[Congressional Record (Bound Edition), Volume 157 (2011), Part 6]
[Senate]
[Pages 8718-8725]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

 NOMINATION OF DONALD B. VERRILLI, JR., TO BE SOLICITOR GENERAL OF THE 
                             UNITED STATES

  The PRESIDING OFFICER. Under the previous order, the Senate will 
proceed to executive session to consider the following nomination, 
which the clerk will report.
  The legislative clerk read the nomination of Donald B. Verrilli, Jr., 
of the District of Columbia, to be Solicitor General of the United 
States.
  The PRESIDING OFFICER. The time until 5:30 will be equally divided.
  The Senator from Vermont is recognized.
  Mr. LEAHY. Mr. President, I don't believe there is going to be a huge 
number of people lined up to speak on this nomination, but I will first 
use part of my reserve time on the Verrilli nomination to speak of 
another matter within the purview of the Judiciary. So I ask unanimous 
consent, with the time being charged to my half hour, that I be 
recognized to speak as in morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                           Judge Richard Linn

  Mr. LEAHY. Mr. President, on the first day of this millennium, 
January 1, 2000, the newest Federal judge, and the first of the 
millennium, was sworn in. Richard Linn became a member of the Federal 
Circuit Court of Appeals at the stroke of midnight, standing in the 
Federal Circuit's courthouse, with a view of the Washington Monument 
lit behind him, and the oath being administered by Chief Judge H.R. 
Mayer.
  President Clinton had been told of the hundreds of nominations he 
would make during his Presidency, one he would never regret would be 
that of Judge Linn. How true that prediction. Judge Linn has brought 
dignity, expertise, and judicial excellence that could set the model 
for all our Federal courts. His calm but brilliant analyses of our most 
complex intellectual property cases reflect the extensive experience he 
had before going on the bench. This experience now benefits all 
Americans.
  My wife Marcelle and I and our children have been privileged to have 
known Dick and Patti Linn for over a generation, as well as their 
wonderful daughters, Debbie and Sandy, and all their family. This 
weekend, their children, son-in-law Erik, and grandchildren, Jaret and 
Dakota, as well as other members of their family, will gather to unveil 
a portrait of Judge Linn. I hope that as people visit the Federal 
Circuit Court of Appeals building or are there on business, that they 
will pause and look. It will give them a chance to see the face of 
justice and a man I admire greatly.
  Mr. President, I ask unanimous consent that we go back on the matter 
before us, with the time still being reserved to me.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LEAHY. I thank the majority leader and the Republican leader for 
reaching an agreement for the Senate to debate and vote on the 
nomination of Don Verrilli to be Solicitor General of the United 
States. By doing so, we were able to vitiate the cloture motion and 
avoid another unnecessary filibuster. Had agreement not been reached, 
this would have been the first filibuster in history of a Solicitor 
General nomination.
  Mr. Verrilli is by all accounts one of the finest lawyers in the 
country, whose extensive experience as an advocate for a wide variety 
of clients will serve him well as Solicitor General, the top advocate 
for the United States. In a long and distinguished career, Mr. Verrilli 
has argued numerous cases before the Supreme Court, Federal appeals 
courts and State appellate courts. He clerked for Judge J. Skelly 
Wright on the DC Circuit and for Justice William Brennan on the U.S. 
Supreme Court. Mr. Verrilli's impressive breadth of experience both in 
Government and in private practice led the Judiciary Committee to 
report his nomination by a vote of 17-1 nearly a month ago. Seven of 
the eight Republican members of the committee joined in supporting Mr. 
Verrilli's nomination.
  The Judiciary Committee heard from many respected lawyers from across 
the political spectrum in support for Mr. Verrilli's nomination. Eight 
former Solicitors General from both Republican and Democratic 
administrations, among them Republicans Charles Fried, Kenneth Starr, 
Ted Olson, Paul Clement and Gregory Garre, concluded: ``Mr. Verrilli is 
ideally suited to carry out the crucial tasks assigned to the Solicitor 
General and to maintain the traditions of the Office of the Solicitor 
General.''
  More than 50 prominent Supreme Court practitioners urged the Senate 
to confirm Mr. Verrilli's nomination, including conservatives like 
Maureen Mahoney, Peter Keisler, and Miguel Estrada. They wrote:

       Don's approach to practicing law throughout his career--his 
     meticulousness in understanding and presenting facts 
     accurately and his insistence on coherently laying out 
     reasons for the positions he is urging--proves beyond 
     question that Don will protect and promote the rule of law.

  I will ask that copies of the letters in support be printed in the 
Record at the conclusion of my remarks.

[[Page 8719]]

  Don Verrilli is exactly the kind of superbly qualified, serious 
professional we should be encouraging to serve the American people in 
their government. I expect that he will be confirmed by a strong 
bipartisan majority of the Senate.
  Like all of the nominations reported by the Judiciary Committee and 
pending on the Senate's Executive Calendar, Mr. Verrilli's nomination 
has been through the Judiciary Committee's fair and thorough process. 
We reviewed extensive background material on his nomination. All 
Senators on the committee, Democratic and Republican, had the 
opportunity to ask him questions at a live hearing. All Senators had 
the opportunity to meet with Mr. Verrilli individually, as well. Many 
also took advantage of the opportunity to ask him questions in writing 
following the hearing.
  We then debated and voted on his nomination. I thank the members of 
the committee for their work, consideration and judgment. Many cited 
their meetings with Mr. Verrilli and his serious and thoughtful answers 
to hundreds of written questions for the record as a basis for their 
support of his nomination. The result of the process was that Senators, 
having raised whatever concerns they had and whatever differences they 
have with the policies of the Obama administration, voted nearly 
unanimously in favor of confirming Mr. Verrilli based on his 
qualifications, experience and appreciation for the responsibilities of 
the Solicitor General.
  I appreciate the effort made by the Republican members of the 
Judiciary Committee in considering the Verrilli nomination on its 
merits and voting to support him, with one exception. I appreciated the 
thoughtful statement by the ranking Republican at our markup, nearly 1 
month ago, in which he set forth his concerns and the painstaking 
process he followed to evaluate the nomination and his judgment to 
support him. Senator Grassley attended the hearing, met personally with 
the nominee, and engaged in extensive written questioning, as well. In 
his statement he commended Mr. Verrilli ``for his serious approach to 
the task of providing responses'' and for his ``thoughtful answers.'' 
After that rigorous process, Senator Grassley became more comfortable 
that Mr. Verrilli ``understands the duty of the Solicitor General.'' He 
emphasized that Mr. Verrilli had made clear to him that ``he would not 
lend his name or that of the office to carrying out any order which he 
believed to be based upon partisan political considerations or other 
illegitimate reasons'' and that rather than do so, he would resign from 
office. Senator Grassley concluded that he has ``every expectation that 
Mr. Verrilli, if confirmed, will honorably live up to his duties, 
obligations, and assurances.''
  The committee process left no doubt that Mr. Verrilli has an 
extensive knowledge of the law and an understanding of the independence 
required to represent the interests of the government and the American 
people as the Solicitor General of the United States. He is well 
qualified and well suited to serve in the role of what is often called 
``the tenth Justice.''
  The Senate has a longstanding practice of giving deference to the 
President to make nominations for positions in the executive branch. 
However, as we have seen with more and more of President Obama's 
nominations, Senate Republicans have dramatically departed from our 
Senate standards. This does great harm to the interests of the American 
people, the ability of good people to serve, the capacity of the 
government to fulfill its responsibilities and the proper functioning 
of the Senate. Subjecting consensus nominees to unnecessary and 
damaging delays and unjustified and harmful filibusters is wrong. I am 
glad the Senate leaders have been able to come to agreement to avoid 
the threatened filibuster of this qualified nominee to serve as 
Solicitor General of the United States.
  Before the Memorial Day recess, the Senate should have confirmed the 
nomination of Lisa Monaco to be the Assistant Attorney General in 
charge of the National Security Division at the Justice Department. 
That is a key national security position. The Judiciary Committee held 
a hearing on Ms. Monaco's nomination in April and reported her 
nomination unanimously in early May. Her nomination has since been 
considered by the Senate Select Committee on Intelligence at an 
additional hearing and was reported unanimously by that committee, as 
well, nearly 2 weeks ago. After such a thorough process, there is no 
doubt that President Obama has made a first-rate choice to fill this 
very critical national security position. The value of Ms. Monaco's 
wealth of experience and institutional knowledge has been supported by 
the many former Justice Department officials who have written in 
support of her nomination, including former Attorney General Mukasey, 
who served during the President George W. Bush administration. Without 
cause or explanation, the Republican leadership still has not consented 
to a vote on this important national security nomination.
  Even more egregious is the unprecedented filibuster of the nomination 
of Jim Cole to be Deputy Attorney General, the No. 2 position at the 
Justice Department also with key national security responsibilities. 
There is no excuse or justification for the continued failure to act on 
Mr. Cole's nomination to fill this critical position. It was blocked 
last year when it was pending for 5 months in the Senate. The 
nomination was reported favorably by the Judiciary Committee again in 
March, and incredibly, has been filibustered for another 10 weeks while 
the country faces concerns about terrorism in the aftermath of the 
President's successful operation against al-Qaida and Osama bin Laden. 
It is hard for me to understand how, at a time when experts are 
concerned that al-Qaida will seek reprisals, the Senate has not acted 
to ensure that President Obama has his full national security team in 
place. Instead, Senate Republicans have chosen to delay action on those 
nominations and to seek to use them as leverage against the 
administration.
  I have urged Senate Republicans to reject this partisan approach and 
to come together to work with our President to keep America safe. In 
the aftermath of 9/11, we expedited law enforcement nominations, 
confirming an additional 58 officials to posts at the Justice 
Department before the end of 2001. We should have done the same with 
the nominations of Lisa Monaco and Jim Cole. We should treat Mr. Cole's 
nomination with the same urgency and seriousness with which we treated 
all four of the Deputy Attorneys General who served under President 
Bush. All four were confirmed by the Senate by voice vote an average of 
21 days after they were reported by the Judiciary Committee. No Deputy 
Attorney General nomination has ever been subjected to a filibuster 
before. It is wrong and should end.
  I am confident that Mr. Verrilli's qualifications, experience, 
ability, temperament and judgment will lead to an overwhelming 
bipartisan vote in support of his confirmation to serve as the next 
Solicitor General of the United States.
  Mr. President, I ask unanimous consent to have printed in the Record 
copies of the letters to which I referred.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                 February 8, 2011.
     Re Nomination of Donald Verrilli as Solicitor General.

     Hon. Patrick J. Leahy,
     Chairman, U.S. Senate Committee on the Judiciary, Washington, 
         DC.
     Hon. Charles E. Grassley,
     Ranking Member, U.S. Senate Committee on the Judiciary, 
         Washington, DC.
       Dear Chairman Leahy and Ranking Member Grassley: We write 
     in enthusiastic support of the nomination of Don Verrilli to 
     become the next Solicitor General of the United States. We 
     write as lawyers who are deeply familiar both with the work 
     of the Solicitor General and with Don's own work and 
     character. Some of us have worked jointly with Don, some of 
     us have appeared opposite him in cases, all of us have seen 
     his work. We believe that Don is ideally suited to carry out 
     the crucial tasks assigned to the Solicitor General, chiefly 
     the representation of the United States in the Supreme Court, 
     and to maintain the traditions of the office that the 
     Solicitor General leads. We urge the Senate to confirm him as 
     Solicitor General.
       With experience representing a wide variety of clients, and 
     several years serving the

[[Page 8720]]

     United States from within the government at its highest 
     levels, Don is unusually experienced in the vast range of 
     legal issues over which the Solicitor General is responsible 
     on behalf of the United States. He is a quick study, careful 
     listener, and acute judge of legal arguments. He is a 
     masterful writer and oral advocate who knows the importance 
     of clarity, candor, vigor, and responsiveness. The array of 
     departments and agencies the Solicitor General represents, 
     the Congress that enacts the laws being executed, and 
     ultimately the Supreme Court in the performance of its 
     functions all rely on these qualities in a Solicitor General, 
     and all would be well served by Don Verrilli in that 
     position.
       As important, the successful functioning of the Solicitor 
     General's office requires an ability to see the effects of 
     particular arguments on the overall interests of the United 
     States, both across agencies and over the long term. Shaping 
     arguments to respect those interests, and to protect the 
     special credibility the office has acquired over the decades 
     of its existence, while maintaining clarity and force in 
     presentations, demands the whole range of knowledge, 
     intelligence, judgment, and other capacities that Don has in 
     abundance. More generally, the rule of law depends on a 
     consistent commitment to reason in the unfolding of legal 
     principles. Don's approach to practicing law throughout his 
     career--his meticulousness in understanding and presenting 
     facts accurately and his insistence on coherently laying out 
     reasons for the positions he is urging--proves beyond 
     question that Don will protect and promote the rule of law.
       Finally, Don has a deeply ingrained habit of civility. Not 
     only in court, but in private interactions, with co-counsel, 
     colleagues, and lawyers who are adverse to his clients, Don 
     maintains his equanimity and politeness and engages in calm, 
     reason-based discussion. His character will serve the highest 
     traditions of the Solicitor General's office.
       We expect that the Senate, after full inquiry, will see all 
     the virtues we know from firsthand experience that Don 
     possesses. He is the consummate professional, and we hope 
     that the Senate will confirm Don promptly to serve as the 
     Solicitor General.
           Sincerely,
     Richard G. Taranto,
       Farr & Taranto.
     Carter G. Phillips,
       Sidley Austin LLP.
       The following people have signed on to this letter:
         Akin Gump Strauss Hauer & Feld, LLP: Patricia Ann 
           Millett; Arnold & Porter: Lisa S. Blatt; Covington & 
           Burling: Jonathan Marcus; John P. Rupp, Robert Long; 
           Crowell & Moring: Clifton S. Elgarten, Susan Hoffman; 
           Farr & Taranto: Bartow Farr; Finnegan, Henderson, 
           Farabow, Garrett & Dunner: Donald Dunner; Gibson Dunn & 
           Crutcher LLP: Theodore B. Olson, Miguel Estrada, 
           Theodore J. Boutrous Jr., Thomas G. Hungar; Goldstein, 
           Howe & Russell, P.C.: Thomas Goldstein, Amy Howe, Kevin 
           Russell; Hogan Lovells: H. Christopher Bartolomucci, 
           Catherine E. Stetson; Howrey: Gerold Ganzfried; Jenner 
           & Block LLP: Paul Smith; Jones Day: Donald Ayer, Craig 
           E. Stewart, Meir Feder; Kellogg Huber: David Frederick, 
           Michael Kellogg, Aaron M. Panner; Kirkland & Ellis: 
           Christopher Landau; King & Spalding: Daryl Joseffer; 
           Latham & Watkins: Richard P. Bress, Maureen E. Mahoney, 
           Matthew Brill; Jonathan Massey; Mayer Brown LLP: 
           Stephen M. Shapiro, Andrew L. Frey, Andrew Pincus, Evan 
           M. Tager, Charles Rothfeld, Lauren Rosenblum Goldman, 
           David M. Gossett, Jeffrey W. Sarles.
         Molo Lamken: Jeffrey Lamken; Morgan, Lewis, & Bockius 
           LLP: Peter Buscemi, Allyson N. Ho; Morrison Foerster: 
           Deanne E. Maynard, Brian R. Matsui; O'Melveny & Myers: 
           Walter Dellinger, Sri Srinivasan, Jonathan Hacker; 
           Orrick, Herrington & Sutcliffe LLP: E. Joshua 
           Rosenkranz; Paul Hastings: Stephen B. Kinnaird; 
           Pillsbury Winthrop: Kevin M. Fong, Claudia W. Frost; 
           Quinn Emanuel Urquhart & Sullivan LLP: Kathleen 
           Sullivan; Robbins Russell: Roy Englert; Ropes & Gray 
           LLP: Douglas H. Hallward-Driemeier; Sidley Austin LLP: 
           George W. Jones, Paul Zidlicky, Rebecca Wood, Jeffrey 
           Green, Jacqueline Cooper, Peter Keisler, Eric Shumsky, 
           Mark Haddad, Joseph Guerra, Robert Hochman, Michelle 
           Goodman; Skadden, Arps, Slate, Meagher & Flom LLP: 
           Cliff Sloan; Venable: John Cooney; Wiley Rein LLP: 
           Andrew G. McBride, Helgi C. Walker; Williams & 
           Connolly: Kannon K. Shanmugam, Stephen Urbanczyk; 
           Willkie Farr: Richard Bernstein; Wilmer Cutler 
           Pickering Hale and Dorr: Seth P. Waxman, Paul R.Q. 
           Wolfson, David Ogden, Randolph Moss; Zuckerman Spaeder 
           LLP: David Reiser.
                                  ____



                                               Washington, DC,

                                                   March 17, 2011.
     Re Nomination of Donald B. Verrilli Jr. for the Position of 
         Solicitor General.

     Hon. Patrick J. Leahy,
     Chairman,
     Hon. Charles Grassley, Ranking Member, U.S. Senate Committee 
       on the Judiciary, Washington, DC.
       Dear Chairman Leahy and Ranking Member Grassley: We have 
     served as Solicitors General in the administrations of 
     Presidents Ronald Reagan, George H.W. Bush, William Clinton, 
     and George W. Bush. We write in strong support of the 
     nomination of Donald Verrilli to become Solicitor General of 
     the United States.
       Some of us have worked alongside Mr. Verrilli as co-
     counsel; some of us have appeared opposite him in cases; all 
     of us are familiar with his work, his demeanor, and his well-
     deserved reputation as a leading member of the Supreme Court 
     bar. We believe Mr. Verrilli is ideally suited to carry out 
     the crucial tasks assigned to the Solicitor General and to 
     maintain the traditions of the Office the Solicitor General.
       Mr. Verrilli's long experience representing a wide array of 
     clients, in combination with his recent experience serving in 
     senior positions in government, render him particularly well 
     qualified to address the range of legal issues over which the 
     Solicitor General is responsible on behalf of the United 
     States. His well-deserved, stellar reputation as both a 
     writer and oral advocate, and his deeply ingrained civility 
     and dedication to the rule of law will well serve all three 
     branches of government. We wholeheartedly endorse his 
     confirmation.
           Respectfully,
                                                    Seth P. Waxman
                                                              For:
                                        Charles Fried (1985-1989).
                                     Kenneth W. Starr (1989-1993).
                                     Drew S. Days III (1993-1996).
                              Walter E. Dellinger III (1996-1997).
                                       Seth P. Waxman (1997-2001).
                                    Theodore B. Olson (2001-2004).
                                      Paul D. Clement (2004-2008).
                                     Gregory G. Garre (2008-2009).

  Mr. GRASSLEY. Mr. President, I will vote to confirm Donald B. 
Verrilli, Jr., to be Solicitor General of the United States, but I do 
so with little enthusiasm. Mr. Verrilli has impressive credentials and 
noteworthy accomplishments. In addition to his government service in 
the White House Counsel's Office and at the Department of Justice, he 
has been a litigator in private practice for more than 20 years. He has 
argued 12 cases, and participated in more than 100 cases, before the 
Supreme Court of the United States. Mr. Verrilli served for over 15 
years as an adjunct professor of constitutional law at the Georgetown 
University Law Center. He clerked for Associate Justice William J. 
Brennan, Jr., of the U.S. Supreme Court, and Judge J. Skelly Wright of 
the U.S. Court of Appeals for the District of Columbia Circuit.
  My concern with this nomination is whether or not the nominee will 
demonstrate appropriate independence in the office. His testimony at 
his hearing raised doubts about his ability and commitment to uphold 
that principle. Mr. Verrilli seemed to buy into the notion that he was 
still the President's lawyer. He gave lipservice to the two traditional 
exceptions to the Solicitor General defending a statute--first, if the 
statute violates separation of powers by infringing on the President's 
constitutional authority; and second, if there is no reasonable 
argument that can be advanced in defense of the statute. Mr. Verrilli 
then appeared to create a third exception one that is not supported by 
practice or tradition. He stated he would defend a statute's 
constitutionality ``unless instructed by my superior not to do so.''
  This position advocated by the nominee--that interference in the rule 
of law, by the President or by the Attorney General, is an appropriate 
reason not to defend statutes--was extremely troubling to me and other 
members of the committee. That position is not the standard of the 
office. It is not what the Nation expects from its Solicitor General. 
His response gave me great pause about supporting his nomination.
  Following his hearing, I gave Mr. Verrilli ample opportunity to 
address my concerns. In extensive written questions I asked the nominee 
to review and comment on testimony given

[[Page 8721]]

by previous Solicitor General nominees. In particular, I asked many 
questions regarding statements by prior Solicitors General regarding 
the independence of the office. I asked him to review cases where the 
Department of Justice had made a determination not to defend a statute. 
I asked him to analyze those cases as to the rationale for not 
defending the statute. In addition, I asked him to review and comment 
on a number of Supreme Court cases that address serious constitutional 
issues.
  I reviewed his answers to my written questions for the record. I 
commend Mr. Verrilli for his serious approach to the task of providing 
responses. In most cases he gave thoughtful answers. In many instances 
he declined to provide his views on the topic but gave general 
assertions that he would follow the law. In other instances he claimed 
confidentiality. I do not agree with his assertion of confidentiality 
in most of the instances where he raised that as a basis for not 
responding. In other circumstances, such a response would be 
unacceptable. In the past, such responses, or allegations of similar 
responses, have resulted in a failed confirmation or withdrawal of the 
nomination.
  Based upon my review of his responses, I am more comfortable with the 
notion that Mr. Verrilli understands the duty of the Solicitor General. 
I believe, because of my questions and the time he spent contemplating 
the issues, he will be a better Solicitor General than he otherwise 
would have been. Mr. Verrilli has been exposed to decades of thought 
and experience by this review. On the whole, I concluded that Mr. 
Verrilli now has a greater sensitivity to the necessity of independence 
in the office. In numerous answers he provided a much better response 
than he did at his hearing. He indicated he would not lend his name or 
that of the office to carry out any order which he believed to be based 
on partisan political consideration or other illegitimate reasons. 
Rather than do so, he said he would resign from office. I will hold him 
to that pledge.
  I want to be clear about my tepid support for Mr. Verrilli. He is 
nominated to an executive branch position, not a lifetime appointment. 
My lukewarm support is based largely on the nature of the office to 
which he will be appointed, if confirmed.
  I will put the administration on notice, as well as Mr. Verrilli, the 
Senate, the media, and any other interested party. My less than 
enthusiastic vote for Mr. Verrilli to be Solicitor General of the 
United States is limited to that office alone. No entity or individual 
should presume my support for Mr. Verrilli for any other future office 
to which he may aspire or to which he may be nominated--be it in the 
executive, judicial, or legislative branch of government.
  Furthermore, as ranking member of the Judiciary Committee, I will 
vigorously carry out my oversight responsibilities to ensure the 
Solicitor General and his subordinates are performing as they should. I 
will be watching to make certain Mr. Verrilli complies with his oath of 
office, with his obligation to the Constitution and statutes of the 
United States, with his duties of the office, and with the assurances 
he has given the Senate in his oral and written testimony. I expect 
nothing less from all officials of government. I have every expectation 
that Mr. Verrilli, if confirmed, will honorably live up to those 
duties, obligations, and assurances.


                          Tennessee Tornadoes

  Mr. ALEXANDER. Mr. President, on Wednesday I traveled to Greene and 
Washington Counties in Upper East Tennessee--up near Virginia and North 
Carolina--to visit with the victims of tornadoes that swept across our 
State on April 27 and to see firsthand how the recovery is going.
  What I found was what I expected to find. In Washington County and 
Greene County, the citizens are not complaining. They are cleaning up, 
and they are helping each other. I also found out there are some things 
that still need to be ironed out, but so far the recovery from a 
devastating disaster is going well in East Tennessee. The real work is 
being done by people affected by those storms and by volunteers, and I 
think it says that Tennesseans are doing what Tennesseans usually do.
  I first met with Alan Broyles, who is the mayor of Greene County, and 
Bill Brown, who is director of Greene County's Emergency Management and 
Homeland Security Agency. Seven people lost their lives in Greene 
County. We visited the Camp Creek and the Horse Creek communities. We 
saw many of the homes that have been completely leveled, and debris was 
still being removed. We saw one home where a couple--the Harrisons had 
been helping neighbors into their basement when the tornadoes swept 
through and killed both Mr. and Mrs. Harrison, but spared the lives of 
the neighbors in the basement. There were two crosses there next to 
what was left of the basement structure of the home.
  At the Camp Creek Elementary School where FEMA has set up a disaster 
recovery center, I met Pamela Ward and her mother-in-law, Betty Ward. 
Mrs. Ward's home had been completely destroyed by the tornado, and her 
husband Kevin and their three daughters were staying in a hotel after 
discovering that the insurance on their home only paid off their 
mortgage. Mr. Brown and Q. Winfield, who is FEMA's Federal Coordinating 
Officer for Tennessee, immediately began working to help the Wards. By 
the next day, Mr. Winfield had called to let me know that FEMA had 
approved the maximum award to help Pamela Ward and her family get back 
on their feet.
  I also visited Washington County, where I met with Dan Eldridge, who 
is the mayor of the county, as well as local emergency management 
officials and families affected by the disaster. One resident was 
killed in a tornado that touched down in Washington County. Hundreds of 
homes were damaged. However, it was clear that families and volunteers 
had been hard at work putting their community back together. Rebuilding 
had begun, and the debris had already been removed in many areas.
  FEMA is doing an excellent job working with State and local 
officials, but the generosity of the volunteers and the entire 
community working in a collective way with the churches to help 
families get back on their feet is an amazing sight. It is still very 
important for victims to register with FEMA by calling 1-800-321-FEMA 
(3362). Families are also eligible for other forms of disaster 
assistance, including loans from the Small Business Administration and 
unemployment and food stamp benefits. While we cannot make these 
families whole, there are people who still need help, and we have to 
make sure they know help is available. I want to make sure that 
whatever the Federal Government is able to do, it is doing.
  Over the past year, Tennessee has experienced disasters of historic 
proportions. We know very well we are not the only State or the only 
community where this has happened. Beginning with the 1,000-year flood 
that struck middle and west Tennessee last May, to the devastating 
tornado outbreak and river flooding this year in both the eastern and 
western parts of our State, 74 of Tennessee's 95 counties are currently 
Presidentially declared disaster areas. Thousands of people are still 
recovering, and many are only just beginning to put their lives back 
together. In spite of everything this past year has thrown at us, 
Tennesseans are going about their business helping themselves and 
helping others in remarkable and inspiring ways.
  Mr. President, I yield the floor, and I note the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  The PRESIDING OFFICER. The Senator from Alabama.
  Mr. SESSIONS. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                              The Economy

  Mr. SESSIONS. Mr. President, I wish to share a few thoughts about the 
state of the American economy and the lack of effectiveness of this 
Congress in confronting it--in particular, the lack of

[[Page 8722]]

the leadership of the U.S. Senate to deal with the crisis we are facing 
both economically and financially as part of our economic condition. We 
can't separate those two.
  The leading economic indicators are not good. Last week, we were 
pummeled with a series of reports that were bad news. The numbers 
continue to be disturbing, actually. The share of our population that 
is employed today declined to 58.4 percent--the lowest level since 
1983. So the percentage of people working today is the lowest we have 
had since 1983.
  The May jobs report that just came in fell well short of projections. 
The consensus view of economists was for a gain of 165,000 jobs, but, 
in fact, we gained 111,000 fewer than that. We had a very low job 
creation month, and it marks the worst jobs report in 8 months. 
Everybody is saying things are getting better and jobs are getting 
better, but this is a wake-up call. The numbers have not been strong. 
They have actually been very fragile. The jobs have to increase about 
180,000 a month to actually stay level, and to begin to increase, we 
have to be above that. To reduce our unemployment rate, it has to be 
above 180,000. So we were far below that this month.
  The percentage of people who are long-term unemployed--who have been 
unemployed for 27 weeks or more--jumped nearly 2 percentage points to 
45.1. The unemployment rate increased to 9.1 percent from 9 percent. 
However, the unemployment rate does not take into account those who are 
underemployed or who may have become discouraged. That is why we have 
such a low percentage of people working. Many are discouraged and have 
given up looking for work.
  Since its peak of 12,800, the Dow Jones Industrial Average is down 
now 698 points or more than 5 percent over the last month. I believe 
this is the sixth consecutive week the Dow has declined.
  Consumer confidence is also deteriorating. The Consumer Confidence 
Survey is down 12 points from its peak in February. It has been 
steadily going downward. Consumer expectations about the future are 
even worse, falling more than 20 points in the last 3 months, from 97.5 
to 75.2. The last time we experienced a 3-month drop in consumer 
confidence of more than 20 points was March 2008, during the heart of 
the great recession.
  The Misery Index, which combines the unemployment rate with the 1-
year change in inflation growth, hit 12.2 percent, the highest level in 
a year.
  Those are grim statistics. Indeed, I am looking at Barron's and a 
lead editorial by Mr. Abelson in today's issue. This is something he 
expressed unease about, very serious concern, in his lead column for 
the Barron's publication. He quotes a report from the Liscio Report, 
Philippa Dunne and Doug Henwood, and he quoted from their analysis:

       More than a little shocking to Philippa and Doug, and to us 
     as well--

  Referring to himself--

     is that private employment today is 2 percent below where it 
     stood 10 years ago and, as they've noted before, job loss 
     over a 10-year period is unprecedented.

  In other words, over 10 years we have 2 percent fewer people working 
in the private sector--the first time we have ever identified a 10-year 
period in our history--and he goes back to 1890--that we have actually 
seen a decline in employment over 10 years.
  It continues:

       So far, they point out somewhat grimly, ``We've regained 
     just 1.8 million jobs lost in the Great Recession and its 
     aftermath, or about one out of every five that have been 
     lost.

  So we only recovered about one in five of the jobs. We have been 
reading that job growth is out there, but it hasn't been much. It has 
been anemic, and so has been GDP growth.
  He goes on to note that ``the number of folks out of work increased 
by 167,000 and a goodly number of those--44.6 percent, to be precise--
have been unemployed for 27 weeks or longer, within crying distance of 
an all-time high. The average stay in the ranks of the jobless has 
reached the longest in the postwar period.'' That is World War II. So 
that is the longest time we have gone with almost half the people being 
unemployed for at least 27 weeks. So it is not a good situation.
  We have tried. The Federal Reserve has tried. The Congress rammed 
through a stimulus bill that didn't work. I felt it wouldn't work, and 
I explained why at that time, but it passed anyway, adding almost $800 
billion, $900 billion to the total debt of our country, and every penny 
of that was borrowed. It has not worked. But we will pay interest on 
it.
  Last year, our highway spending was about $40 billion. The interest 
on that stimulus bill will be almost that much unless we find some way 
to start paying down our debt. And there is no plan on the table to 
reduce our debt in the immediate future. That is for sure.
  So what would I say about where we are today? I believe this Congress 
cannot justify having created a financial situation in which 40 cents 
of every $1 we spend is borrowed. We take in $2.2 trillion, and we are 
spending $3.7 trillion. Every economist has told us in the Budget 
Committee--I am the ranking Republican there--this is unsustainable.
  President Bush's highest deficit was too high: $450 billion. Under 
the first 2 years of President Obama, we have had $1.2 trillion and 
$1.3 trillion added to the debt, and this year, on September 30, we 
expect $1.5 trillion to be added to our debt. We will have doubled the 
entire debt of the United States under 4 years of his leadership.
  His budget he submitted to us earlier this year makes the situation 
worse. If you take the basic trajectory of the Congressional Budget 
Office, the President's budget, even though it raises taxes, raises 
spending more and actually puts us on a more unsustainable path than 
otherwise would be the case. Over the 10-year budget he proposes, the 
lowest single deficit is $748 billion, and it is going up to around $1 
trillion in the 10th year. These are systemic, unsustainable deficits, 
and they have to be confronted.
  We have to reduce spending. Everybody knows that. But we are not 
willing to do so. The Democratic leader, when we had the continuing 
resolution and we had the debate over how much to spend the rest of 
this fiscal year, proposed a $4 billion reduction in spending. And our 
deficit will be $1,500 billion this year. He proposed to cut $4 billion 
in this year's continuing resolution. After much fight--and the House 
had passed $60 billion or $70 billion in spending reductions through 
the rest of the year--the Senate finally, under the Democratic leaders 
here, got it down to $38 billion, I believe.
  We are not facing up to reality. So what do you do? The Fed has cut 
interest rates to zero. We are spending unlimited amounts of money. We 
have tried all kinds of gimmicks and efforts--reducing the Social 
Security tax, other things--to try to create growth in the economy, and 
it has not worked. I suggest part of the problem is the deficit itself.
  Professors Rogoff and Reinhart have written a book: ``This Time Is 
Different.'' In their analysis, when your debt equals 90 percent or 
more of your economy, you will show at least a 1-percent reduction in 
economic growth for that year. This year our debt, which is already 
about 95 percent of GDP, will be 100 percent of GDP by September 30. So 
the first-quarter growth numbers were 1.8 percent below what had 
originally been projected. That was a reanalysis of it--1.8 percent. 
According to their theory, it would be 2.8 percent growth if we did not 
have debt in excess of 90 percent of the gross domestic product.
  I asked Secretary of the Treasury Geithner at the budget hearing 
whether he agreed with the Rogoff-Reinhart study, which has received 
quite a bit of attention and a great deal of respectful attention. He 
said he did. He said that in some ways the situation is worse than that 
suggests because we could have an economic crisis. When your debt-to-
GDP is 90 or 100 percent, that is how you can have a circumstance 
somewhat like we had with the financial meltdown or like they are 
having in Greece.
  So we have been warned by the fiscal commission Chairman and 
Cochairman, appointed by President Obama,

[[Page 8723]]

Mr. Erskine Bowles and Alan Simpson. They testified that we are facing 
the most predictable economic crisis in our Nation's history--the most 
predictable. When asked when it might happen, Mr. Bowles said 2 years, 
give or take. So we do not know what is going to happen.
  I think we have to just grow up, realize that we have placed our 
Nation in financial jeopardy, that this country has spent money it did 
not have to a degree greater than this Nation has ever spent before, 
except maybe in the height of World War II when the entire Nation was 
in a life-and-death struggle. We have never spent this kind of money. 
We have never had these kinds of deficits.
  Many remember the big fight over spending in the mid-1990s that 
resulted in the balancing of the budget in the late 1990s. That was a 
much simpler problem than we have today. I have looked at the numbers. 
I have studied the numbers. To get this country to a balanced budget is 
going to take some very serious, sustained work. It is going to be much 
more significant than it was in the mid-1990s. We simply cannot grow 
this economy--which is the key to getting ourselves out of the mess we 
are in--we cannot grow it by just passing more taxes. We cannot do 
that.
  Congress has to step up to the plate. I remain extremely disappointed 
that the majority in the Senate did not even bring a budget to the 
floor last year. We are now at 750-, 760-some-odd days without having a 
budget. That is one reason we are spending so much money we do not 
have. We do not even have a budget. It was not even brought to the 
floor last year. Not a single appropriations bill was brought to the 
floor and passed last year. Since I have been here--and I guess in 20 
or more years--our Democratic majority had the largest majority any 
Senate has ever had. They had 60 votes last year in the Senate. It only 
takes 50 to pass a budget. You can pass a budget without a 
supermajority, without a filibuster. It is designed to make sure we 
pass a budget because it is needed that we pass a budget. But it was 
not even brought up last year.
  So what about this year? We have not even marked one up. We have not 
had a hearing in the Budget Committee to mark up a budget. Under the 
Budget Act, the budget is supposed to be passed by April 15. The House 
has passed a budget, a historic budget, a sound budget. It changes the 
unsustainable trajectory we are on. It is responsible. It has gotten 
widespread bipartisan applause for being a serious attempt to confront 
the financial crisis we are facing.
  The Senate has not produced anything. Indeed, my good friend--and he 
has a tough job--our majority leader, Harry Reid, said it would be 
foolish to pass a budget. And his staff said something similar to the 
press. Foolish to pass a budget? What did he mean by that? Would it be 
against the American interest to pass a budget? Would it make our 
country less strong financially if we passed a budget? Would it be less 
responsible to pass a budget than to not pass one? I do not think so.
  Actually, I do not think that is what he meant. What he meant was it 
would be foolish politically to pass a budget. So he did not bring one 
on the floor last year when he had 60 Senators. He has 53 now. He is 
not going to bring one up again this year. He would be foolish to. Why? 
Because when you produce a budget, you have to set forth, for the 
entire world--the financial world, the American people, the political 
world, the individual citizens of this Republic--what your plans are 
for the future. What are we going to do? How much are we going to 
spend? How much are we going to tax? How much deficit will be created, 
or surplus, if one is to be found? And it is not going to be found 
soon--a surplus--trust me. I have looked at the numbers. But we have to 
get on the right path. So he thinks that is foolish. I guess because, 
well, if he produced a budget, he might have to cut spending and 
somebody might complain. If he produced a budget and it is consistent 
with what some of my tax-and-spend friends believe and he has a bunch 
of tax increases in there, that might not be popular. So since it is 
not popular, we are just not going to do it, while we have the lowest 
number of people working in this economy since 1983 and we are 2 
percent below the number of people who were actually working 10 years 
ago.
  This Keynesian spend-tax-spend idea of how to make an economy grow is 
not sound. We have tried it. It was done over my objection, but it was 
done. We threw money at this economy the likes of which we have never 
seen before.
  Now, the Brits, they are reducing their spending. They are making 
some tough choices in the UK. And some have been pushing back: Oh, you 
are cutting too much. They are having riots in Greece, where people are 
saying: You are cutting back spending too much. We have to have this 
money. But what did the International Monetary Fund say today? I 
believe it was today. They said: The UK, the Brits, stay the course. 
Stay with your fiscal responsibility that was initiated by the new 
conservative government. Do not go back to spending. Do not adopt the 
idea that you can create something out of nothing by borrowing money, 
money you do not have.
  Of course, Julie Andrews laid that out really well in her song. I 
have thought and always try to remember: Nothing comes from nothing. 
Nothing ever could.
  You cannot borrow your way out of debt, as one person in Evergreen 
told me his granddaddy said. We have to face the music. We do not have 
the money to operate at the level we are.
  I was at a town meeting in Marion, AL, and an elderly gentleman said 
he lived through the Depression, he lived through World War II, he 
lived through the great inflation surge in the 1970s, and he sees this 
other challenge we face today. He said the problem is not the high cost 
of living; the problem is the cost of living too high. That just sort 
of closed the meeting. He was the last one to speak. I thought there 
was a real silence there--the cost of living too high.
  We have just been living on the idea that these brilliant people--the 
Fed and the Treasury and all--that they can just borrow money and spend 
it today, and that will make the economy flower, and we will all be 
successful, and we do not have to worry about paying it off.
  What is a little debt? Well, we went down that road, and it has 
gotten completely out of control, and we cannot sustain it.
  We are at a point where our debt threatens our economic growth. 
According to Rogoff and Reinhart, it is already reducing our growth by 
1 percent. And if we have 2 percent growth for the year--if we have 2 
percent growth this year instead of 1.8 percent, as we did the first 
quarter--that means 1 million more people employed. A 1-percent growth, 
economists tell us, is equal to 1 million people employed. If you get 3 
percent, 4 percent, 5 percent growth, like we ought to have coming out 
of a recession, then you can have millions of jobs created and change 
this direction of our country.
  We have used every weapon we have except common sense and sound 
policy. So what do we do? How do we get out of the mess we are in? It 
is not going to be an easy road, but we need to reduce spending. We 
have increased spending in the last 2 years--the first 2 years under 
President Obama--24 percent in discretionary nondefense spending.
  We cannot cut that back to where we were in a previous day? Is the 
United States of America going to cease to exist if we reduce spending? 
We are going to have to. We do not have the money. So we do that. We 
send a message to the world as the people in England have that we 
understand the problem. We know we have gone too far. We are going to 
get on the right road. We are going to put our shoulders to the wheel, 
and we are going to lift this country forward and put it on a sound 
path.
  We can do that. We will do that. That is what the American people 
said they wanted--I am convinced--in this last election. They want some 
responsibility here, and we owe it to them. I hope and pray that we can 
come together and make some significant changes in the way we spend 
money and the amount of debt that we have.

[[Page 8724]]

  Yes, it might be tough for a while, but we will get on the right 
path. We will get this country going in the right direction. So when we 
are confused about the future, nobody knows exactly what to do, I think 
it is time to take a deep breath and go back to the old verities, the 
old truths that nothing comes from nothing. Hard work pays off. 
Borrowing, borrowing, borrowing is a road to disaster. We need to start 
paying down our debt. The kinds of things we tell our children every 
day, this Nation needs to do.
  If the world and if the business community in our country saw us in 
that direction, nothing could be better for our economic growth. They 
would say: The United States of America has finally got it. They have 
their heads on right. They are making the decisions that will lay a 
foundation for sound, positive growth in the future, and they are not 
trying to get their way out of the problem they are in by something for 
nothing, some gimmick.
  I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. SESSIONS. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. SESSIONS. Mr. President, I would like to share some brief 
thoughts about the nomination of Donald Verrilli to be Solicitor 
General of the United States. Solicitor General has been called the 
greatest lawyer job in the world. It is the position in the Department 
of Justice that represents the United States in appellate courts and 
the Supreme Court. As they said, again, there is no higher honor than 
to appear in the highest Court in the land and be able to announce that 
you represent the United States of America. That is what the Solicitor 
General gets to do and supervises that. It is a very important 
position.
  It requires integrity, independence, and a commitment to the rule of 
law. Mr. Verrilli, by the account of quite a number of people, is a 
smart lawyer with significant experience in appellate matters and is 
respected as to his integrity and his legal ability. I say that because 
I am not going to be able to vote for him today, but what I am saying 
about him is not to be personal in any way. I can disagree with someone 
about their approach to law and still sometimes be able to vote for 
them.
  I voted for most of the President's nominees. I supported Attorney 
General Holder's nomination. But what I want to say is, we are in a 
struggle internationally with a most virulent form of terrorism that 
has been declared by virtually all objective people as a war. We are 
involved in a war on terrorism. That is just what it is. Bin Laden and 
the people who attacked us on 9/11 had declared war against the United 
States. They had officially said they were at war with us. Our 
President, on occasion, has acknowledged that we are at war. Congress 
has authorized the use of military force in Iraq, Afghanistan, and 
against al-Qaida. We have authorized it. We have not in Libya, but we 
have in those other instances.
  So the Department of Justice, of which I was honored to be a member 
for 15 years as a Federal prosecutor, and U.S. attorney in Alabama for 
12--and I loved that great Department and believe in it deeply. I am 
troubled by the extent to which it is being led by people who have an 
unwise understanding of the nature of the struggle we are in. One of 
the ways this plays itself out is to conclude that an individual 
affiliated with al-Qaida was presumptively to be tried in civilian 
courts like a normal criminal. But under the rules of war, under our 
Constitution and laws, and consistent with the history of the United 
States, it is perfectly permissible to capture an enemy combatant who 
is threatening us and to put them in jail and detain them, just like 
all prisoners of war have been detained, until the conflict is over.
  No, we do not give them a trial. They are not entitled to lawyers. 
They are not entitled to go before a judge. They are prisoners of war. 
They are held in prisoner of war camps. They have to be humanely 
treated. They cannot be tortured. We have a specific statute about 
that, and I know we have had some instances where people said we are 
torturing. Some say it is not. But that is not the situation today. We 
are not close to the line of what is torture of anybody that is being 
held in custody today.
  So the question is, What does the Department of Justice say? Well, 
they have made the statement that there is a presumption that these 
individuals should be tried in civilian courts. Congress, after several 
years of debate, finally passed a law that prohibited the funding of a 
civilian trial of any of the 9/11 terrorists who have been captured. 
Some have been held at the Guantanamo Bay detention facility. They have 
to be tried, if they are tried, before military commissions.
  Military commissions have historical precedent. For example, in World 
War II, Nazi saboteurs entered the United States and attempted to 
attack us. They were captured. Trial was held within a few weeks by the 
military, and most of them were executed promptly. The Supreme Court, 
in ex parte Quirin, held that was perfectly appropriate.
  Now, we cannot try a normal prisoner of war and execute them. We 
cannot do that. If a prisoner of war, however, violates the rules of 
war and commits crimes above and beyond the rules of war, then they can 
be tried and punished appropriately.
  The 9/11 conspirators and other terrorists are wholly and totally 
committed to violating the rules of war. They attack innocent men, 
women and children. They attack noncombatants. That is all prohibited 
by the rules of war. They do not wear a uniform. If they want to have 
the protections of the rules of war, they have to wear a uniform when 
they go into combat. If they are captured, they have to be treated as 
prisoners of war. But if they have been sneaking into the United States 
surreptitiously, with a plot to bomb a target and murder innocent men, 
women, and children, then they have committed a war crime, and so they 
can be detained as prisoners of war and can be tried by the military as 
the war criminals they are.
  So this has been a big battle, and we went through it for years. On 
the Judiciary Committee, of which I am a member, we had quite a bit of 
discussion about it in hearing after hearing. We somehow have 
tragically convinced the world that the American military is torturing 
people at Guantanamo, and it is not so. The people who were found to 
have been waterboarded and that kind of thing, it was not done at 
Guantanamo, and it was not done by the U.S. military. Zero.
  At any rate, we had all of those debates, and we had fusses. We had 
lawsuits filed, and people were complaining about President Bush and 
all his policies. And we remember that. So now we are here with a 
series of people being appointed to the leadership of the Department of 
Justice, the law enforcement agency, the top prosecutors in the 
country, and those positions are being filled by the people--not who 
are prosecuting terrorists, not who know something about it, not 
skilled professional prosecutors who know how to do this job. The top 
positions are being filled with the people who protested.
  Attorney General Holder himself has said that these cases ought to be 
tried in a civilian court. The Acting Deputy Attorney General, Mr. 
Cole, wrote an op-ed in the Legal Times saying the war on terror was a 
criminal matter, not a military matter.
  Assistant Attorney General for the Civil Division, Tony West, 
defended John Walker Lindh, the American Taliban; the Acting Solicitor 
General, Neil Katyal, argued on behalf of Salim Ahmed Hamdan, bodyguard 
and chauffeur for Osama bin Laden, in Hamdan v. Rumsfeld, arguing that 
military commissions were illegal. These are some of the top positions 
in the entire Department of Justice: the Attorney General, a Deputy 
Attorney General of the Civil Division, and the Acting Solicitor 
General, and the person who is nominated to fulfill that spot.

[[Page 8725]]

  So Mr. Verrilli, I believe, is a good man. In normal circumstances I 
would be willing to accept his nomination and vote for him. I am not 
going to try to slow it down. I am glad to have the vote and cast my 
vote. I am sure he will be confirmed. But it has been reported in the 
media that President Obama has now appointed 13 to 16 lawyers to high-
ranking positions in the Department who themselves previously 
represented alleged terrorists or their supporters or were senior 
partners at their law firms when their firms decided to accept alleged 
terrorists as clients. Many of these lawyers, including Mr. Verrilli, 
support the view that terrorists are criminals and not unlawful 
combatants. It is all right to defend unpopular people, criminals who 
are unpopular. It is perfectly all right.
  But I just want to say, as someone who loves the Department, I am 
concerned about the positions they are taking on the questions of the 
civilian trials of unlawful combatants.
  I think it is wrong, and I have voted for the last one I am going to 
vote for to a top position at the Department of Justice who advocate 
that view. I think it places our Nation at greater risk. We do not need 
to be treating these individuals in that fashion.
  As a practical matter, it works out this way. If you apprehend the 
Christmas Day bomber, he is treated as a civilian and he has to be 
given his Miranda rights within minutes of being arrested, which say 
that you can have a lawyer, you can remain silent, and you will be 
appointed a lawyer promptly. He has to be taken before a magistrate 
promptly--letting all his terrorist associates know he has been 
captured. He is entitled to discovery in the government's case in short 
order, and he is entitled to a speedy trial.
  All of those things are part and parcel of the civil process. But if 
a suspected terrorist is captured as an unlawful combatant and detained 
by the military, he can be held as a prisoner of war, and he can be 
interrogated--not tortured--over a period of weeks, or months; and the 
military does not have to appoint a lawyer for them. Unlawful 
combatants can be tried at Guantanamo Bay by a military commission--and 
potentially found in violation of the rules of war--which is what ought 
to happen in these cases.
  But that is not the position of the Department of Justice. The 
Department has been populated with people who have a different view--I 
think a wrong view--of it. Although I have great respect for Mr. 
Verrilli and his record, which seems to be a good one, the fact that he 
is another voice in the Department for a wrong philosophy is something 
I will vote against by voting no.
  I thank the Chair and yield the floor.
  The PRESIDING OFFICER. All time has expired.
  The question is, shall the Senate advise and consent to the 
nomination of Donald B. Verrilli, to be Solicitor General of the United 
States.
  Mr. LEAHY. Mr. President, I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The clerk will call the roll.
  The assistant bill clerk called the roll.
  Mr. DURBIN. I announce that the Senator from California (Mrs. Boxer), 
the Senator from Iowa (Mr. Harkin), the Senator from Massachusetts (Mr. 
Kerry), the Senator from Wisconsin (Mr. Kohl), the Senator from 
Louisiana (Ms. Landrieu), the Senator from Nebraska (Mr. Nelson), and 
the Senator from Montana (Mr. Tester) are necessarily absent.
  Mr. KYL. The following Senators are necessarily absent: the Senator 
from Oklahoma (Mr. Coburn), the Senator from South Carolina (Mr. 
Graham), the Senator from Texas (Mrs. Hutchison), the Senator from 
North Dakota (Mr. Hoeven), and the Senator from Mississippi (Mr. 
Wicker).
  The PRESIDING OFFICER (Mr. Manchin). Are there any other Senators in 
the Chamber desiring to vote?
  The result was announced--yeas 72, nays 16, as follows:

                       [Rollcall Vote No. 85 Ex.]

                                YEAS--72

     Akaka
     Alexander
     Ayotte
     Barrasso
     Baucus
     Begich
     Bennet
     Bingaman
     Blumenthal
     Blunt
     Boozman
     Brown (MA)
     Brown (OH)
     Cantwell
     Cardin
     Carper
     Casey
     Coats
     Cochran
     Collins
     Conrad
     Coons
     Corker
     Cornyn
     Durbin
     Enzi
     Feinstein
     Franken
     Gillibrand
     Grassley
     Hagan
     Hatch
     Inouye
     Johanns
     Johnson (SD)
     Kirk
     Klobuchar
     Kyl
     Lautenberg
     Leahy
     Lee
     Levin
     Lieberman
     Lugar
     Manchin
     McCain
     McCaskill
     McConnell
     Menendez
     Merkley
     Mikulski
     Murkowski
     Murray
     Nelson (FL)
     Portman
     Pryor
     Reed
     Reid
     Rockefeller
     Sanders
     Schumer
     Shaheen
     Snowe
     Stabenow
     Thune
     Toomey
     Udall (CO)
     Udall (NM)
     Warner
     Webb
     Whitehouse
     Wyden

                                NAYS--16

     Burr
     Chambliss
     Crapo
     DeMint
     Heller
     Inhofe
     Isakson
     Johnson (WI)
     Moran
     Paul
     Risch
     Roberts
     Rubio
     Sessions
     Shelby
     Vitter

                             NOT VOTING--12

     Boxer
     Coburn
     Graham
     Harkin
     Hoeven
     Hutchison
     Kerry
     Kohl
     Landrieu
     Nelson (NE)
     Tester
     Wicker
  The nomination was confirmed.
 Mr. KERRY. Mr. President, I was necessarily absent for the 
vote on the motion to invoke cloture on the nomination of Donald B. 
Verrilli, Jr. to be Solicitor General of the United States. If I were 
able to attend today's session, I would have supported the motion to 
invoke cloture.
  The PRESIDING OFFICER. Under the previous order, the President shall 
be immediately notified of the Senate's action.

                          ____________________