through 2030. 
     Until the planned AoA is completed, DoD will not have a basis 
     for accurately estimating subsequent costs.

  Mr. CORKER. Mr. President, the reason I want that entered into the 
Record, over the next 10 years, what this calls for is $86 billion--$86 
billion--worth of investment throughout the seven facilities throughout 
our country on nuclear armaments and over $100 billion on the delivery 
mechanisms to ensure that these warheads are deliverable.
  So one might say: Well, that is great, but how are we going to be 
sure? How are we going to be sure the appropriators actually ask for 
the money?
  Mr. President, I ask unanimous consent to have printed in the Record 
a letter signed on December 16 by Chairman Inouye, Senators Dianne 
Feinstein, Thad Cochran, and Lamar Alexander.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                  U.S. Senate,

                                Washington, DC, December 16, 2010.
     The White House,
     Washington, DC.
       Dear Mr. President: We are writing to express our support 
     for ratification of the New START Treaty and full funding for 
     the modernization of our nuclear weapons arsenal, as outlined 
     by your updated report that was mandated by Section 1251 of 
     the Defense Authorization Act for Fiscal Year 2010.
       We also ask that, in your future budget requests to 
     Congress, you include the funding identified in that report 
     on nuclear weapons modernization. Should you choose to limit 
     non-defense discretionary spending in any future budget 
     requests to Congress, funding for nuclear modernization in 
     the National Nuclear Security Agency's proposed budgets 
     should be considered defense spending, as it is critical to 
     national security and, therefore, not subject to such 
     limitations. Further, we ask that an updated 1251 report be 
     submitted with your budget request to Congress each year.
       We look forward to working with you on the ratification of 
     the New START Treaty and modernization of the National 
     Nuclear Security Agency's nuclear weapons facilities. This 
     represents a long-term commitment by each of us, as 
     modernization of our nuclear arsenal will require a sustained 
     effort.
           Sincerely,
     Daniel K. Inouye.
     Dianne Feinstein.
     Thad Cochran.
     Lamar Alexander.

  Mr. CORKER. Mr. President, that letter says to the President that 
they will ask for the moneys necessary to modernize our nuclear 
arsenal; that they agree to ask for that money as part of their 
appropriations bill.
  So, then, you might say: Well, what about the President? Will the 
President actually, in his budget, ask Congress to ask for that money?
  Mr. President, I ask unanimous consent to have printed in the Record 
a letter from the President of the United States, dated December 20, 
addressed to the appropriators who just wrote the letter I mentioned, 
saying that he, in fact, will ask for those funds in the budget he puts 
forth in the next few months.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                              The White House,

                                    Washington, December 20, 2010.
     Hon. Lamar Alexander,
     U.S. Senate,
     Washington, DC.
       Dear Senator Alexander: Thank you for your letter regarding 
     funding for the modernization of the nuclear weapons complex 
     and for your expression of support for ratification of the 
     New START Treaty.
       As you know, in the Fiscal Year 2011 budget, I requested a 
     nearly 10 percent increase in the budget for weapons 
     activities at the National Nuclear Security Administration 
     (NNSA). In May, in the report required by Section 1251 of the 
     National Defense Authorization Act for Fiscal Year 2010, I 
     laid out a 10 year, $80 billion spending plan for NNSA. The 
     Administration submitted an update to that report last month, 
     and we now project over $85 billion in spending over the next 
     decade.
       I recognize that nuclear modernization requires investment 
     for the long-term, in addition to this one-year budget 
     increase. That is my commitment to the Congress--that my 
     Administration will pursue these programs and capabilities 
     for as long as I am President.
       In future years, we will provide annual updates to the 1251 
     report. If a decision is made to limit non-defense 
     discretionary spending in any future budget requests, funding 
     for nuclear modernization in the NNSA weapons activities 
     account will be considered on the same basis as defense 
     spending.
       In closing, I thought it important for you to know that 
     over the last two days, my Administration has worked closely 
     with officials from the Russian Federation to address our 
     concerns regarding North Korea. Because of important 
     cooperation like this, I continue to hope that the Senate 
     will approve

[[Page 23164]]

     the New START Treaty before the 111th Congress ends.
           Sincerely,
                                                     Barack Obama.

  Mr. CORKER. Mr. President, there has been a lot of discussion about 
many things--and I will get to missile defense in just one moment--but 
I don't think there is anything, as it relates to nuclear issues, that 
threatens our national security more than our not investing in the 
arsenal we have. I think what we see is a commitment by appropriators 
on the Senate side, the President of the United States, those within 
the NNSA and our military complex who believe modernization has to 
occur.
  Candidly, the only thing today that would keep us from actually doing 
modernization the way it needs to be done would be Republican 
appropriators. So I just wish to say to my friends on this side of the 
aisle, it seems to me, through Senator Kyl's efforts and the efforts of 
people working in a cooperative way, we have been very successful in 
getting the commitments we need on modernization.
  By the way, I would add, I do not think we would be talking about the 
issue of modernization today--something that hasn't been done for many 
years to this scale--if it were not for discussions of the START 
treaty. So I say to the Chair, I think we have enhanced our country's 
national security just by having this debate, and I would say we have 
sought and received commitments that otherwise we would not have 
received if it were not for the discussion of this treaty.
  The two are very related. I have heard a lot of people say there is 
no real relationship between the two. There is a lot of relationship 
between the two, in that I think Americans want to know if we are going 
to limit ourselves to 1,550 warheads, that we know they operate, we 
know they can be delivered, and we know the thousands of warheads we 
have that are not deployed are warheads that will be kept up.
  We have talked a lot about missile defense, and I just wish to say I 
have been through every word of this treaty, I have been through every 
word of the annexes, I have been through every word of the protocols 
and I have been in countless briefings and there is nothing in this 
treaty that limits our missile defense other than the fact that we 
cannot convert ICBM launchers that we use on the offense for missile 
defense--something our military leaders do not want to do. That is the 
most expensive way of creating a missile defense system. That is 
something they do not want to do.
  So a lot of discussions have been brought up because in the preamble 
something was stated that was nonbinding. How do we clear that up? We 
clear that up by virtue of a letter the President has sent to us 
absolutely committing to the missile defense system that is now being 
deployed in Europe, absolutely committing to a national defense system. 
People might say: Well, but that is no commitment.
  I have reasonable assurance that by the time this debate ends we will 
codify, as part of the resolution of ratification, the operative words 
in the President's language committing to all four phases of our 
adaptive missile system in Europe, committing to those things we need 
to do as relates to our national defense system and making that a part 
of the resolution of ratification.
  I would say to you that I doubt very seriously we would have received 
the types of commitments, the strident commitments from the President 
as relates to missile defense today, if we were not debating this 
treaty.
  Mr. President, I ask unanimous consent that Senator Lamar Alexander 
be added as a cosponsor to my amendment, amendment No. 4904, dealing 
with ensuring the President's language becomes a part of this 
resolution of ratification.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. CORKER. Mr. President, let me conclude by saying it is obviously 
up to us, as Senators. We are the ones who have the right and the 
responsibility and the privilege to take up the types of matters we are 
taking up today. It is up to us to do the due diligence, to have the 
intelligence briefings, to look at our nuclear posture reviews, to look 
at what this treaty itself says, and to look at what our force 
structure is. That is our responsibility. It is up to each of us, the 
100 of us in this body, to decide whether we ratify this treaty. But I 
think it is also at least interesting to get input from others.
  One of the things our side of the aisle likes to do is we like to 
listen to military leaders and what they have to say about issues 
relating to the war--Afghanistan or Iraq--and certainly the issue of 
how we enter into nuclear treaties with other countries.
  I will ask to have printed in the Record a letter to Senator Kerry 
from the Joint Chiefs of Staff talking about their firm commitment for 
the START treaty on the basis that it increases our national security.
  I ask unanimous consent to have printed in the Record this letter 
dated December 20 from ADM Mike Mullen, Chairman of our Joint Chiefs.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                   Chairman of the


                                        Joint Chiefs of Staff,

                                Washington, DC, December 20, 2010.
     Hon. John F. Kerry,
     Chairman, Committee on Foreign Relations, U.S. Senate, 
         Washington, DC.
       Mr. Chairman, Thank you for your letter of 20 December 
     asking me to reiterate the positions of the Joint Chiefs of 
     Staff on ratification of the New START Treaty and several 
     related questions.
       This treaty has the full support of your uniformed 
     military, and we all support ratification. Throughout its 
     negotiation, Secretaries Clinton and Gates ensured that 
     professional military perspectives were thoroughly 
     considered. During the development of the treaty, I was 
     personally involved, to include two face-to-face negotiating 
     sessions and several conversations with my counterpart, the 
     Chief of the Russian General Staff, Gen Makarov, regarding 
     key aspects of the treaty.
       The Joint Chiefs and I--as well as the Commander, U.S. 
     Strategic Command--believe the treaty achieves important and 
     necessary balance between four critical aims. It allows us to 
     retain a strong and flexible American nuclear deterrent that 
     will allow us to maintain stability at lower levels of 
     deployed nuclear forces. It helps strengthen openness and 
     transparency in our relationship with Russia. It will 
     strengthen the U.S. leadership role in reducing the 
     proliferation of nuclear weapons. And it demonstrates our 
     national commitment to reducing the worldwide risk of a 
     nuclear incident resulting from proliferation.
       More than a year has passed since the last START inspector 
     left Russian soil, and even if the treaty were ratified by 
     the Senate in the next few days, months would pass before 
     inspectors could return. Without the inspections that would 
     resume 60 days after entry into force of the treaty, our 
     understanding of Russia's nuclear posture will continue to 
     erode. An extended delay in ratification may eventually force 
     an inordinate and unwise shift of scarce resources from other 
     high priority requirements to maintain adequate awareness of 
     Russian nuclear forces. Indeed, new features of the treaty's 
     inspection protocol will provide increased transparency for 
     both parties and therefore contribute to greater trust and 
     stability.
       The Joint Chiefs and I are confident that the treaty does 
     not in any way constrain our ability to pursue robust missile 
     defenses. We are equally confident that the European Phased 
     Adaptive Approach to missile defense will adequately protect 
     our European allies and deployed forces, offering the best 
     near- and long-term approaches to ballistic missile defense 
     in Europe. We support application of appropriately modified 
     Phased Adaptive Approaches in other key regions, as outlined 
     in the Ballistic Missile Defense Review Report.
       I can also assure you that U.S. senior military leaders 
     monitored very closely all provisions related to conventional 
     prompt global strike (CPGS) throughout the negotiation 
     process. During that process, the Russian Federation publicly 
     declared on several occasions that there should be a ban on 
     placement of conventional warheads on strategic delivery 
     systems. In the end, we agreed that any reentry vehicle 
     (nuclear or non-nuclear-armed) contained on an existing type 
     of ICBM or SLBM would be counted under the central limits of 
     the treaty. Importantly, the New START Treaty allows the 
     United States not only to deploy CPGS systems but also to 
     continue any and all research, development, testing, and 
     evaluation of such concepts and systems. It is true that 
     intercontinental ballistic missiles with a traditional 
     trajectory would be accountable under the treaty, but the 
     treaty's limits accommodate any plans the United States might 
     pursue during the life of the treaty to deploy conventional 
     warheads on ballistic missiles.
       Further, the United States made clear during the New START 
     negotiations that we

[[Page 23165]]

     would not consider non-nuclear, long-range systems, which do 
     not otherwise meet the definitions of the New START Treaty 
     (such as boost-glide systems that do not fly a ballistic 
     trajectory), to be accountable under the treaty.
       Finally, I am comfortable that the Administration remains 
     committed to sustainment and modernization of the nuclear 
     triad and has outlined its plans to do so in the so-called 
     Section 1251 report to Congress, as well as a recent update 
     to that report and a letter from Secretary of Defense Gates 
     to Senator Lugar dated 10 December. Plans for sustainment and 
     replacement of current ICBMs, ballistic missile submarines, 
     heavy bombers, and air launched cruise missiles are in 
     various stages of development, in a process that will be 
     implemented over the next three decades and across multiple 
     administrations.
       The Administration's proposed ten-year, $85B commitment to 
     the U.S. nuclear enterprise attests to the importance being 
     placed on nuclear deterrence and the investments required to 
     sustain it--especially given the country's present fiscal 
     challenges. The increased funding commitment, if authorized 
     and appropriated, allows the United States to improve the 
     safety, security, and effectiveness of our nuclear weapons 
     and develop the responsive nuclear weapons infrastructure 
     necessary to support our deterrent. I also fully support a 
     balanced Department of Energy program that sustains the 
     science, technology, and engineering base.
       In summary, I continue to believe that ratification of the 
     New START Treaty is vital to U.S. national security. Through 
     the trust it engenders, the cuts it requires, and the 
     flexibility it preserves, this treaty enhances our ability to 
     do that which we in the military have been charged to do: 
     protect and defend the citizens of the United States. I am as 
     confident in its success as I am in its safeguards. The 
     sooner it is ratified, the better.
           Sincerely,
                                                      M.G. Mullen,
                                               Admiral, U.S. Navy.

  Mr. CORKER. Mr. President, I would like to point out, too, just for 
clarification, if you look at the makeup of our Joint Chiefs--Admiral 
Mullen, General Cartwright, General Schwartz, General Casey, Admiral 
Roughead--every single one of these gentlemen was appointed by a 
Republican President. In addition to them, we have General Amos. My 
sense is, based on some of the comments he has made over the course of 
time, he would have Republican leanings. But all of these people have 
firmly stated their support for this treaty.
  In closing, I will also ask unanimous consent that the statement of 
Robert Gates, again appointed by a Republican President, head of our 
Defense Department, where yesterday he said:

       The treaty will enhance the strategic stability at lower 
     numbers of nuclear weapons, provide a rigorous inspection 
     regime including on-sight access to Russian missile silos, 
     strengthen our leadership role in stopping the proliferation 
     of nuclear weapons, and provide the necessary flexibility to 
     structure our strategic nuclear forces to best meet the 
     national security interests.
       This treaty stands on its merits and its prompt 
     ratification will strengthen U.S. national security.

  I ask unanimous consent that this be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

   [From the U.S. Department of Defense, News Release, Dec. 21, 2010]

      Statement by Secretary Robert Gates on the New START Treaty

       I strongly support the Senate voting to give its advice and 
     consent to ratification of the New START Treaty this week.
       The treaty will enhance strategic stability at lower 
     numbers of nuclear weapons, provide a rigorous inspection 
     regime including on-site access to Russian missile silos, 
     strengthen our leadership role in stopping the proliferation 
     of nuclear weapons, and provide the necessary flexibility to 
     structure our strategic nuclear forces to best meet national 
     security interests.
       This treaty stands on its merits, and its prompt 
     ratification will strengthen U.S. national security.

  Mr. CORKER. There has been a lot of discussion about the role of the 
Senate in this ratification. There are a lot of things that go into the 
ratification of a treaty. I have laid out a number of things we have 
discussed that are relevant to the ratification of this treaty.
  As we move through a process such as this, I try to make sure all of 
the t's are crossed and i's are dotted that can possibly be crossed and 
dotted to ensure that I, as a U.S. Senator, feel comfortable that the 
type of agreement we are entering into is one that is in the best 
interests of our country. I have done that over the last year working 
on nuclear modernization. Again, my hat is off to Senator Kyl and his 
great leadership in that regard. I have done that over the course of 
this last year as we have looked at missile defense. We spent 
incredible amounts of time in our committee making sure people on my 
side of the aisle had tremendous input into the resolution of 
ratification. We have worked through to make sure that if we are going 
to have fewer warheads deployed--again, we have thousands more that are 
not deployed--that we, in fact, can assure the American people that 
they will operate, that they are actually there for our national 
security.
  The question for me and for all of us who care so deeply about our 
country's national security is, Will we say yes to yes? I firmly 
believe that signing this treaty, that ratifying this treaty, and that 
all the things we have done over the course of time as a result of this 
treaty are in our country's national interest, and I am here today to 
state my full support for this treaty. I look forward to its 
ratification, and I hope many others will join me in that process.
  I yield the floor.
  Mr. UDALL of Colorado. Mr. President, before I begin the focus of my 
remarks and the reason I came to the floor, I wish to commend the 
Senator from Tennessee for his thoughtful remarks and what I think is a 
thoughtful and important position he is taking on the START treaty. I 
listened with great interest, and I learned additional information 
about the importance of putting this treaty in effect. I also 
acknowledge the Senator's concerns about missile defense, about 
tactical nuclear weapons, and the other concerns that have been raised 
in this very important and obviously historic debate on the floor of 
the Senate. I thank the Senator from Tennessee for his leadership.


                     Tributes to Retiring Senators

                             Arlen Specter

  I also wanted to associate myself with the remarks of Senator Bennet, 
the Senator from Colorado, in regard to Senator Specter's farewell 
address to the Senate. In particular, I think Senator Specter laid out 
a thoughtful and comprehensive way we can change the Senate rules in 
the upcoming 112th Congress in ways that respect the rights of the 
minority but also provide the Senate with some additional ways to do 
the people's business.
  I know the Presiding Officer spent significant time on finding a way 
forward for the Senate. I look forward to the debate that will begin 
when we convene in just a couple of weeks for the 112th Congress.


                     Nomination of William Martinez

  Let me turn to the reason I came to the floor initially, and that is 
to urge my colleagues to support an outstanding nominee to the Federal 
bench, Mr. William Martinez. Bill's story is an inspirational one, and 
I will share that with you in a moment, but I wanted to first talk 
about why there is such an urgency to confirm this fine nominee.
  The situation in our Colorado District Court is dire, and I don't use 
that word lightly. There are currently five judges on the court and two 
vacancies, both of which are rated as judicial emergencies by the 
Administrative Offices of the U.S. Courts. These five judges have been 
handling the work of seven judges for nearly 2 years. It has been over 
3 years since our court had a full roster of judges.
  I know the Presiding Officer is familiar with the need for a fully 
stocked Federal bench as a former attorney general.
  There is even more to the story. In 2008, based on the significant 
caseload in Colorado, the Judicial Conference of the United States 
recommended the creation of an eighth judgeship on the Colorado 
District Court.
  This is a pressing situation, but I know it is not unique just to 
Colorado. Of the 100 current judicial vacancies, 46 are considered 
judicial emergencies--almost half of those vacancies. I understand the 
Senate has confirmed just 53 Federal circuit and district court 
nominees since President Obama was elected, including the judges over 
the last weekend. This is half as many as

[[Page 23166]]

were confirmed in the first 2 years of the Bush administration and 
represents a historic low, which, no matter who is to blame, is very 
detrimental to our system of justice.
  Bill Martinez was nominated in February of this year, had a hearing 
in March, and was referred favorably by the Judiciary Committee to the 
full Senate in April. So today his nomination has been sitting on the 
Senate's Executive Calendar for over 8 months.
  I am not going to complain about partisan delays, although I know 
this continues to plague the Senate. Instead, in hope that we might 
improve the nomination process, I want my colleagues to hear the real 
effect of imposing these delays on nominees.
  The people of Colorado deserve well-qualified justices, but what the 
Senate put Bill Martinez through should make each of us question where 
our priorities are--and I say that because, unlike other judicial 
nominees before the Senate, Bill Martinez' life has been turned upside 
down because of this delay in his confirmation. While many other 
nominees--and I don't begrudge them this--continued their judicial 
careers because they were sitting on the bench, he has essentially had 
to dismantle his law practice to avoid Federal conflicts and even limit 
taking clients to ensure they continue to receive representation once 
he is confirmed. Both his life and his livelihood have been put on hold 
just because he was willing to become a dedicated public servant. If we 
continue this record or this habit of needlessly delaying judicial 
nominations, we risk chasing off qualified nominees such as Bill 
Martinez.
  His long and winding road began last year when Senator Bennet and I 
convened a bipartisan advisory committee, chaired by prominent legal 
experts in Colorado, to help us identify the most qualified candidates 
for the Federal bench. The committee interviewed many impressive 
individuals, and then, based on his life experience, his record of 
legal service, and his impressive abilities, both Republicans and 
Democrats on this panel together recommended Bill Martinez for a 
Federal judgeship. The President agreed and then subsequently nominated 
Bill for the vacant judgeship I mentioned.
  There is no doubt that being nominated for a Federal judgeship is a 
prestigious honor, but since being nominated, Senate delays have not 
only affected Bill and his family, but those delays have sent a 
discouraging message to future nominees. Despite these disruptions the 
process has caused for Bill and the dangerous precedent his delay may 
have set, I am relieved that the Senate is finally giving this 
qualified candidate the confirmation vote he deserves today.
  I have spoken about his impressive intellect and experience on the 
floor before, but in advance of my vote, I would like my colleagues to 
hear one more time why Bill Martinez was selected by the bipartisan 
advisory committee for this judgeship.
  In addition to being an accomplished attorney and a true role model 
in our community in Colorado, he has a personal story that captures 
what is great about America and highlights what can be accomplished 
with focus, discipline, and extraordinary hard work.
  Bill was born in Mexico City, and he immigrated lawfully to the 
United States as a child. He worked his way through school and college 
and toward a career in law, becoming the first member of his family to 
attend college. He received undergraduate degrees in environmental 
engineering and political science from the University of Illinois and 
earned his law degree from the University of Chicago.
  As a lawyer, Bill has become an expert in employment and civil rights 
law. He first began his legal career in Illinois, where he practiced 
with the Legal Assistance Foundation of Chicago, litigating several law 
reform and class action cases on behalf of indigent and working-class 
clients. For the last 14 years, he has been in private practice and 
previously served as a regional attorney for the U.S. Equal Employment 
Opportunity Commission in Denver.
  As you can imagine, over the years Bill has been a very active member 
of the Denver legal community. During the 1990s, he was an adjunct 
professor of law at the University of Denver College of Law and has 
been a mentor to minority law students. He is currently vice chair of 
the Committee on Conduct for the U.S. District Court for the District 
of Colorado, and he has been a board member and officer of the faculty 
of Federal Advocates.
  Bill also sits on the board of directors of the Colorado Hispanic Bar 
Association, where he serves as the chair of the bar association's 
Ethics Committee. More recently, he was appointed by the Colorado Bar 
Association to the board of directors of Colorado Legal Services and by 
the chief justice of the Colorado Supreme Court to the Judicial Ethics 
Advisory Board.
  Like all of us, I believe in a strong, well-balanced court system 
that serves the needs of our citizens. Bill Martinez will bring that 
sense of balance because of his broad legal background, 
professionalism, and his outstanding intellect. I am proud to have 
recommended Bill, and I am certain that once confirmed he will make an 
outstanding judge.
  Before I conclude, I did want to give special acknowledgment to my 
general counsel, Alex Harman, who has worked night and day on this 
nomination. Alex has worked tirelessly to see that Bill Martinez 
receives the vote he deserves, and I want to acknowledge him here on 
the floor of the Senate.
  I ask my colleagues to give their full support to this extraordinary 
candidate and vote to confirm his nomination to the Colorado District 
Court as a new Federal judge.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Ohio is recognized.
  Mr. BROWN of Ohio. Mr. President, I appreciate the words from the 
senior Senator from Colorado. His comments about the delays in the 
judicial process here, the selection of Federal judges, the nomination 
and confirmation, are identical to the situation for so many of the 
rest of us. Very qualified people are put forward. At times, the White 
House, perhaps, didn't move as fast as we would like. But the delays on 
these judges is pretty outrageous.


                      Nomination of Benita Pearson

  Judge Pearson, who sits as a U.S. magistrate in the Northern District 
Court in Ohio, didn't have the same disruption in her life as soon-to-
be, I hope, Justice Martinez had, having a law practice to put aside 
and having to wrap it up and figure out all that, but she has waited 
since February when Senator Leahy and his Judiciary Committee voted her 
out, had a wait of 9 months, almost 10 months, until we are about ready 
to confirm.
  I speak perhaps in criticism of the other party but, more 
importantly, how do we fix this so people are not dissuaded, 
discouraged from wanting to fill these very important jobs?
  When I interview potential judicial candidates, I always ask them: 
Are you willing to put your life on hold for at least a year before you 
can actually be confirmed and sworn in, if it gets to that?
  All are surprised, some are shocked, and some walk away and say: Find 
somebody else. That is going to start happening. So I thank the Senator 
from Colorado and his comments.
  I rise in support of another very strong candidate for a Federal 
judgeship, the nomination of Magistrate Judge Benita Pearson to become 
a judge in the U.S. District Court in the Northern District of Ohio.
  Magistrate Pearson will make an excellent addition to the bench. That 
is not just my opinion. She has tremendous support from the judges with 
whom she serves today and whose ranks she will soon join. She knows 
them from her work, obviously, as a magistrate. Judge James Carr, the 
chief U.S. district judge at the time of her nomination, lauded Judge 
Pearson as ``a splendid choice . . . eminently well-qualified by 
intelligence, experience . . . and judicial temperament.'' Judge Carr's 
successor, Solomon Oliver, who now is the chief U.S. district judge, is 
just as supportive of her nomination.
  Support for that nomination extends throughout the State. The other 
day when I gave a few remarks in the wake

[[Page 23167]]

of Senator Voinovich's farewell address, I neglected to mention how 
much I appreciated Senator Voinovich's cooperation in the process of 
selecting candidates for nomination to the Federal bench.
  Senator Voinovich and I did something, and I do not know if any other 
Senator in this body does this, any other pair of Senators--I do know 
nobody in Ohio has done this--I asked Senator Voinovich, as the Senator 
from the President's party--and, generally, by tradition, the Senator 
who suggests nominees to the President--I asked Senator Voinovich to be 
part of the selection system with me. We chose 17 people. We chose 17 
people from northern Ohio to interview Southern District of Ohio 
potential judges, and 17 people in southern Ohio--central and southern 
Ohio--to interview prospective judges for the Northern District.
  These panels, one of them was a Republican majority, the other was a 
Democratic majority, I believe, by one vote. These panels met, took 
this job very seriously. Each of the 17 people was given the name of a 
candidate, one of the people who was applying to interview, references 
and all that. Each candidate got an hour in front of the 17-member 
committee, this Commission we appointed, and were subjected, after 
filling out a very lengthy questionnaire designed, again, bipartisanly 
by my predecessor, Republican Senator DeWine, in large part, to, after 
filling out this questionnaire, testifying, spending an hour in front 
of this panel of 17 very distinguished judges, some who are lawyers, 
some, I believe, former judges, all people who were very interested in 
the Federal judiciary.
  Anybody who came out of that had to have a strong supermajority 
recommendation from the 17. I then interviewed the top three, made the 
selection, cleared it with Senator Voinovich, and brought the name 
forward.
  That produced Judge Timothy Black, who has been confirmed, sits in 
the Southern District. It also produced Judge Benita Pearson. A similar 
selection committee, not identical but a similar selection committee, 
enabled me, helped me come to the conclusion to reappoint a Bush 
appointee to the U.S. marshal's job in Cleveland, Pete Elliott, to 
appoint the first--to send to the President, nominate, and confirm the 
first female U.S. marshal in the Southern District of Ohio, Cathy 
Jones, and then the first African-American U.S. attorney in Columbus, 
and a very qualified U.S. attorney in Cleveland.
  So that is the process we have in Ohio to make sure we get the best 
qualified people. As I said, they put in a tremendous amount of time 
and energy, and I wish to thank those 17 members of each of those 
Commissions, the 34 people who served again from both parties, 
prominent jurists and lawyers and community activists, to come up with 
Judge Pearson and others.
  Judge Pearson currently resides in Akron but was born in Cleveland. I 
got a chance to meet her mother and many of her family and friends 
almost 1 year ago when she testified before the Judiciary Committee. 
They were understandably proud of her, her achievements, and the honor 
of her nomination, certainly, but I got the sense they were most proud 
of her as a daughter, as a sister, as a family member. Nobody knows us 
better than our family.
  Judge Pearson earned her J.D. from Cleveland State University, her 
bachelor's degree from Georgetown. Before law school, she spent several 
years as a certified public accountant. I asked her how being a CPA 
would help her in the judiciary as a judge. She said you can tell 
stories with numbers. She smiled when she said it. She, clearly, had 
kind of thought through what this means to be a Federal judge and what 
qualifications she brings. Throughout her career, Judge Pearson has 
litigated and presided over a range of criminal and civil matters, 
including housing, public corruption cases. In addition to her work as 
a magistrate judge since 2008, her legal experience includes serving as 
an adjunct professor at Cleveland State's law school, 8 years as an 
assistant U.S. attorney in Cleveland, the Northern District, and 
several years in private practice.
  If confirmed, Judge Pearson will become the first African-American 
woman to serve as a Federal judge in Ohio. She will also be the only 
U.S. district judge in the Youngstown courthouse, which, because of 
delays here, for no apparent reason, has lacked a judge since this past 
summer.
  Last year, at the Akron Bar Association's annual Bench-Bar luncheon, 
she urged attorneys to improve in two ways: to be better prepared to 
litigate their cases and to be more civil to one another. Good advice 
to this body and for all of us, I suppose, in our daily lives.
  Judge Pearson's community service includes more than a decade of 
ongoing work as a board member of Eliza Bryant Village. Eliza Bryant 
Village is a multifacility campus, providing services for impoverished 
elderly citizens. It was founded and named after the daughter of a 
freed slave.
  The facility began simply as a nursing facility built to serve 
Eliza's mother and other African Americans who had been turned away 
from nursing homes simply because of their race.
  Judge Pearson's background as a prosecutor, as a private attorney, as 
a CPA, and as a Federal magistrate make her uniquely qualified to serve 
as U.S. district judge. Members of the law enforcement and legal 
community throughout northern Ohio have attested to Judge Pearson's 
ability and impartiality. As a magistrate and prosecutor, she, of 
course, as I said, is supported by our State's senior Senator, 
Republican George Voinovich. First assistant U.S. attorney, David 
Sierlega, for example, called Judge Pearson ``an extremely hardworking 
bright lawyer'' with an exemplary track record in handling public 
corruption cases.
  When asked to describe the ``most significant legal activities'' she 
has been engaged in, Judge Pearson replied: ``My most significant legal 
activity has been my steadfast commitment to administering equal 
justice for all . . . the poor and the rich, the likable and unlikable 
. . . the first-time offender and the repeat offender.''
  At the end of the day, it is this demonstrated commitment to equal 
justice, delivered after thorough consideration and fidelity to the 
law, that distinguishes Judge Pearson as an invaluable asset to Ohio's 
judicial system.
  I urge my colleagues, this afternoon, to quickly confirm her in her 
new position as U.S. district judge for the Northern District of Ohio.
  I would close with thanking two people on my staff who have gone 
above and beyond the call of duty: Mark Powden, my chief of staff, who 
has, almost weekly, spoken with Judge Pearson, talking about the delays 
and what is going to get this back on track and how are we going to get 
her confirmed. I appreciate the work Mark Powden has done. And Patrick 
Jackson in her office, who, while all this was going on, was getting 
married. He got married earlier this month, and he was doing that at 
the same time as we were doing all this. I am grateful to both of them. 
I thank my colleagues.
  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. SHELBY. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                          littoral combat ship

  Mr. SHELBY. Mr. President, I rise today in support of the Navy's 
acquisition strategy to purchase 20 littoral combat ships, LCS.
  The Navy's plan would allow 20 littoral combat ships to be awarded to 
two shipyards: Austal, which will build 10 ships in Mobile, AL, and 
Lockheed Martin, which will build 10 ships in Wisconsin.
  Under the new procurement strategy, our sailors will receive the 
ships they need to operate in shallow waters and combat the threats of 
surface craft, submarines, and mines. These ships will be used for a 
variety of security issues from sweeping for mines in coastal waters to 
fighting pirates and

[[Page 23168]]

chasing drug smugglers. They are a needed asset for our Navy.
  The Navy's dual acquisition plan, included in the continuing 
resolution, brings significant advantages to the LCS program.
  Our Navy will receive this capability faster, bring assets into 
operational service earlier, and will assist the Navy in reaching a 
313-ship Navy sooner.
  The LCS strategy will stabilize the program and the industrial base 
with an initial award of 20 ships. This will sustain competition 
throughout the life of the program.
  It is critical to ensure that the capabilities of our naval fleet are 
the very best and that our Armed Forces receive the equipment they need 
in executing future operations.
  However, as the foundation of our ability to project force globally 
for the next half century, we must obtain the best platform for the 
taxpayer investment.
  The LCS dual award does both.
  The dual procurement of the LCS will bring tremendous cost savings to 
the program that would not have been realized had the Navy moved 
forward with a down select of designs.
  According to the Navy, the acquisition savings for a dual award is 
projected to be $2.9 billion as measured against the President's fiscal 
year 2011 request. Of these savings, approximately $1 billion is 
directly attributable to the dual award.
  Acquisition decisions made in the near term will affect fleet 
effectiveness and operating costs for decades to come.
  This is the best outcome for all involved. The Navy will be able to 
obtain the best solution for the taxpayer investment.
  I urge my colleagues to support the dual acquisition strategy 
included within the continuing resolution.
  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. SESSIONS. I ask unanimous consent that the order for the quorum 
call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The PRESIDING OFFICER. The Senator from Alabama.
  Mr. REID addressed the Chair.
  The PRESIDING OFFICER. The majority leader.
  Mr. REID. Mr. President, through the Chair to my friend from Alabama, 
would it be agreeable to the Senator that I do a UC request so we can 
find out what we are going to do?
  Mr. SESSIONS. Mr. President, I would be pleased to yield to the 
majority leader for that. And if I could ask consent to be recognized 
afterward. I would note I did have time set aside for these remarks.
  Mr. REID. Yes. I understand.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                           Order Of Procedure

  Mr. REID. Mr. President, I ask unanimous consent that at 2 p.m. 
today, all postcloture time be considered expired and that the second-
degree amendment be withdrawn; that no further amendments or motions be 
in order; that the Senate then proceed to vote on the Reid motion to 
concur in the House amendment to the Senate amendment to H.R. 3082 with 
amendment No. 4885; that upon disposition of the House message, the 
Senate proceed to executive session to consider Executive Calendar Nos. 
703 and 813; that all time under the order governing consideration of 
the nominations be yielded back, except for 8 minutes to be divided 4 
minutes on each nomination, equally divided and controlled between 
Senators Leahy and Sessions or their designees; that upon the use or 
yielding back of all time with respect to the two nominations, the 
Senate then proceed to vote on confirmation of the nominations in the 
order listed; that upon disposition of the nominations, the other 
provisions of the order remain in effect, except that the Senate remain 
in executive session and there then be 4 minutes of debate, equally 
divided and controlled between the leaders or their designees, prior to 
the vote on the motion to invoke cloture on the New START treaty; that 
upon the use of the time, the Senate then proceed to vote on the motion 
to invoke cloture on the treaty; that after the first vote in this 
sequence, the second and third votes be limited to 10 minutes each.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  Mr. REID. Mr. President, I ask unanimous consent that Members have 
until 1:30 p.m. today to file any germane second-degree amendments to 
the New START treaty.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  Mr. REID. Mr. President, I further ask unanimous consent that 
following Senator Sessions, Senator Harkin then be recognized, to be 
followed by Senator Voinovich for up to 20 minutes.
  I say to my friend from Iowa, how much time--15 minutes.
  Does that give us enough time to do all that? It appears it does. So 
Senator Harkin would be recognized for 15 minutes and then Senator 
Voinovich for 20 minutes.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  The Senator from Alabama.
  Mr. SESSIONS. Mr. President, I was pleased to yield to the majority 
leader and just observe that although we do fuss a lot around here, 
many things are done by agreement. Senator Reid has obviously talked 
with the Republican leaders and reached this agreement on how we can 
proceed on some of these matters, and I was pleased to yield to him.
  Mr. REID. Mr. President, I would say to my friend from Alabama, my 
friend from Alabama and I do not always agree on the substantive 
issues, but there is no one more of a gentleman and easier to work with 
than the Senator from Alabama, Mr. Sessions.
  The PRESIDING OFFICER. The Senator from Alabama.


                     nomination of william martinez

  Mr. SESSIONS. Mr. President, I rise to speak on the President's 
nomination of Mr. William Martinez to the United States District Court 
for Colorado. I will oppose the nomination, and I have several reasons 
for doing so. He has a lot of good friends and people who respect him 
and like him, but we are trying to make a decision about a lifetime 
appointment to the federal district court. There are some concerns with 
this nomination that are serious and, in particular, trends of the 
President to nominate individuals with judicial philosophies outside 
the mainstream.
  There is one reason in particular that concerns me about Mr. 
Martinez. It is his longtime affiliation with the American Civil 
Liberties Union and the questions we asked him about that were answered 
insufficiently for me. We have had a number of ACLU nominations. I have 
supported some and opposed others. The ACLU is a very leftwing 
organization. It seeks openly to defy the will of the American people 
in many lawsuits while at the same time they endeavor to undermine and 
oppose traditions and institutions that make up the very fabric of our 
culture, our national identity, and who we are as a people, assuming 
those things are insignificant and only pure philosophical approaches, 
as they have, of an extreme nature should guide our Nation.
  Mr. Martinez has been a member of the ACLU in Colorado for nearly a 
decade, and since 2006 served on its legal panel. In this role he 
reviews memorandum prepared by ACLU staff and attorneys and decides 
whether to pursue litigation, a very significant post in that 
organization. Of course that is not disqualifying. One can be a member 
of an organization, even though some of us might not like it or agree 
with the organization. But any nominee from a conservative organization 
who takes extreme positions would certainly have to answer those 
positions and justify why they might take them. Likewise it is fair and 
appropriate to ask questions about this nominee and about this 
organization and whether the nominee agrees with them or why, if they 
don't agree, they are a member.
  A lot of people say they didn't agree with this position or that 
position. I was left asking: Why are you a member? It is on their Web 
site.

[[Page 23169]]

  When asked about some of the positions on important issues, he failed 
to clearly respond and repeatedly refused to answer questions in a 
direct and clear manner. For example, at his hearing I asked whether he 
agreed with the ACLU's position that the death penalty was 
unconstitutional in all circumstances. He refused to answer. Instead he 
noted that the Supreme Court has held the death penalty constitutional, 
adding:

       What my view would be as a sitting Federal district judge 
     is something that would be quite different from my views as a 
     personal citizen or an advocate or a litigant and member of 
     the ACLU.

  I asked him whether he personally thinks the death penalty violates 
the Constitution and whether he had ever expressed that view. He again 
failed to answer, stating only that he had never expressed any view.
  So I put the question to him again, and again he did not answer.
  Let me stop and say why I think this is a very important issue. The 
Constitution was passed as a unified document with 10 amendments. The 
American people ratified it. Some people, in recent years, have come up 
with the ingenious idea that they could disqualify and eliminate the 
death penalty without a vote of the people, without the popular will to 
change laws that exist all over the country. They decided they could 
change it by finding something in the Constitution that would say the 
death penalty is wrong, and they reached out to the provision that says 
you should not have cruel and unusual punishment. They said the death 
penalty is cruel and unusual and is unconstitutional, which is not 
sound. Let me be respectful.
  Why is that not a sound policy? There are multiple references in the 
Constitution to a death penalty. It talks about capital crimes, taking 
life without due process. it is in the Constitution. How could one say, 
when there are multiple provisions explicitly providing for the death 
penalty, how could we reach over here and take a position on cruel and 
unusual punishment which was designed to prevent people from being hung 
on racks and tortured and that kind of thing? But that is the ACLU 
position.
  This nominee, who is going to be given a lifetime appointment, the 
power to interpret the Constitution on this very real issue of national 
import that good lawyers know about, refused to state that the 
Constitution is clear, that the death penalty is legal.
  In fact, I note parenthetically that every Colony, every State had a 
death penalty at the time, and so did the United States Government. 
Surely the people, when they ratified it, had no idea that somebody 
coming along in 2000 would create the view that the Constitution 
prohibits the death penalty.
  I also asked Mr. Martinez whether he agreed with the President's so-
called empathy standard, but rather than state flatly that empathy 
should play no role in decisionmaking, as did Justice Sotomayor when 
she came up--she flatly said no, a judge has to be impartial; one 
should decide it on the facts and the law, not on feelings--he said 
that empathy ``can provide a judge with additional insight and 
perspective as to the intent and motivations of the parties appearing 
before the court.'' Empathy, to me, is far too much like politics, far 
too much like something other than law. It is certainly not law.
  When a nominee such as Mr. Martinez, who has dedicated so much time 
and legal expertise to the ACLU, refuses to answer basic questions 
about these issues, it is fair and appropriate to conclude that perhaps 
he agrees with the other positions of the ACLU. I have done a little 
checking on that.
  What is this organization of which he is a member? Some people like 
the position they take on this issue or that issue. But what overall 
are some of the policy and legal positions taken by the ACLU? Over the 
last several decades it has taken positions far to the left of 
mainstream America and the ideals and values the majority of Americans 
hold dear. Roger Baldwin, the ACLU's founder, was openly vocal about 
his support and belief in ``socialism, disarmament, and ultimately for 
abolishing the State itself as an instrument of violence and 
compulsion.''
  He was quoted as saying:

       I seek social ownership of property, the abolition of the 
     profited class and sole control by those who produce wealth. 
     Communism is the goal.

  Mr. Baldwin's influence and impact on the ACLU could not be 
overstated. As former ACLU counsel Arthur Hays says:

       The American Civil Liberties Union is Roger Baldwin.

  As I mentioned earlier, the ACLU opposes the death penalty under any 
circumstances, even for child rapists. They filed a brief recently in 
Kennedy v. Louisiana arguing that a State could not apply the death 
penalty to a child rapist regardless of the severity of the crime or 
the criminal history unless the child died from his or her injuries. 
Here the defendant had raped his own 8-year-old stepdaughter and caused 
horrific injuries that a medical expert said were the most severe he 
had ever seen. The defendant had done the same thing to another young 
girl within the family a few years earlier. Even President Obama, when 
the case came before the Supreme Court, said he opposed that view. Yet 
President Obama continues to nominate a host of ACLU lawyers to the 
Federal bench and presumably has some sort of sympathy with the views 
they have been taking.
  In recent years, the ACLU has litigated on behalf of sex offenders, 
including suing an Indiana city on behalf of a repeat sex offender who 
was barred from the city's park after he admitted stalking children who 
played there. Even though the convicted offender had admitted that he 
thought about sexually abusing the children in the park, the ACLU sued 
to give him full access to the park and the children. I agree with the 
mayor of the city who said:

       Parents need to be able to send their children to a park 
     and know they are going to be safe, not being window shopped 
     by a predator.

  I would hope all nominees would share this view rather than the 
ACLU's position on the subject. Although many view the ACLU as a 
neutral defender of the Bill of Rights, the ACLU takes a very selective 
view of the rights it advocates.
  That is just a fact. Otherwise, if they were defending the 
Constitution and what it says plainly, they would defend the 
constitutionality of the death penalty. It should not take them 2 
seconds to figure that out. They have an agenda.
  As it explains on its Web site, the ACLU openly disagreed with the 
Supreme Court's landmark ruling in the Heller case--the right to keep 
and bear arms--in Washington because the ACLU does not believe the 
second amendment confers an individual right to keep and bear arms. 
Well, OK. So the lawyers might disagree on that. But if this 
institution, this ACLU, is so committed to constitutional rights and 
opposes the power of the State, why would they not read the plain words 
of the second amendment: The right to keep and bear arms shall not be 
infringed. Why wouldn't they defend that individual right of free 
Americans to be armed and oppose the power of the State to take away 
what has historically been an American right? I think it represents and 
reveals a political agenda as part of this organization.
  It also has a selective view of what exactly is protected by the 
first amendment. It has done some good work on the first amendment, the 
ACLU has, but it has gone to great lengths to limit freedom of 
religion, as provided for in the first amendment, suing religious 
organizations and groups such as the Salvation Army and even 
individuals and supported the removal of ``under God'' from the Pledge 
of Allegiance and ``in God we trust'' from our currency. It sued the 
Virginia Military Institute to stop the longstanding tradition of 
mealtime prayer for cadets. You do not have to bow your head if you go 
to lunch and somebody wants to have a prayer. Nobody makes you pray. 
But if other people want to take a moment before they partake of their 
meal and, say, acknowledge a bit of appreciation for the blessings they 
have received, what is wrong with that? I do not believe it violates 
the first amendment.

[[Page 23170]]

  The Constitution says that you cannot establish a religion in 
America, and we cannot prohibit the free exercise of religion either. 
The establishment clause and the free exercise clause are both in that 
amendment. But the ACLU only sees one. They see everything as an 
establishment of religion.
  The ACLU has also argued for the removal of religious symbols and 
scriptures from national parks and monuments and cemeteries that have 
stood for years regardless of how innocuous they may be.
  I am very surprised we do not have the ACLU filing a lawsuit to deal 
with those words right over that door: ``In God We Trust.'' It won't be 
long. They will want to send in gendarmes with chisels to chisel it off 
the wall. It is an extreme view of the first amendment, and has never 
been part of what we understood the Constitution to be about. The 
reference in a public forum to a ``higher being'' is not prohibited by 
the Constitution--except in the minds of some extremists.
  So the ACLU has argued for the removal of all vestiges of Christmas, 
going so far as to sue school districts to bar them from having Santa 
Claus at school events and threatening to sue if Christmas carols are 
sung anywhere on school grounds. Give me a break.
  In addition, the ACLU has sought to limit or remove the rights of 
children to salute the U.S. flag, recite the Pledge of Allegiance, and 
openly pray.
  It has sued the Boy Scouts--I am honored to have been an Eagle Scout 
at one time in my life--and government entities that have supported 
this honorable institution. It has sued them.
  It has fought for the rights of child pornographers and against 
statutes seeking to stop its production and distribution or limit 
children's exposure to it. The ACLU absolutely not only opposes adult 
pornography laws, they oppose laws that prohibit child pornography, 
which is where so much of the problem of pedophilia occurs.
  The ACLU has sought to overturn the will of the people by challenging 
numerous State laws that define marriage as between a man and a woman 
and has encouraged city mayors across the country to openly defy State 
law by granting same-sex marriage licenses, even in contradiction to 
law.
  It has vehemently opposed the 1996 Defense of Marriage Act, calling 
it ``a deplorable act of hostility unworthy of the United States 
Congress.'' That passed a year before I came here--not too long ago. It 
just said that if one State allows a marriage to be between members of 
the same sex, another State would not be forced to acknowledge it and 
recognize it. That is what the Defense of Marriage Act did, and it 
passed here not too many years ago.
  The ACLU has consistently opposed all restrictions on abortion--all 
restrictions--including partial-birth abortion, the Unborn Victims of 
Violence Act, and statutes requiring parental notification before a 
minor child can have an abortion. If they want to defend the innocent 
against wrongdoing, what about defending a child partially born whose 
life is taken from them? The ACLU's extreme advocacy on abortion would 
force even religious health care providers--doctors and nurses--to 
perform abortions as a condition of Medicare or Medicaid reimbursement 
eligibility. A doctor could not say: I will treat you, but I don't do 
abortions. Oh, if you take Medicare or Medicaid money, then under the 
ACLU's position, you would have to do so.
  According to the ACLU:

       There is no basis for a hospital to impose its own 
     religious criteria on a patient to deny [her] emergency care.

  So this type of religious liberty is not, I think, what the Founders 
said. I do not think a hospital that is founded on personal values and 
has certain moral values should be required to give them up as a 
capitulation to State domination, which is what they were asking for 
actually, having the State be able to tell a hospital that did not 
believe in abortion.
  What about other issues that may come up, such as end-of-life issues. 
Hospitals ought to be able to have--and doctors and nurses should be 
able to have moral views about those matters and not do something they 
think is wrong and not have to give up their practice or their hospital 
in order to comply with what this group thinks is the right way to do 
business.
  So those are some of the examples of the ACLU's out-of-the-mainstream 
point of view. It is no secret that this administration shares this 
kind of legal reasoning. This is, of course, one of a long line of ACLU 
nominees whom we have seen, and this kind of reasoning and legal 
thought is well to the left of and out of touch with the American 
people and, I think, for the most part, established law. It seeks to 
impose its liberal progressive agenda any way it can, including by 
filing lawsuits and having judges--unelected lifetime appointed judges 
who have been popped through the Senate--ratify what the people who 
filed the lawsuits want to achieve as a matter of policy, not being 
neutral umpires who adjudicate disputes and decide them narrowly but to 
try to use the courts as a vehicle to advance an agenda. That is what 
has really been at the core of the debate in recent years over judicial 
nominations.
  So it is not surprising that many of the President's judicial and 
executive branch nominees have been deeply involved in the ACLU--many 
of them. For example, President Obama's first nominee, Judge David 
Hamilton, who was confirmed to the Seventh Circuit last year, was a 
leading member of the Indiana Civil Liberties Union for 9 years, where 
he served as a board member and its vice president for litigation. 
Judge Gerard Lynch, who now sits on the Second Circuit, was a 
cooperating attorney and member of the ACLU for 25 years. Judge 
Rogeriee Thompson, who was confirmed to the First Circuit earlier this 
year, had been a member of the ACLU for 10 years. Judge Dolly Gee, who 
now sits on the District Court for the Central District of California, 
had been a member of the ACLU for 9 years. Carlton Reeves, who was 
confirmed two days ago to the Southern District of Mississippi, was a 
member for 12 years and served as a board member.
  Three of President Obama's most controversial judicial nominees have 
had extensive involvement with the ACLU. Edward Chen, nominated to the 
Northern District of California, was a staff attorney on staff and 
member of the ACLU of Northern California for 16 years. Goodwin Liu, a 
professor, one of the most extreme nominees now pending, was nominated 
to the Ninth Circuit, already the most activist circuit in America. He 
was a member of the board of directors of the ACLU of northern 
California for years. Jack McConnell, nominated to the district of 
Rhode Island, was a volunteer lawyer for the ACLU as recently as last 
year.
  A number of nominees who were recently considered by the Judiciary 
Committee also have significant ties to the ACLU. Amy Totenberg, 
nominated to the Northern District of Georgia, has been a member for 21 
years. Robert Wilkins, nominated to the District of DC, was also a 
member. Michael Simon, nominated to the District of Oregon, has been a 
member since 1986. He served on the lawyers committee and the board of 
directors and as its vice president for legislation and vice president 
for litigation.
  That is more than I thought when we started going back and looking at 
this. I am sure less than 1 percent of the lawyers in America are 
members of the ACLU, but it seems if you have the ACLU DNA, you get a 
pretty good leg up on being nominated by this President. It is clear 
the President, our President, a community activist, a liberal 
progressive, as his own friends have described him, and former law 
professor is attempting to pack the courts with people who share his 
views and who will promote his vision of, as he has said about judges, 
what America ``should be.'' That was his phrase. He said, We want 
judges who help advance a vision of what America should be.
  But that is not good. We all have visions of what America should be. 
I wish to see us be a more frugal nation, more local government, more 
individual responsibility. I do not support cradle-to-grave government. 
His vision is what? That we want judges on the bench promoting an 
agenda because they were

[[Page 23171]]

picked by a President who shares that agenda? That is not the classical 
American heritage of what judges should be about. Judges should take 
the bench and they should attempt, as objectively as they possibly can, 
having put on that robe and having taken an oath to do equal justice to 
the poor and the rich, and to be not a respecter of persons, but to 
analyze that case objectively and decide it based on the law and the 
facts, not on their empathy and not on what their vision of what 
America should be because it may not be what the people's vision is.
  Democracy is undermined if a judge gets on the bench and feels that 
they can promote visions. I have to tell my colleagues, they are not 
appointed to be vision promoters. They are appointed to decide the 
strict matters of law and fact, to the best of the ability the Lord 
gives them.
  We can't stand idly by and allow that heritage of law that benefits 
us so greatly, the American rule of law and the greatest strength this 
Nation has, in my opinion, to be altered by promoting a Federal 
judiciary that is agenda oriented. Any individual--regardless of the 
position to which they have been nominated, to what kind of court 
position they are nominated to--who demonstrates unwillingness to 
subordinate his or her personal views, religious, political, 
ideological, social, liberal, or conservative. Conservatives can't 
promote their views, either--if they can't be faithful to the law and 
the Constitution, they should not be on the bench.
  I am not going to support such nominees and no Senator should support 
them. I have given it a lot of thought. I know Mr. Martinez has had a 
long affiliation with the ACLU. He refused to give clear answers to 
these questions I posed to him. I am not convinced that those views, 
which I think are outside legitimate constitutional theory, have been 
objected to and are not by Mr. Martinez--indeed, it appears he supports 
them because he has not with clarity rejected a single one. He has not 
made any defense to participating in an organization that openly 
advocates these kinds of legal views.
  We ask a lot of the nominees: Do you believe the Constitution 
prohibits the death penalty? They said, No. Even though they were part 
of an organization and some of them--a lot--have been confirmed and I 
have voted for a number of them, but I am not able to vote for this 
one.
  I have to say this: We are paid to judge and to vote, and when it 
comes down to some of the positions taken by the ACLU--let's take the 
one that the Constitution prohibits the death penalty--are so extreme 
and are so nonlegal that if a person can't understand that, I have 
serious doubt that they can understand any other significant 
constitutional principle.
  Therefore, I have concluded I would not be able to support the 
nominee, although I respect my colleagues who think he will do well. I 
certainly don't think he is a bad person. I think he is an able person 
who has a wonderful background, but his legal history evidences an 
approach to law that I think is outside the mainstream and I will 
oppose the nomination. We are not blocking a vote. We will allow him to 
have his up-or-down vote and Senators will cast their vote based on how 
they conclude it should be decided.
  I thank the Chair and I yield the floor.
  The PRESIDING OFFICER (Mr. Manchin). The Senator from Ohio.


                            New START Treaty

  Mr. VOINOVICH. Mr. President, I rise today to discuss the Senate's 
deliberation of the New START treaty and the treaty's implications for 
our friends and allies in Eastern and Central Europe and, more 
importantly, the national security of the United States.
  On November 17, I came to the Senate floor to discuss my concerns 
about the treaty and the President's reset policy. Following my 
remarks, I received a significant amount of feedback--some positive, 
some critical--and throughout my deliberations on the treaty, my 
intention was to contribute to advancing this important debate in a 
meaningful way.
  First, I wish to make it clear I remain concerned about the direction 
of Russia in terms of its commitment to human rights and an effort to 
reassert its influence over what Russia considers Eastern and Central 
Europe, their sphere of influence--those countries I often describe as 
the captive nations. One cannot ignore the statement of Vladimir Putin 
when he described the collapse of the Soviet Union as the greatest 
geopolitical catastrophe of the 20th century.
  Two years ago, after listening to Russia's Foreign Minister Sergey 
Lavrov at the German Marshall Fund Forum in Brussels, I concluded that 
Russia's internal political dynamic suggested that its people were 
deeply concerned by the growth in U.S. influence through NATO expansion 
and incursion into their part of the world. The Russian people, it 
seems, believed there was a post-Cold War promise, once the Iron 
Curtain came down, to not interfere in the region.
  As one of the leaders in helping the captive nations movement and to 
this day regretting the way our brothers and sisters in these countries 
were treated during the postwar conferences at Yalta and Tehran--I must 
say I never thought the wall would come down or their curtain torn, but 
once it did, I did everything I could to ensure these newly 
democratized countries were invited to join NATO. In 1998, as chairman 
of the National Governors Association, I worked to get a resolution 
passed encouraging the United States to invite Poland, the Czech 
Republic, and Hungary to join the alliance.
  One of the proudest moments as a Senator was when I joined President 
Bush, Secretary of State Powell, Secretary of Defense Rumsfeld, and 
Chairman of the Joint Chiefs of Staff General Myers at the NATO summit 
in Prague on November 21, 2002. I was in the room when NATO Secretary 
General Lord Robinson officially announced the decision to invite 
Bulgaria, Estonia, Latvia, Lithuania, Romania, Slovakia, and Slovenia 
into NATO. I mention all of this history for a simple reason. I don't 
think there is a Member of the Senate more wary of the intentions of 
Russia toward the former captive nations than I.
  So it brings me back to the subject of the treaty now pending before 
the Senate. I take the Senate's constitutional advice and consent 
duties very seriously. Since the treaty was signed in April, I have 
attended numerous meetings and classified briefings on the treaty. I 
suspect I have spent at least 10 to 12 hours on it. Since I last spoke 
on this floor about the treaty in November, I have held additional 
consultations with a number of former Cabinet Secretaries, ambassadors, 
and experts from the intelligence community, including former 
Secretaries of State Albright, Powell, and Rice, seeking their views 
about the treaty's effect on our bilateral relationship with Russia, as 
well as our relationship with our Eastern and Central European allies. 
While some of those I met with had concerns about specific technical 
aspects of the treaty, I continually heard that we should ratify the 
treaty.
  I believe it is noteworthy that five former Republican Secretaries of 
State, including Kissinger, Shultz, Baker, Eagleburger, and Powell, in 
a December 2, 2010 Washington Post opinion piece urged the Senate:

       . . . to ratify the New START Treaty signed by President 
     Obama and Russian President Dmitry Medvedev. It is a modest 
     and appropriate continuation of the START I treaty that 
     expired almost a year ago.

  These former Republican Secretaries of State described some of the 
outstanding issues with the treaty, but describe convincingly, in my 
opinion, why ultimately it is in our national interest to ratify the 
treaty.
  Mr. President, I ask unanimous consent that the op-ed piece from the 
Washington Post be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                [From the Washington Post, Dec. 2, 2010]

              The Republican Case for Ratifying New START

(By Henry A. Kissinger, George P. Shultz, James A. Baker III, Lawrence 
                  S. Eagleburger and Colin L. Powell)

       Republican presidents have long led the crucial fight to 
     protect the United States

[[Page 23172]]

     against nuclear dangers. That is why Presidents Richard 
     Nixon, Ronald Reagan and George H.W. Bush negotiated the SALT 
     I, START I and START II agreements. It is why President 
     George W. Bush negotiated the Moscow Treaty. All four 
     recognized that reducing the number of nuclear arms in an 
     open, verifiable manner would reduce the risk of nuclear 
     catastrophe and increase the stability of America's 
     relationship with the Soviet Union and, later, the Russian 
     Federation. The world is safer today because of the decades-
     long effort to reduce its supply of nuclear weapons.
       As a result, we urge the Senate to ratify the New START 
     treaty signed by President Obama and Russian President Dmitry 
     Medvedev. It is a modest and appropriate continuation of the 
     START I treaty that expired almost a year ago. It reduces the 
     number of nuclear weapons that each side deploys while 
     enabling the United States to maintain a strong nuclear 
     deterrent and preserving the flexibility to deploy those 
     forces as we see fit. Along with our obligation to protect 
     the homeland, the United States has responsibilities to 
     allies around the world. The commander of our nuclear forces 
     has testified that the 1,550 warheads allowed under this 
     treaty are sufficient for all our missions--and seven former 
     nuclear commanders agree. The defense secretary, the chairman 
     of the Joint Chiefs of Staff and the head of the Missile 
     Defense Agency--all originally appointed by a Republican 
     president--argue that New START is essential for our national 
     defense.
       We do not make a recommendation about the exact timing of a 
     Senate ratification vote. That is a matter for the 
     administration and Senate leaders. The most important thing 
     is to have bipartisan support for the treaty, as previous 
     nuclear arms treaties did.
       Although each of us had initial questions about New START, 
     administration officials have provided reasonable answers. We 
     believe there are compelling reasons Republicans should 
     support ratification.
       First, the agreement emphasizes verification, providing a 
     valuable window into Russia's nuclear arsenal. Since the 
     original START expired last December, Russia has not been 
     required to provide notifications about changes in its 
     strategic nuclear arsenal, and the United States has been 
     unable to conduct on-site inspections. Each day, America's 
     understanding of Russia's arsenal has been degraded, and 
     resources have been diverted from national security tasks to 
     try to fill the gaps. Our military planners increasingly lack 
     the best possible insight into Russia's activity with its 
     strategic nuclear arsenal, making it more difficult to carry 
     out their nuclear deterrent mission.
       Second, New START preserves our ability to deploy effective 
     missile defenses. The testimonies of our military commanders 
     and civilian leaders make clear that the treaty does not 
     limit U.S. missile defense plans. Although the treaty 
     prohibits the conversion of existing launchers for 
     intercontinental and submarine-based ballistic missiles, our 
     military leaders say they do not want to do that because it 
     is more expensive and less effective than building new ones 
     for defense purposes.
       Finally, the Obama administration has agreed to provide for 
     modernization of the infrastructure essential to maintaining 
     our nuclear arsenal. Funding these efforts has become part of 
     the negotiations in the ratification process. The 
     administration has put forth a 10-year plan to spend $84 
     billion on the Energy Department's nuclear weapons complex. 
     Much of the credit for getting the administration to add $14 
     billion to the originally proposed $70 billion for 
     modernization goes to Sen. Jon Kyl, the Arizona Republican 
     who has been vigilant in this effort. Implementing this 
     modernization program in a timely fashion would be important 
     in ensuring that our nuclear arsenal is maintained 
     appropriately over the next decade and beyond.
       Although the United States needs a strong and reliable 
     nuclear force, the chief nuclear danger today comes not from 
     Russia but from rogue states such as Iran and North Korea and 
     the potential for nuclear material to fall into the hands of 
     terrorists. Given those pressing dangers, some question why 
     an arms control treaty with Russia matters. It matters 
     because it is in both parties' interest that there be 
     transparency and stability in their strategic nuclear 
     relationship. It also matters because Russia's cooperation 
     will be needed if we are to make progress in rolling back the 
     Iranian and North Korean programs. Russian help will be 
     needed to continue our work to secure ``loose nukes'' in 
     Russia and elsewhere. And Russian assistance is needed to 
     improve the situation in Afghanistan, a breeding ground for 
     international terrorism.
       Obviously, the United States does not sign arms control 
     agreements just to make friends. Any treaty must be 
     considered on its merits. But we have here an agreement that 
     is clearly in our national interest, and we should consider 
     the ramifications of not ratifying it.
       Whenever New START is brought up for debate, we encourage 
     all senators to focus on national security. There are plenty 
     of opportunities to battle on domestic political issues 
     linked to the future of the American economy. With our 
     country facing the dual threats of unemployment and a growing 
     federal debt bomb, we anticipate significant conflict between 
     Democrats and Republicans. It is, however, in the national 
     interest to ratify New START.

  Mr. VOINOVICH. Mr. President, I believe many of these experts remain 
concerned, as do I, that a failure to ratify the treaty would be 
exploited by those factions in Russia who wish to revert back to our 
Cold War posture. Such a failure could easily be used by those factions 
to play on Russian nationalism, which I fear, from what I have heard 
from some people, is bordering on paranoia. Since I last spoke about 
the treaty, a number of our new NATO allies have come out and supported 
the treaty because they believe the treaty's approval should help 
advance other issues related to Russia, including the lack of 
compliance with the Conventional Forces in Europe Treaty, tactical 
nuclear weapons, and cooperation on missile defense.
  For example, during his recent visit to Washington, Polish President 
Bronislaw Komorowski has stated he supports the treaty's ratification. 
And at a press conference at the conclusion of the NATO Lisbon Summit, 
Hungarian Foreign Minister Janos Martonyi stated:

       My country has a very special experience with Russia, and 
     also a special geographic location . . . We advocate 
     ratification of START. It is in the interest of my nation, of 
     Europe and most importantly for the transatlantic alliance.

  During this press conference, Lithuania's Foreign Minister pointed 
out that he saw the treaty as a prologue to additional discussions with 
Russia about other forms of nuclear arms in the region such as tactical 
nuclear weapons. About three weeks ago, I received a call from 
President Zatlers, the President of Latvia, urging me: Mr. Senator, 
please ratify the START treaty.
  Still, as history has taught us, the United States must make clear in 
regard to our relationship with Russia that it will not be at the 
expense of our NATO allies. Thus, I was pleased to see President Obama 
provided the leaders of our Central and European allies public 
reassurance regarding the U.S. commitment to article V of the North 
Atlantic Treaty during the recent NATO summit in Lisbon which, by the 
way, was one of the best NATO summits I think that has been held in the 
last dozen years. The President reaffirmed this commitment in his 
December 18, 2010 letter to the majority and minority leaders, and I 
hope that letter from the President has been circulated among my 
colleagues. It is very clear on where the President stands.

       This NATO Summit meeting in Lisbon last month underscore, 
     we are proceeding with a missile defense system in Europe 
     designed to provide full coverage for NATO members on the 
     continent, as well as deployed U.S. forces, against the 
     growing threat posed by the proliferation of ballistic 
     missiles.

  I know that some of my colleagues are concerned with issues related 
to the treaty, including the modernization of our nuclear 
infrastructure, missile defense, and verification, and I will discuss 
each of these issues to explain why I believe they have been adequately 
addressed.
  First of all, as others have pointed out--and I reiterate--Senator 
Kyl has made a valiant effort to ensure we modernize the U.S. nuclear 
infrastructure. I have worked with Senator Kyl on reviewing the treaty. 
I believe his hard work has led to nuclear modernization receiving the 
attention it deserves. It is long overdue. I remember Pete Domenici 
talking about the fact that we needed to do something about it and, 
frankly, we ignored Senator Domenici.
  In a December 1, 2010, letter to Senators Kerry and Lugar, the 
National Lab Directors from Lawrence Livermore, Los Alamos, and Sandia 
stated:

       We are very pleased by the update to the Section 1251 
     report, as it would enable the laboratories to execute our 
     requirements for ensuring a safe, secure, reliable, and 
     effective stockpile under the Stockpile Stewardship and 
     Management Plan.

  I ask unanimous consent to have that letter printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:


[[Page 23173]]


                                                 December 1, 2010.
     Hon. John Kerry,
     Hon. Richard Lugar,
     Senate Committee on Foreign Relations, U.S. Senate, 
         Washington, DC.
       Dear Chairman Kerry and Ranking Member Lugar: This letter 
     is a joint response to the letters received November 30, 
     2010, by each of us in our current roles as directors of the 
     three Department of Energy/National Nuclear Security 
     Administration (NNSA) laboratories--Los Alamos National 
     Laboratory, Lawrence Livermore National Laboratory, and 
     Sandia National Laboratories.
       We are very pleased by the update to the Section 1251 
     Report, as it would enable the laboratories to execute our 
     requirements for ensuring a safe, secure, reliable and 
     effective stockpile under the Stockpile Stewardship and 
     Management Plan. In particular, we are pleased because it 
     clearly responds to many of the concerns that we and others 
     have voiced in the past about potential future-year funding 
     shortfalls, and it substantially reduces risks to the overall 
     program. We believe that, if enacted, the added funding 
     outlined in the Section 1251 Report update--for enhanced 
     surveillance, pensions, facility construction, and Readiness 
     in Technical Base and Facilities (RTBF) among other 
     programs--would establish a workable funding level for a 
     balanced program that sustains the science, technology and 
     engineering base. In summary, we believe that the proposed 
     budgets provide adequate support to sustain the safety, 
     security, reliability and effectiveness of America's nuclear 
     deterrent within the limit of 1550 deployed strategic 
     warheads established by the New START Treaty with adequate 
     confidence and acceptable risk.
       As we emphasized in our testimonies, implementation of the 
     future vision of the nuclear deterrent described by the 
     bipartisan Strategic Posture Commission and the Nuclear 
     Posture Review will require sustained attention and continued 
     refinement as requirements are defined and baselines for 
     these major projects are established. We appreciate the fact 
     that this 1251 update calls out the importance of being 
     flexible and the need to revisit these budgets every year as 
     additional detail becomes available.
       We look forward to working with you and the Administration 
     to execute this program to ensure the viability of the U.S. 
     nuclear deterrent.
           Sincerely,
     Dr. George Miller,
       Lawrence Livermore National Laboratory,
     Dr.Michael Anastasio,
       Los Alamos National Laboratory,
     Dr. Paul Hommert,
       Sandia National Laboratories.

  Mr. VOINOVICH. Mr. President, a number of experts I have consulted 
with have pointed out--and I have agreed with--the need for the 
President to provide public assurances regarding the U.S. commitment to 
a robust missile defense system. So I was pleased with the President's 
letter to our leadership reiterating such support. Here I quote 
directly from the President's letter:

       Pursuant to the National Missile Defense Act of 1999, it 
     has long been the policy of the United States to deploy as 
     soon as is technologically possible an effective National 
     Missile Defense system capable of defending the territory of 
     the United States against limited ballistic missile attack, 
     whether accidental, unauthorized, or deliberate.

  With regard to the Russian assertion--and we have heard this--that 
the treaty's preamble prohibits the buildup in missile defense 
capabilities, the President has stated in very clear language that the 
``United States did not and does not agree with the Russian statement. 
We believe the continued development and deployment of U.S. missile 
defense systems, including qualitative and quantitative improvements to 
such systems, do not and will not threaten the strategic balance with 
the Russian Federation. . . . we believe the continued improvement and 
deployment of U.S. missile defense systems do not constitute a basis 
for questioning the effectiveness and the viability of the New START 
Treaty, and therefore would not give rise to circumstances justifying 
Russia's withdrawal from the Treaty.''
  Mr. President, as I have discussed, I know many of my colleagues have 
concerns about the treaty. But after my own research and consultations 
with current and former Secretaries of State and numerous foreign 
policy experts, including many conservative experts, as well as 
yesterday's 3-hour closed session in the Old Senate Chamber, I support 
this treaty and do not believe the concerns that we have heard from 
some of our colleagues rise to the level at which the Senate should 
reject the treaty.
  The President signed the treaty in April. It is now December, and we 
are coming up on 1 full year without any verification regime in place. 
I believe we should work to get this treaty done because these 
verification procedures are needed now. I am not the only one who 
believes this. I recently received a letter from Bulgaria's Ambassador 
to the United States, Elena Poptodorova. I have known her a long time 
and worked with her to get Bulgaria into NATO. She wrote:

       A failure to swiftly ratify the treaty would mean 
     discontinuation of the verification regime that could result 
     in negative consequences in the nuclear disarmament, 
     especially taking into consideration the significant 
     strategic nuclear advantage of Russia.
       In my view, it will also put at risk the future cooperation 
     with Russia and will impede the negotiations on priorities, 
     such as conventional forces and tactical nuclear weapons in 
     Europe. It is of utmost importance that Russia be kept at the 
     negotiating table beyond the scope of the New START Treaty, 
     in particular on issues like Iran, Afghanistan and other 
     global security challenges.

  I ask unanimous consent that her letter be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                    Embassy of the


                                         Republic of Bulgaria,

                                  Washington DC, December 6, 2010.
       Dear Senator Voinovich: I am writing to you on an urgent 
     note regarding the pending ratification of the New START.
       Firstly, I would like to reiterate the strong support of 
     the Bulgarian government for the treaty. As you may know, 
     already on the margins of the NATO Summit, the Bulgarian 
     Foreign Minister Nickolay Mladenov, together with his 
     colleagues from Denmark, Latvia, Lithuania, Hungary and 
     Norway, explicitly pointed out that the treaty is in the 
     interest of European and global security. I firmly believe 
     that it is indeed key to the national security interest of 
     each country as well as to the stability of the transatlantic 
     alliance.
       Secondly, Bulgaria shares the assessment that the treaty 
     allows the United States to maintain an effective and robust 
     nuclear deterrent and to keep modernizing its nuclear weapons 
     complex. It is crucial that it does not put any constraints 
     on the US missile defense programs and allows for the 
     deployment of effective missile systems.
       Furthermore, a failure to swiftly ratify the treaty would 
     mean discontinuation of the verification regime that could 
     result in negative consequences in the nuclear disarmament 
     especially taking into consideration the significant 
     strategic nuclear advantage of Russia. In my view, it will 
     also put at risk the future cooperation with Russia and will 
     impede the negotiations on priorities such as conventional 
     forces and tactical nuclear weapons in Europe. It is of 
     utmost importance that Russia be kept at the negotiating 
     table beyond the scope of the New START, in particular on 
     issues like Iran, Afghanistan and other global security 
     challenges.
       I strongly urge you, dear Senator, to consider the 
     arguments above and act in favor of a swift ratification of 
     the New START. The new treaty is yet another step toward 
     guaranteeing our common security and the United States 
     leadership is absolutely essential in this respect.
       I trust I will be taken in good faith.
           Sincerely,
                                                Elena Poptodorova,
                                                       Ambassador.

  Mr. VOINOVICH. Mr. President, I also bring to my colleagues' 
attention a July 14, 2010, letter to Senators Levin, Kerry, McCain, and 
Lugar, from former commanders of the Strategic Air Command and U.S. 
Strategic Command. Again, I hope my colleagues will read that letter. 
They list three reasons for support of the treaty. I quote from their 
second and third reasons:

       The New START Treaty contains verification and transparency 
     measures--such as data exchanges, periodic dated updates, 
     notification, unique identifiers on strategic systems, some 
     access to telemetry and onsite inspections--that will give us 
     important insights into Russian strategic nuclear forces and 
     how they operate those forces.
       We will understand Russian strategic nuclear forces much 
     better with the treaty that would be the case without it.

  These former military commanders go on to state that the U.S. nuclear 
armaments--again, I think this is for all of us as American people to 
realize--``will continue to be a formidable force that will ensure 
deterrence and give the President, should it be necessary, a broad 
range of military options.''

[[Page 23174]]

  I ask unanimous consent that letter sent to the Foreign Relations 
Committee be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                    July 14, 2010.
     Senator Carl Levin,
     Chairman,
     Senate Armed Services Committee.
     Senator John F. Kerry,
     Chairman,
     Senate Foreign Relations Committee.
     Senator John McCain,
     Ranking Member,
     Senate Armed Services Committee.
     Senator Richard G. Lugar,
     Ranking Member,
     Senate Foreign Relations Committee.
       Gentlemen: As former commanders of Strategic Air Command 
     and U.S. Strategic Command, we collectively spent many years 
     providing oversight, direction and maintenance of U.S. 
     strategic nuclear forces and advising presidents from Ronald 
     Reagan to George W. Bush on strategic nuclear policy. We are 
     writing to express our support for ratification of the New 
     START Treaty. The treaty will enhance American national 
     security in several important ways.
       First, while it was not possible at this time to address 
     the important issues of non-strategic weapons and total 
     strategic nuclear stockpiles, the New START Treaty sustains 
     limits on deployed Russian strategic nuclear weapons that 
     will allow the United States to continue to reduce its own 
     deployed strategic nuclear weapons. Given the end of the Cold 
     War, there is little concern today about the probability of a 
     Russian nuclear attack. But continuing the formal strategic 
     arms reduction process will contribute to a more productive 
     and safer relationship with Russia.
       Second, the New START Treaty contains verification and 
     transparency measures--such as data exchanges, periodic data 
     updates, notifications, unique identifiers on strategic 
     systems, some access to telemetry and on-site inspections--
     that will give us important insights into Russian strategic 
     nuclear forces and how they operate those forces. We will 
     understand Russian strategic forces much better with the 
     treaty than would be the case without it. For example, the 
     treaty permits on-site inspections that will allow us to 
     observe and confirm the number of warheads on individual 
     Russian missiles; we cannot do that with just national 
     technical means of verification. That kind of transparency 
     will contribute to a more stable relationship between our two 
     countries. It will also give us greater predictability about 
     Russian strategic forces, so that we can make better-informed 
     decisions about how we shape and operate our own forces.
       Third, although the New START Treaty will require U.S. 
     reductions, we believe that the post-treaty force will 
     represent a survivable, robust and effective deterrent, one 
     fully capable of deterring attack on both the United States 
     and America's allies and partners. The Department of Defense 
     has said that it will, under the treaty, maintain 14 Trident 
     ballistic missile submarines, each equipped to carry 20 
     Trident D-5 submarine-launched ballistic missiles (SLBMs). As 
     two of the 14 submarines are normally in long-term 
     maintenance without missiles on board, the U.S. Navy will 
     deploy 240 Trident SLBMs. Under the treaty's terms, the 
     United States will also be able to deploy up to 420 Minuteman 
     III intercontinental ballistic missiles (ICBMs) and up to 60 
     heavy bombers equipped for nuclear armaments. That will 
     continue to be a formidable force that will ensure deterrence 
     and give the President, should it be necessary, a broad range 
     of military options.
       We understand that one major concern about the treaty is 
     whether or not it will affect U.S. missile defense plans. The 
     treaty preamble notes the interrelationship between offense 
     and defense; this is a simple and long-accepted reality. The 
     size of one side's missile defenses can affect the strategic 
     offensive forces of the other. But the treaty provides no 
     meaningful constraint on U.S. missile defense plans. The 
     prohibition on placing missile defense interceptors in ICBM 
     or SLBM launchers does not constrain us from planned 
     deployments.
       The New START Treaty will contribute to a more stable U.S.-
     Russian relationship. We strongly endorse its early 
     ratification and entry into force.
           Sincerely,
     General Larry Welch,
       USAF, Ret.
     General John Chain,
       USAF, Ret.
     General Lee Butler,
       USAF, Ret.
     Admiral Henry Chiles,
       USN, Ret.
     General Eugene Habiger,
       USAF, Ret.
     Admiral James Ellis,
       USN, Ret.
     General Bennie Davis,
       USAF, Ret.

  Mr. VOINOVICH. Mr. President, I also ask unanimous consent to have 
printed in the Record a September 7, 2010, opinion piece from the Wall 
Street Journal by former Secretary of State George Shultz, who served 
under President Reagan. I think all of us who are familiar with George 
Shultz's record have high respect and regard for him.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

             [From the Wall Street Journal, Sept. 7, 2010]

                Learning From Experience on Arms Control

                         (By George P. Shultz)

       The New Start treaty provides an instructive example of 
     how, when everyone works at it, an important element of arms 
     control treaties can be improved by building on past treaties 
     and their execution.
       I remember well the treaty on Intermediate-Range Nuclear 
     Forces (INF), as I had a hand in negotiating the treaty and 
     in getting implementation started. Our mantra was stated 
     almost endlessly by President Ronald Reagan, to the point 
     that Soviet leader Mikhail Gorbachev would join in: ``Trust 
     but verify.''
       Reagan insisted on, and we obtained, on-site inspection of 
     the critical elements in the treaty: the destruction of all 
     missiles and a method of ensuring that new ones were not 
     produced. This critical element in the treaty built on an 
     earlier one. The Stockholm Agreement of 1986 was the first 
     U.S.-Soviet agreement to call for on-site observation of 
     military maneuvers. Although not as intrusive as a close look 
     at nuclear facilities, it was, nevertheless an important 
     conceptual breakthrough. The idea of on-site inspection had 
     been accepted and put in practice.
       When the Strategic Arms Reduction Treaty (Start) was 
     negotiated and finally signed in 1991, a different problem 
     presented itself. On-site inspection of missile destruction 
     is one thing; on-site inspection of an active inventory is 
     something else again. You are looking at an ongoing 
     operation. Nevertheless, the challenge was met in part by 
     counting delivery vehicles, clearly building on the 
     successful experience of both sides with the INF treaty.
       However, the political relations between the United States 
     and the then Soviet Union had not yet reached the level of 
     cooperation required to count the number of actual warheads 
     directly without concern about compromising secret design 
     information. The result was a process of attribution derived 
     from access to telemetry--that is, the data transmitted from 
     flight tests of missiles. This allowed for a cap on the 
     maximum number of warheads that could be delivered, which was 
     the number attributed in Start.
       Periodic on-site inspections of the missile sites were 
     provided for under Start, but the experience of both sides 
     was that this process, conducted in a fragmented way, 
     disrupted normal operations and so was unnecessarily 
     burdensome to both sides.
       The Strategic Offensive Reduction Treaty (SORT), negotiated 
     in 2002 under the George W. Bush administration, simply 
     relied on the Start verification regime. In a joint 
     declaration, President Bush and President Vladimir Putin 
     agreed on the desirability of greater transparency, but they 
     left it at that.
       Along came the New Start treaty, signed by President Barack 
     Obama and Russian President Dmitry Medvedev on April 8, 2010. 
     People responsible for monitoring the original Start treaty 
     were included in the negotiations, so operating experience 
     was present at the table. The result was a further advance, 
     building on the transparency measures already in place under 
     the Start treaty. On-site inspection now allows the total 
     number of warheads on deployed missiles literally to be 
     counted directly.
       Thus, up-close observation is substituted for the telemetry 
     that was essential in the original Start treaty. But some 
     cooperation in sharing telemetry information was included in 
     the New Start treaty. This provides some additional 
     transparency and can serve, over time, as a confidence-
     building measure. It is well that some telemetry cooperation 
     will occur so that the principle is retained.
       The New Start treaty, like others before it, was built on 
     previous experience. And, like earlier treaties, it provides 
     a building block for the future. As lower levels of warheads 
     are negotiated, the importance of accurate verification 
     increases and the precedent and experience derived from New 
     Start will ensure that a literal counting process will be 
     available. The New Start treaty also sets a precedent for the 
     future in its provision for on-site observation of 
     nondeployed nuclear systems--important since limits on 
     nondeployed warheads will be a likely next step.
       The problem of interruptions in operations posed by the 
     original Start treaty and identified by the executors of the 
     treaty on both sides is addressed in the New Start treaty in 
     a way that gives more information but is less disruptive. 
     First of all, a running account in the form of regular data 
     exchanges is provided every six months on a wide range of 
     information about their strategic forces, and numerous 
     inspection procedures have been consolidated.
       The United States will have the right to select, for 
     purposes of inspection, from all of

[[Page 23175]]

     Russia's treaty-limited deployed and nondeployed delivery 
     vehicles and launchers at the rate of 18 inspections per year 
     over the life of New Start. It is also important that each 
     deployed and nondeployed intercontinental ballistic missile 
     (ICBM) or submarine-launched ballistic missile (SLBM) or 
     heavy bomber will have assigned to it a unique code 
     identifier that will be included in notifications any time 
     the ICBM or SLBM or heavy bomber is moved or changes status. 
     The treaty establishes procedures to allow inspectors to 
     confirm the unique identifier during the inspection process.
       The notification of changes in weapon systems--for example, 
     movement in and out of deployed status--will provide more 
     information on the status of Russian strategic forces under 
     this treaty than was available under Start. Information 
     provided in notifications will complement and be checked by 
     on-site inspection as well as by imagery from satellites and 
     other assets which collectively make up each side's national 
     technical means of verification.
       Having been involved in the Stockholm Treaty when a 
     breakthrough in on-site inspection was made and when 
     intrusive on-site inspection of key events was a main element 
     of the INF Treaty, I am pleased to see that the building 
     process is continuing, especially since the New Start treaty 
     includes some improved formulations that bode well for the 
     future. Seeing is not quite believing, but it helps. Learning 
     is not limited to what you get from experience, but it helps.
       The original Start treaty expired last December. The time 
     has come to start seeing again, with penetrating eyes, and to 
     start learning from the new experience.

  Mr. VOINOVICH. In his piece, the Secretary discusses the importance 
of verification and closes with this thought:

       The original START Treaty expired last December. The time 
     has come to start seeing again, with penetrating eyes, and to 
     start learning from the new experience.

  In other words, the provisions in terms of verification are new 
compared to the old START treaty.
  Finally, I ask my colleagues to take note of Secretary Rice's 
statement that ``the treaty helpfully reinstates onsite verification of 
Russian nuclear forces, which lapsed with the expiration of the 
original START treaty last year. Meaningful verification was a 
significant achievement of Presidents Reagan and George H.W. Bush, and 
its reinstatement is crucial.''
  I ask unanimous consent that her article in the Wall Street Journal 
be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

              [From the Wall Street Journal, Dec. 7, 2010]

                    New Start: Ratify, With Caveats

                         (By Condoleezza Rice)

       When U.S. President Bush and Russian President Putin signed 
     the Moscow Treaty in 2002, they addressed the nuclear threat 
     by reducing offensive weapons, as their predecessors had. But 
     the Moscow Treaty was different. It came in the wake of 
     America's 2001 withdrawal from the Anti-Ballistic Missile 
     Treaty of 1972, and for the first time the United States and 
     Russia reduced their offensive nuclear weapons with no 
     agreement in place that constrained missile defenses.
       Breaking the link between offensive force reductions and 
     limits on defense marked a key moment in the establishment of 
     a new nuclear agenda no longer focused on the Cold War face-
     off between the Warsaw Pact and NATO. The real threat was 
     that the world's most dangerous weapons could end up in the 
     hands of the world's most dangerous regimes--or of terrorists 
     who would launch attacks more devastating than 9/11. And 
     since those very rogue states also pursued ballistic 
     missiles, defenses would (alongside offensive weapons) be 
     integral to the security of the United States and our allies.
       It is in this context that we should consider the potential 
     contribution of the New Start treaty to U.S. national 
     security. The treaty is modest, reducing offensive nuclear 
     weapons to 1,550 on each side--more than enough for 
     deterrence. While the treaty puts limits on launchers, U.S. 
     military commanders have testified that we will be able to 
     maintain a triad of bombers, submarine-based delivery 
     vehicles and land-based delivery vehicles. Moreover, the 
     treaty helpfully reinstates on-site verification of Russian 
     nuclear forces, which lapsed with the expiration of the 
     original Start treaty last year. Meaningful verification was 
     a significant achievement of Presidents Reagan and George 
     H.W. Bush, and its reinstatement is crucial.
       Still, there are legitimate concerns about New Start that 
     must and can be addressed in the ratification process and, if 
     the treaty is ratified, in future monitoring of the Obama 
     administration's commitments.
       First, smaller forces make the modernization of our nuclear 
     infrastructure even more urgent. Sen. Jon Kyl of Arizona has 
     led a valiant effort in this regard. Thanks to his efforts, 
     roughly $84 billion is being allocated to the Department of 
     Energy's nuclear weapons complex. Ratifying the treaty will 
     help cement these commitments, and Congress should fully fund 
     the president's program. Congress should also support the 
     Defense Department in modernizing our launchers as suggested 
     in the recent defense strategy study coauthored by former 
     Secretary of Defense Bill Perry and former National Security 
     Adviser Stephen Hadley.
       Second, the Senate must make absolutely clear that in 
     ratifying this treaty, the U.S. is not re-establishing the 
     Cold War link between offensive forces and missile defenses. 
     New Start's preamble is worrying in this regard, as it 
     recognizes the ``interrelationship'' of the two. 
     Administration officials have testified that there is no 
     link, and that the treaty will not limit U.S. missile 
     defenses. But Congress should ensure that future Defense 
     Department budgets reflect this.
       Moscow contends that only current U.S. missile-defense 
     plans are acceptable under the treaty. But the U.S. must 
     remain fully free to explore and then deploy the best 
     defenses--not just those imagined today. That includes 
     pursuing both potential qualitative breakthroughs and 
     quantitative increases.
       I have personally witnessed Moscow's tendency to interpret 
     every utterance as a binding commitment. The Russians need to 
     understand that the U.S. will use the full-range of American 
     technology and talent to improve our ability to intercept and 
     destroy the ballistic missiles of hostile countries.
       Russia should be reassured by the fact that its nuclear 
     arsenal is far too sophisticated and large to be degraded by 
     our missile defenses. In addition, the welcome agreements on 
     missile-defense cooperation reached in Lisbon recently 
     between NATO and Russia can improve transparency and allow 
     Moscow and Washington to work together in this field. After 
     all, a North Korean or Iranian missile is not a threat only 
     to the United States, but to international stability broadly.
       Ratification of the treaty also should not be sold as a way 
     to buy Moscow's cooperation on other issues. The men in the 
     Kremlin know that loose nukes in the hands of terrorists--
     some who operate in Russia's unstable south--are dangerous. 
     That alone should give our governments a reason to work 
     together beyond New Start and address the threat from 
     tactical nuclear weapons, which are smaller and more 
     dispersed, and therefore harder to monitor and control. 
     Russia knows too that a nuclear Iran in the volatile Middle 
     East or the further development of North Korea's arsenal is 
     not in its interest. Russia lives in those neighborhoods. 
     That helps explain Moscow's toughening stance toward Tehran 
     and its longstanding concern about Pyongyang.
       The issue before the Senate is the place of New Start in 
     America's future security. Nuclear weapons will be with us 
     for a long time. After this treaty, our focus must be on 
     stopping dangerous proliferators--not on further reductions 
     in the U.S. and Russian strategic arsenals, which are really 
     no threat to each other or to international stability.
       A modern but smaller nuclear arsenal and increasingly 
     sophisticated defenses are the right bases for U.S. nuclear 
     security (and that of our allies) going forward. With the 
     right commitments and understandings, ratification of the New 
     Start treaty can contribute to this goal. If the Senate 
     enters those commitments and understandings into the record 
     of ratification, New Start deserves bipartisan support, 
     whether in the lame-duck session or next year.

  Mr. VOINOVICH. Mr. President, in my opinion, the jury has returned 
its verdict, and the overwhelming evidence is that the Senate should 
ratify the treaty. Support for the treaty should not be viewed through 
the lens of being liberal or conservative, Republican or Democrat, but 
rather what is in the best interest of our national security, the best 
interest of the United States of America, the best interest of our 
relationships with those countries who share our values and understand 
that nuclear proliferation is the greatest international threat to our 
children and grandchildren.
  Mr. President, I urge my colleagues to support this treaty. I am 
prayerful that we have a good vote for it to demonstrate that we have 
come together on a bipartisan basis to do something that needs to be 
done, and something that liberals, conservatives, Republicans and 
Democrats, can come together on to make a difference for the future.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Iowa is recognized.
  Mr. HARKIN. Mr. President, very shortly, the Senate will be voting on 
the continuing resolution that will fund the operations of our Federal 
Government through March--I think, if I am not mistaken, through March 
4. I want to take this time to take a look at what happened recently 
with our appropriations bill, the so-called omnibus

[[Page 23176]]

bill, that was defeated by our colleagues on the other side of the 
aisle.
  Again, without getting into who caused what and did what to whom 
first, which is a game we play a lot around here, the fact remains that 
none of our appropriations bills were passed this year, even though our 
subcommittees on appropriations passed out all of our bills. We passed 
them through the Appropriations Committee and brought them to the 
Senate for consideration, but they were not taken up on the floor. 
Again, we can go into all the reasons why yes, why no. But that is 
water over the dam. The fact is, they weren't; therefore, they weren't 
passed.
  At the end of the year, a week ago, Leader Reid wanted to put 
together all the bills that had been passed out of committee with both 
Republican and Democratic support. Of the 13 bills--and I could be a 
little mistaken--only 1 or 2 had any minor changes or votes against 
them in committee. They were almost all unanimous by Republicans and 
Democrats.
  So to keep the government going, we had this omnibus--in other words, 
putting all the bills together in one package and passing that. My 
friends objected to that. Because that was objected to, we now face 
having a continuing resolution to continue the funding from last year 
on into fiscal year 2011 until March.
  When the Republicans killed this Omnibus appropriations bill last 
week, certain things happened. For example, they chose to close Head 
Start classrooms that serve 65,000 low-income children. By killing the 
omnibus, my friends on the other side of the aisle decided to cut 
childcare subsidies for 100,000 low-income working families. They 
rejected the opportunity to provide lifesaving drugs to people living 
with AIDS, who are on waiting lists for lifesaving medication. They 
passed on the chance to provide 4\1/2\ million more meals to seniors in 
need.
  All of these programs would have received badly needed increases in 
the appropriations bill, but my friends on the other side of the aisle 
said no. They insisted on just keeping the present funding until March.
  Here is another result of killing the omnibus: Millions of American 
students who receive Pell grants--low-income students--to go to college 
no longer know if they will be able to afford college next year.
  We cannot let that happen. The continuing resolution we will vote for 
in a few minutes includes a provision that would close the so-called 
Pell grant shortfall and ensure there is no cut to the Pell grants to 
our poor students.
  The Pell Grant Program is the backbone of our Nation's financial aid 
system. More than 9 million low-income students and middle-income 
students use these grants toward a postsecondary education or 
vocational training.
  People might say: Why has the Pell grant grown so much over the last 
few months? When the economy is bad, more people tend to go to college 
and more people in lower income brackets tend to go to college and try 
to better themselves. That means the cost of providing Pell grants goes 
up, even when the maximum Pell grant award a person can receive stays 
the same.
  Right now, the maximum Pell grant award is $5,550 a year. Nearly 90 
percent of the students who receive that level come from families whose 
annual income is less than $40,000 for a family of four. Without Pell, 
most of them would have no chance of receiving a postsecondary 
education. This is truly a program for low-income students and families 
seeking to better themselves.
  The omnibus bill that was killed last week would have provided the 
additional funding to close that shortfall, to keep the maximum grant 
at $5,550. That was $5.7 billion. Again, that money did not just fall 
from the sky. Other programs across the Federal Government were cut to 
offset that spending. We appropriators decided that maintaining Pell 
was so important that it was worth reducing or eliminating other 
programs, which we did.
  When my friends on the other side killed the omnibus, they put the 
Pell Grant Program in jeopardy and endangered the future of millions of 
disadvantaged students. According to the recent estimates from OMB, if 
we do not close the Pell shortfall before February, the maximum award 
will drop by $1,840, and the Pell grants of all those students with a 
family income of less than $40,000 will fall by 33 percent--from $5,550 
to $3,710 next school year. An estimated 435,000 students who currently 
receive Pell grants would get nothing, zero. Their entire grant would 
be cut off. Why do I say that? Because if the award drops by $1,840, if 
your Pell grant was $1,800, you get nothing. So 435,000 students will 
get no Pell grants whatsoever. That is the situation facing students 
all over the country today.
  We are 4 days away from Christmas. More than 9 million students who 
depend on Pell grants do not know if their financial aid will be 
drastically cut or if they will get any financial aid at all. 
Hopefully, in about 10 minutes, we are going to change that because I 
am hopeful we will all join together today in supporting this 
continuing resolution because as a part of the continuing resolution, 
we close that Pell grant shortfall so we can undo or redo what was 
undone by not taking up the omnibus bill.
  We can keep the government running, but we can also make this fix. It 
is so important to do that now because of certain rules and regulations 
that go into effect after the first of the year that will drastically 
impinge on the Pell Grant Program unless we take this action today.
  I hope all Republicans and Democrats will join in supporting the 
continuing resolution and so do more than 9 million American students 
who depend on Pell grants for their college education.
  Again, I point out that other appropriations will not be settled even 
if we pass the continuing resolution today. Those decisions are kicked 
down the street until March 4 when the continuing resolution expires.
  We are going to face a tough situation on March 4. My friends on the 
other side of the aisle have said that their plan is to cut 
nonsecurity-related appropriations, to cut everything except defense, 
homeland security, military construction, and VA by $100 billion. When 
you exclude all that and you want to cut $100 billion, that is a 21-
percent cut from everything else.
  Do Republicans really want to cut 21 percent from childcare subsidies 
for working families in this economy--a 21-percent cut? Do you really 
want to cut 21 percent from job training programs in this economy? Do 
you really want to cut 21 percent from programs that educate 
disadvantaged children, title I programs, in this economy? Do our 
friends on the other side of the aisle want to cut 21 percent from the 
AIDS drug assistance program? Do you want to cut 21 percent from senior 
meals programs? Do we want to cut 21 percent from the Social Security 
Administration in this economy?
  That is what is coming down the pike on March 4. We kick the ball 
down the field a little bit, but on March 4, the battle will be joined 
again.
  If my friends on the other side of the aisle try to decimate these 
programs that are so critical to the well-being of so many families in 
this country--children, working parents who need childcare, the elderly 
who rely on a lot of these meals--I had it happen in my own family. 
Meals on Wheels keeps people from going to the hospital, lets them stay 
at home and get a decent diet, senior meals programs; job training 
programs so people can train for new jobs--all part of getting our 
country back up again. If they are going to cut 21 percent from all 
this, I want to say there is going to be a battle. We are not going to 
sit back and let these programs be decimated, these programs that mean 
so much to so many families.
  In the meantime, we have to keep the government running, and that is 
what the continuing resolution is all about. As I said, what is so 
important is to make sure the Pell grant shortfall is closed, which it 
is on this continuing resolution.
  I urge all my colleagues to support the continuing resolution and 
hopefully when March 4 comes, again we

[[Page 23177]]

can agree on a bipartisan basis not to decimate so many programs that 
help so many people in our country.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Oklahoma.


                    Nomination of Benita Y. Pearson

  Mr. COBURN. Mr. President, I ask unanimous consent to have printed in 
the Record two letters that have been received by the Senate in regard 
to the nomination of Judge Benita Pearson--one from the National 
Cattlemen's Beef Association; the other from the Farm Animal Welfare 
Coalition.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:
                                              National Cattlemen's


                                             Beef Association,

                                Washington, DC, December 21, 2010.
     Hon. Harry Reid,
     Senate Majority Leader, Capitol Building, Washington, DC.
     Hon. Mitch McConnell,
     Senate Republican Leader, Capitol Building, Washington, DC.
       Dear Majority Leader Reid and Minority Leader McConnell: 
     The National Cattlemen's Beef Association (NCBA) opposes the 
     nomination of Judge Benita Pearson to the United States 
     District Court for the Northern District of Ohio. After 
     reviewing answers she gave to the Senate Judiciary Committee 
     earlier this year, we believe that Judge Pearson's 
     connections to the Animal Legal Defense Fund (ALDF) would 
     make it hard for her to be an impartial judge in cases 
     regarding actions by animal activists. ALDF is an activist 
     organization involved in numerous federal lawsuits and 
     advocates giving animals the same legal rights as humans.
       NCBA expects the Senate to confirm judges who can hear 
     cases and make decisions based on facts and law, rather than 
     judges with strong biases that could lead to legislating from 
     the bench. While we continue to discover more about Judge 
     Pearson's animal activist work, we think her connection to 
     ALDF alone is enough to block her nomination in order for 
     Senators to do more research into her background and 
     character.
       NCBA is the nation's oldest and largest national trade 
     association representing U.S. cattle producers with more than 
     140,000 direct and affiliated members. On behalf of our 
     producers, we urge you to oppose the nomination of Judge 
     Benita Y. Pearson to the United States District Court for the 
     Northern District of Ohio.
           Sincerely,
                                                  Steve Foglesong,
     President.
                                  ____

                                                December 20, 2010.
     Re Nomination of Benita Y. Pearson to the U.S. District Court 
         for the Northern District of Ohio.
     To: The U.S. Senate.
     From: The Farm Animal Welfare Coalition: American Farm Bureau 
         Federation, American Feed Industry Association, American 
         Sheep Industry Association, Biotechnology Industry 
         Organization, Farm Credit System, Livestock Marketing 
         Association, National Milk Producers Federation, National 
         Pork Producers Council, National Renderers Association, 
         United Egg Producers.
       The Farm Animal Welfare Coalition (FAWC), an ad hoc 
     coalition of America's largest farm/ranch, input and related 
     organizations seeks to ensure all federal policy decisions 
     regarding the welfare of food animals are based upon sound 
     science, producer expertise and the rule of law. We write to 
     express our concerns related to the nomination of Benita Y. 
     Pearson to be a judge on the U.S. District Court for the 
     Northern District of Ohio.
       Our concerns stem from Ms. Pearson's membership and 
     participation in the Animal Legal Defense Fund (ALDF), an 
     animal rights organization which uses the courts to impose 
     upon farmers, ranchers, biomedical researchers, animal 
     breeders and other legitimate users of animals its parochial 
     view of animal welfare. ALDF also provides legal support for 
     political organizations dedicated to furthering animal rights 
     in the U.S. ALDF's website is rife with references to 
     ``factory farming,'' and other pejorative descriptions of 
     U.S. farm animal husbandry, as well as touting its current 
     and past lawsuits brought against agriculture interests. Its 
     political positions affecting contemporary American 
     agriculture are well known to us.
       ALDF works to secure ``standing'' for animals in the 
     courts, a legal evolution with multiple potential negative 
     consequences for food production and the survivability of 
     farmers and ranchers in the U.S. Consider the following from 
     ALDF's Executive Director Steven Wells:
       ``One day, hopefully, animals will have more opportunities 
     to be represented in courts so that we can more effectively 
     fight the many injustices they face--perhaps as another kind 
     of recognized `legal person.' In the meantime we must be 
     resourceful and creative in bringing lawsuits to win justice 
     for animals.''
       Ms. Pearson's membership in ALDF demonstrates the 
     willingness of a prospective jurist to go beyond the academic 
     or philosophical contemplation of the legal and political 
     issues of animal rights. Her membership in ALDF translates 
     her personal philosophy into implicit action in support of 
     the goals of the animal rights movement.
       We are encouraged by Ms. Pearson's written statement it is 
     never appropriate for judges to ``indulge their own values in 
     determining the meaning of statutes and the U.S. 
     Constitution;'' however, her responses remain exceedingly 
     vague when it comes to animal rights issues.
       Given one of the ALDF's long-standing priorities is the 
     legal adoption of its so-called ``animal bill of rights''--
     which calls for the undefined ``right of farm animals to an 
     environment that satisfies their basic and psychological 
     needs''--it seems disingenuous of Ms. Pearson to say she is 
     unaware of this priority or even the existence of the ``bill 
     of rights'' given she is a self-described member of the ALDF. 
     She also teaches animal law courses at Ohio's Cleveland-
     Marshall College of Law--including a section on 
     constitutional standing--which, we assume, must touch at some 
     point on the ALDF's 30-year-old political philosophy and 
     history of legal actions.
       Ms. Pearson stated she does not use the term ``animal 
     rights'' and is ``not an advocate for animal rights'' but 
     ``an advocate for doing what is in the best interest of 
     animals.'' However, she does not explain on what sources of 
     information she relies when determining what is ``the best 
     interest of animals,'' but simply her belief the law ``is 
     intended to do what is in the best interest of animals and 
     humans.''
       While it is not a judge's role to legislate from the 
     bench--and we are gratified Ms. Pearson appears to concur--
     judicial decisions set precedent and can precipitate 
     legislation and regulations. It is unsettling that in Ms. 
     Pearson's written responses to direct questions posed by 
     Senate Judiciary Committee members Sens. Charles Grassley, 
     Jeff Sessions and Tom Coburn, she simply restates existing 
     law as relates to animal rights, animal standing, etc. Hence, 
     we do not get a clear picture of her views regarding animal 
     rights and legal standing.
       We would welcome a meeting with Ms. Pearson to discuss 
     these concerns.
       Thank you for consideration of our views. Please feel free 
     to contact any of the organizations listed on this letter or 
     FAWC's coordinator, Steve Kopperud, at 202-776-0071 or 
     [email protected].

  Mr. COBURN. Mr. President, I wish to spend a short time addressing 
the remarks of my friend from Iowa.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. COBURN. Mr. President, the situation we find ourself in is that 
no appropriations bills came to the floor. We did not control that. If 
that had been under our control, I assure you they would have come to 
the floor--and they should. No matter who is in charge, they should 
come. I think he agrees with that. But I will address the greater issue 
we have in front of us.
  Our Nation has a very short time with which to reassess and 
reprioritize what is important in our fiscal matters. That period of 
time, I believe, is shorter than many of my colleagues believe. But I 
have not been wrong in the past 6 years as to where we are coming. I 
have been saying it for 6 years. We are now there.
  The fact is everything is going to have to be looked at--everything--
every project, for every Senator, every position, every program--if we 
are to solve the major problems that are facing this country.
  We all want to help everybody we can, but the one thing that has to 
be borne in mind as we try to help within the framework of our supposed 
limited powers is there has to be a future for the country. The things 
that are coming upon us in the very near future will limit our ability 
to act if we do not act first.
  I take to heart my colleague's very real concern for those who are 
disadvantaged in our country. It is genuine. It is real. We are going 
to have a choice to help them or we are going to have a choice to make 
a whole lot more people disadvantaged. What we have to do is try to 
figure out how compassionately we can do the most we can do and still 
have a country left. That is the question that is going to come before 
us.
  I have no doubt we will have great discussions over the next few 
years on what those priorities are. But we cannot wait to make those 
priorities. We are going to have to squeeze wasteful spending from the 
Pentagon. We have no choice. We have no choice with which to make the 
hard choices in

[[Page 23178]]

front of us. And it does not matter what happened in the past. What is 
going to matter is what happens in the future and whether we have the 
courage to meet the test that is getting ready to face this country.
  There is a lot of bipartisan work going on right now behind the 
scenes in the Senate planning for next year to address those issues.
  I say to my colleague from Iowa, the way to have the greatest impact 
on that issue is to join with us to, No. 1, agree with the severity of 
the problem and the urgency of the problem, and then let's build a 
framework on how we solve it, knowing nobody is going to get what they 
want.


                     Tributes to Retiring Senators

                             Russ Feingold

  Mr. President, I wish to take 2 more minutes to pay a compliment to 
one of my colleagues.
  When I came to the Senate, I visited almost every Member of the 
Senate on the other side of the aisle. I had a wonderful visit with the 
Senator from Wisconsin. We actually--although we are totally opposite 
in our philosophical leanings--had a wonderful time visiting together.
  Senator Feingold is my idea of a great Senator. I want to tell you 
why.
  I left that meeting, and about a week later, I got a note from him 
first of all thanking me for taking the initiative to come and meet 
with him, but also a commitment that he would always be straight with 
me, that when he gave me his word and handshake, it would always be 
that way, and that I could count on him standing for what he believed 
in but knowing he would do the things we needed to do to get things 
done.
  My observation in the last 6 years in this Chamber is I have watched 
one man of great integrity keep his word and hold to his values through 
every crisis and every vote. And every time it was taken where we had 
to come together to do something, this gentleman kept his character. He 
kept his word. He fulfilled the best aspects of the tradition of the 
Senate.
  Although I often--most of the time--am on the opposite side of issues 
from Senator Russ Feingold, I want to tell you, he has my utmost 
admiration and my hope that more would follow his principled stand and 
his wonderful comity as he deals with those on the other side of the 
aisle.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Michigan.
  Mr. LEVIN. Mr. President, I understand the UC has us voting at 2 
o'clock; is that correct?
  The PRESIDING OFFICER. The Senator is correct.
  Mr. LEVIN. Mr. President, I support the continuing resolution. One of 
the many reasons is that the Navy's urgent request for authority for 
the littoral combat ship, (LCS),--program is included.
  The original LCS acquisition plan in 2005 would have had the Navy 
buying both types of LCS vessels for some time while the Navy evaluated 
the capabilities of each vessel. At some time in the future, the Navy 
would have had the option to down select to building one type of 
vessel. But in any case, the Navy would have been operating some number 
of each type of LCS vessel in the fleet, which means that the Navy 
would have been dealing with two shipyards, two supply chains, two 
training pipelines, etc. Last year, after the bids came in too high, 
the Navy decided upon a winner-take-all acquisition strategy to procure 
the fiscal year 2010 vessels under a fixed-price contract, with fixed-
price options for two ships per year for the next 4 years. This revised 
strategy included obtaining the data rights for the winning ship design 
and competing for a second source for the winning design starting in 
fiscal year 2012. Again, the Navy made this course correction because 
the Navy leadership determined that the original acquisition strategy 
was unaffordable.
  Earlier this year, the Navy released the solicitation under that 
revised strategy and has been in discussion with the two contractor 
teams and evaluating those proposals since that time. The bids came in, 
the competition worked, and the prices were lower than the Navy had 
expected. Both teams have made offers that are much more attractive 
than had been expected, and both are priced well below the original, 
noncompetitive offers.
  The Navy has now requested that we approve a different LCS 
acquisition strategy, taking advantage of the low bids and keeping the 
industrial base strong. The Armed Services Committee held a hearing on 
the subject of the change in the Navy's acquisition strategy. We heard 
testimony from the Navy that, after having reviewed the bids from the 
two contractor teams, they should change their LCS acquisition 
strategy.
  The Navy testified that continuing the winner-take-all down select 
would save roughly $1.9 billion, compared with what had been budgeted 
for the LCS program in the Future-Years Defense Program, or FYDP.
  The Navy further testified that revising the acquisition strategy to 
accept the offers from both LCS contractor teams, rather than down 
selecting to one design and starting a second source building the 
winning design, would save $2.9 billion, or $1 billion more than the 
program of record, and would allow the Navy to purchase an additional 
LCS vessel during the same period of the FYDP--20 ships rather than 19 
ships.
  The Navy also testified that additional operation and support costs 
for maintaining two separate designs in the fleet for their service 
life over 40 to 50 years, using net present value calculations, would 
be much less than the additional saving that could be achieved through 
buying both the ships during the FYDP period--approximately $250 
million of additional operating and support costs vs. approximately 
$900 million in savings.
  Those are the facts of the case as we heard from the Navy. Let me 
relay a few quotes from the Navy witnesses at the hearing to amplify on 
these points.
  Secretary of the Navy Raymond E. Mabus, Jr., referring the authority 
to revise the acquisition strategy, said the following:

       This authority, which I emphasize, requires no additional 
     funding, will enable us to purchase more high-quality ships 
     for less money and get them into service in less time. It 
     will help preserve jobs in our industrial shipbuilding base 
     and will create new employment opportunities in an economic 
     sector that is critical to our Nation's military and economic 
     security.

  ADM Gary Roughead, the Chief of Naval Operations, said:

       The dual award also allows us to reduce costs by further 
     locking in a price for 20 ships, enabling us to acquire LCS 
     at a significant savings to American taxpayers and permitting 
     the use of shipbuilding funds for other shipbuilding 
     programs.

  From a broad policy perspective, I believe that the Navy approach of 
a competitive, dual source alternative could help ensure maximum 
competition throughout the lifecycle of the program, meeting the spirit 
and intent of the Weapon Systems Acquisition Reform Act of 2009, MSARA. 
Specifically, it calls for two shipbuilders in continuous competition 
to build the ships for the life of the program. The Navy plans to build 
a total of 55 of these ships, so that could take a number of years.
  Some have raised concerns because the Navy has been unable to reveal 
the specific bid information from the two contractors. Unfortunately, 
the Navy has been prevented from sharing specific bid information 
because that would violate the competitive source selection process by 
revealing proprietary information about the two contactors' bids. 
Because of these constraints, I do not know what is in the bids. But I 
take comfort from knowing that these bids are for fixed- price 
contracts and not for cost-type contracts where a contractor has little 
to lose from underbidding a contract.
  As far as the capability of the two vessels, we heard from Admiral 
Roughead at the hearing that each of the two vessels would meet his 
requirements for the LCS program. I asked Admiral Roughead: ``Do both 
of these vessels in their current configuration meet the Navy's 
requirements?'' Admiral Roughead replied: ``Yes, Senator, they do. Both 
ships do.''
  Some have raised the possibility that development of the mission 
packages

[[Page 23179]]

could cause problems in the shipbuilding program and lead to unexpected 
cost growth, and thereby fail to achieve the extra savings the Navy is 
projecting. In some other shipbuilding programs that might be a 
concern, but I believe that the Navy's fundamental architecture of the 
LCS program divorces changes in the mission package from changes that 
perturb the ship design and ship construction. In the past, when there 
were problems with developing the right combat capability on a ship, 
this almost inevitably caused problems in the construction program. In 
the case of the LCS, the combat capability largely resides in the 
mission packages that connect to either LCS vessel through defined 
interfaces. What that means is that changes inside the mission packages 
should not translate into changes during the ship construction 
schedule--i.e., they are interchangeable. And whatever is happening in 
the mission package development program would apply equally to either 
the down select strategy or the dual source strategy.
  In terms of the proposal's effects on the industrial base and on 
competition, I believe that there would be a net positive. The Navy 
would have the opportunity to compete throughout the life of the 
program, and any erosion in contractor performance could be corrected 
by competitive pressures. For the industrial base, there would be more 
stability in the shipbuilding program. Countless Navy witnesses have 
testified to the Armed Services Committee and the other defense 
committees that achieving stability in our shipbuilding programs is one 
of the best things we in the government can do to help the Navy support 
the shipbuilding industry.
  The Navy's proposal to change to a dual source selection strategy 
would promote that goal of stability, while effectively continuing 
competition throughout the program, and at the same time reducing 
acquisition costs and buying an additional ship over the FYDP.
  Why don't we just wait until sometime after the new Congress convenes 
to deliberate this changed acquisition strategy? Senator Jack Reed 
asked the Navy about this very issue at the hearing. He asked, ``What 
is lost or what do you gain or lose by waiting?'' Assistant Navy 
Secretary Sean Stackley answered that question as follows: ``Workforce 
is leaving, hiring freezes are in effect, vendors are stressed in terms 
of their ability to keep faith with the proposals, the fixed price 
proposals that they have put in place. They will need to have to then 
go back with any further delay and reprice their proposals.''
  What that means is, if we were to let the bids expire at the end of 
December, we would lose the full benefits of the competition and our 
savings will likely be reduced.
  Mr. President, I support including the authority for the Navy to make 
this change in the continuing resolution before us.
  Mr. McCAIN. Mr. President, I rise to oppose the littoral combat 
ships, LCS, provision in the continuing resolution, CR. That 
provision--which, according to the Congressional Budget Office, CBO, 
and the Congressional Research Service, CRS, could cost taxpayers as 
much as $2.9 billion more than the current acquisition strategy--simply 
does not belong in the CR. But once again we are looking at a cloture 
vote on a piece of ``must-pass'' legislation where the majority leader 
has filled the amendment tree and no amendments will be allowed.
  The LCS program has a long, documented history of cost overruns and 
production slippages and yet we now find ourselves inserting an 
authorization provision at the 11th hour to yet again change the 
acquisition strategy of a program that has been plagued by instability 
since its inception.
  Let's look at its track record over the past 5 years:

       1st LCS funded in 2005--LCS 1 Commissioned in Nov 2008 at 
     cost of $637 million;
       2nd LCS funded in 2006--LCS 2 Commissioned in Jan 2010 at 
     cost of $704 million;
       3rd LCS funded in 2006--Canceled by Navy in April 2007, 
     because of cost, and schedule growth;
       4th LCS funded in 2006--Canceled by Navy in Nov 2007, 
     because of cost and schedule growth;
       5th LCS funded in 2007--Canceled by Navy in Mar 2007, 
     because of cost and schedule growth;
       6th LCS funded in 2007--Canceled by Navy in Mar 2007, 
     because projected costs too high;
       7th LCS funded in 2008--Canceled by Navy in Sep 2008, 
     because projected costs too high;
       8th LCS funded in 2009--Christened in Dec 2010 is about 80 
     percent complete; ``New LCS 3'';
       9th LCS funded in 2009--Under construction is about 40 
     percent complete; ``New LCS 4.''

  When the Navy first made its proposal to Congress just over 6 weeks 
ago, it failed to provide Congress with basic information we need to 
decide whether it should approve the Navy's request--including the 
actual bid prices, which would tell us how realistic and sustainable 
they are, and specific information about how capable each of the yards 
are of delivering the ships as needed, on time and on budget. Why don't 
we have that information? Because it's sensitive to the on-going 
competition.
  Last week, in testimony before the Senate Armed Services Committee, 
the General Accountability Office, GAO, the Congressional Research 
Service, CRS, and the Congressional Budget Office, CBO, raised 
important questions that Congress should have answers to before it 
considers approving the proposal.
  Those questions included not only ``how much more (or less) would it 
cost for the Navy to buy LCS ships under its proposal'' but also ``how 
much would the cost be to operate and maintain two versions of LCS, 
under the proposal''. They also asked ``how confident can we be that 
the Navy will be able to stay within budgeted limits and deliver 
promised capability on schedule--given that all of the deficiencies 
affecting LCS' lead ships have not been identified and fully resolved'' 
and ``has the combined capability of the LCS seaframes with their 
mission modules been sufficiently demonstrated so that increasing the 
Navy's commitment to seaframes at this time would be appropriate?''
  Those questions, and others, that GAO, CRS and CBO raised last week, 
are salient and should be answered definitively before we approve of 
the Navy's proposal. Every one of those witnesses conceded that more 
time would help Congress get those answers. And, considering this 
provision in connection with a Continuing Resolution, brought up at the 
11th hour; during a lame-duck session; outside of the congressional 
budget-review period; and without specific information or the 
opportunity for full and open debate by all interested Members, does 
not give us that time. Buying into this process would be an abrogation 
of our constitutional oversight responsibility.
  From 2005 to date, we have sunk $8 billion into the LCS program. And, 
what do we have to show for it? Only two boats commissioned and one 
boat christened--none of which have been shown to be operationally 
effective or reliable--and a trail of blown cost-caps and schedule 
slips. I suggest that, having made key decisions on the program hastily 
and ill-informed, we in Congress are partly to blame for that record. 
But, with the cost of the program from 2010 to 2015 projected to be 
about $11 billion, we can start to fix that--by not including this ill-
advised provision in the CR.
  I ask unanimous consent that my December 10, 2010, letter to the 
chairman and ranking member of the Appropriations Committee, asking 
them not to include the LCS provision in any funding measure, a letter 
from the Project on Government Oversight to Senator Levin and me, and 
the exchange of letters between me and the Chief of Naval Operations, 
CNO, be printed in today's Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                        Chief of Naval Operations,


                                                Navy Pentagon,

                                Washington, DC, November 22, 2010.
     Hon. John S. McCain,
     Ranking Member, Committee on Armed Services,
     U.S. Senate, Washington, DC.
       Dear Senator McCain: Thank you for affording me the 
     opportunity to discuss the Littoral Combat Ship (LCS) 
     program. This program is vital to the future force structure

[[Page 23180]]

     of the United States Navy, and I am committed to its success. 
     The Navy tackled aggressively and overcame the program's past 
     cost and schedule challenges, ensuring affordability of this 
     new critical warfighting capability.
       The Department has taken action on all four of the 
     recommendations of the August 2010 General Accountability 
     Office (GAO) LCS report.
       The Navy has been operating both LCS designs and collecting 
     design performance data. There are mechanisms in place to 
     ensure design corrections identified in building and testing 
     the first four ships are incorporated in the operating ships, 
     ships under construction, and ships yet to be awarded.
       The Navy will update the Test and Evaluation Master Plan 
     (TEMP) for the LCS, to reflect the Program of Record 
     following the Milestone B (MS B) decision.
       The Navy will update test and evaluation and production of 
     LCS seaframes and mission modules following the MS B 
     decision.
       The Navy has completed a robust independent cost analysis 
     of the LCS lifecycle using estimating best practices and 
     submitted this estimate to the Office of the Secretary of 
     Defense (OSD) for comparison with the Cost Assessment and 
     Program Evaluation (CAPE) group independent estimate.
       These recommendations and the Department's responses apply 
     for either the down-select or the dual block-buy approach and 
     the Department's concurrence and related actions with the 
     recommendations (included in Appendix III of the August GAO 
     report) will not change in either case.
       As you know, Navy has taken delivery of the first two ships 
     and the third and fourth ships are under construction. The 
     performance of the USS FREEDOM (LCS 1) and USS INDEPENDENCE 
     (LCS 2) and their crews are extraordinary and affirm the 
     value and urgent need for these ships. For the Fiscal Years 
     (FYs) 2010-2014 ships, Navy has been pursuing the 
     congressionally authorized down-select to a ten ship block-
     buy. Competition for the down-select has succeeded in 
     achieving very affordable prices for each of the ten ship 
     bids which reflect mature designs, investments made to 
     improve performance, stable production, and continuous labor 
     learning at their respective shipyards.
       The result of this competition affords the Navy an 
     opportunity to award a dual block-buy award (for up to 20 
     ships between FYs 2010-2015) with fixed-price type contracts, 
     which achieves significant savings for the taxpayer, while 
     getting more ships to the Fleet sooner and providing greater 
     operational flexibility. The dual block-buy provides much 
     needed stability to the shipbuilding industrial base; from 
     vendors, to systems providers to the shipyards. This will pay 
     important dividends to the Department, and to potential 
     Foreign Military Sales customers, in way of current and 
     future program affordability. The fixed-price type contract 
     limits the government's liability and incentivizes both the 
     government and the shipbuilder to aggressively pursue further 
     efficiencies and tightly suppress any appetite for change. 
     Navy will routinely report on the program's progress and 
     Congress retains control over future ship awards through the 
     annual budget process.
       The agility, innovation and willingness to seize 
     opportunities displayed in this LCS competition reflect 
     exactly the improvements to the way we do business that the 
     Department requires in order to deliver better value to the 
     taxpayer and greater capability to the warfighter.
       I greatly appreciate your support for the LCS Program. As 
     always, if I can be of further assistance, please let me 
     know.
           Sincerely,
                                                      G. Roughead,
     Admiral, U.S. Navy.
                                  ____



                              Project on Government Oversight,

                                 Washington, DC, December 9, 2010.
     Senate Armed Services Committee,
     Senate Russell Office Building,
     Washington, DC.
       Dear Chairman Levin and Ranking Member McCain, The Project 
     On Government Oversight (POGO) is a nonpartisan independent 
     watchdog that champions good government reforms. POGO's 
     investigations into corruption, misconduct, and conflicts of 
     interest achieve a more effective, accountable, open, and 
     ethical federal government. We are troubled by a rushed 
     proposal to change the Navy Littoral Combat Ship (LCS) sea 
     frame acquisition strategy.
       The Navy notified Congress of its proposal to change its 
     acquisition strategy for LCS on November 3, 2010. The 
     proposed strategy, under which the Navy intends to buy up to 
     20 sea frames from two separate shipyards, is a substantial 
     change from the current strategy. Currently, the Navy's 
     strategy is to ``down select'' (i.e. choose a winner) to one 
     yard and (with the winning design in hand) hold another 
     competition later to build a total of 19 ships--only 10 of 
     which are now authorized under law. To implement the new 
     strategy, the Navy needs Congress to sign off on it and wants 
     Congress to do so by mid-December.
       Congress should require that the Navy give it more time to 
     get answers to the serious questions raised by, among others, 
     the Congressional Research Service (CRS) in its November 29, 
     2010, report (attached) and the Government Accountability 
     Office (GAO) in reports issued in August and December 2010. 
     As CRS asked:
       ``Does the timing of the Navy's proposal provide Congress 
     with enough time to adequately assess the relative merits of 
     the down select strategy and the dual-award strategy? . . . 
     Should the Navy ask the contractors to extend their bid 
     prices for another, say, 30 or 60 or 90 days beyond December 
     14, so as to provide more time for congressional review of 
     the Navy's proposal?''
       Congress needs time to consider whether the Navy's new plan 
     is fiscally responsible or whether it increases risks that 
     already exist in the program. Congress should require that 
     the Navy to ask the two contractor teams to extend their bid 
     prices up to 90 days beyond December 14. The two contractor 
     teams are led by, respectively, Lockheed Martin and Austal 
     USA.
       The Navy's justification for its new strategy is the 
     purportedly low prices that both bidders have submitted in 
     the current competition. But it is not clear if these low 
     bids are reasonable. The use of fixed-price contracts won't 
     necessarily prevent an underperforming shipyard from simply 
     rolling its losses into its prices for follow-on ships.
       There can be no doubt that the LCS program has already had 
     significant problems. For example, the sea frames were 
     originally intended to cost about $220 million each. But the 
     ones built and under construction have ballooned up to over 
     $600 million each. Yet without any real data indicating that 
     the program is likely to perform adequately in the future 
     (the Navy has failed to meaningfully implement many of GAO's 
     recommendations in its August report), the Navy wants 
     Congress's help to lock the program into 20 ships over the 
     next five years.
       The Navy has not demonstrated the combined capabilities of 
     the LCS sea frame(s) with its mission packages. It's 
     important to bear in mind that the LCS sea frame is 
     effectively a ``truck.'' The LCS's combat effectiveness 
     derives from its modular ``plug-and-play'' mission packages 
     (e.g., anti-submarine, mine-countermeasures, and surface 
     warfare). The LCS program has been struggling with 
     developmental challenges with these mission packages that 
     have led to postponed testing. As the GAO states, ``Until 
     mission packages are proven, the Navy risks investing in a 
     fleet of ships that does not deliver promised capability.'' 
     Without effective mission capabilities, the LCS will be 
     ``largely constrained to self-defense as opposed to mission-
     related tasks.''
       Furthermore, it is likely that other shipyards that may be 
     just as capable of building LCS sea frames as the two that 
     would be awarded contracts under the dual-award strategy. 
     Some, including CRS, have asked whether other shipyards will 
     be frozen out of the LCS program--even after the first 20 
     ships have been built. For that reason, we believe that, 
     before approving the Navy's proposal, Congress should 
     carefully evaluate whether it may in fact stifle, rather than 
     encourage, competition throughout the program's lifecycle, as 
     is required under the recently enacted weapon systems 
     acquisition reform law.
       This is not the first time the Navy has given Congress 
     insufficient time to evaluate its LCS acquisition strategy. 
     The last time the Navy asked Congress to approve its LCS 
     acquisition strategy--just last year--there was short notice. 
     In 2002, the Navy gave ``little or no opportunity for formal 
     congressional review and consideration'' of the Navy's 
     proposed LCS acquisition strategy, according to CRS. This is 
     deja vu all over again. The taxpayers deserve the careful 
     consideration of Congress.
       In sum, Congress should not approve the Navy's acquisition 
     strategy without a clear picture of the likely costs and 
     risks. Furthermore, Congress should not allow the Navy to 
     continue to skirt oversight. We appreciate your review of 
     this letter and your time, and look forward to working with 
     you on the Littoral Combat Ship Program. If you have any 
     questions, please do not hesitate to contact Nick 
     Schwellenbach.
           Sincerely,
                                                   Danielle Brian,
     Executive Director.
                                  ____

                                                      U.S. Senate,


                                  Committee on Armed Services,

                                Washington, DC, December 10, 2010.
     Hon. Daniel Inouye,
     Chairman, Senate Committee on Appropriations, Washington, DC.
     Hon. Thad Cochran,
     Vice Chairman, Senate Committee on Appropriations, 
         Washington, DC.
       Dear Chairman Inouye and Vice Chairman Cochran: The House-
     passed Full-Year Continuing Appropriations Act, 2011 (H.R. 
     3082) contains a provision that would authorize the 
     Department of the Navy to acquire 20 Littoral Combat Ships 
     (LCS) in lieu of the 10 that were authorized under the 
     National Defense Authorization Act, 2010. As you finalize 
     your Omnibus Appropriations Bill, I wanted to express my 
     opposition to including this provision in the Omnibus 
     Appropriations Bill or any other stop-gap funding measure 
     that you may be considering.
       As you know, the Navy first conveyed to the Senate its 
     proposal that gave rise to this provision just a few weeks 
     ago, and the competition for the LCS ship construction 
     contract is still open. As such, not only has the

[[Page 23181]]

     Senate been given an unusually short time to review such an 
     important proposal but it also has been unable to obtain 
     basic information (on cost and capability, for example) it 
     needs to consider the proposal carefully because they remain 
     source-selection sensitive.
       Moreover, recent reviews of the proposal released by the 
     General Accountability Office (GAO) and the Congressional 
     Research Service (CRS) just yesterday raise a number of 
     salient concerns about it. In the aggregate, those concerns 
     indicate the proposal needs more careful and open 
     deliberation than would be afforded by including it in a late 
     cycle Omnibus or continuing resolution.
       In particular, the GAO identified a full range of 
     uncertainties (relating to, for example, design changes, 
     operations and support costs, mission-package development) 
     that would determine whether the proposal will realize 
     estimated savings--savings that, in its own report release 
     just today, the Congressional Budget Office (CBO) suggests 
     that the Navy may have overstated. GAO also negatively 
     assessed the Navy's implementation of some of the 
     recommendations it made in its August 2010 report--
     recommendations with which the Department of Defense 
     concurred. Against that backdrop, GAO observed that 
     ``decisionmakers do not have a clear picture of the various 
     options available to them related to choosing between the 
     down-select and dual award strategies''.
       Similarly posing a number of important questions (on, for 
     example, the potential relative costs and risks of the two 
     strategies, the proposal's impact on the industrial base, and 
     its effect on competition) in its recent review of the 
     proposal, CRS too noted that this is the third time that the 
     Navy has presented Congress with a difficult choice about how 
     to buy LCS ships late in Congress' budget-review cycle--after 
     budget hearings and often after defense bills have been 
     written.
       Given the foregoing, without the basic information and the 
     time necessary for the Senate to discharge its oversight 
     responsibilities with respect to the Navy's proposal 
     responsibly and transparently, I oppose including this 
     provision in the any funding measure now under consideration. 
     With the LCS' program's troubled history, I suggest that such 
     measures would serve as inappropriate vehicles to make 
     dramatic changes to the program.
       Thank you for your consideration.
           Sincerely,
                                                      John McCain,
     Ranking Member.
                                  ____

                                                      U.S. Senate,


                                  Committee on Armed Services,

                                 Washington, DC, December 8, 2010.
     Admiral Gary Roughead, USN,
     Chief of Naval Operations,
     Navy Pentagon, Washington, DC.
       Dear Admiral Roughead: About a month ago, the Navy first 
     proposed that Congress let it fundamentally change how it 
     buys seaframes under the Littoral Combat Ships (LCS) 
     program--a program that has had serious difficulty on cost, 
     schedule and performance.
       However, in August 2010 and again just today, the General 
     Accountability Office (GAO) issued a report raising serious 
     concerns about the program. In today's report, it also 
     conveyed criticism about the Navy's implementation of its 
     recommendations.
       When you and I met, on November 18, 2010. I asked that you 
     describe how the Navy has implemented GAO's recommendations. 
     In that regard, your letter of November 22, 2010, was 
     unhelpful. Not only did it cite what the Navy will do to 
     implement GAO's recommendations as examples of action it had 
     already taken, most of the action items it described didn't 
     even correspond to GAO's actual recommendations. Indeed, the 
     whole thrust of the Navy's proposal appears basically 
     inconsistent with the recommendation that the Navy not buy 
     excess quantities of ships and mission packages before their 
     combined capabilities have been sufficiently demonstrated.
       Until deficiencies affecting the lead ships have been fully 
     identified and resolved, I simply cannot share your optimism 
     that the LCS program will stay within budgeted limits and 
     deliver required capability on time--an assumption that 
     underpins the Navy's proposal. And, without basic information 
     needed to consider the proposal responsibly (because, with 
     the competition still open, they remain sensitive), I cannot 
     support it at this time.
       Finally, I would like to comment on how undesirable the 
     process by which the Navy has made this proposal has been--
     outside of ``regular order''; during an open competition; in 
     a way that precludes full and open debate by all interested 
     Members; and without full information. I respectfully suggest 
     that neither this program nor the Navy's shipbuilding 
     enterprise have been served well by Congress' making 
     decisions in this way in the past. I, therefore, respectfully 
     ask that this process not be repeated.
       Thank you for your visit. I look forward to continuing to 
     work with you in support of our sailors.
           Sincerely,
                                                      John McCain,
     Ranking Member.
                                  ____

                                                    U.S. Congress,


                                  Congressional Budget Office,

                                Washington, DC, December 10, 2010.
     Hon. John McCain,
     Ranking Member, Committee on Armed Services,
     U.S. Senate, Washington, DC.
       Dear Senator: As you know, the Navy is planning to acquire 
     a fleet of 55 littoral combat ships (LCSs), which are 
     designed to counter submarines, mines, and small surface 
     craft in the world's coastal regions. Two of those ships have 
     already been built, one each of two types: a semiplaning 
     steel monohull built jointly by Lockheed Martin and Marinette 
     Marine in Wisconsin and an all-aluminum trimaran built by 
     Austal in Alabama. The Navy also has two more ships (one of 
     each type) under construction. The remaining 51 ships would 
     be purchased from 2010 through 2031. In response to your 
     request, the Congressional Budget Office (CBO) analyzed the 
     cost implications of the Navy's existing plan for acquiring 
     new LCSs and a new plan that it is currently proposing:
       Existing ``Down-Select'' Plan: In September 2009, the Navy 
     asked the two builders to submit fixed-price-plus-incentive 
     bids to build 10 ships, 2 per year from 2010 to 2014, 
     beginning with funds appropriated for 2010. The Navy planned 
     to select one of the two versions of the LCS, awarding a 
     contract for those 10 ships to the winning bidder, and then, 
     through another competition, to introduce a second yard to 
     build 5 more ships of that same design from 2012 to 2014. In 
     2015, the Navy would purchase 4 more ships; the acquisition 
     strategy for those vessels has not been specified. A total of 
     19 ships of one design would be purchased by 2015 (see Table 
     1). Any shipyard could bid in that second competition except 
     the winner of the contract for the first 10 ships.

                    TABLE 1--LCS PROCUREMENT UNDER DIFFERENT ACQUISITION PLANS, 2010 TO 2015
                                           [Number of ships procured]
----------------------------------------------------------------------------------------------------------------
                                                          2010    2011    2012    2013    2014    2015    Total
----------------------------------------------------------------------------------------------------------------
                                            Existing Down-Select Plan
 
Winner.................................................       2       2       2       2       2       4       19
 
Second Builder.........................................  ......  ......       1       2       2  ......  .......
                                            Proposed Dual-Award Plan
 
Lockheed Martin/Marinette Marine.......................       1       1       2       2       2       2       20
Austal.................................................       1       1       2       2       2       2  .......
----------------------------------------------------------------------------------------------------------------
Source: Congressional Budget Office based on data from the Navy.
Note: The Navy also purchased two ships from each builder between 2005 and 2009. Under the down-select plan, the
  Navy proposes to procure four ships in 2015. How the Navy would purchase those ships has not been determined.

       Proposed ``Dual-Award'' Plan: In November of this year, the 
     Navy proposed to accept the fixed-price-plus-incentive bids 
     from both teams, purchasing 10 of each type of LCS (a total 
     of 20 ships) by 2015, beginning with funds appropriated for 
     fiscal year 2010.
       According to the Navy, the bid prices received under the 
     existing down-select plan were lower than expected, which 
     would allow the service, under the dual-award plan, to 
     purchase 20 ships from 2010 through 2015 for less than it had 
     expected to pay for 19. (The total number of LCSs ultimately 
     purchased would be the same under both plans.)
       CBO has estimated the cost for the LCS program between 2010 
     and 2015 under both plans, using its standard cost-estimating 
     model. By CBO's estimates, either plan would cost 
     substantially more than the Navy's current estimates--but CBO 
     did not have enough information to incorporate in its 
     estimates the bids from both contractors for the 10-ship 
     contract.
       CBO's analysis suggests the following conclusions:
       Whether one considers the Navy's estimates or CBO's, under 
     either plan, costs for the first 19 ships are likely to be 
     less than the amounts included in the Navy's 2011 budget 
     proposal and the Future Years Defense Program (FYDP).
       CBO's estimates show per-ship construction costs that are 
     about the same for the two plans, but those estimates do not 
     take into account the actual bids that have been received.
       Adopting the dual-award plan might yield savings in 
     construction costs, both from

[[Page 23182]]

     avoiding the need for a new contractor to develop the 
     infrastructure and expertise to build a new kind of ship and 
     from the possibility that bids now are lower than they would 
     be in a subsequent competition, when the economic environment 
     would probably be different.
       Operating and maintaining two types of ships would probably 
     be more expensive, however. The Navy has stated that the 
     differences in costs are small (and more than offset by 
     procurement savings), but there is considerable uncertainty 
     about how to estimate those differences because the Navy does 
     not yet have much experience in operating such ships. In 
     addition, if the Navy later decided to use a common combat 
     system for all LCSs (rather than the different ones that 
     would initially be installed on the two different types of 
     vessels), the costs for developing, procuring, and installing 
     that system could be significant.


          The Navy's Estimates of Costs Between 2010 and 2015

       In the fiscal year 2011 FYDP, the Navy proposed spending 
     almost $12 billion in current dollars to procure 19 littoral 
     combat ships between 2010 and 2015 under the down-select 
     plan. (The Navy's budget estimate was submitted in February 
     2010, well before it received the two contractors' bids in 
     the summer of 2010.) The Navy now estimates the cost under 
     that plan to be $10.4 billion, about $1.5 billion (or 13 
     percent) less than its previous estimate.
       Now that the Navy has the two bids in hand, it has 
     formulated a new plan for purchasing LCSs. It estimates that 
     it could purchase 20 ships--10 from each contractor--for 
     about $9.8 billion through 2015, or $0.6 billion less than it 
     currently estimates for the down-select plan and $2.1 billion 
     less than the cost it had estimated for 19 ships in its 2011 
     FYDP. The Navy's projected cost per ship under this plan is 
     21 percent less than its estimate in the 2011 FYDP.
       The Navy's block-buy contracts under either plan would be 
     structured as fixed price plus incentive. Under the terms of 
     the two contractors' bids, the ceiling price is 125 percent 
     of the target cost, and that price represents the maximum 
     liability to the government. The Navy and the contractor 
     would share costs equally over the target price up to the 
     ceiling price. If costs rose to the ceiling price, the result 
     would be a 12.5 percent increase in price to the government 
     compared with the target price at the time the contract was 
     awarded. The Navy has stated that its budget estimates 
     include additional funding above the target price to address 
     some, but not all, of the potential cost increases during 
     contract execution. There is also the potential for cost 
     growth in other parts of the program, such as in the 
     government's purchasing of equipment that it provides to the 
     shipyard, that are not part of the shipyard contract. But the 
     cost of government-furnished equipment is small; it is less 
     than 5 percent of the total cost in the case of the third and 
     fourth ships currently under construction.
       The Navy indicates that its estimates reflect the 
     experience the shipyards gained from building two previous 
     ships and the benefits of competition. Under the down-select 
     plan, the second shipyard that would begin building LCSs in 
     2012 would be inexperienced with whichever ship design was 
     awarded, and the investments required in infrastructure and 
     expertise would make the first ships it produced more 
     expensive than those from a shipyard with an existing 
     contract for LCS construction. Conversely, under the dual-
     award plan, each shipyard would benefit from its experience 
     with building two of the first four LCSs. CBO cannot quantify 
     the benefits of competition, although they undoubtedly exist. 
     In light of the results of the competition for the 10-ship 
     block, it is possible that the competition the Navy would 
     hold in 2012 for the second source in the down-select plan 
     might also yield costs that are below those the Navy (or CBO) 
     estimates, in which case the current estimate of the costs 
     for that plan would be overstated.
       The Navy briefed CBO on some aspects of those estimates but 
     did not provide CBO with the detailed contractor data or with 
     the Navy's detailed analysis of those data. If the 
     contractors' proposals for the 10-ship award are robust and 
     do not change, the Navy's estimates would be plausible 
     although not guaranteed. CBO has no independent data or means 
     to verify the Navy's savings estimate, and costs could grow 
     by several hundred million dollars if the shipbuilders or 
     developers of the combat systems carried by those ships 
     experience cost overruns.


              Comparison of CBO's and the Navy's Estimates

       CBO's estimates of costs are higher and indicate little 
     difference in the per-ship costs of the two plans. They 
     reflect information about the ships currently being built, 
     but they do not incorporate information about the 
     contractors' bids because CBO does not have access to that 
     information. Thus, CBO's estimates do not incorporate any 
     benefits of competition that may have arisen as a result of 
     the Navy's existing down-select acquisition strategy--
     benefits the Navy argues would be locked in by the fixed-
     price-plus-incentive contracts.
       CBO estimates that the down-select plan would cost the Navy 
     about $583 million per ship--compared with an estimated cost 
     of $591 million per ship under the dual-award plan (see table 
     2). Contributing to that difference is the loss of efficiency 
     that would result from having two yards produce one ship per 
     year in 2010 and 2011, rather than having one yard produce 
     two ships per year. Given the uncertainties that surround 
     such estimates, that difference, of less than 2 percent, is 
     not significant.
       CBO's estimates of the cost for the down-select and dual-
     award strategies are higher than the Navy's, by $680 million 
     and $2.0 billion, respectively, because the contractors' 
     prices are apparently much lower than the amounts CBO's cost-
     estimating model would have predicted and even lower than the 
     Navy predicted in its 2011 budget. (CBO's model is based on 
     well-established cost-estimating relationships, and it 
     incorporates the Navy's experience with the first four LCSs.) 
     For example, the Navy's estimate of the average cost for one 
     ship in each of the two yards in 2010 and 2011 is lower than 
     CBO's estimate of what the average cost would be to build 
     (presumably, more efficiently) two ships in one yard. And 
     those lower costs carry through to the years when each yard 
     would be building two ships per year. In addition, again 
     according to the Navy, the contractors were willing to accept 
     a change in the number of ships purchased per year in 2010 
     and 2011 without increasing the total cost of the ships. The 
     Navy stated that the contractors achieved a substantial 
     savings in the cost of materials because, under the block 
     buy, the Navy would be committing to purchase 10 ships from 
     one or both shipyards. With the dual- award strategy, the 
     Navy is attempting to capture the lower prices offered by 
     both builders for 20 ships, rather than just for 10 ships 
     under the down-select strategy.

 TABLE 2--CBO'S AND THE NAVY'S ESTIMATES OF THE COSTS OF THE LCS PROGRAM UNDER DIFFERENT ACQUISITION PLANS, 2010
                                                     TO 2015
                                          [Millions of current dollars]
----------------------------------------------------------------------------------------------------------------
                                                                                                        Average
                                            2010a     2011     2012    2013    2014    2015    Total   ship cost
----------------------------------------------------------------------------------------------------------------
                                                 CBO's Estimates
 
19-Ship Down-Select Plan.................   1,080     1,150b   1,790   2,330   2,350   2,380   11,080        583
20-Ship Dual-Award Plan..................   1,080     1,450b   2,290   2,300   2,330   2,370   11,820        591
 
                                                Navy's Estimates
 
19-Ship Down-Select Plan.................    n.a.       n.a.    n.a.    n.a.    n.a.    n.a.   10,400        547
20-Ship Dual-Award Plan..................    n.a.       n.a.    n.a.    n.a.    n.a.    n.a.    9,800        490
Memorandum:
    2011 President's Budget and FYDP (19-   1,080      1,509   1,808   2,334   2,417   2,748   11,893       626
     ship plan)..........................
----------------------------------------------------------------------------------------------------------------
Source: Congressional Budget Office.
Note: n.a. = not available; FYDP = Future Years Defense Program.
a. The amount for 2010 is the funding level provided in the Defense Appropriations Act, 2010.
b. The amounts for 2011 include additional funds CBO estimates would be needed to complete the 2010 ships.

       With the Navy in possession of contract bids, it is not 
     clear that CBO's cost-estimating model is a better predictor 
     of LCS costs through 2015 than the Navy's estimates. Still, 
     the savings compared with the 2011 FYDP might not be realized 
     if the Navy changes the number of ships that are purchased 
     after the contract has been let or makes design changes to 
     address technical problems, regardless of which acquisition 
     strategy the Navy pursues. Inflation or other escalation 
     clauses in the contract also could add to costs.
       Although CBO estimates that the dual-award plan would be 
     slightly more costly, that approach might also provide some 
     benefits. In materials delivered to the Congress about that 
     strategy, the Navy stated, ``There are numerous benefits to 
     this approach including stabilizing the LCS program and the 
     industrial base with award of 20 ships; increasing ship 
     procurement rate to support operational requirements; 
     sustaining competition through the program; and enhancing 
     Foreign Military Sales opportunities.'' CBO did not evaluate 
     those potential benefits.

[[Page 23183]]




    Implications of the Two Acquisition Plans for Costs Beyond 2015

       A Navy decision to buy both types of ships through 2015 
     would have cost implications after 2015. But whether those 
     long-term costs will be higher or lower would depend on at 
     least three aspects of the Navy's decision:
       Which of the two ship designs the Navy would have selected 
     if it had kept to its original down-select plan;
       Whether the Navy will buy one or both types of ships after 
     2015; and
       Whether the Navy decides eventually to develop a common 
     combat system for both types of ships or to keep the two 
     combat systems (one for each type of ship) that it would 
     purchase under the dual-award approach.
       CBO cannot estimate those costs beyond 2015 because it does 
     not know what the Navy is likely to decide in any of those 
     areas. For example, if the Navy pursued its original down-
     select strategy and chose the ship with lower total ownership 
     costs (the costs of purchasing and operating the ships), 
     switching to the dual-award strategy would increase the 
     overall cost of the program because the Navy would then be 
     buying at least 10 more ships that have higher total 
     ownership costs. Conversely, if the Navy were to choose the 
     ship with higher total ownership costs under the down-select 
     strategy, the dual-award strategy might produce an overall 
     savings. However, some of those savings would be offset by 
     the extra overhead costs of employing a second shipyard and 
     by other types of additional costs described below. Added 
     costs would also arise if the Navy selected the dual-award 
     strategy through 2015 and then decided to build both types of 
     ships after 2015 to complete the 55-ship fleet rather than 
     selecting only one type, in keeping with its current plans.
       The dual-award strategy might entail higher costs to 
     support two full training and maintenance programs for the 
     two ship designs. Under the down-select strategy, the Navy 
     would need training, maintenance, and support facilities to 
     sustain a fleet of 53 LCSs of the winning design. Facilities 
     would be required for both the Pacific Fleet and the Atlantic 
     Fleet--essentially one on each coast of the continental 
     United States. A more modest set of facilities would be 
     required to support the two ships of the losing LCS design, 
     which the Navy could presumably concentrate at a single 
     location. Under a dual-award strategy, the Navy would buy at 
     least 12 ships of each type, with an additional 31 ships of 
     either or both designs purchased after 2015. Thus, a more 
     robust training, maintenance, and support program would be 
     required for the version of the LCS that would have lost 
     under the down-select strategy. The Navy has said that those 
     costs are relatively small and more than offset by the 
     savings generated by the shipyards' bids, but CBO did not 
     have the data to independently estimate those additional 
     costs.
       Finally, another, potentially large, cost would hinge on 
     whether the Navy decides in 2016 or later to select a common 
     combat system for all LCSs. Currently, the two versions of 
     the ship use different combat systems. If the Navy decided to 
     have both versions of the LCS operate with the same combat 
     system, it would incur research, development, and procurement 
     costs, as well as costs to install the new system on 12 of 
     the LCSs already equipped with an incompatible system. Combat 
     systems for the LCS today cost about $70 million each, not 
     including the cost to remove the old system and install the 
     new one. At a minimum, the Navy would lose some efficiency in 
     the production of the combat system under the dual-award plan 
     because neither producer of the combat system would have 
     provided more than 12 systems for installation on LCSs by 
     2015; under the down-select strategy, by contrast, one 
     producer would have provided 19 systems by that year. Thus, 
     the production costs of the combat system are likely to be 
     higher for ships purchased after 2016 under the dual-award 
     strategy than under the existing down-select approach because 
     the manufacturers of those later ships would have had less 
     experience building ships of the same type and thus fewer 
     opportunities to identify cost-saving practices. Furthermore, 
     the costs to operate two combat systems (or to switch to a 
     single combat system later) would probably exceed the cost to 
     operate a single system from the outset.
       I hope you find this information helpful. If you have any 
     more questions, please contact me or CBO staff. The CBO staff 
     contact is Eric Labs.
           Sincerely,
                                             Douglas W. Elmendorf,
                                                         Director.

  Mr. LEAHY. Mr. President, I strongly support the alternate engine for 
the F-35 Joint Strike Fighter. The evidence and the logic for an 
alternate engine easily overwhelm the flawed arguments that have been 
used to attack it. Investments in fighter engine competition will 
reduce costs over the life of the F-35 program. Not only will 
competition cost less than a single engine monopoly; competition also 
forces contractors to be more responsive and reliable. And the F-35 
will comprise a vast percentage of the U.S. strike aircraft fleet. With 
just one engine, our national security would rest on a single point of 
failure. Sole-sourcing the F-35 Joint Strike Fighter engine is simply 
the wrong decision for our country, and I am glad that the continuing 
resolution will preserve funding for this program through March.
  Though misinformation has been spread about the costs of the 
alternate engine, multiple nonpartisan reports suggest that it is 
highly likely to save taxpayer dollars. According to Government 
Accountability Office testimony, the Congress can reasonably expect to 
recoup investment costs over the life of the program. If the so-called 
``Great Engine War'' of the F-16 program is any example, the F-35 
alternate engine might even yield 30 percent cumulative savings for 
acquisition, 16 percent savings in operations and support, and 21 
percent savings over the life cycle of the aircraft. Not only would we 
sacrifice these potential savings by killing the F-35 alternate engine 
program, but that decision would waste the investment we have already 
made in a competitive second engine. Ending fighter engine competition 
for the F-35 is pound foolish without even being penny wise.
  GAO also points to several possible nonfinancial benefits of engine 
competition, including better system performance, increased reliability 
and improved contractor responsiveness. News reports about the broader 
F-35 program reveal what happens when we sole-source crucial large, 
multiyear defense programs. The F-35 faces a range of unanticipated 
problems, delays and cost overruns. Even the independent panel on the 
2010 Quadrennial Defense Review--led by President Clinton's Defense 
Secretary, William Perry, and President Bush's National Security 
Adviser, Stephen Hadley--strongly advocated dual-source competition in 
major defense programs. Without competition, the American people will 
keep paying more and more to buy less and less.
  Without competition, our country's strike aircraft would be one 
engine problem away from fleet-wide grounding. Putting all of our eggs 
in the single engine basket would elevate risks to our troops and their 
missions. Imagine our soldiers in Afghanistan stranded without air 
support simply because we were not wise enough to diversify the program 
to avoid engine-based groundings. With their lives on the line, we 
cannot afford to be irresponsible with this program.
  The continuing resolution appropriately maintains funding for the 
alternate engine program. It does not allow for so-called new starts, 
but neither does it bring programs to a premature end without the 
debate and full consideration here in the Congress that they deserve. 
The alternate engine program will rightly continue, and I expect that 
when programs receive scrutiny during budget consideration next spring, 
the same will also be the case.
  Ensuring engine competition is the right thing to do because it is 
the smart thing to do. Although some have stressed the up-front costs, 
taxpayers stand to save more money over the life of the F-35 program by 
maintaining competitive alternatives. Most importantly, we will 
purchase a better and more reliable product for the people who risk 
their lives to defend our country. I will continue to support engine 
competition that ensures the best product for the troops at the best 
price for the taxpayer.
  Ms. MIKULSKI. Mr. President, I rise to speak about the appropriations 
process and the need to return it to regular order. I come to the floor 
very bitter that we have to pass this continuing resolution, CR. The 
power of the purse is our constitutional prerogative. I am for regular 
order. Regular order is the most important reform to avoid continuing 
resolutions and omnibus bills.
  Regular order starts with the Appropriations subcommittees and then 
full committee marking up 12 individual bills. Chairman Inouye has led 
these bills out of Committee for the last 2 years, as Chairman Byrd did 
before him. Then the full Senate considers 12 bills on the floor and 
all Senators have a chance to amend and vote on the bills. This, 
however, has not happened since the 2006 spending bills. Lack of

[[Page 23184]]

regular order means trillion dollar omnibuses or continuing 
resolutions. If a bill costs a trillion dollars, then opponents ask why 
can't we cut it by 20 percent--what will it matter? But we are dealing 
with actual money; it is not authorizing, which is advisory. There are 
real consequences. If we are really going to tackle the debt, the 
Appropriations Committee must be at the table. Tackling the debt can't 
be done just through Budget and Finance Committees alone.
  What are the real life consequences of this CR? Well, this CR means 
that it will be harder to keep America safe. Under this CR the FBI 
cannot hire 126 new agents and 32 intelligence analysts it needs to 
strengthen national security and counter terrorist threats. The FBI's 
cyber security efforts will also be stalled, even while our Nation 
faces a growing and pervasive threat overseas from hackers, cyber spies 
and cyber terrorists. Cyber security is a critical component to our 
Nation's infrastructure, but this CR doesn't allow the FBI to hire 63 
new agents, 46 new intelligence analysts and 54 new professional staff 
to fight cyber crime. The DEA, ATF and FBI cannot hire 57 new agents 
and 64 new prosecutors to reduce the flow of drugs and fight violence 
and strengthen immigration enforcement along the Southwest border. 
Under this CR, we leave immigration courts struggling to keep pace with 
over 400,000 immigration court cases expected in 2011 because they 
cannot add Immigration Judge Teams who decide deportation and asylum 
cases. We cannot hire 143 new FBI agents and 157 new prosecutors for 
U.S. attorneys to target mortgage and financial fraud scammers and 
schemers who prey on America's hard working, middle class families and 
destroy our communities and economy. We miss the chance to add at least 
75 new U.S. deputy marshals to track down and arrest the roughly 
135,000 fugitive, unregistered child sexual predators hiding from the 
law and targeting children.
  This CR stifles innovation and workforce development. In September, 
Norm Augustine and the National Academy of Sciences updated the 2005 
``Rising Above the Gathering Storm'' report, sounding the alarm that 
the U.S. is still losing ground in science that fuels innovations, and 
brings us new products and new companies. Everyone says they are for 
science, but it appears that no one wants to pay for it. So, under this 
CR, our science agencies, like the National Institute of Standards and 
Technology, NIST, and the National Science Foundation, NSF, will be 
flat funded. For NSF, this would mean 800 fewer research grants, and 
7,000 fewer scientists and technicians working in labs across the 
country on promising research in emerging fields like cyber security 
and nanotechnology. Under a CR, we will let the world catch up by not 
making new investments in science education. We won't just lose the 
Ph.D.s who open avenues of discovery and win the Nobel Prize. We will 
also lose the technicians who are going from making steel and building 
ships to the new, innovation-based manufacturing economy, creating the 
next high tech product. We will also lose the chance to build up 
technical education in key fields like cyber security. Under this CR, 
we cannot expand the supply of cyber security specialists who are 
responsible for protecting U.S. Government computers and information. 
We miss the opportunity to triple funding for the NSF program to train 
cyber professionals for Federal careers, which has brought us more than 
1,100 cyber warriors since 2002 and of whom more than 90 percent take 
jobs with Federal agencies.
  I am also disappointed we will be passing this CR because I believe 
in the separation of powers established by the Constitution. Congress 
should not cede power to the Executive Branch, regardless of which 
party is in the White House. The Constitution gives the power of the 
purse to Congress. I will not cede the power to meet compelling human 
or community needs or create jobs for America and for Maryland. I don't 
want to leave all funding decisions to bureaucracy.
  On the Appropriations Committee, we did our work by reporting 12 
separate bills to the full Senate, but none came to the Senate floor. 
My Commerce, Justice, Science--or CJS--Subcommittee held 6 hearings 
with 14 witnesses to examine agencies' budget requests and policies. We 
heard from 4 inspectors general, IGs, from our major departments and 
agencies: Todd Zinser at Commerce, Glenn Fine at Justice, Paul Martin 
at NASA and Allison Lerner at NSF. We listened to agencies' officials, 
representatives of organizations from sheriffs to scientists and 
interested Senators. My CJS Subcommittee worked in a bipartisan way to 
craft a bill that makes America safer, invests in the American 
workforce of the future and is frugal and gets value for taxpayer 
dollars. Under this CR, all of that work is wasted. Instead of 
fulfilling our constitutional duty of the power of the purse, we are 
leaving it to the Executive Branch to make key funding decisions with 
minimal direction from Congress.
  As I travel around Maryland, people tell me that they are mad at 
Washington. Families are stretched and stressed. They want a government 
that's on their side, working for a strong economy and a safer country. 
They want a government that is as frugal and thrifty as they are. They 
want to return to a more constitutionally based government. This CR is 
not the solution.
  Some Members might say that a CR is OK, it will save money, it 
doesn't matter. Well, even though the CR provides less funding for CJS, 
it doesn't do it smarter because the CR is essentially a blank check 
for the executive branch. Regular order provides direction, telling the 
government to be smarter and more frugal, making thoughtful and 
targeted cuts and modest increases where justified--not government on 
autopilot.
  For example, my CJS appropriations bill tells agencies to cut 
reception and representation funds by 25 percent; eliminate excessive 
banquets and conferences; cut overhead by at least 10 percent--by 
reducing non-essential travel, supply, rent and utility costs; increase 
funding to IGs, the taxpayers' watchdogs at the agencies, and have 
those IGs do random audits of grant funding to find and stop waste and 
fraud; and notify the committee when project costs grow by more than 10 
percent so that we have an early warning system on cost overruns. These 
reforms are lost in any CR.
  We should refocus on the Appropriations Committee. Many Senators have 
only been elected for the first time in the last 6 years, so most have 
never seen regular order and don't know what Appropriations Committee 
is supposed to be. The Appropriations Committee is ``the guardian of 
the purse,'' which puts real funds in the Federal checkbook for the 
day-to-day operations of Federal agencies in Washington, and around the 
Nation and the world. It performs oversight of spending by Federal 
agencies. And it serves as Congress's main tool to influence how 
agencies spend money on a daily basis. Why does this matter? It matters 
because the Appropriations Committee is the tool for aggressive 
oversight and meeting the needs of our constituents. Agencies must 
respond to Appropriations--their budgets depend on it.
  We must preserve the separation of powers, oversight of Federal 
agencies and advocacy for our States and our constituents. I urge my 
colleagues to return to the regular order, and look forward to 
consideration of all 12 appropriations bills on the floor next year.
  Mr. LAUTENBERG. Mr. President, when our colleagues from across the 
aisle blocked the Omnibus appropriations bill they decided to leave our 
Nation less safe and less prepared to thwart the next terrorist attack. 
They chose to put our homeland security on autopilot for the next few 
months--and that is just too risky.
  We had before us an Omnibus bill that addressed the evolving threats 
to our homeland security. As chairman of the Homeland Security 
Appropriations Subcommittee, I can attest to the diligent, bipartisan 
work that went into crafting this legislation, which met our security 
challenges in a fiscally responsible manner. But our colleagues across 
the aisle chose instead to fund

[[Page 23185]]

our homeland security at the status quo levels under a continuing 
resolution. The terrorists aren't operating under the status quo and 
neither should we.
  The terrorists are constantly searching for new ways to threaten our 
way of life. We are approaching the 1-year anniversary of the Christmas 
Day bombing attempt, when a terrorist boarded a flight to Detroit with 
explosives sewn into his underwear. And just in October, printer 
cartridges being shipped from Yemen were found to contain explosives 
that were meant to blow up on cargo planes flying over the east coast 
of the U.S.
  Homegrown terrorism is also a growing threat, as evidenced by the 
Fort Hood shooting, the Times Square bombing attempt and the New York 
City subway plot. Earlier this month, the FBI arrested a suspect who 
was planning to blow up a military recruitment center in Baltimore. And 
last month, the FBI stopped a U.S. citizen who planned a terrorist 
bombing at a Christmas tree-lighting ceremony in Portland, OR.
  Because of the opposition to the Omnibus, our Department of Homeland 
Security and first responders across the country will not have the 
resources they need to anticipate, thwart, and respond to these 
threats: The Transportation Security Administration will not be able to 
purchase new explosive-tracing equipment or hire more intelligence 
officers and canine teams. We won't be able to hire more Federal air 
marshals, who have been stretched thin since the Christmas Day bomb 
plot was foiled. Our airports and seaports won't get new equipment to 
detect radiation and nuclear material. We will have fewer resources to 
secure air cargo and eliminate threats like the package bombs from 
Yemen. We will have less funding to secure our rail and transit 
systems, which are prime targets for terrorists--as we've seen 
everywhere from Madrid and Russia to DC and New York City. The Coast 
Guard won't be able to hire 100 new maritime inspectors or improve 
their capacity to respond to an oil spill. Immigration and Customs 
Enforcement may have to cut back investigations into human trafficking, 
drug smuggling and identity theft. There will be fewer Customs officers 
on duty to keep dangerous cargo and terrorists out of our country. Our 
ability to prepare for natural disasters and other emergencies will 
suffer. Fewer local fire departments will receive needed assistance to 
pay for equipment and training.
  In short, the Republicans' decision to kill the Omnibus will 
shortchange our safety and take chances with our security--and that is 
wrong for our country.
  Beyond homeland security, the Republicans' actions will leave our 
troops worse prepared and our children without the education they 
deserve.
  The Omnibus crafted by Senator Inouye, on the other hand, responsibly 
met all of these needs. And it did so at the exact same funding level 
proposed by the Republican leader in the Appropriations Committee 
earlier this year. In June, 40 Republicans voted to support funding the 
government at this level. Moreover, the Omnibus was crafted on a 
bipartisan basis--and included earmarks and other spending requested by 
Republicans.
  So it is the height of hypocrisy and cynicism for our Republican 
colleagues to attack this bill as wasteful or bloated. Adding to the 
hypocrisy, just two days after killing the Omnibus, which included a 
quarter billion dollars more for border security than the CR, 
Republicans killed the DREAM Act--on the alleged basis that we should 
secure the border first. They are clearly more concerned with handing a 
defeat to our President and to congressional Democrats than with 
governing in a responsible way. Republicans have put politics first and 
it is our troops, our security and our children that will pay the 
price.
  In the aftermath of the wreckage caused by the Republicans' 
opposition to the Omnibus, Senator Inouye was faced with the challenge 
of drafting a slimmed-down continuing resolution that would not leave 
the country vulnerable. This was an extremely difficult task, but 
Senator Inouye was able to craft a bill that provides the most vital 
resources our government needs to function over the next few months. 
This was no small feat and I commend the chairman for his tireless work 
on this bill and throughout this year's appropriations process.
  The PRESIDING OFFICER. The Senator from Colorado.


                      Nomination of Bill Martinez

  Mr. UDALL of Colorado. Mr. President, I rise in response to Senator 
Sessions' comments about a nominee we are going to consider shortly, 
Bill Martinez.
  Senator Sessions just spoke about the ACLU for 30 minutes, trying to 
define Bill Martinez--a district court nominee, not the appeals court 
as Sessions noted--as an ACLU-like nominee and then criticizing his 
hearing responses on the death penalty and the empathy standard. I 
wanted to clarify for the record three points of misinformation.
  Bill Martinez did not work for the ACLU. He served on an advisory 
board regarding cases in Denver. Several Bush nominees were members of 
the Federalist Society and contributors to other conservative 
litigation centers and were confirmed just a few years ago. Bill 
Martinez is not the ACLU, and we ought to be careful to avoid setting 
false standards.
  From the Martinez Hearing:

       Senator Sessions: Have you ever acted as counsel in a 
     matter on behalf of the ACLU? If so, please provide the 
     Committee with a citation for each case, a description of the 
     matter, and a description of your participation in that 
     matter.
       Martinez Response: No.

  Senator Sessions claimed he was dissatisfied with Bill Martinez's 
response regarding the death penalty, stating that he was not clear in 
his beliefs. This is misleading and the record states otherwise.
  From the Martinez Hearing:

       Senator Sessions: Please answer whether you personally 
     believe that the death penalty violates the Constitution.
       Martinez Response: It is clear under current Supreme Court 
     jurisprudence that, with very limited exceptions, the death 
     penalty does not violate the Eighth Amendment to the U.S. 
     Constitution. Gregg v. Georgia, 428 U.S. 153 (1976); Roper v. 
     Simmons, 543 U.S. 551 (2005); Kennedy v. Louisiana, 129 S.Ct. 
     1 (2008). Consistent with this precedent, I do not believe 
     the death penalty is unconstitutional.

  Senator Sessions also claimed that Bill Martinez stated empathy can 
be taken into consideration with legal decisions. This is misleading 
and the record states otherwise.
  From the Martinez Hearing:

       Senator Sessions: Do you think that it's ever proper for 
     judges to indulge their own subjective sense of empathy in 
     determining what the law means?
       Martinez Response: No.

  Let me end on this note. Bill Martinez is a man of high character, he 
is a good man, and he will make an excellent Federal judge. Let us vote 
to confirm Bill Martinez to the Colorado U.S. District Court.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER (Mr. Begich). Under the previous order, the 
second-degree amendment is withdrawn. The question is on agreeing to 
the motion to concur.
  Mr. UDALL of Colorado. Mr. President, I ask for the yeas and nays.
  The PRESIDING OFFICER. The yeas and nays have been ordered.
  The clerk will call the roll.
  The bill clerk called the roll.
  Mr. DURBIN. I announce that the Senator from Indiana (Mr. Bayh) and 
the Senator from Oregon (Mr. Wyden) are necessarily absent.
  Mr. KYL. The following Senators are necessarily absent: the Senator 
from Kansas (Mr. Brownback), the Senator from New Hampshire (Mr. 
Gregg), and the Senator from Missouri (Mr. Bond).
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 79, nays 16, as follows:

                      [Rollcall Vote No. 289 Leg.]

                                YEAS--79

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

[[Page 23186]]


     Ensign
     Enzi
     Feinstein
     Franken
     Gillibrand
     Grassley
     Hagan
     Harkin
     Hutchison
     Inouye
     Johanns
     Johnson
     Kerry
     Kirk
     Klobuchar
     Kohl
     Kyl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Lincoln
     Lugar
     Manchin
     McCaskill
     McConnell
     Menendez
     Merkley
     Mikulski
     Murkowski
     Murray
     Nelson (FL)
     Pryor
     Reed
     Reid
     Roberts
     Rockefeller
     Sanders
     Schumer
     Sessions
     Shaheen
     Shelby
     Snowe
     Specter
     Stabenow
     Tester
     Thune
     Udall (CO)
     Udall (NM)
     Voinovich
     Warner
     Webb
     Whitehouse
     Wicker

                                NAYS--16

     Burr
     Chambliss
     Coburn
     Cornyn
     Crapo
     DeMint
     Feingold
     Graham
     Hatch
     Inhofe
     Isakson
     LeMieux
     McCain
     Nelson (NE)
     Risch
     Vitter

                             NOT VOTING--5

     Bayh
     Bond
     Brownback
     Gregg
     Wyden
  The motion was agreed to.

                          ____________________