[Congressional Record (Bound Edition), Volume 156 (2010), Part 2]
[Senate]
[Pages 2781-2787]
[From the U.S. Government Publishing Office, www.gpo.gov]




                      GRIDLOCK AND RECONCILIATION

  Mr. SPECTER. Mr. President, I am now going to speak about the subject 
of gridlock which confronts this body and the use of the reconciliation 
process to enact comprehensive health care reform.

[[Page 2782]]

  We have seen an extraordinary display of gridlock, evidenced at the 
present time. We have some 30 judicial nominees which are pending, and 
I ask unanimous consent to have printed in the Record the list of 
nominees following my remarks.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  (See exhibit 1.)
  Mr. SPECTER. We have some 64 executive branch nominees who are now 
pending, and I ask unanimous consent to have printed in the Record a 
list of these nominees following my remarks.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  (See exhibit 2.)
  Mr. SPECTER. We have some 13 ambassadorial positions pending, only 1 
of which I am advised is controversial, and I ask unanimous consent to 
have printed in the Record a list of these 13 positions following my 
remarks.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  (See exhibit 3.)
  Mr. SPECTER. On many occasions, the majority leader has been 
compelled to file a cloture petition, which is well known on this 
Senate floor. I don't believe it even has to be explained to C-SPAN 
viewers, even though it is technical and arcane, because it has been 
used so often. But in case anyone new is watching C-SPAN2--or perhaps I 
should say in case anybody is watching C-SPAN2--just a word of 
explanation. If a Senator places a hold on a nomination, that is a 
signal for a filibuster.
  Unfortunately, we don't have filibusters. I have been in the Senate 
now since being elected in 1980 and I have been part of only one real 
filibuster. Had we utilized that procedure, perhaps there would be 
fewer holds and fewer moves toward filibuster. People really had to 
stand up here and argue, as Senator Thurman did historically once, for 
some 26 hours. But when the majority leader is compelled to file a 
cloture petition, cloture is invoked, and then some 30 hours must be 
consumed where the Senate can take care of no additional business, the 
two lights are on, there is a quorum call, and it is a colossal waste 
of time.
  I am going to recite the facts in five of these cloture petitions to 
demonstrate that there was never really a controversy. Christopher 
Hill, Ambassador to the Republic of Iraq, had a cloture vote. Yet his 
vote in favor was 73 to 17--hardly controversial. Robert M. Groves, of 
Michigan, to be the Director of the Census, the cloture vote was 76 to 
15--not really a contest there at all. Nobody seriously contested his 
confirmation. David Hamilton to be a judge of the Seventh Circuit, 70 
yeas, 29 nays. A cloture petition was filed on Martha N. Johnson to be 
Administrator of General Services. The vote was 82 to 16. The 
nomination of Barbara Keenan to be a circuit judge in the Fourth 
Circuit, 99 to 0.
  Mr. President, I ask unanimous consent to have printed in the Record 
the details of these cloture motions and confirmations following my 
remarks.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  (See exhibit 4.)
  Mr. SPECTER. So the stage is now set where we have gridlock on the 
issue of comprehensive health care reform. In this situation, we have 
had the bills passed by both the House and the Senate, and we are now 
looking to use reconciliation, a procedure which has been employed some 
22 times in analogous circumstances. Illustrative of the analogous 
circumstances are the use of cloture to pass Medicare Advantage and the 
passage of COBRA, the passage of SCHIP--health care for children--and 
the passage of the welfare reform bill in 1996.
  In a learned article in the New England Journal of Medicine, Dr. 
Henry J. Aaron, an expert on budgetary matters, had this to say:

     [reconciliation] can be used only to implement instructions 
     contained in the budget resolution relating to taxes or 
     expenditures. Congress created reconciliation procedures to 
     deal with precisely this sort of situation. . . .

  And he is referring here to what we have with the Senate-passed bill 
and the House-passed bill.
  Quoting him further:

       The 2009 budget resolution instructed both Houses of 
     Congress to enact health care reform. The House and the 
     Senate have passed similar but not identical bills. Since 
     both Houses have acted but some work remains to be done to 
     align the two bills, using reconciliation to implement the 
     instructions in the budget resolution follows established 
     congressional procedure.

  I ask unanimous consent to have printed in the Record the full text 
of this article following my remarks.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  (See exhibit 5.)
  Mr. SPECTER. So what we have here, essentially, is gridlock created 
by the composition of the two Houses of Congress. We have a situation 
where not one Member on the other side of the aisle voted in favor of 
the health care bill. In the House of Representatives, the vote was 176 
to 1; that is, among the 177 Republicans voting, only 1 out of 177 in 
the House voted in favor. It is hard to see a more precise definition 
of ``gridlock'' than what appears here.
  It would be my hope that we would be able to resolve the issue 
without resorting to reconciliation. If there is any doubt about the 
procedure, our institutional integrity would be enhanced without going 
in that direction. But if you have to fight fire with fire and since it 
is a legitimate means, then we can use it.
  Five years ago, in 2005, the Senate faced a somewhat similar 
situation when the roles were reversed, when it was the Democrats 
filibustering judicial nominees of President Bush. And we find that so 
often it depends on whose ox is being gored as to who takes the 
position. Some of the most vociferous objectors to the use of 
reconciliation on comprehensive health care reform have filled the 
Congressional Record with statements in favor of using reconciliation 
in analogous circumstances when it helped their cause. But in the year 
2000, it was the Democrats stymying Republican judicial nominees. 
During the Clinton administration, it was exactly reversed--it was 
Republicans stymying Clinton's judicial nominees. Fortunately, in 2005 
we were able to work out the controversy. We were able to confirm some 
of the judges, some of the judges were withdrawn, and we did not move 
for what was called the nuclear option, which would have confirmed 
judges by 51 votes.
  The procedural integrity of the Senate is very important. Without 
going into great detail, it was the Senate that saved the independence 
of the Federal judiciary when the Senate acquitted Supreme Court 
Justice Chase in 1805, and it was the Senate that preserved the power 
of the Presidency on the impeachment proceeding of Andrew Johnson in 
1868. Congress sought to have limited the President's power to 
discharge a Cabinet officer in the absence of approval by the Senate. 
Well, the Senate has to confirm, but the Senate doesn't have standing 
to stop the President from terminating the services of a Cabinet 
officer. And there, the Senate saved it through the courageous vote of 
a single Senator--a Kansan, I like to mention, being one originally 
myself.
  So it would be fine if we could find some way to solve the problem, 
but absent that, this Senate reconciliation procedure is entirely 
appropriate. We have gotten much more deeply involved in the research 
and analysis as this issue has come to the floor on comprehensive 
health coverage.
  The gridlock that faces the Senate and the country today has profound 
implications beyond the legislation itself. It is hard to find 
something more important than insuring the millions of Americans now 
not covered or to find something more important than stopping the 
escalating cost of health insurance, driving many people to be 
uninsured and raising the prices for small businesses where it cannot 
be afforded. But the fact is, this gridlock is threatening the capacity 
in this country to govern--really threatening the capacity to govern.

[[Page 2783]]

  Secretary of State Hillary Clinton was before the Subcommittee on 
Foreign Operations of the Committee on Appropriations, and I asked her 
about this issue. I asked her about the President not being able to:

       . . . project the kind of stature and power that he did a 
     year ago because he is being hamstrung by Congress. And it 
     has an impact on foreign policy which we really ought to do 
     everything we can not to have partisanship influence.

  Secretary of State Clinton replied as follows:

       Senator, I think there is certainly a perception that I 
     encounter in representing our country around the world that 
     supports your characterization. People don't understand the 
     way our system operates, they just don't get it. Their view 
     does color whether the United States is in a position--not 
     just this President but our country--is in a position going 
     forward to demonstrate the kind of unity and strength and 
     effectiveness that I think we have to in this very complex 
     and dangerous world.
  She continued a little later:

       We have to be attuned to how the rest of the world sees the 
     functioning of our Government. Because it's an asset. It may 
     be an intangible asset, but it's an asset of great importance 
     and as we sell democracy, and we're the lead democracy in the 
     world, I want people to know that we have checks and 
     balances, but we also have the capacity to move too.

  So what we find is a diminution of the authority and stature of the 
President, a diminution of the authority and stature of the Presidency, 
and ultimately a diminution and reduction in the stature of our country 
unable to deal with these problems. So it would be my hope we could yet 
resolve this issue with a little bipartisanship. It would not take a 
whole lot, but at the moment there is none, with 40 Senators voting no, 
all those on the other side of the aisle, and 176 out of 177 
Republicans in the House voting no. That simply is no way to govern.

                                          EXHIBIT 1--JUDICIAL NOMINEES
----------------------------------------------------------------------------------------------------------------
                                                                                                      Days since
                   Name                               Court                   Nomination date            nom
----------------------------------------------------------------------------------------------------------------
Black, Timothy S.........................  Southern District of Ohio..  12/24/2009.................           74
Butler, Louis B. Jr......................  Western District of          9/30/2009..................          159
                                            Wisconsin.
Chatigny, Robert Neil....................  Second Circuit.............  2/24/2010..................           12
Childs, J. Michelle......................  District of South Carolina.  12/22/2009.................           76
Chin, Denny..............................  Second Circuit.............  10/6/2009..................          153
Coleman, Sharon Johnson..................  Northern District of         2/24/2010..................           12
                                            Illinois.
Conley, William M........................  Western District of          10/29/2009.................          130
                                            Wisconsin.
DeGuilio, Jon E..........................  Northern District of         1/20/2010..................           47
                                            Indiana.
Diaz, Albert.............................  Fourth Circuit.............  11/4/2009..................          124
Feinerman, Gary Scott....................  Northern District of         2/24/2010..................           12
                                            Illinois.
Fleissig, Audrey Goldstein...............  Eastern District of          1/20/2010..................           47
                                            Missouri.
Foote, Elizabeth Erny....................  Western District of          2/4/2010...................           32
                                            Louisiana.
Freudenthal, Nancy D.....................  District of Wyoming........  12/3/2009..................           95
Gergel, Richard Mark.....................  District of South Carolina.  12/22/2009.................           76
Goldsmith, Mark A........................  Eastern District, Michigan.  2/4/2010...................           32
Goodwin, Liu.............................  Ninth Circuit..............  2/24/2010..................           12
Jackson, Brian Anthony...................  Middle District of           10/29/2009.................          130
                                            Louisiana.
Koh, Lucy Haeran.........................  Northern District of         1/20/2010..................           47
                                            California.
Magnus-Stinson, Jane E...................  Southern District of         1/20/2010..................           47
                                            Indiana.
Marshall, Denzil Price Jr................  Eastern District, Arkansas.  12/3/2009..................           95
Martinez, William Joseph.................  District of Colorado.......  2/24/2010..................           12
Navarro, Gloria M........................  District of Nevada.........  12/24/2009.................           74
Pearson, Benita Y........................  Northern District of Ohio..  12/3/2009..................           95
Stranch, Jane Branstetter................  Sixth Circuit..............  8/6/2009...................          214
Thompson, Rogeriee.......................  First Circuit..............  10/6/2009..................          153
Treadwell, Marc T........................  Middle District of Georgia.  2/4/2010...................           32
Tucker, Josephine Staton.................  Central District of          2/4/2010...................           32
                                            California.
Vanaskie, Thomas I.......................  Third Circuit..............  8/6/2009...................          215
Walton Pratt, Tanya......................  Southern District of         1/20/2010..................           47
                                            Indiana.
Wynn, James A. Jr........................  Fourth Circuit.............  11/4/2009..................          124
----------------------------------------------------------------------------------------------------------------

                               Exhibit 2

       Earl J. Gohl was nominated to be the Federal Co-Chairman of 
     the Appalachian Regional Commission on Nov. 17, 2009 and has 
     been waiting 111 days since his nomination.
       Michael C. Camunez was nominated to be the Assistant 
     Secretary for Market Access and Compliance of the Commerce 
     Department on March 2, 2010 and has been waiting 6 days since 
     his nomination.
       Eric L. Hirschhorn was nominated to be the Under Secretary 
     for Export Administration of the Commerce Department on Sept. 
     14, 2009 and has been waiting 175 days since his nomination.
       Timothy McGee was nominated to be the Assistant Secretary 
     for Observation and Prediction on Dec. 21, 2009 and has been 
     waiting 77 days since his nomination.
       Larry Robinson was nominated to be the Assistant Secretary 
     of Commerce for Conservation and Management, NOAA of the 
     Commerce Department on Feb. 4, 2010 and has been waiting 32 
     days since his nomination.
       Francisco ``Frank'' J. Sanchez was nominated to be the 
     Under Secretary for International Trade of the Commerce 
     Department on April 20, 2009 and has been waiting 322 days 
     since his nomination.
       Sharon E. Burke was nominated to be the Director of 
     Operational Energy Plans and Programs of the Defense 
     Department on Dec. 11, 2009 and has been waiting 87 days 
     since her appointment.
       Solomon B, Watson IV was nominated to be the General 
     Counsel of the Army of the Defense Department on Nov. 20, 
     2009 and has been waiting 108 days since his nomination.
       Joseph F. Bader was nominated to be a member of the Defense 
     Nuclear Facilities Safety Board on Oct. 16, 2009 and has been 
     waiting 143 days since his nomination.
       Jessie H. Roberon was nominated to be a member of the 
     Defense Nuclear Facilities Safety Board on Oct. 16, 2009 and 
     has been waiting 143 days since his nomination.
       Peter S. Winokur was nominated to be the Chairman of the 
     Defense Nuclear Facilities Safety Board on Oct. 16, 2009 and 
     has been waiting 143 days since his nomination.
       Jim R. Esquea was nominated to be the Assistant Secretary 
     for Legislation of the Department of Health and Human 
     Services on Aug, 6, 2009 and has been waiting 214 days since 
     his appointment.
       Sherry Glied was nominated to be the Assistant Secretary 
     for Planning and Evaluation of the Department of Health and 
     Human Services on July 9, 2009 and has been waiting 119 days 
     since her appointment.
       Nicole Lurie was nominated to be the Assistant Secretary 
     for Preparedness and Response of the Department of Health and 
     Human Services on June 1, 2009 and has been waiting for 280 
     days since her nomination.
       Richard Sorian was nominated to be the Assistant Secretary 
     for Public Affairs of the Department of Health and Human 
     Services on Oct. 5, 2009 and has been waiting 154 days since 
     his nomination.
       Alan D. Bersin was nominated to be the Commissioner of U.S. 
     Customs and Border Protection of the Department of Homeland 
     Security on Sept. 29, 2009 and has been waiting 160 days 
     since his nomination.
       Rafael Borras was nominated to be the Under Secretary for 
     Management of the Department of Homeland Security on July 6, 
     2009 and has been waiting 245 days since his nomination.
       Steven Jacques was nominated to be the Assistant Secretary 
     for Public Affairs of the Department of Housing and Urban 
     Development on Sept. 29, 2009 and has been waiting 160 days 
     since his nomination.
       Eduardo M. Ochoa was nominated to be the Assistant 
     Secretary for Postsecondary Education of the Education 
     Department on Feb. 24, 2009 and has been waiting 377 days 
     since his nomination.
       Kathleen S. Tighe was nominated to be the Inspector General 
     of the Education Department on Nov. 20, 2009 and has been 
     waiting 108 days since her nomination.
       Donald L. Cook was nominated to be the Deputy Administrator 
     for Defense Programs, National, Nuclear Security 
     Administration of the Energy Department on Dec. 3, 2009 and 
     has been waiting 95 days since his nomination.
       Patricia A. Hoffman was nominated to be the Assistant 
     Secretary for Electricity Delivery and Energy Reliability of 
     the Energy Department on Dec. 9, 2009 and has been waiting 89 
     days since her nomination.
       Jeffrey A. Lane was nominated to be the Assistant Secretary 
     for Congressional and

[[Page 2784]]

     Intergovernmental Affairs of the Energy Department on Feb. 1, 
     2010 and has been waiting 35 days since his nomination.
       Arthur Elkins, Jr. was nominated to be the Inspector 
     General of the Environmental Protection Agency on Nov. 18, 
     2009 and has been waiting 110 days since his nomination.
       Jacqueline A. Berrien was nominated to be the Chairman of 
     the Equal Employment Opportunity Commission on July 16, 2009 
     and has been waiting 235 days since her nomination.
       Chai R. Feldblum was nominated to be the Commissioner of 
     the Equal Employment Opportunity Commission on Sept. 15, 2009 
     and has been waiting 174 days since his nomination.
       Victoria Lipnic was nominated to be the Commissioner of the 
     Equal Employment Opportunity Commission on Nov. 3, 2009 and 
     has been waiting 125 days since her nomination.
       David P. Lopez was nominated to be the General Counsel of 
     the Equal Employment Opportunity Commission on Oct. 26, 2009 
     and has been waiting 133 days since his nomination.
       Jill Long Thompson was nominated to be a member of the Farm 
     Credit Administration on Oct. 16, 2009 and has been waiting 
     143 days since her nomination.
       Patrick K. Nakamura was nominated to be a member of the 
     Federal Mine Safety and Health Review Commission on Nov. 30, 
     2009 and has been waiting 98 days since his nomination.
       Beatrice Hanson was nominated to be the Director of the 
     Office for Victims of Crime for the Justice Department on 
     Dec. 23, 2009 and has been waiting 75 days since her 
     nomination.
       Dawn E. Johnson was nominated to be the Assistant Attorney 
     General for Office of Legal Counsel for the Justice 
     Department on Feb. 11, 2009 and has been waiting 390 days 
     since her nomination.
       John E. Laub was nominated to be the Director of the 
     National Institute of Justice for the Justice Department on 
     Oct. 5, 2009 and has been waiting 154 days since his 
     nomination.
       Michele Marie Leonhart was nominated to be the Drug 
     Enforcement Administrator for the Justice Department on Feb. 
     2, 2010 and has been waiting 34 days since her nomination.
       James P. Lynch was nominated to be the Director of the 
     Bureau of Justice Statistics for the Justice Department on 
     Oct. 29, 2009 and has been waiting 130 days since his 
     nomination.
       Christopher H. Schroeder was nominated to be the Assistant 
     Attorney General for Legal Policy for the Justice Department 
     on June 4, 2009 and has been waiting 277 days since his 
     nomination.
       Mary L. Smith was nominated to be the Assistant Attorney 
     General for Tax Division for the Justice Department and has 
     been waiting 322 days since her nomination.
       J. Patricia Wilson Smoot was nominated to be the Parole 
     Commissioner for the Justice Department on Feb. 1, 2010 and 
     has been waiting 35 days since her nomination.
       James L. Taylor was nominated to be the Chief Financial 
     Officer for the Labor Department on March 3, 2010 and has 
     been waiting 5 days since his nomination.
       Craig Becker was nominated to be a board member of the 
     National Labor Relations Board and has been waiting 242 days 
     since his nomination.
       Brian Hayes was nominated to be a board member of the 
     National Labor Relations Board on July 9, 2009 and has been 
     waiting 242 days since his nomination.
       Mark Pearce was nominated to be a board member of the 
     National Labor Relations Board on July 9, 2009 and has been 
     waiting 242 days since his nomination.
       Mark R. Rosekind was nominated to be a member of the 
     National Transportation Safety Board on Oct. 1, 2009 and has 
     been waiting 158 days since his nomination.
       George Apostolakis was nominated to be the Commissioner of 
     the Nuclear Regulatory Commission on Oct. 13, 2009 and has 
     been waiting 146 days since his nomination.
       William D. Magwood, IV was nominated to be the Commissioner 
     of the Nuclear Regulatory Commission on Oct. 13, 2009 and has 
     been waiting 146 days since his nomination.
       William C. Ostendorrf was nominated to be the Commissioner 
     of the Nuclear Regulatory Commission on Dec. 11, 2009 and has 
     been waiting 87 days since his nomination.
       Benjamin Tucker was nominated to be the Deputy Director for 
     State, Local and Tribal Affairs of the Office of National 
     Drug Control Policy on Aug. 6, 2009 and has been waiting 214 
     days since his nomination.
       Philip E. Coyle was nominated to be the Associate Director 
     for National Security and International Affairs of the Office 
     of Science and Technology Policy on Oct. 27, 2009 and has 
     been waiting 132 days since his nomination.
       Larry Persily nominated to be Federal Coordinator for the 
     Office of the Federal Coordinator Alaska Natural Gas 
     Transportation Projects on Dec. 9, 2009, waiting 89 days.
       Michael W. Punke nominated to be Deputy United States Trade 
     Representative for Geneva with the Office of the United 
     States Trade Representative on Sept. 14, 2009, waiting 175 
     days.
       Islam A. Siddiqui nominated to be Chief Agricultural 
     Negotiator for the Office of the United States Trade 
     Representative on Sept. 24, 2009, waiting 165 days.
       Elizabeth Littlefield, nominated to be President of the 
     Overseas Private Investment Corporation on Nov. 20, 2009, 
     waiting 108 days.
       Carrie Hessler Radelet, nominated to be Deputy Director of 
     the Peace Corps on Nov. 9, 2009, waiting 119 days.
       Joshua Gotbaum, nominated to be Director of the Pension 
     Benefit Guaranty Corporation on Nov. 9, 2009, waiting 119 
     days.
       Marie Collins Johns, nominated to be Deputy Administrator 
     of the Small Business Administration on Dec. 17, 2009, 
     waiting 81 days.
       Winslow Sargeant, nominated to be Chief Counsel for 
     Advocacy of the Small Business Administration on June 8, 
     2009, waiting 273 days.
       Robert Blake, nominated to be Assistant Secretary for South 
     Central Asian Affairs at the State Department on April 27, 
     2009, waiting 315 days.
       Ann Stock, nominated to be Assistant Secretary of 
     Educational and Cultural Affairs of the State Department on 
     Dec. 4, 2009, waiting 95 days.
       Leocadia I. Zak, nominated to be Director of the Trade and 
     Development Agency on Nov. 16, 2009, waiting 112 days.
       Michael P. Huerta, nominated to be Deputy Administrator of 
     the Transportation Department on Dec. 8, 2009, waiting 90 
     days.
       David T. Matsuda, nominated to be Administrator of Maritime 
     Administration of the Transportation Department on Dec. 17, 
     2009, waiting 81 days.
       Lael Brainard, nominated to be Under Secretary for 
     International Affairs for the Treasury Department on March 
     23, 2009, waiting 350 days.
       Jeffery Goldsteing nominated to be Under Secretary for 
     Domestic Finance.
       Michael F. Mundaca, nominated to be Assistant Secretary for 
     Tax Policy at the Treasury Department on Oct. 6, 2009, 
     waiting 153 days.

                               Exhibit 3

       Three other nominations are still awaiting final vote:

       Laura E. Kennedy, a Career Member of the Senior Foreign 
     Service for the rank of Ambassador during her tenure of 
     service as U.S. Representative to the Conference on 
     Disarmament. (Reported out of SFRC on Dec 08, 2009).
       Eileen Chamberlain Donahoe, for the rank of Ambassador 
     during her tenure of service as the United States 
     Representative to the UN Human Rights Council. (Reported out 
     of SFRC on Dec 08, 2009).
       Islam A. Siddiqui, to be Chief Agricultural Negotiator, 
     Office of the United States Trade Representative (USTR), with 
     the rank of Ambassador (Reported by Mr. Baucus, Committee on 
     Finance on Dec 23, 2009).

       The Senate Foreign Relations Committee reported the 
     following 10 nominees out on February 26, 2010. They are 
     awaiting final vote by the Senate to take up their posts.

       Donald E. Booth, to be Ambassador to Ethiopia.
       Scott H. DeLisi, to be Ambassador to Nepal.
       Beatrice Wilkinson Welters, to be Ambassador to Trinidad 
     and Tobago.
       David Adelman, to be Ambassador to Singapore.
       Harry K. Thomas, Jr., to be Ambassador to the Philippines.
       Allan J. Katz, to be Ambassador to Portugal.
       Ian C. Kelly, to be U.S. Representative to the Organization 
     for Security and Cooperation in Europe (OSCE), with the rank 
     of Ambassador.
       Brooke D. Anderson, to be Alternate Representative of the 
     United States of America for Special Political Affairs in the 
     United Nations, with the rank of Ambassador.
       Rosemary Anne DiCarlo, to be the Deputy Representative of 
     the United States of America to the United Nations, with the 
     rank and status of Ambassador Extraordinary and 
     Plenipotentiary, and the Deputy Representative of the United 
     States of America in the Security Council of the United 
     Nations.
       Judith Ann Stewart Stock, to be an Assistant Secretary of 
     State (Educational and Cultural Affairs).

                               Exhibit 4

       Question: On the Cloture Motion (Motion to Invoke Cloture 
     on the Nomination of Christopher R. Hill, of R.I. to be 
     Ambassador to the Republic of Iraq)
       Vote Number: 158; Vote Date: April 20, 2009, 06:51 PM; 
     Required for Majority: 3/5; Vote Result: Cloture Motion 
     Agreed to; Nomination Number: PN171; Nomination Description: 
     Christopher R. Hill, of Rhode Island, to be Ambassador to the 
     Republic of Iraq; Vote Counts: YEAs: 73; NAYs: 17; Not 
     Voting: 9. AS: Y.
       Question: On the Cloture Motion (Motion to Invoke Cloture 
     on the Nomination of Robert M. Groves, to be Director of the 
     Census )
       Vote Number: 230; Vote Date: July 13, 2009, 05:41 PM; 
     Required for Majority: 3/5; Vote Result: Cloture Motion 
     Agreed to; Nomination Number: PN387; Nomination Description: 
     Robert M. Groves, of Michigan, to be Director of the Census; 
     Vote Counts: YEAs: 76; NAYs: 15; Not Voting: 9. AS: Y.

[[Page 2785]]

       Question: On the Motion (Motion to Invoke Cloture on the 
     Nomination of David F. Hamilton, of Indiana, to be U.S. 
     Circuit Judge for the Seventh Circuit.)
       Vote Number: 349; Vote Date: November 17, 2009, 04:37 PM; 
     Required for Majority: 3/5; Vote Result: Motion Agreed to; 
     Nomination Number: PN187; Nomination Description: David F. 
     Hamilton, of Indiana, to be United States Circuit Judge for 
     the Seventh Circuit; Vote Counts: YEAs: 70; NAYs: 29; Not 
     Voting: 1. AS: Y.
       Question: On the Cloture Motion (Motion to Invoke Cloture 
     on the Nomination of Martha A. Johnson to be Administrator of 
     General Services Administration)
       Vote Number: 19; Vote Date: February 4, 2010, 02:47 PM; 
     Required for Majority: 3/5; Vote Result: Cloture Motion 
     Agreed to; Nomination Number: PN393; Nomination Description: 
     Martha N. Johnson, of Maryland, to be Administrator of 
     General Services; Vote Counts: YEAs: 82; NAYs: 16; Not 
     Voting: 2. AS: Y.
       Question: On the Cloture Motion (Motion to Invoke Cloture 
     on the Nomination of Barbara Milano Keenan, of VA, to be U.S. 
     Circuit Judge)
       Vote Number: 29; Vote Date: March 2, 2010, 12:15 PM; 
     Required for Majority: 3/5; Vote Result: Cloture Motion 
     Agreed to; Nomination Number: PN937; Nomination Description: 
     Barbara Milano Keenan, of Virginia, to be United States 
     Circuit Judge for the Fourth Circuit; Vote Counts: YEAs: 99; 
     NAYs: 0 Not Voting: 1. AS: Y.

                               Exhibit 5

               [From the New England Journal of Medicine]

   Forging Ahead--Embracing the ``Reconciliation'' Option for Reform

       The course of health care reform in 2009 resembled the 
     silent movie series ``The Perils of Pauline,'' in which each 
     episode began with a threat to the heroine's life but ended 
     with her salvation.
       Despite repeated near-death experiences, reform legislation 
     passed both houses of Congress. After so many obstacles had 
     been surmounted, the remaining task of reconciling the House 
     and Senate bills seemed doable.
       Then, a political earthquake hit. Republican Scott Brown 
     won the Massachusetts senatorial seat that had been held for 
     47 years by the late Senator Edward M. Kennedy, thwarting the 
     capacity of the remaining 57 Democrats and two independents 
     to bring anything to a vote in the Senate over the united 
     opposition of the 41 Republicans. The election also caused 
     something approaching a panic attack among White House and 
     congressional Democrats, who called variously for dropping 
     health care reform, trying to pass one scaled-back bill or 
     several smaller bills, moving slowly on doing anything, 
     seeking compromise with Republicans on some (unspecified) new 
     approach, or having the House pass the Senate bill subject to 
     modifications, which both houses would pass separately, to 
     make the Senate bill acceptable to the House. Passing the 
     fixes in the last of these options hinged on using 
     ``reconciliation,'' a procedure that requires only a majority 
     vote but that can be used only to implement instructions 
     contained in the budget resolution relating to taxes or 
     expenditures. Passage of the modifications would follow House 
     approval of the Senate-passed bill.
       The idea of using reconciliation has raised concern among 
     some supporters of health care reform. They fear that reform 
     opponents would consider the use of reconciliation high-
     handed. But in fact Congress created reconciliation 
     procedures to deal with precisely this sort of situation--its 
     failure to implement provisions of the previous budget 
     resolution. The 2009 budget resolution instructed both houses 
     of Congress to enact healt care reform. The House and the 
     Senate have passed similar but not identical bills. (Since 
     both houses have acted but some work remains to be done to 
     align the two bills, using reconciliation to implement the 
     instructions in the budget resolution follows established 
     congressional procedure.)
       Furthermore, coming from Republicans, objections to the use 
     of reconciliation on procedural grounds seem more than a 
     little insincere. A Republican president and a Republican 
     Congress used reconciliation procedures in 2001 to enact tax 
     cuts that were supported by fewer than 60 senators. The then-
     majority Republicans could use reconciliation only because 
     they misrepresented the tax cuts as temporary although 
     everyone understood they were intended to be permanent--but 
     permanent cuts would have required the support of 60 
     senators, which they did not have.
       The more substantive objection to the use of reconciliation 
     for passing health care reform derives from the fact that, 
     according to polls, more Americans oppose than support what 
     they think is in the reform bills. It is hardly surprising 
     that people are nervous about health care reform. Most 
     Americans are insured and are reasonably satisfied with their 
     coverage. In principle, large-scale reform could upset 
     current arrangements.
       If public perceptions of the intended and expected effects 
     of the current bills were accurate, democratically elected 
     representatives might be bound to heed the concerns. Because 
     the perceptions are inaccurate, reform supporters have a duty 
     to do a better job of explaining what health care reform will 
     do. When participants in focus groups are informed about the 
     bills' actual provisions, their views become much more 
     positive. The prevailing views have clearly been shaped by 
     opponents' misrepresentations of the reform plans, which 
     supporters have done little to rebut. Opponents have 
     described as a ``government takeover'' plans that would cause 
     tens of millions of people to buy insurance from private 
     companies. They have told people that a plan deemed by the 
     Congressional Budget Office to be a deficit reducer is 
     actually a budget buster. They have fostered the canard that 
     end-of-life counseling would mean the creation of ``death 
     panels'' (a claim that PolitiFact.com labeled ``the lie of 
     the year''). They have persuaded Americans that their 
     insurance arrangements would be jeopardized by plans that 
     would in fact leave most coverage untouched, add coverage for 
     millions of Americans, and protect millions of others from 
     cancellation of their coverage and from unaffordable rate 
     increases in the event of serious illness.
       Meanwhile, supporters have spent most of their time on 
     seemingly endless debates with one another about specific 
     legislative provisions--whether to include a public option in 
     the reform legislation, whether to have a single national 
     insurance exchange or separate state exchanges, how to 
     enforce a mandate that everyone carry insurance and how much 
     to spend on subsidies to make that mandate acceptable, how to 
     enforce a mandate on all but small employers to sponsor and 
     pay for basic coverage for their workers, and scores of other 
     complex and bewildering technical provisions.
       Health care reformers in the administration and Congress 
     have a powerful case to make and, on an issue of such 
     enormous importance, a duty to make it. In addition to 
     reminding Americans that reform will protect, not jeopardize, 
     coverage by preventing insurance companies from canceling 
     coverage or jacking up premiums for the sick, reform 
     advocates should remind them that the proposed legislation 
     will bring coverage to tens of millions of currently 
     uninsured Americans and protect it for scores of millions of 
     others. Reform advocates should explain the legislation's 
     legitimate promise of cost control and quality improvement.
       President Barack Obama has announced a bipartisan meeting 
     on moving the reform process forward. It is an opportunity 
     for all sides to present ideas for improving the bills that 
     already have been passed by both houses of Congress. If 
     modifications are identified that will command the support of 
     simple majorities in both houses, they should be adopted 
     through reconciliation. Then the House should pass the Senate 
     bill.
       Other strategies, in my view, have no prospect of success. 
     Abandoning the reform effort is the worst strategy of all--
     not only for reform advocates, but for the nation. Reform 
     advocates are already on record as supporting reform. Voters 
     who oppose reform will not forget that fact come November, 
     and those who support it will find little reason to make 
     campaign contributions to or turn out to vote for lawmakers 
     who were afraid to use large congressional majorities to 
     implement legislation that would begin long-overdue efforts 
     to extend coverage, slow the growth of spending, and improve 
     the quality of care.
       The start-from-scratch and piecemeal-legislation strategies 
     are invitations to time-consuming failure. The Senate would 
     need 60-vote majorities for every component of such reforms. 
     To be sure, lawmakers could craft a different bill that would 
     extend coverage to fewer people than the current bills do. 
     But they could not institute serious insurance market reforms 
     without assuring a balanced enrollee pool--or assure such a 
     pool without mandating coverage. Nor is it politically 
     possible or ethically fair to mandate coverage without 
     offering subsidies for low- and moderate-income people. And 
     it is not possible to prevent those subsidies from increasing 
     deficits without tax increases or spending cuts, which reform 
     opponents won't support and which would require 60 Senate 
     votes. The call to start anew is naive at best. At worst, it 
     is a disingenuous siren song, luring health care reformers 
     into a political swamp.
       Reformers' best choice is to embrace the democratic process 
     and attempt to persuade voters that the current legislation 
     is in the national interest. They have 10 months to succeed 
     before the midterm elections.
       If would-be reformers retreat in the face of current public 
     opinion polls, they will be sent packing in November. 
     Arguably, they will deserve to lose. If they stand up for 
     their genuinely constructive legislation, they can prevail--
     and will deserve to win.

  Mr. SPECTER. I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Arizona.
  Mr. KYL. Mr. President, I opened the newspaper, the New York Times, 
on Sunday morning and was surprised--shocked--at a full-page 
advertisement I saw. It had a big headline that said: ``What will it 
be, Mr. President? Change or more of the same?'' Then it had four 
photographs or artist's renderings. The first one was of President 
Barack Obama. It gradually

[[Page 2786]]

morphed from Barack Obama into George W. Bush, so the last in the frame 
of four was clearly a likeness of President George W. Bush.
  This was an advertisement paid for by the American Civil Liberties 
Union, the ACLU. I do not know what surprised me more, whether it was 
the audacity and the blatant partisanship of the ad or its ignorance 
and misrepresentation of the law. Either way, it deserves some comment 
today.
  The essence of the ad was to obviously try to put some pressure on 
President Obama not to change his initial decision to transfer the 
trial of Khalid Shaikh Mohammed to the Manhattan Federal district 
court, the so-called article III court, back to a military commission 
where it had originally been. The ad makes the point that ``Barack 
Obama vowed to change Bush-Cheney policies''--I am quoting now--``and 
restore America's values of justice and due process.''
  Of course, those values didn't exist under the Bush administration, 
according to the ACLU. They then say they are ``shocked and concerned'' 
the President is considering changing the 9/11 defendants' trials from 
criminal court back to military commissions. They say that: ``Our 
criminal justice system will resolve the cases more quickly and more 
credibly than the military commissions.'' That is a matter of dispute, 
which I will get back to in a moment, but then there is this sentence: 
``Obama can vigorously prosecute terrorists and keep us safe without 
violating our Constitution.'' The implication, of course, being if you 
go to a military commission, you are violating the Constitution.
  If that is what they mean to convey, and it is clear they do, the 
writers of this ad are obviously intentionally misrepresenting the law. 
The U.S. Supreme Court has upheld military commissions. You can go back 
to the 1950s case of Johnson v. Eisentrager, involving German war 
prisoners.
  The current U.S. Supreme Court in the Hamdan decision made it clear 
the President, with authority from Congress, could establish military 
commissions to try the very people we are talking about, these Islamic 
terrorists. Indeed, the President came to Congress and, with changes 
from the administration recommended by the Justice Department, Congress 
passed the Military Commissions Act of 2006. That act is available to 
try many of these same terrorists. Indeed, the Attorney General has 
made it clear there are four categories of these terrorists held at 
Gitmo. They want to try to release some of them back to their country 
of origin; they believe some of them should be tried in article III 
courts--that is like the Federal district court in Manhattan; others of 
them should be tried before the military commissions that the ACLU 
seems to think would violate due process; and, finally, that they 
intend to hold some of them for the duration of the conflict, which is 
also authorized.
  Here you have one of the, at least I thought, preeminent legal 
authorities in the country--granted they always seem to take the side 
of the little guy without representation or the person who is not 
looked upon with great favor who needs legal representation, frequently 
to represent cases that represent different points of view--certainly, 
performing a service to our legal community over the years, most people 
I think would acknowledge. But now they have turned into a blatant 
partisan political entity that I think can have no more credibility in 
court for both reasons: First, because of the nature of this, morphing 
President Obama's face into President George W. Bush's face and talking 
about changing the Bush-Cheney policies, which obviously they believe 
do not represent America's values of justice and due process, 
contending that you have to go to article III courts to try these 
people or else you are violating our Constitution.
  The final conclusion: ``The President must decide whether he will 
keep his solemn promise to restore our Constitution and due process or 
ignore his vow and continue the Bush-Cheney policies,'' which in their 
view, I gather, means not having constitutional rights and due process.
  Again, this administration helped the Congress write the military 
commissions law. That law is in effect today. The administration 
intends to try many of these same terrorists before those military 
commissions. The constitutionality of military commissions has been 
upheld in the past. The constitutionality of the President and the 
Congress doing so in the future was acknowledged by the Supreme Court 
in the Hamdan case. No court has ruled that the military commissions 
that were thus created in the 2006 act would, as the ACLU suggests, 
violate our Constitution or due process. So what exactly is the ACLU 
talking about?
  Moreover, I said I would get back to it, the ad suggests that the 
``criminal justice system,'' meaning the article III courts, ``will 
resolve these cases more quickly and more credibly than the military 
commissions.''
  Absolutely false, demonstrably false. Khalid Shaikh Mohammed, the 
kind of poster child here, the mastermind of 9/11, was before the 
military commission at Guantanamo, and he said he wanted to plead 
guilty in the military commission. That case could have been over with 
had his guilty plea been accepted.
  I cannot think of a quicker and more successful outcome than 
accepting the guilty plea of Khalid Shaikh Mohammed.
  When the Attorney General came before the Judiciary Committee and 
hemmed and hawed about what his reason was for moving this trial to the 
Manhattan Federal district court, he basically settled on the 
proposition that it would represent a more sure way to gain a 
conviction. I asked him: ``Mr. Attorney General, this defendant has 
agreed to plead guilty before the military commission. How much surer 
of a conviction do you get than that?''
  Well, the Attorney General said he wasn't sure he still wanted to 
plead. But he also assured us, pursuant to a question one of my 
colleagues asked--what would happen if, for some reason, the court 
decided to let him go--the Attorney General said: ``Failure of 
conviction is not an option.''
  In other words, he will be convicted, and both he and the President 
have talked about execution. If the ACLU and the administration are so 
intent on showing off the great American judicial system which presumes 
innocence over guilt--and it is literally unethical for prosecutors to 
go out before the public and guarantee the conviction and execution of 
a defendant--then it seems to me to be rather odd that this Attorney 
General would say: Oh, failure is not an option. He will be convicted 
and, by inference, he will be executed by our wonderful article III 
courts which, of course, presume innocence.
  How the ACLU can say he would be more quickly and more credibly 
treated than through military commissions is beyond me, after these 
particular statements.
  I go back to my original perplexity: As I say, I don't know whether 
to be more surprised by the audacity of this organization with a 
blatantly partisan political ad, obviously highly critical of the Bush-
Cheney administration, implying it did not believe in America's values 
of justice and due process or by the ignorance and misrepresentation of 
the law by the ACLU. They have smart lawyers, so I assume it is not 
ignorance, but they are clearly misleading anyone who reads this ad in 
suggesting both that military commissions would not be pursuant to the 
Constitution or due process but would rather be a continuation of Bush-
Cheney policies. Bear in mind, the new Military Commissions Act of 2006 
is not a Bush-Cheney military commission, this is a current U.S. 
Congress Obama administration military commission law, signed into law 
by President Bush.
  When the ACLU says prosecuting them in the article III courts would 
keep us safe without violating our Constitution, one has to assume they 
believe the Military Commissions Act would be violative of the U.S. 
Constitution, and that is incorrect.
  It is unclear to me what is gained by politicizing this issue. My 
colleague, Lindsey Graham, has talked about the idea of some kind of 
bipartisan arrangement, whereby the President will

[[Page 2787]]

acknowledge the will of the American people, which is very strongly 
against trying these terrorists in the article III courts and in favor 
of trying them in military commissions. It seems to me there is 
sufficient understanding. The administration certainly agrees with the 
Military Commissions Act. It has said it would use that act to try some 
of these terrorists. It doesn't believe that act represents an 
unconstitutional approach to deal with these people. According to 
public opinion surveys, the American public opinion is very strongly of 
the view that these cases should be tried before military commissions.
  That being the case, it seems to me there is an opportunity for us 
not to try to make this a partisan issue but to try to follow what the 
American people believe should be the case; that these cases can and 
should be tried before military commissions when appropriate; that 
there is also a place for them to be tried before article III courts; 
that some of them potentially can be returned to their country of 
origin, although that represents a significant danger, considering the 
fact that about 20 percent of them return to the battlefield to fight 
our forces or that there is a category that cannot be tried in either 
article III courts or before military commissions.
  It seems to me we can have a legitimate discussion of this; that the 
law that the previous President signed into law that represents the 
point of view of both Democrats and Republicans, that allows for 
military commissions, can be used; that the President would be well 
within his rights to use military commissions; that it would comport 
with the law as acknowledged by the U.S. Attorney General and would 
reflect the views of the American people that it is important these 
terrorists be treated, first and foremost, as enemies of the United 
States and only if appropriate in article III courts as common 
criminals.
  Finally, the last point I would make is, to some extent, the location 
of the trial is a lot less important than the primary objective when an 
enemy terrorist is captured; that is, to get intelligence.
  I think this is what upset the American people: when, the first thing 
that happened, after 50 minutes of questioning of the so-called 
Christmas Day bomber, that he was read his Miranda rights and he 
stopped providing intelligence to those who were interrogating him.
  Subsequently, that intelligence interrogation has resumed. But we 
will never know what kind of real-time intelligence was lost as a 
result of the reading of Miranda rights. When we try people in article 
III courts, we are going to have to quickly provide these Miranda 
rights. That ordinarily will mean we give up important--potentially 
give up important intelligence that we could gain by interrogating the 
individual.
  Now, it is not the case that necessarily we would be foreclosed from 
trying the individual in an article III court because we can rely on 
something other than the confession of the individual to gain his 
conviction. In the case of the would-be bomber on Christmas Day, there 
was plenty of physical evidence: he was burned badly, there were 
eyewitnesses, and we did not need a confession of the individual.
  So the Mirandizing in that case was largely irrelevant; the point 
being that what we ought to be doing is getting the intelligence first 
and then deciding which is the appropriate court in which to try the 
individual. In many cases, that will be military commissions. An 
organization which has studied the history of the ACLU should 
appreciate the fact that military commissions are constitutional. They 
do not violate due process rights. A defendant such as Khalid Sheikh 
Mohammed could be tried before a military commission in a perfectly 
appropriate and constitutional way, and it takes nothing away from our 
article III court system or from President Obama's leadership as 
President of the United States to hold those trials of this kind of 
individual in the military commissions.
  To describe this advertisement, I ask unanimous consent that a Fox 
News article dated March 7 be printed in the Record at the conclusion 
of my remarks.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

ACLU Likens Obama to Bush in Ad Slamming Possible Reversal on KSM Trial

       The possibility that President Obama could send the self-
     professed mastermind of the Sept. 11 attacks to a military 
     tribunal has earned him the highest insult from the left--
     that he's another George W. Bush.
       A full-page ad in Sunday's New York Times left no doubt as 
     to how the American Civil Liberties Union feels about the 
     possibility of the president reversing the decision to send 
     Khalid Sheikh Mohammed and his alleged co-conspirators to 
     civilian court.
       ``What will it be Mr. President?'' the ad asks in boldfaced 
     type. ``Change or more of the Same?''
       In the middle of those words are four photos that show 
     Obama's face morphing into Bush's.
       ``Many of us are shocked and concerned that right now, 
     President Obama is considering reversing his attorney 
     general's decision to try the 9/11 defendants in criminal 
     court,'' the advertisement continues. ``Our criminal justice 
     system has successfully handled over 300 terrorism cases 
     compared to only 3 in the military commissions.''
       The ad follows a series of reports that reflect a softening 
     of the administration's position that the accused Sept. 11 
     architects must be tried in federal court instead of military 
     tribunals.
       The public softening is part of a test, a source told Fox 
     News, to gauge how infuriated the left would be by reversing 
     course. The White House knows Republicans like the idea of 
     the tribunals being used--and needs their support on other 
     key national security matters--but a shift on this issue 
     could poison the waters between the president and the liberal 
     base, as demonstrated by the ACLU ad.
       ``As president, Barack Obama must decide whether he will 
     keep his solemn promise to restore our Constitution and due 
     process, or ignore his vow and continue the Bush-Cheney 
     policies,'' the ACLU ad said.
       Republican Sen. Lindsey Graham, R-S.C., speaking on CBS' 
     ``Face the Nation,'' said the ACLU ad was out of line.
       ``The president is getting unholy grief from the left,'' 
     said Graham, who supports moving the defendants to tribunals. 
     ``The ACLU theory of how to manage this war I think is way 
     off base.''
       Some are urging groups like the ACLU to look at the bigger 
     picture.
       Attorney General Eric Holder announced in November that the 
     defendants would be heading to Manhattan civilian court, but 
     that move has generated a huge backlash from New Yorkers, 
     including the mayor and police chief, as well as Republicans 
     in Congress. The backlash has forced the administration to 
     reconsider not just the location of the trial but the forum.
       ``Foreign terrorists ought not to be tried in U.S. courts. 
     Period,'' Senate Minority Leader Mitch McConnell told Fox 
     News. ``They ought to be taken to Guantanamo, detained there, 
     interrogated there and adjudicated there in military 
     tribunals.''
       A source told Fox News that if the administration decides 
     to send the case back to the commissions, it could be part of 
     a larger bargain to get support to close the detention center 
     at Guantanamo Bay and bring those detainees to the U.S. 
     Congress has barred the transfer of prisoners who don't have 
     a path to trial--those who appear to be detained 
     indefinitely--and refused to give the president the money for 
     a facility to house them on American soil.

  Mr. KYL. I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Minnesota.

                          ____________________