[Congressional Record (Bound Edition), Volume 158 (2012), Part 7]
[Senate]
[Pages 8857-8860]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

 NOMINATION OF ANDREW DAVID HURWITZ TO BE UNITED STATES CIRCUIT JUDGE 
                    FOR THE NINTH CIRCUIT--Continued

  The PRESIDING OFFICER. The Senator from South Carolina.


                                spending

  Mr. DeMINT. Mr. President, I will speak for a few minutes on the farm 
bill, which we are debating this week.
  Four years ago, President Obama was elected on the promise of change, 
the promise to cut the deficit in half in the first term, and to get 
unemployment, before the end of his first term, to a low of 6 percent. 
We all know what happened to those promises.
  Two years ago, a wave of Republicans were elected with the promise of 
cutting spending, borrowing, and debt. Yet debt has continued to 
explode, as has spending. We were promised change, but we got more of 
the status quo--a lot more of it. We got a lot more spending, 
borrowing, and debt--to the point where most Americans, at this point, 
are deeply concerned about the future of their country.
  Americans are still demanding change, and for good reason. We must 
change the way business in Washington is done because we are nearly $16 
trillion in debt. We talk about the debt all the time, and these 
numbers are facts. We are poised to spend nearly $1 trillion more on a 
massive farm bill that some people in Washington have the nerve to tell 
the American people saves money.
  I want to talk a little bit about that because we obviously need to 
save money. But despite all the fuss about the need to cut spending, 
the debt ceiling debate, and the fact that we are actually cutting our 
military defenses to the bone because of our overspending in other 
areas, let's look at what we have done this year as a Senate. We passed 
a highway bill that spent $13 billion bailing out a highway trust fund 
because we spent too much there. We have spent another $140 billion in 
corporate welfare reauthorizing the Export-Import Bank. We passed an 
$11 billion Postal Service bailout. Now we are working on a $1 trillion 
farm bill.
  No one here can bring up one bill where we have actually cut 
spending. Yet we know our country is going off a fiscal cliff. The farm 
bill supporters are telling us this bill saves money. Unfortunately, we 
are using the same smoke-and-mirror accounting that is often used in 
Washington--a lot of gimmicks that make it appear less expensive--and 
it is an affront to the American people who are demanding less spending 
and debt.
  There is absolutely no connection between what some of my colleagues 
are telling their constituents back home and what they are doing in 
Washington as far as cutting spending. They talk about cutting 
spending, but now they want to pass this farm bill.
  The farm bill we are debating today is projected by the CBO to cost 
about $1 trillion over the next 10 years. The last farm bill cost $600 
billion. This is a 60-percent increase.
  If we look at these numbers on the chart, you can understand the rest 
of the debate. The Congressional Research Service has confirmed these 
numbers. In 2008 we passed a farm bill that was projected to spend $604 
billion over 10 years. The bill we are considering today is projected 
to spend nearly $1 trillion--$969 billion. Yet the folks who are 
speaking about the farm bill here are telling us this saves some $20 
billion. Only in Washington could they look at you with a straight face 
and say this saves money.
  Let's talk about how they actually get that figure.
  In 2008 it was about $600 billion. This farm bill is about $1 
trillion. What happened in the meantime was mostly the President's 
stimulus package, which spent about $1 trillion. It had a lot of money 
in it for food stamps. It was a short-term, temporary stimulus, 
supposedly with a lot of new money for food stamps.
  Between 2008 and now, we have increased food stamp spending about 400 
percent--400 percent. I think that number actually goes back to 2000. 
During periods of good economy and low unemployment, we increased food 
stamps, and we have continued to increase that dramatically over the 
last few years. There was supposed to have been a temporary increase in 
food stamps. We are actually locking in that spending permanently with 
this new farm bill. But since it is slightly lower than this temporary 
increase, the folks speaking to us today are saying: This is big 
savings, America. We are saving money on the farm bill. It is actually 
a 60-percent increase in the last farm bill.
  There is only one question: Does this bill really save money? The 
answer is absolutely not. Instead of doing the reforms we need in the 
Food Stamp Program, which, frankly, is about 75 percent or more of this 
bill, we are passing a farm bill that locks in what is supposed to be a 
temporary spending level for food stamps over the next 5 years.
  What is really in this farm bill? A lot of it is food stamps. There 
is some foreign aid. There are some things for climate change. There is 
housing and foreclosure. And there is broadband Internet. It is a 
catch-all for a lot of things. But in order for us to get what we need 
for the pharmaceutical industry in America, we have to agree to this 
huge additional increase in these other programs.
  The stunning expansion in the Food Stamp Program is particularly 
concerning because more than one in seven Americans is now on the Food 
Stamp Program. The number of people on the program has increased by 70 
percent since 2007 and 400 percent since 2000. This, again, was when 
our economy was good and unemployment was low. We were still 
increasing.
  Unfortunately, many politicians are using the food stamps to buy 
votes. The small part of the bill that actually deals with farming 
replaces one form of corporate welfare for another. The bill eliminates 
the controversial direct payment system but replaces it with something 
that many consider far worse--a new program in this bill that is called 
agricultural risk coverage that promises farmers the government will 
pay for 90 percent of their expected profits if the market prices 
decline. Under this scheme, farmers will pay no attention to the laws 
of supply and demand because the government will guarantee their 
profits.
  Americans want less spending and less debt. All the polls we have 
looked at--the National Journal poll that came out--said 74 percent of 
Americans believe the spending on food stamps should stay the same or 
decrease, and

[[Page 8858]]

the spending on the farm bill, 56 percent say, should stay the same or 
decrease. Yet we are increasing it 60 percent.
  It is hard to answer the question of why we continue to do this--
continue to spend money, borrow money, and talk about the need to cut. 
Yet for one program after another we increase spending.
  I oppose this bill for the reasons I have talked about. It spends $1 
trillion. We need an open debate, which we are being told we are not 
going to have. We are not going to have all the amendments we are 
talking about, which we need to fix this program. So if the leader 
decides to limit the debate and limit the amendments, I will absolutely 
oppose this bill and do everything I can to stop it.
  I plead with my colleagues to start telling Americans the truth. This 
farm bill increases spending. It doesn't save money. It adds to our 
debt. It locks in spending on a program we need to change, particularly 
for the beneficiaries of the Food Stamp Program who are not being 
helped. They are being trapped in a dependent relationship with 
government indefinitely instead of us doing what will actually help 
them get a job and improve their status in life.
  I encourage my colleagues to oppose this bill.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Indiana.


                        National Security Leaks

  Mr. COATS. Mr. President, I rise today to discuss the issue of 
national security leaks.
  A few weeks ago, the world learned that U.S. intelligence agencies 
and partners disrupted an al-Qaida plot to blow up a civilian aircraft. 
We are all very familiar with the success of this effort, and we 
applaud those involved in preventing a truly horrific terrorist attack.
  However, my concern today, and has been since that time, is that the 
public has become too familiar with this successful operation. 
Specifically, due to an intelligence leak, the world learned of highly 
sensitive information, sources, and methods that enabled the United 
States and its allies to prevent al-Qaida from striking again.
  This irresponsible leak jeopardizes future operations and future 
cooperation with valuable sources and intelligence partners overseas. 
The release of this information--intentional or not--puts American 
lives at risk as well as the lives of those who helped us in this 
operation.
  Unfortunately, this is not the only recent leak to occur. As a member 
of the Senate Select Committee on Intelligence, I am deeply concerned 
about a troubling rash of leaks exposing classified intelligence 
information that has come out in the last several weeks. This paints a 
disturbing picture of this administration's judgment when it comes to 
national security.
  There is a questionable collaboration with Hollywood, whereby the 
Obama administration decided to give unprecedented access to filmmakers 
producing a movie on the bin Laden raid--including the confidential 
identity of one of our Nation's most elite warriors. Discussions with 
reporters in the aftermath of the raid also may have revealed the 
involvement of a Pakistani doctor, who was sentenced to 33 years in 
prison for treason after playing a critical role in the hunt for bin 
Laden.
  The pages of our newspapers have highly classified information 
publicized pertaining to intelligence operations in Yemen and Iran--
currently, the two most concerning foreign policy challenges this 
Nation faces. This is in addition to the frequency with which top 
administration officials now openly discuss the once highly classified 
execution of drone strikes. All too frequently we read in these 
publications that ``highly placed administration officials'' are the 
source of confirmation of previously classified information.
  Sadly, these incidents are not the first time this Nation's secrets 
have spilled onto the streets or in the book stores. The problem stems 
in part from the media's insatiable desire for information that makes 
intelligence operations look a lot like something out of a Hollywood 
script. This media hunger is fed by inexcusable contributions from 
current and former government officials.
  Mr. President, I want to repeat that last statement. This media 
hunger to publish classified information comes from the inexcusable 
contributions of current and former government officials. We now know 
that investigations by the FBI, CIA, and now two prosecutors are 
underway, but more must be done to prevent intelligence disclosures 
from occurring in the first place.
  The question of whether the White House purposely leaked classified 
information, as the President refutes, is not my main point. Whether it 
was intentional has little bearing on the results. Highly classified 
information still got out, and it appears to have been enabled by 
interviews with senior administration officials.
  At this time, I take the President at his word that the White House 
did not purposely leak classified information. But what about his 
administration leaking it accidentally or what about mistakenly or--and 
this is perhaps the best adjective that might apply--what about 
stupidly? There remain a lot of unanswered questions about the White 
House's judgment and whether the actions by this administration, 
intentional or not, enabled highly sensitive information to become 
public.
  The House and Senate Intelligence Committees are working together in 
a nonpartisan fashion--let me emphasize that we are working together in 
a nonpartisan fashion--to address this issue. As a member of the 
committee, I am working with my colleagues to evaluate a range of 
reforms to reduce or hopefully eliminate the opportunity for future 
leaks. I wish to commend Chairman Feinstein and Vice Chairman Chambliss 
for their efforts and genuine interest in moving forward with this, and 
I thank them for their leadership on this matter. Our committee, 
working across the Capitol with the House Intelligence Committee, will 
bring forward recommendations, including legislation, to address this 
growing problem.
  As the Department of Justice conducts its investigations, we cannot 
lose sight of important questions that must be answered, such as but 
not limited to the following:
  Question No. 1: Why did the White House hold a conference call on May 
7 with a collection of former national security officials, some of whom 
are talking heads on network television, to discuss the confidential 
operation to disrupt the al-Qaida bomb plot?
  Question No. 2: Why is the White House cooperating so candidly with 
Hollywood filmmakers on a movie about the Osama bin Laden raid, one of 
the most highly secretive operations in the history of this country? 
While we don't know the date of the public release of this Hollywood 
production, we can be sure that any release prior to the November 
Presidential election will fuel a firestorm of accusations of political 
motives.
  Question No. 3: Why would the confidential identity of elite U.S. 
military personnel be released to Hollywood filmmakers?
  Question No. 4: Why would administration officials even talk to 
reporters or authors writing books or articles about incredibly 
sensitive operations?
  Question No. 5: Did any administration officials--in the White House 
or not--authorize the disclosure of classified information?
  These are just some of the key questions that must be asked in this 
investigation. There also remain several questions surrounding the 
current investigations. The appointment of two prosecutors to lead 
criminal investigations into the recent leaks is a step forward, but 
the scope remains unclear, as well as the question of whether we should 
insist on a special counsel given the current concerns about the 
credibility of the Justice Department.
  Will these investigations focus just on the Yemen and Iran issue or 
will the leaks involving drone strikes and other leaks that have 
occurred in the past months also be a target of the investigation?
  Will White House officials be interviewed as part of this 
investigation? Which officials will or will not be

[[Page 8859]]

available to take part in the investigation? Will those who are former 
or no longer a part of the administration or the Federal Government or 
those outside it, including those reporters in question, be a part of 
this investigation?
  Will e-mails or phone calls of administration officials be analyzed 
to identify who spoke with the reporters and authors in question and 
when?
  Again, whether these officials are intentionally leaking classified 
information is not the main point. If they put themselves in situations 
where they are discussing or confirming classified information, they 
must also be held accountable. Public pressure is required to shape 
these investigations and to ensure all our questions about these events 
are answered, which is why I am speaking here today.
  Every day, we have men and women in uniform serving around the globe 
to protect and defend this great country, and every day we have 
intelligence professionals and national security officers working 
behind the scenes with allies and potential informants to prevent 
attacks on our country. These leaks undermine all that hard work and 
all those countless sacrifices. Additionally, it risks lives and the 
success of future operations. Not only must we plug these damaging and 
irresponsible leaks, we also must work to do all we can to eliminate or 
greatly reduce the opportunity for them to occur in the future.
  Criminal prosecution and congressional action is not the only 
solution. We also need public accountability. Administration officials 
continue to speak off the record with reporters and authors about 
classified information even after these recent disclosures. It is a 
practice that contributes to unwise and harmful consequences.
  Purposely or accidentally, loose lips can bring about disastrous 
results. Perhaps the best advice is the saying: ``You don't have to 
explain what you don't say'' or maybe it is even simpler than that. 
Maybe the best advice for those who are privy to confidential 
information is what former Defense Secretary Robert Gates said, and I 
paraphrase: Just shut the heck up.
  I yield the floor.
  Mr. LEAHY. Mr. President, last night the Senate voted to end the 
Republican filibuster of this outstanding nominee. For the 28th time 
since President Obama was elected, the majority leader was forced to 
file cloture to get an up-or-down vote on one of President Obama's 
judicial nominations. Justice Hurwitz is not a nominee who should have 
been filibustered. With the support of Senator Kyl, the partisan effort 
to stall yet another judicial nomination was defeated. I thank Senator 
Kyl and the Republican Senators who had the good sense to agree to 
proceed to an up-or-down vote on this nomination.
  By any traditional measure, Justice Hurwitz is the kind of judicial 
nominee who should have been confirmed easily by an overwhelming, 
bipartisan majority. Justice Hurwitz has served for 9 years on the 
Arizona Supreme Court and had a distinguished legal career. He has the 
support of his home state Senators, both conservative Republicans. He 
was unanimously rated well qualified by the American Bar Association 
Standing Committee on the Federal Judiciary. And he was nominated to 
fill a longstanding judicial emergency vacancy on the overburdened 
Ninth Circuit after extensive consultation between the White House and 
the Arizona Senators.
  The campaign that was mounted by the extreme right against this 
outstanding nominee was wrong. I spoke against it yesterday, as did 
Senator Kyl and Senator Feinstein. Some were attempting to disqualify a 
nominee with impeccable credentials because a Federal judge for whom 
that nominee clerked some 40 years ago decided a case with which they 
disagree, a case that is still reflected as the law of the land. We 
have seen a number of new and disappointing developments during the 
last 2 years as Republicans have ratcheted up their partisan opposition 
to President Obama's judicial nominees. On this nomination, for 
example, I saw for what I think may be the first time a Senator reverse 
his vote for a nomination and, instead, oppose cloture and support a 
filibuster of that same nomination.
  Justice Hurwitz's nomination is representative of the new standard 
that has been imposed on President Obama's judicial nominees since this 
President took office. After close consultation with home State 
Senators, President Obama sent to the Senate a nominee with 
unimpeachable credentials. Indeed, in the near decade that he has 
served on the Arizona Supreme Court, not one of Justice Hurwitz's 
decisions has been overturned. Despite the bipartisan support for 
Justice Hurwitz, and his excellent credentials, partisan Republicans 
have filibustered this nomination.
  I heard some Senate Republicans attempt to mischaracterize Justice 
Hurwitz's record on the death penalty. Over his 9-year tenure on the 
Arizona Supreme Court, Justice Hurwitz has personally authored eight 
opinions and joined numerous other opinions upholding the death 
penalty. He also responded to both Senator Grassley and Senator 
Sessions that ``the death penalty is a constitutionally appropriate 
form of punishment'' and that he ``has voted in scores of cases to 
uphold the death penalty.''
  Justice Hurwitz's critics argue that he was the lone dissenter in two 
rulings involving the death penalty, but in each case Justice Hurwitz 
did not oppose the death penalty but sought to ensure that due process 
was followed to guarantee fair justice and prevent reversal on appeal. 
In State v. Beaty, the State of Arizona had decided overnight to apply 
a new death penalty execution cocktail, and Justice Hurwitz felt that a 
new execution warrant was necessary. Justice Hurwitz's dissent was not 
opposing the death penalty; rather, he specifically requested the court 
``immediately issue a new [execution] warrant effective as soon as 
legally possible.''
  In State v. Styers, Justice Hurwitz relied on Supreme Court precedent 
and held that it prevented the Court from affirming the defendant's 
death sentence when one aggregating factor had not been tried to a 
jury. In his dissent, Justice Hurwitz reasoned that a limited 
proceeding on that aggravating factor was ``constitutionally mandated 
and will likely bring this case to conclusion more promptly than the 
new round of federal habeas proceedings that will inevitably follow 
today's decision.'' Thus, Justice Hurwitz did not ``quarrel with the 
substance of the determination,'' but felt that the procedural error 
should have been corrected.
  The fact that he successfully argued the case of Ring v. Arizona, 
where the U.S. Supreme Court found by a 7-2 vote that the Constitution 
requires a jury trial to establish the aggravating circumstances that 
make a defendant eligible to receive the death penalty, does not make 
him an opponent of the death penalty any more than Justice Scalia and 
Justice Thomas, who supported the decision, oppose the death penalty. 
That case was principally about the defendant's Sixth Amendment right 
to a jury trial and it was not a challenge to the death penalty.
  Moreover, a ``study'' cited that purports to label Justice Hurwitz as 
``pro defendant'' is based on a sample size of only 10 criminal cases--
and Justice Hurwitz was not on the bench for four of them. That is 
hardly representative of Justice Hurwitz's career on the bench and the 
many criminal appeals Justice Hurwitz has heard and the many 
convictions he has upheld. Let us be honest about his record.
  Justice Hurwitz is an outstanding nominee with impeccable credentials 
and qualifications. He has a record of excellence as a jurist. Not a 
single decision he has made from the bench in his nine years as justice 
has been reversed, and he has the strong support of both Republican 
Senators from Arizona as well as many, many others from both sides of 
the political aisle.
  A graduate of Princeton University and Yale Law School, Justice 
Hurwitz served as the Note and Comment Editor of the Yale Law Journal. 
Following graduation, he clerked on every level of the Federal 
judiciary: First for Judge Jon O. Newman, who was then U.S. District 
Judge on the District of Connecticut. Subsequently, he clerked

[[Page 8860]]

for Judge Joseph Smith of the U.S. Court of Appeals for the Second 
Circuit. Then he clerked for Justice Potter Stewart of the U.S. Supreme 
Court.
  He then distinguished himself in private practice, where he spent 
over 25 years at a law firm in Phoenix, Arizona. While in private 
practice, Justice Hurwitz tried more than 40 cases to verdict or final 
decision. Justice Hurwitz has also taught classes at Arizona State 
University's Sandra Day O'Connor College of Law for approximately 15 
years on a variety of subjects including ethics, Supreme Court 
litigation, legislative process, civil procedure, and Federal courts.
  By any traditional measure, Justice Hurwitz is the kind of judicial 
nominee who should be confirmed easily by an overwhelming, bipartisan 
vote. And now that the Senate has been forced to invoke cloture with 60 
votes to end a partisan filibuster, I hope the Senate will vote to 
confirm him with bipartisan support.
  I will conclude by emphasizing what I have been saying for months, 
that the Ninth Circuit is in dire need of assistance. This nomination 
should have been considered and confirmed months ago. The Chief Judge 
of the Ninth Circuit along with the members of the Judicial Council of 
the Ninth Circuit, wrote to the Senate months ago emphasizing the Ninth 
Circuit's ``desperate need for judges,'' urging the Senate to ``act on 
judicial nominees without delay,'' and concluding ``we fear that the 
public will suffer unless our vacancies are filled very promptly.'' The 
judicial emergency vacancies on the Ninth Circuit harm litigants by 
creating unnecessary and costly delays. The Administrative Office of 
U.S. Courts reports that it takes nearly 5 months longer for the Ninth 
Circuit to issue an opinion after an appeal is filed, compared to all 
other circuits. The Ninth Circuit's backlog of pending cases far 
exceeds other Federal courts. As of September 2011, the Ninth Circuit 
had 14,041 cases pending before it, far more than any other circuit.
  When Senate Republicans filibustered the nomination of Caitlin 
Halligan to the D.C. Circuit for positions she took while representing 
the State of New York, they contended that their underlying concern was 
that the caseload of the D.C. Circuit did not justify the appointment 
of another judge to that Circuit. I disagreed with their treatment of 
Caitlin Halligan, their shifting standards and their purported caseload 
argument. But if caseloads were really a concern, Senate Republicans 
would not have delayed action on the nominations to judicial emergency 
vacancies on the overburdened Ninth Circuit for months and months.
  So, let us move forward to confirm Justice Hurwitz without further 
delay. The partisan filibuster against this nomination was wrong. Just 
as we moved forward after defeating the filibuster of the nomination of 
Judge Jack McConnell, let us move forward now to vote on the 17 other 
judicial nominees ready for final Senate action and make real progress 
in working with the President to fill judicial vacancies around the 
country.
  The PRESIDING OFFICER. The majority leader.
  Mr. REID. Mr. President, shortly, we are going to move to confirm the 
judge whose nomination we voted to move forward to last night. If 
everyone will be at ease for just a moment.
  Let me ask Senator Coburn how long he wishes to speak.
  Mr. COBURN. Mr. President, I will speak in conjunction with the 
majority whip for a short period of time. I don't have a long speech.
  Mr. REID. If the Senator will be patient, we will get this done very 
quickly.
  Mr. COBURN. You bet.
  Mr. REID. Mr. President, the matter before the Senate is the 
nomination of Judge Hurwitz; is that right?
  The PRESIDING OFFICER. The Senator is correct.
  Mr. REID. I yield back all time on this nomination.
  The PRESIDING OFFICER. If there is no further debate, all time is 
yielded back.
  The question is, Will the Senate advise and consent to the nomination 
of Andrew David Hurwitz, of Arizona, to be United States Circuit Judge 
for the Ninth Circuit.
  The nomination was confirmed.
  Mr. ALEXANDER. I wonder if the majority leader would permit me to 
make a brief statement.
  Mr. REID. I will in one second.

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