Congressional Record United States Th of America PROCEEDINGS and DEBATES of the 111 CONGRESS, SECOND SESSION

E PL UR UM IB N U U S Congressional Record United States th of America PROCEEDINGS AND DEBATES OF THE 111 CONGRESS, SECOND SESSION

Vol. 156 WASHINGTON, TUESDAY, AUGUST 3, 2010 No. 116 House of Representatives The House was not in session today. Its next meeting will be held on Tuesday, September 14, 2010, at 2 p.m. Senate TUESDAY, AUGUST 3, 2010

The Senate met at 9:30 a.m. and was U.S. SENATE, jobs and finish the unfinished business called to order by the Honorable CARTE PRESIDENT PRO TEMPORE, of this work period, we will also turn P. GOODWIN, a Senator from the State Washington, DC, August 3, 2010. to the nomination of Supreme Court of West Virginia. To the Senate: nominee Elena Kagan. Under the provisions of rule I, paragraph 3, of the Standing Rules of the Senate, I hereby Giving the President the Senate’s ad- PRAYER appoint the Honorable CARTE P. GOODWIN, a vice and consent, as prescribed by the The Chaplain, Dr. Barry C. Black, of- Senator from the State of West Virginia, to Constitution for a lifetime appoint- fered the following prayer: perform the duties of the Chair. ment to the highest Court in the coun- Eternal Lord God, who comforts us in DANIEL K. INOUYE, try, is one of this body’s most solemn all our troubles, be near to our law- President pro tempore. obligations. makers today. When they feel tired or Mr. GOODWIN thereupon assumed Chairman LEAHY and Ranking Mem- unappreciated, remind them that You the chair as Acting President pro tember SESSIONS oversaw, through the keep a record of their labors and will pore. lengthy process, very thorough and re- reward them for their faithfulness. f spectful confirmation hearings. All of May the realization that You are close them were fair and I think were pro- beside them keep them from becoming RESERVATION OF LEADER TIME bative. I thank them both for their weary in their efforts to keep America The ACTING PRESIDENT pro tem- leadership. strong. As they remember that pleas- pore. Under the previous order, leader- Several Senators have already made ing You should be their first priority, ship time is reserved. known how they will vote on Ms. fill them with a peace the world can’t f Kagan’s nomination. Those Senators give or take away. Lord, lead them and many others will come to the floor into a future of faith, love, and peace. EXECUTIVE SESSION in the next few days to explain their We pray in Your sacred Name. Amen. positions. I will be one of them speaking in support of this exceptional nomi- f NOMINATION OF ELENA KAGAN TO nee. I will certainly give her my vote. PLEDGE OF ALLEGIANCE BE ASSOCIATE JUSTICE OF THE SUPREME COURT As the debate moves to the Senate The Honorable CARTE P. GOODWIN led floor and as we move toward a final the Pledge of Allegiance, as follows: The ACTING PRESIDENT pro tem- vote, I look forward to a continuation I pledge allegiance to the Flag of the pore. Under the previous order, the of the passionate but civil discussion United States of America, and to the Repub- Senate will proceed to executive ses- we have seen in the committee thus lic for which it stands, one nation under God, sion to consider the following nomina- far. In this respect, perhaps we can indivisible, with liberty and justice for all. tion, which the clerk will report. draw inspiration from Ms. Kagan her- f The assistant legislative clerk read self. In her confirmation hearing last the nomination of Elena Kagan, of year for the position she currently APPOINTMENT OF ACTING Massachusetts, to be Associate Justice holds—as our Nation’s Solicitor Gen- PRESIDENT PRO TEMPORE of the Supreme Court. eral, that is our Government’s lawyer The PRESIDING OFFICER. The RECOGNITION OF THE MAJORITY LEADER in cases that come before the U.S. Su- clerk will please read a communication The ACTING PRESIDENT pro tem- preme Court—Ms. Kagan testified that to the Senate from the President pro pore. The majority leader is recog- one of the attributes she would bring tempore (Mr. INOUYE). nized. to the job was an ‘‘understanding of The assistant legislative clerk read Mr. REID. Mr. President, while we how to separate the truly important the following letter: continue working this week to create from spurious.’’

∑ This ‘‘bullet’’ symbol identifies statements or insertions which are not spoken by a Member of the Senate on the floor.

S6597

VerDate Mar 15 2010 00:08 Aug 04, 2010 Jkt 089060 PO 00000 Frm 00001 Fmt 4637 Sfmt 0634 E:\CR\FM\A03AU6.000 S03AUPT1 smartinez on DSKB9S0YB1PROD with SENATE S6598 CONGRESSIONAL RECORD — SENATE August 3, 2010 In the final days of this process, I certainly compliment the ranking woman to serve as the Solicitor Gen- suggest we keep those words in mind. I member, Senator SESSIONS. We may eral of the United States. Her nomina- hope my fellow Senators will bring to have disagreed on the outcome and on tion to the Supreme Court received the this debate the same appreciation for the vote, but I think Senators worked highest possible rating from the Amer- what is critical to the Court and to our very hard to get questions asked, to ican Bar Association’s Standing Com- country, that will keep it separate make sure that the American people mittee on the Federal Judiciary. Her from what is not. knew who Elena Kagan was. I note that credentials and legal abilities have The ACTING PRESIDENT pro tem- Senator SESSIONS and I set the times been extolled by many across the polit- pore. The Senator from Vermont is rec- for witnesses and all. We were con- ical spectrum. Two of these individuals ognized. strained somewhat by the distin- were Justice Sandra Day O’Connor and MEASURE PLACED ON CALENDAR—H.R. 5901 guished Presiding Officer’s predecessor, Justice Antonin Scalia. In addition, Mr. LEAHY. Mr. President, I under- who died that week, and we were try- Michael McConnell, Kenneth Starr and stand that H.R. 5901 is at the desk and ing to arrange time for many of us to Miguel Estrada have given praise to due for a second reading. go to the funeral. I wanted to publicly this nomination. Like Justices Hugo The ACTING PRESIDENT pro tem- thank Senator SESSIONS for his help in Black, Robert Jackson, Earl Warren, pore. Without objection, the clerk will working out that schedule. William Rehnquist and so many others, read the title of the bill for the second No one can question the intelligence Solicitor General Kagan’s experience time. or achievements of this woman. No one outside the judicial monastery will be The assistant legislative clerk read should question her character either. valuable to her when she is confirmed. as follows: Elena Kagan was the first woman to be No one can question the intelligence or A bill (H.R. 5901) to amend the Internal the Dean of the prestigious Harvard achievements of this woman. I hope no- Revenue Code of 1986 to exempt certain stock Law School and the first woman in our body would question her character ei- of real estate investment trusts from the tax Nation’s history to serve as Solicitor ther. on foreign investment in United States real General, a position often referred to as From the moment her nomination property interests, and for other purposes. the ‘‘Tenth Justice.’’ As a student, she was announced, Solicitor General Mr. LEAHY. I object to any further excelled at Princeton, Oxford and Har- Kagan has spoken about the impor- proceedings on this measure at this vard Law School. She worked in pri- tance of upholding the rule of law and time. vate practice and briefly for then-Sen- enabling all Americans to have a fair The ACTING PRESIDENT pro tem- ator JOE BIDEN on the Judiciary Com- hearing. She said that ‘‘law matters; pore. Objection is heard. The bill will mittee. She taught law at two of the because it keeps us safe, because it pro- be placed on the calendar. Nation’s most respected law schools, tects our most fundamental . . . free- Mr. LEAHY. Mr. President, what is and counseled President Clinton on a doms; and because it is the foundation the order? wide variety of issues. She clerked for of our democracy.’’ Like her, I believe The ACTING PRESIDENT pro tem- two leading judicial figures, Judge the law does matter in people’s lives. pore. Under the previous order, the Abner Mikva on the Court of Appeals That is why I went to law school. That Senator from Vermont, Senator LEAHY, for the District of Columbia Circuit, is why I practiced law and then became will control the first 30 minutes, and and then for Supreme Court Justice a prosecutor. That is why I ran for the the Senator from Alabama, Senator Thurgood Marshall, on one of the most Senate. I believe that the law matters SESSIONS, will control the second 30 extraordinary lawyers in American his- in people’s lives, because the Constitu- minutes. tory. tion is this amazing fabric of our Na- The Senator from Vermont is recog- I have been here since the time of tion; it is our protection. She under- nized. President Gerald Ford, and I have long stands this, as did her mentor, Justice Mr. LEAHY. Mr. President, more urged Presidents from both political Thurgood Marshall. than 12 weeks ago, President Obama parties to look outside what they call In her contribution to the 1993 trib- nominated Elena Kagan to succeed the ‘‘judicial monastery,’’ and not feel ute to Justice Marshall by the Texas Justice John Paul Stevens as an Asso- restricted to considering only Federal Law Review, Elena Kagan recalled how ciate Justice of the Supreme Court of appellate judges to fill vacancies on Justice Marshall’s law clerks had tried the United States. When the President the Supreme Court. This, of course, is to get him to rely on general notions of announced his choice on May 10, he what Presidents used to do. With his fairness, rather than a strict reading of talked about her legal mind, her intel- second nomination to the Court, Presi- the law, so they could allow an appeal lect, her record of achievement, her dent Obama has done just this; he has to proceed on a discrimination claim. temperament and her fair-mindedness. gone outside the judicial monastery. She wrote that the then 80-year-old Having heard from Solicitor General When confirmed, Elena Kagan will be Justice referred to his years trying Kagan at her confirmation hearing 5 the first non-sitting judge to be con- civil rights cases and said: All you weeks ago, I believe the American peo- firmed to the Supreme Court in almost could hope for was that a court would ple have a sense of her impressive 40 years, since the appointments of not rule against you for illegitimate knowledge of the law, her good humor, Lewis Powell and William Rehnquist. reasons. You could not expect that a and her judicial philosophy. In her tes- I know there was criticism by some court would bend the rules in your timony, she made clear that she will Republicans that this nominee lacks favor. That is the rule of law. Just as base her approach to deciding cases on judicial experience. Of course, that ig- Sir Thomas More reminded his son-in- the law and the Constitution, not on nores one key fact. President Clinton law in that famous passage from ‘‘A politics, not on an ideological agenda. nominated her to the DC Circuit Court Man for All Seasons,’’ that the law is She indicated that she will not be the in 1999. The Senate was controlled by our protection, Justice Marshal re- kind of Justice who will substitute her Republicans at the time and it was minded his law clerks that the exist- personal preferences, and overrule the Senate Republicans who refused to con- ence of rules and the rule of law is the efforts of Congress to protect hard- sider her nomination. She was pocket best protection for all, including the working Americans pursuant to our filibustered. Had the Republicans not least powerful. Elena Kagan concluded, constitutional role. Solicitor General done so, Elena Kagan would have been as I do, that Justice Marshall ‘‘believed Kagan made one pledge to those of us confirmed and would have had more devoutly . . . in the rule of law.’’ He who were at that hearing: that she will than 10 years judicial experience. To was a man of the law in the highest do her ‘‘best to consider every case im- give you some idea of her abilities, in- sense. He understood the Constitu- partially, modestly, with commitment stead, when she was not allowed to tion’s promise of equality. to principle, and in accordance with have a vote for the DC Circuit Court, I was disappointed to see the manner law.’’ she went on to become an outstanding in which his legacy was treated by Incidentally, I might say, at the out- law professor, the first woman Dean of some during the recent confirmation set, I compliment Republicans and Harvard Law School—one of the most hearing, and to read that there are Re- Democrats alike for the amount of prestigious law schools in the country, publican Senators, currently serving, time Senators spent at the hearing. I actually the world—and the first who recently said they would vote

VerDate Mar 15 2010 00:08 Aug 04, 2010 Jkt 089060 PO 00000 Frm 00002 Fmt 4637 Sfmt 0634 E:\CR\FM\G03AU6.002 S03AUPT1 smartinez on DSKB9S0YB1PROD with SENATE August 3, 2010 CONGRESSIONAL RECORD — SENATE S6599 against Thurgood Marshall’s confirma- at their confirmation hearings, we so in order to address our health care tion to the Supreme Court if he were have seen a Supreme Court in the last crisis and ensure that Americans who up now. He was a giant, and I would 5 years that has been anything but work hard their entire lives are not hope that if he were here again, those modest and restrained. What we have robbed of their family’s security be- Senators would reconsider whether seen all too often in these last years is cause health care is too expensive. We they would vote for him. the activist conservative members of were right to make sure that hard- With this nomination, Elena Kagan the Supreme Court substituting their working Americans do not risk bank- follows in the footsteps of Justice Mar- own judgment for that of the American ruptcy with every illness. Many Repub- shall, who was also nominated to the people’s elected representatives. lican Senators disagreed, as is their Supreme Court from the position of So- I have always championed judicial right, and voted against the law. But licitor General. She broke a glass ceil- independence. I think it is important many of those who opposed this law ing when she was appointed as the first that judicial nominees understand now seek to do in the courts what they woman to serve as Solicitor General of that, as judges, they are not members could not do by obstruction in Con- the United States and when she served of an administration—any administra- gress. They are so adamant in seeking as the first woman dean of the Harvard tion, Democratic or Republican, but this result, that they would turn back Law School. When the Supreme Court they are judicial officers. They should the clock by resurrecting long-discred- next convenes, for the first time in our not be political partisans, but judges ited legal doctrines wisely rejected a history, I predict there will be three who uphold the Constitution and the nearly a century ago. women serving together among the rule of law for all Americans. That is In framing their opposition to health nine Justices. what Justice Stevens did in Hamdan, insurance reform as a constitutional The stakes at the Nation’s highest which held the Bush administration’s attack, these critics would also under- court could not be higher. One need military tribunals unconstitutional, mine the constitutional basis of laws look no further than the Lilly and what he tried to do in Citizens against child labor and those setting a Ledbetter case to understand the im- United. That is why intervention by an minimum wage or the Social Security pact that each Supreme Court appoint- activist conservative majority in the Act, Medicare, the Clean Water Act, ment has on the lives and freedoms of 2000 Presidential election in Bush v. the Clean Air Act, and the landmark Civil Rights Acts. All are constitu- countless Americans. In the Ledbetter Gore was so jarring and wrong. Mr. tional because of Congress’s authority case, five Justices of the Supreme Gore had gotten the majority of votes to legislate pursuant to the core pow- Court struck a severe blow to the throughout the country, but there was ers vested in Congress by article I, sec- rights of working families across our just one vote on the Supreme Court tion 8 of the Constitution, including country. Congress acted to protect that he didn’t get—the one vote that the general welfare clause, the com- women and others against discrimina- decided the election. That one vote was merce clause, and the necessary and tion in the workplace more than 40 given to President Bush. proper clause. The radical con- years ago, but we still struggle to en- During her confirmation hearings, sequences of a narrow-minded agenda Solicitor General Kagan reflected an sure that all Americans—women and would be to erode the Supreme Court’s understanding of the judicial role and men—receive equal pay for equal work. time-honored interpretation of these the traditional view of deference to It took a new Congress, joined by our enumerated powers that give Congress Congress and judicial precedent. This is new President, to reverse the activist the ability to promote the general wel- the mainstream view and one once em- conservative majority in the Supreme fare of the American people. Court by passing the Lilly Ledbetter braced by conservatives. She indicated These critics wish to return to the Act, striking down the immunity the she would not be the kind of Justice conservative judicial activism of the Supreme Court had given to employers who would substitute her personal pref- early 1900s, a period known by ref- who discriminate against their employ- erences and overrule congressional ef- erence to one of its most notorious ees and successfully hid their wrong- forts designed to protect hard-working cases, the 1905 Lochner decision in doing. The Ledbetter case said, in a de- Americans pursuant to our constitu- which the Supreme Court struck down cision I still find shocking, that they tional role. In fact, it is precisely be- a New York State law protecting the could pay men a higher rate than cause of Solicitor General Kagan’s health of bakers by regulating the women for the same work. As long as independence that many Republicans number of hours they could work. they kept it hidden, it was OK. have announced their opposition to her During this period of unbridled con- Recently in the Citizens United case, nomination. They oppose her not be- servative judicial activism, the Su- just one vote on the Supreme Court de- cause she would be a judicial activist preme Court substituted their own termined that corporate money can as they claim, but rather because she views of property for those of the elect- drown out the voice of Americans in would not overrule Congress as much ed branches in order to strike down elections that decide the direction of as they would like. They seem not to nearly 200 laws, including laws out- our democracy. They said that if Brit- like the fact that she is genuinely com- lawing child labor—something we take ish Petroleum wanted to spend hun- mitted to judicial restraint rather than for granted today—and laws protecting dreds of millions of dollars to defeat furthering a conservative ideological Americans from sick chickens—some- people who want to tighten the con- agenda. thing that created a huge health haz- trols on our offshore drilling, or want Some who oppose this nomination do ard. They envisioned their principal to tighten the kind of inspections reso because they seek to make this role as the defender of business’s prof- quired for offshore drilling, British Pe- nomination a continuation of the fight its—profits they made with child troleum, according to the Supreme over health care. They seek to trans- labor—and the protector of unre- Court, could spend hundreds of millions form this policy dispute they lost in strained ability to perform contracts, of dollars to defeat these people. Congress into a constitutional one that however onerous or one-sided. The I had hoped that Senate Republicans goes against 100 years of law and Su- American people suffered. Their rights would join our effort to respond to the preme Court precedents. They would went unprotected. Congress was unable conservative activist majority of the turn back the clock by resurrecting to provide assistance. That is not a Supreme Court, who wrongly decided long-discredited legal doctrines wisely time anyone should want to return to to override its own precedent and 100 rejected nearly a century ago. They op- because it was based on artificial legal years of legal development in Citizens pose Solicitor General Kagan because restraints that shackled the people’s United. Unfortunately, last week they she will not commit to a narrow and elected representatives in Congress. filibustered the DISCLOSE Act and outmoded legal view that would under- Millions of Americans rely on Social gave their endorsement to unfettered mine the constitutionality of health Security, Medicare, unemployment corporate influence in American elec- insurance reform. benefits, minimum wage laws, and tions. Congress has enacted and the Presi- other programs to protect Americans For all the talk about ‘‘judicial mod- dent has signed into law the landmark in tough economic times. This radical esty’’ and ‘‘judicial restraint,’’ from Patient Protection and Affordable Care conservative agenda is a threat to Fed- the nominees of a Republican President Act. I believe Congress was right to do eral disaster relief and environmental

VerDate Mar 15 2010 00:08 Aug 04, 2010 Jkt 089060 PO 00000 Frm 00003 Fmt 4637 Sfmt 0634 E:\CR\FM\G03AU6.004 S03AUPT1 smartinez on DSKB9S0YB1PROD with SENATE S6600 CONGRESSIONAL RECORD — SENATE August 3, 2010 regulations and even laws responding health. The authority and responsi- and laws to secure it. He recognized to the reckless and fraudulent behavior bility for taking actions to further this that it was the people’s wisdom as en- that wrecked our economy. purpose is vested in Congress by article acted through their representatives Progressive opponents of these artifi- I of the Constitution. As I stated ear- that was to be respected, not the per- cial legal restraints ultimately suc- lier, article I, section 8, sets forth sev- sonal preference of a small elite group ceeded, with the support of the Amer- eral of the core powers of Congress, in- of judges. ican people, in establishing Social Se- cluding the general welfare clause, the The Supreme Court reached its deci- curity, minimum wage laws, and anti- commerce clause and the necessary and sions upholding Social Security after discrimination laws to protect the proper clause. These clauses form the the first Justice Roberts—Justice American people. The programs of the basis for Congress’s power. Owen Roberts—in the exercise of good New Deal that helped Americans Any serious questions about congres- judgment and judicial restraint began through the Great Depression would be sional power to take comprehensive ac- voting to uphold key New Deal legisla- unconstitutional if radical conserv- tion to build and secure the social safe- tion. He was not alone. It was Chief ative critics had their way. Radical ty net have been settled over the past Justice Hughes who wrote the Supreme conservatives who seek to again im- century. As noted by Tom Schaller, en- Court’s opinion in West Coast Hotel v. pose artificial legal restraints on Con- forcing the individual mandate require- Parrish upholding minimum wage re- gress and the American people would ment by a tax penalty is far from un- quirements as reasonable regulation. abandon the New Deal programs of the precedented, despite the claims of crit- The Supreme Court also upheld a Fed- 1930s such as social security and the ics. Individuals pay for Social Security Great Society programs of the 1960s and Medicare, for example, by payroll eral farm bankruptcy law, railroad such as Medicare to the detriment of taxes collected under the Federal In- labor legislation, and the Wagner Act the American people. These are the surance Contributions Act, FICA. on labor relations. In so doing, the Su- programs that for the last 75 years These FICA payments are typically preme Court abandoned its judicially have helped the United States become collected as deductions and noted on created veto over congressional action a world leader, with the economic secu- Americans’ paychecks every month. with which it disagreed on policy rity of our citizens leading our econ- Professor Schaller wrote: grounds and rightfully deferred to Congress’s constitutional authority. omy to grow to lead the world. These are the two biggest government- Millions of Americans rely on Social sponsored insurance programs administered The opponents of health care insur- Security, Medicare, unemployment by the [Federal Government], and two of the ance reform are now opposing the nom- benefits, minimum wage laws and largest line items in the federal budget. ination of Elena Kagan and now going other programs that protect American These paycheck deductions are not optional, to the extreme to attempt to call into families in tough economic times such and for all but the self-employed they are taken out immediately. question the constitutionality of as these. This is no academic discus- America’s established social safety net. The individual mandate requirement sion. This radical conservative agenda They would turn back the clock to the in the Patient Protection and Afford- is a threat to Federal disaster relief, hardships of the Great Depression, and able Care Act is hardly revolutionary environmental regulations, and even thrust modern America back into the when viewed against the background of laws responding to the reckless and conditions of a Charles Dickens novel. Social Security and Medicare that fraudulent behavior that wrecked the That path should be rejected again have long required individual pay- economy. America’s great safety net now, just as it was when Americans ments. for those in need would be left in tat- confronted great economic challenges Congress has woven America’s social ters if this outmoded legal doctrine more than 70 years ago. To attempt to safety net over the last threescore and were to take root. strike down principles that have been Ask our fellow Americans in the gulf, 13 years, beginning before I was born. Congress’s authority to use its judg- settled for nearly three-quarters of a those who have lost their jobs in the century is wrong, damaging to the Na- recession and those who have lost their ment to promote the general welfare cannot now be in doubt. America and tion, and would stand the Constitution homes, whether the Court should adopt on its head. this radical view of the limits of all Americans are the better for it. Congress’s power to help them. Ask Growing old no longer means growing Due to Republican obstruction, it them if they want to roll back the poor. Being older or poor no longer took an extraordinary majority of 60 clock and overturn laws passed by Con- means being without medical care. Senators, not a simple majority of 51, gress to protect hard-working Ameri- These developments are all due in part for the Senate’s will to be done. The cans. The conservative agenda to re- to congressional action. fact that Senate Republicans disagree store the Lochner era would leave The Supreme Court settled the de- with the effort to help hardworking hard-working Americans without the bate on the constitutionality of Social Americans obtain access to affordable protection their lifetimes of hard work Security more than 70 years ago in health care does not make it unconsti- have earned them. three 1937 decisions. In one of those de- tutional. As Justice Cardozo wrote for The fact that Elena Kagan will not cisions, Helvering v. Davis, Justice the Supreme Court 73 years ago in up- state that she shares the views of those Cardozo wrote that the discretion to holding Social Security: who opposed helping hard-working determine whether a matter impacts [W]hether wisdom or unwisdom resides in Americans obtain access to affordable the general welfare falls ‘‘within the the scheme of benefits set forth . . . it is not health care does not mean she is out- wide range of discretion permitted to for us to say. The answer to such inquiries side the mainstream—far from it. The the Congress.’’ Turning then to the must come from Congress, not the courts. fact that some Republican critics op- ‘‘nation-wide calamity that began in Justice Cardozo understood the sepa- posed health care reform does not 1929’’ of unemployment spreading from ration of powers enshrined in the Con- make it unconstitutional. state to state throughout the Nation, The Constitution in fact provides a Justice Cardozo wrote of the Social Se- stitution and the powers entrusted by clear basis for Congress’ authority to curity Act: ‘‘The hope behind this stat- our Constitution to Congress. This is enact health care insurance reform. ute is to save men and women from the true judicial modesty reflecting the Our Constitution begins with a pre- rigors of the poor house as well as from understanding of the respective roles of amble that sets forth the purposes for the haunting fear that such a lot Congress and the courts. Surely when which ‘‘We the People of the United awaits them when journey’s end is Congress acts to provide for the gen- States’’ ordained and established it. near.’’ In the Supreme Court’s decision eral welfare of all Americans it does so Among the purposes set forth by the upholding the constitutionality of So- pursuant to its constitutional author- Founders was that the Constitution cial Security, Justice Benjamin ity. was established to ‘‘promote the gen- Cardozo, one of our greatest jurists, ex- I believe that Congress was right eral Welfare.’’ It is hard to imagine an plained that it is the people’s elected when it decided that the lack of afford- issue more fundamental to the general representatives in Congress that con- able health care and health insurance welfare of all Americans than their sider the general welfare of the country and the rising health care costs that

VerDate Mar 15 2010 00:08 Aug 04, 2010 Jkt 089060 PO 00000 Frm 00004 Fmt 4637 Sfmt 0634 E:\CR\FM\G03AU6.005 S03AUPT1 smartinez on DSKB9S0YB1PROD with SENATE August 3, 2010 CONGRESSIONAL RECORD — SENATE S6601 burden the American people are prob- fecting them are gone. The years when doubted commercial activities was limited lems, ‘‘plainly national in area and di- farmers could not be protected from by a judicial determination that those mat- mensions.’’ Those were the words Jus- market failures or natural disasters ters had an insufficient connection to an interstate system. tice Cardozo used to describe the wide- are gone. The era of conservative activ- spread crisis of unemployment and in- ist judges voiding regulation that did They are right as a matter of law and security during the Great Depression. I not guarantee profits to corporations right when it comes to the interests of believe that it was right for Congress should be gone. The reach of Congress’s the American people. The Constitution also provides in ar- to determine that it is in the general commerce clause authority has been ticle I, section 8, that Congress has the welfare of the Nation to ensure that all long established and well-settled. So- power ‘‘to make all Laws which shall licitor General Kagan’s answer to Sen- Americans have access to affordable be necessary and proper for carrying ator COBURN’s question reflects not quality health care. Whether other into Execution the foregoing Powers only this well-settled understanding, Senators agree or disagree, I would and all other Powers vested by his Con- but also the understanding of the prop- hope that none would contend that we stitution in the United States.’’ The er roles of each of the branches that should turn back the clock to the Supreme Court settled the meaning of was restored when the Supreme Court Great Depression when conservative the necessary and proper clause almost rejected the misguided conservative ac- activist judges prevented Congress 200 years ago in Justice Marshall’s from exercising its powers, making its tivism of the Lochner era. Since the great Chief Justice Mar- landmark decision for the Supreme legislative determinations and helping Court in McCullough v. Maryland, dur- the American people through tough shall’s interpretation of the commerce clause in 1824, Congress has been under- ing the dispute over the National economic times. Sadly, some are mak- Bank. Justice Marshall wrote that ing precisely that argument and con- stood and acknowledged by the Su- preme Court to have the power ‘‘to pre- ‘‘the clause is placed among the powers tend that this settled meaning of the of Congress, not among the limitations Constitution should be upended. scribe rules’’ to govern commerce that ‘‘concerns more than one State.’’ It on those powers.’’ The dark days of unbridled conserv- He continued: was this same understanding that Jus- ative judicial activism in which Let the end be legitimate, let it be within Congress’s hands were tied from out- tice Cardozo followed in upholding the the scope of the Constitution, and all means lawing child labor and enacting a min- Social Security Act and that Justice which are appropriate, which are plainly imum wage and social security are long Felix Frankfurter later praised as adopted to that end, which are not prohib- gone and better left behind. The Con- Chief Justice Marshall’s extraordinary ited, but consistent with the letter and spirit stitution, Supreme Court precedent, achievement of capturing, for all time, of the Constitution, are constitutional. our history and the interests of the the essential meaning of the commerce He concluded by declaring, in accord- American people all stand on the side clause. Pursuant to this understanding ance with a proper understanding of of Congress’s authority to enact health of its power under the commerce the necessary and proper clause, that care insurance reform legislation. clause, Congress enacted not only Fed- Congress should not be deprived ‘‘of the Under article I, section 8, Congress eral disaster relief from the 18th cen- capacity to avail itself of experience, has the power ‘‘to regulate Commerce tury but also the 1964 Civil Rights Act to exercise its reason, and to accommo- . . . among the several States.’’ Since prohibiting racial discrimination by date its legislation to human affairs’’ at least the time of the Great Depres- public accommodations and the land- by judicial fiat. Chief Justice Marshall sion and the New Deal, Congress has mark Clean Air and Clean Water Acts, understood the Constitution, knew its been understood and acknowledged by both of which President Nixon signed text and knew the Framers. He re- the Supreme Court to have power pur- into law. Would conservative activists jected the constraints on Congress that suant to the commerce clause to regu- now argue that these acts, the Civil conservative activists now propose in late matters with a substantial effect Rights Act, the Clean Air Act and the order to empower conservative judicial on interstate commerce. That is con- Clean Water Act, should suddenly be activism. The necessary and proper clause goes sistent with Elena Kagan’s testimony. declared unconstitutional as beyond hand in hand with the commerce clause In Solicitor General Kagan’s re- Congress’s power? to ensure congressional authority to sponses to questions about the com- Even recent decisions by a Supreme regulate activity with economic im- merce clause I heard an echo of Justice Court dominated by Republican-ap- pact. Just this year the Supreme Court Cardozo’s explanation for why Social pointed justices have affirmed this rule upheld provisions of the Adam Walsh Security is constitutional and of Jus- of law. In 2005, the Supreme Court ruled in Gonzales v. Raich that Con- Child Protection and Safety Act, a law tice Oliver Wendell Holmes’s famous we passed to allow for the civil com- dissent in Lochner. In particular, I re- gress had the power under the commerce clause to prohibit the use of mitment of sexually dangerous Federal call Solicitor General Kagan’s response prisoners, which was based on the com- to a question from Senator COBURN medical marijuana. This was upheld even though the marijuana was grown merce clause and the necessary and that he later admitted was intended to proper clause of the Constitution. As get her to signal how she would decide and consumed at home. It was upheld on the same rationale as Wickard v. Justice Breyer wrote for seven Jus- a constitutional challenge to health tices, including Chief Justice Roberts: care insurance reform. He asked Solic- Filburn in 1942, because of its impact on the national market for marijuana. [T]he Necessary and Proper Clause makes itor General Kagan what she thought clear that the Constitution’s grants of spe- of a hypothetical law requiring Ameri- Yet Republican Senators and conserv- cific federal legislative authority are accom- cans to eat three vegetables a day. She ative ideologues contend that Wickard panied by broad power to enact laws that are went on to explain: should be discarded. Would they also ‘‘convenient, or useful’’ or ‘‘conducive’’ to I think the question of whether it’s a dumb demand that Federal laws against the authority’s ‘‘beneficial exercise.’’ law is different from . . . the question of drugs be declared unconstitutional? Congress passes laws like the Adam whether it’s constitutional, and . . . I think Justice Anthony Kennedy and Jus- Walsh Act every year to protect the that courts would be wrong to strike down tice Sandra O’Connor, both conserv- American people. Would those who laws that they think . . . are senseless just ative Justices appointed by Republican want to redraft and limit the Constitu- because they’re senseless. Presidents, astutely noted in their 1995 tion really want to declare the Adam The Supreme Court long ago upheld concurrence in United States v. Lopez: Walsh Act and its provisions against laws like the Fair Labor Standards Act [T]the Court as an institution and the pedophiles unconstitutional? against legal challenges, overruling its legal system as a whole have an immense Solicitor General Kagan’s testimony decision barring Congress from out- stake in the stability of our Commerce shows that she both understands and lawing child labor and establishing Clause jurisprudence as it has evolved to this recognizes, in accordance with the basic working conditions such as a point. [That] fundamental restraint on our power forecloses us from reverting to an un- longstanding judgments of both Con- minimum wage. The days when women derstanding of commerce that would serve gress and the Supreme Court, that and children could not be protected are only an 18th-century economy . . . and man- Congress’s power to legislate under the gone. The time when the public could dates against returning to the time when commerce clause power and the nec- not be protected from sick chickens in- congressional authority to regulate un- essary and proper clause is broad but

VerDate Mar 15 2010 00:08 Aug 04, 2010 Jkt 089060 PO 00000 Frm 00005 Fmt 4637 Sfmt 0634 E:\CR\FM\G03AU6.006 S03AUPT1 smartinez on DSKB9S0YB1PROD with SENATE S6602 CONGRESSIONAL RECORD — SENATE August 3, 2010 not unlimited. Indeed, she agreed with spoken critic of the so-called economic ciate the proper role of the courts in the Senator from Texas that the Su- due process doctrine that allowed ac- our democracy and make decisions in preme Court’s decisions in Lopez and tivist conservatives to substitute their light of the fundamental purposes of Morrison limit Congress’s power to leg- views for those of Congress. Indeed, if the law. This is the standard I applied islate ‘‘when the activity that’s being they were to be consistent, they would when reviewing this nomination. It is regulated is not itself economic in na- have to rethink their support for the the same standard I applied to every ture and is activity that’s traditionally current Chief Justice, John Roberts, Supreme Court nomination, including been regulated by the States.’’ But, she who testified at his confirmation hear- six Justices nominated by Republican noted that ‘‘to the extent that Con- ing that during the Lochner era, when Presidents for whom I have voted. It is gress regulates the channels of com- the Supreme Court was striking down a standard I believe Solicitor General merce, the instrumentalities of com- economic regulations in the late 1800s Kagan has met. merce, and . . . things that substan- to the early 1930s, to quote John Rob- Solicitor General Kagan not only has tially affect interstate commerce, erts, ‘‘it’s quite clear that they [were] the necessary qualifications to be a Su- there the Court has given Congress not interpreting the law, they [were] preme Court Justice but has also dem- broad discretion.’’ She is right as a making the law.’’ I agree with him. I onstrated her respect for the rule of matter of law. The American people will say parenthetically that I wish he law, her appreciation for the separa- are able to act through their elected had stayed consistent to that principle tion of powers, and understands the representatives in Congress to secure since he became Chief Justice. The demeaning of our Constitution. Some the blessings of liberty because of this mand by critics that Solicitor General may not want our country to move for- meaning of our Constitution. Kagan adhere to legal views that would ward, to make progress, to move to- Through Social Security, Medicare, put her at odds with so many great ward a more perfect union. But the and Medicaid, Congress established Justices as the price of their vote is a issue squarely before this body is some of the cornerstones of American strong reminder of how far many are whether Solicitor General Kagan has economic security. And comprehensive seeking to stray from basic constitu- the necessary qualifications, respect health insurance reform has now joined tional principles and traditions. for the rule of law, and judicial inde- them. Congress has acted within its We do not need judges or Justices to pendence to be confirmed by the Sen- constitutional authority to legislate pass a litmus test from either the right ate to serve on our Nation’s highest for the general welfare of all Ameri- or the left. In fact, I have urged Sen- court. I believe she does. This cans, whether they are from Vermont ators—they have heard me say this Vermonter will vote for Elena Kagan or West Virginia or Alabama or any- many times—do not listen to the single to be a Supreme Court Justice, and I where else. No conservative activist issue or special issue groups on either will do it proudly. court should overstep the judiciary’s the right or the left when it comes to Madam President—the Chair having role by seeking to turn back the clock the Supreme Court. We have 300 mil- changed during this speech, first pre- and deny a century of progress. lion Americans in this great country. sided over by the distinguished Senator Those who would corrupt the Con- Most of the Justices we vote on will be from West Virginia, and now my distin- stitution by trying to revive the here long after any one of us leaves guished neighbor, the State of New Lochner era are intent on a results-ori- this Chamber. There are only 100 Amer- Hampshire—the distinguished Senator ented litmus test. This litmus test icans who actually get to vote on from New Hampshire presides. With would lead them now not just to vote them. There are actually 101 people that, I will close. against this nomination and the con- who are involved in this choice—first, I suggest the absence of a quorum. firmation of Justice Thurgood Mar- the President, who nominates the per- The PRESIDING OFFICER. The shall as they have said, but also son, but he cannot appoint the person clerk will call the roll. against Senate confirmation of Justice unless we advise and consent. So we The assistant legislative clerk pro- Sandra Day O’Connor, Justice David have 101 people with this awesome duty ceeded to call the roll. Souter, Justice John Paul Stevens, and to pick somebody and to vote on some- Mr. LEAHY. Madam President, I ask Justice Anthony Kennedy—four Jus- body who is going to be there to pro- unanimous consent that the order for tices appointed by conservative Repub- tect the justice and the rights of all 300 the quorum call be rescinded. lican Presidents, all nominations I million Americans. It is an awesome The PRESIDING OFFICER. Without voted to confirm. responsibility. objection, it is so ordered. It is interesting. I was here when I tell groups of either the right or the Mr. LEAHY. Madam President, I see John Paul Stevens’ nomination came left—and I have heard from many of the distinguished Senator from Ala- up. He was seen as a conservative from them over the years on all these nomi- bama on the floor. I yield back the re- Illinois. He was nominated by a con- nees on whom I voted—I am going to mainder of my time. servative President, Gerald Ford. He make up my own mind. I am going to The PRESIDING OFFICER. The Sen- nominated him, and 21⁄2 weeks later, bring my own Vermont principles, my ator from Alabama. the Senate, which was overwhelmingly own sense of Vermont fairness, my own Mr. SESSIONS. Madam President, I Democratic, voted unanimously to con- experience, my own judgment to bear, appreciate Chairman LEAHY. He is a firm Justice John Paul Stevens. I have and then I will make up my mind. I strong and effective leader of our com- not always agreed with every decision urge all Senators to do that. Ignore the mittee. We agree a lot of times. I try to of his, but, boy, I have agreed with my special interest groups on the right or work with him, and sometimes we dis- vote for his confirmation. the left. Make up your own mind. agree. One thing we will soon be doing With this litmus test I mentioned, it As I said, we do not need judges or that I look forward to very much is is not just Chief Justice Earl Warren, Justices who would pass a litmus test going to the White House—maybe in 30 and Justice William Brennan and Jus- from the right or the left. We need minutes or so—to participate in the tice Thurgood Marshall whose jurispru- judges and Justices who will respect signing of a bill to eliminate the vast dence they are rejecting. Using these the laws as passed by Congress and ap- disparity between crack and powder co- results-oriented litmus tests would re- preciate that adherence to precedence caine sentences. The sentencing mech- quire us to reject the vast majority of is a foundation of public confidence in anism under the guidelines I think was Justices who have served honorably on our courts. unfair and needed to be corrected. I the U.S. Supreme Court, including Jus- (Mrs. SHAHEEN assumed the chair.) have been working on that issue for tice Benjamin Cardozo, Justice Oliver Mr. LEAHY. It is important that we some time, and so has Chairman Wendell Holmes, Jr., Justice Harlan restore public confidence in our courts. LEAHY. We certainly agree on a lot of Fiske Stone, and Justice Charles Evans They do protect our rights. They do issues and get some things done, but Hughes. I assume they would, as well, protect the Constitution. But we have we do not agree on this nomination. reject the greatest judge not to have to make sure we respect what they do. The office of Justice of the U.S. Su- been appointed to the Supreme Court, We need judges and Justices who will preme Court is one of the most impor- the Second Circuit’s Judge Learned fairly apply the law and use common tant positions in our National Govern- Hand, because he had been an out- sense, Justices and judges who appre- ment. Justices are granted a degree of

VerDate Mar 15 2010 00:08 Aug 04, 2010 Jkt 089060 PO 00000 Frm 00006 Fmt 4637 Sfmt 0634 E:\CR\FM\G03AU6.007 S03AUPT1 smartinez on DSKB9S0YB1PROD with SENATE August 3, 2010 CONGRESSIONAL RECORD — SENATE S6603 independence unequaled anywhere in lieves in the power of judges to expand cial activism—a philosophy the Amer- the United States. Justices hold life- and advance the law and visions of ican people correctly reject. In her time terms, subject only to impeach- what the judge may think is best for writings, her judicial heroes, her exten- ment, and Congress may not even re- America. sive political activities, her actions at duce their pay. Why did the Founders Ms. Kagan has been described as col- Harvard to unlawfully restrict the take such a step? They wanted our legial, engaging, a consensus builder. military, her hostility to congressional courts to be impartial, doing justice to These are fine qualities in many cir- actions against terrorism in a letter the poor and the rich under the Con- cumstances, and I am sure she pos- she wrote, her efforts to block restric- stitution and laws of the United sesses them. She seems to. But as to tions on partial-birth abortion while in States, as their oath says, and they did personal discipline, clarity of mind, the the Clinton White House, her argu- not want them subject to political or ability to come quickly to the heart of ments before the Supreme Court last other pressures that might affect their a matter, objectivity or impartiality, year that Congress can ban pamphlets objectivity. They wanted judges who and scrupulous intellectual honesty— criticizing politicians and, perhaps the could do the right thing year after characteristics essential for a judge— most disturbing to me as someone who year, day after day. not so much has been said. Perhaps spent 15 years in the Department of Presidents get to nominate, but the this is so because many liberal activ- Justice, her actions as Solicitor Gen- Senate must confirm. This advise-and- ists in America have lost faith in the eral of the United States, whereby she consent power the Constitution gives is idea of objectivity, which means they failed to defend the don’t ask, don’t a confirmation process; it is not a coro- have lost faith in the reality of objec- tell congressional law—not military nation. Here, five Justices on the Su- tive truth, the finding of which—the policy, a law she had openly, deeply op- preme Court can hold—and four of finding of truth—has been the goal, the posed but promised to vigorously de- them recently voted to, not the five central focus of the American legal fend were she to be confirmed as Solic- necessary to render a majority opin- system since its creation. itor General—leave no doubt what kind ion—that a company cannot publish a Our modern law school minds and of judge she would be: an activist, lib- book or a pamphlet that criticizes a some false intellectuals far removed eral, progressive, politically minded politician before an election. Five jus- from real trials—and I have had the judge who will not be happy simply to tices can hold that the government can honor and privilege to have spent 15 decide cases but will seek to advance allow States and cities to deny Ameri- years trying cases before Federal her causes under the guise of judging. cans the personal right to keep and judges and so I have a sense of this, I In addition, her defense of these posi- bear arms, a right clearly stated in the truly believe—are removed from these tions at her hearings, her testimony, in Constitution. trials and from the necessity of rules my opinion, lacked clarity, accuracy, The American people have no direct for civil order. They think, many of and the kind of intellectual honesty control over these Justices. All they them do—these professors and theo- you look for in someone who would sit have and what they have a right to ex- reticians—that laws are just tools for on such a high and important Court. pect is that our Justices exercise self- the powerful to control the powerless Indeed, her testimony was curious. She control year after year, decade after and that words can’t have fixed mean- failed to convey to the committee, in decade. If this young nominee, Elena ings. Things change. We can’t consult my opinion, a recognition of the grav- Kagan, were to serve to the age of the 16th century dictionaries to find out ity of the issues with which she had individual she seeks to replace, she what the Founding Fathers meant been dealing and the nature of her role would serve 38 years on the Supreme when they wrote our Constitution. In- in dealing with some of these issues Court. deed, Justice Sotomayor recently con- that she was involved with in her ca- Well, I am not able to support Elena firmed this when she quoted, with ap- reer. She seemed to suggest that things Kagan for this office. I believe she does proval, the line: ‘‘There is no objec- happened around her and she did all not have the gifts and the qualities of tivity, just a series of perspectives.’’ things right and no one should get mind or temperament one must have to Americans are sick of political spin upset about it. be a Justice. Worse still, she possesses by politicians, and they do not want it Some of these concerns, I think, a judicial philosophy that does not from judges. They reject judges who could have been overcome, had we seen properly value discipline, restraint, rely on their empathy, as the President the superb quality of testimony at her and rigorous intellectual honesty. In- said a judge must have and that is hearing as given by that of Justices stead, she seems to admire the view, what he looks for in a judge. The Roberts and Alito at their hearings. and has as her judicial heroes, judges American people don’t believe judges But, alas, that we did not see, not even who favor expansive readings of what should rely on their empathy to decide close. Glib, at times humorous, conver- they call the living Constitution; legal cases or seek to advance their vi- sant on many issues but not impressive whereby, judges seek—and in President sion of what America should be. They on any in a more serious way, in my Obama’s words, who certainly shares know Justices are not above the law. view. Based on so little serious legal this view—to advance ‘‘a broader vision They know Justices should be neutral practice—only 2 years, right out of law of what America should be.’’ umpires, not taking sides in the game. school in a law firm and 14 months as Well, I don’t believe that is a respon- Above all, they know judges—espe- Solicitor General—this perhaps should sibility or a power given to judges—to cially Supreme Court Justices—should not be surprising. The power of the tes- advance visions of what America not legislate from the bench. timony of Roberts and Alito did not should be. Whose vision is it they I do not desire that the Supreme spring fully formed from their minds would advance, I would ask. It would Court advance my political views. It is either, though both seemed to be natu- be the judge’s vision. But they weren’t enough, day after day, that the Court rally gifted in the skills needed for su- appointed for that purpose. They were follows the law deciding cases hon- perior judges, and I fear Elena Kagan is appointed to adjudicate cases. estly. No more should ever be asked of not so blessed. President Obama’s judicial philos- them. I might not agree one day with While she is truly intelligent, the ex- ophy, I think, is flawed, and I certainly this case or that one, but we have a ceptional qualities of her mind may be think Ms. Kagan shares his philosophy. right to expect those judges would be better suited to dealing with students The President basically said so when objective and not promote agendas. A and unruly faculty than with the daily he appointed her. Her friends say it is recent commentator once said: ‘‘We hard work of deciding tough cases be- so. Her critics say so. Her record of liberals have gotten to the point where fore the Supreme Court. But Roberts public action says so, and the style and we want the court to do for us that and Alito, on the other hand, were manner of her testimony at the hear- which we can no longer win at the bal- steeped in the law over many years as ing evidenced such an approach to lot box.’’ lawyers and judges. That is who they judging. I don’t think it is a secret. I Well, this nominee, I think, in my were. That is their skill. That was think this is pretty well known, that honest evaluation, comes from that their craft. That was their business. this is not a nominee committed to re- mold. Yes, she is young, but her philos- They understood it. It showed. Ms. straint or objectivity but one who be- ophy is not. It is an old, bankrupt judi- Kagan did not show that. I believe that

VerDate Mar 15 2010 00:08 Aug 04, 2010 Jkt 089060 PO 00000 Frm 00007 Fmt 4637 Sfmt 0634 E:\CR\FM\G03AU6.008 S03AUPT1 smartinez on DSKB9S0YB1PROD with SENATE S6604 CONGRESSIONAL RECORD — SENATE August 3, 2010 lack of experience was part of the rea- that were raised in the committee. I it? It is the law of the land. You will be son her testimony was unconvincing. will in greater detail go through each Solicitor General. You represent the I think a real lawyer or experienced of them in the next several days. I am U.S. Government before the Supreme judge who had seen the courtroom and sure other Senators will talk about Court. Will you defend it? the practice of law would not have them also. I will attempt to do so hon- She flat out said that she would de- tried, as she did, to float their way estly and fairly, and at the end I will fend the laws passed by Congress and through the hearing in the manner she be listening to see if somehow I have specifically promised to defend don’t did. Her testimony failed to evidence misjudged the nominee on these mat- ask, don’t tell. This is a matter of some an understanding of the gravity of the ters and whether I should change my importance. I asked her about it, gave issues with which she was dealing and views. But I am very serious when I say her opportunity to respond. She took the important nature of her role in the actions of this nominee over the 10 minutes—I did not interrupt her— them. She seemed to suggest these entirety of her career indicate an ap- with her explanation of why she did events just happened around her, none proach to judging that is inconsistent not assert an appeal to the Ninth Cir- of which was her responsibility. Sev- with the classic American view of a cuit ruling that seriously undermined eral times in the course of her testi- judge as one who shows restraint, who don’t ask, don’t tell, because we know mony she inaccurately described the follows the law, who adjudicates the President Obama opposes it and we circumstances and the nature of the matters before the court, and who is know she opposed it. We know the matters in which she had been engaged, objective and fair. ACLU opposed it. They were the liti- to a significant degree. Her testimony One of the more serious issues that gants in this case. She met with the was more consistent with the spin the has been discussed quite a bit is the ACLU. White House was putting out than the nominee’s handling of the U.S. mili- The ACLU did not want the Ninth truth. I was surprised and disappointed tary while she was dean at Harvard. Circuit case to go up to the Supreme that she was not more candid and did She reversed Harvard’s policy and Court. Why? The reason is they ex- not, through accurate testimony, dis- banned the military from the campus pected the Supreme Court would affirm pel some of the false spin that had been recruiting office. During that period of the law. So what did Elena Kagan do? put out in her favor. time a protest against the military was Did she vigorously defend the law? Did So now we are at the beginning of the held. She spoke to that protest crowd she take the opportunity to take this discussion of the Kagan nomination. case to the Supreme Court and seek its While I have been firm in my criti- while in the building next door a mili- affirmation by the Supreme Court? No, cisms of the nominee, I have given con- tary recruiter was attempting to re- she allowed the case to be sent back— siderable thought to the criticism that cruit Harvard students for the U.S. without appealing it—to a lower court I have made and tried not to be inac- military. She participated in the writing of a to go through a long, prolonged process curate in them. I believe they are cor- brief to oppose the don’t ask, don’t tell of discovery and trial that is discon- rect. But if I am in error, I will be policy which she deeply opposed. nected to the plain fact of the legality pleased to admit and correct that The U.S. military did not have a pol- error. No nominee should have their of the policy. She did not properly de- icy called don’t ask, don’t tell. That record unfairly sullied in this great fend the laws of the United States and was a law passed by the U.S. Congress Senate. That would be wrong. I, there- she did not defend the law in this mat- and signed by President Clinton. It was fore, ask and challenge the supporters ter. the law of the land and it was not their The Solicitor General has that duty of the nominee to point out any errors choice. They followed, saluted, and did whether they like the law or not. Con- in my remarks as we go forth so we their duty. Yet Ms. Kagan barred them gressional actions, when challenged, can, above all, get the facts straight. The matters I will set forth today from the campus at Harvard. On four should be defended, particularly one so and later are serious. There is disagree- different occasions this Congress easily defended, in my opinion, as this ment, I believe, between what the passed laws to try to ensure that our one. I believe that is a serious matter, record, the facts, and the testimony military men and women, during a so serious that if my analysis is cor- show and the White House spin and time of two wars, were not discrimi- rect, that she failed to defend that ac- even the Kagan spin—and I use that nated against on college campuses in tion after explicitly having promised word carefully. So let us, therefore, this country. One of them was a few to do so, then this is disqualifying in begin this debate in all seriousness. Let months before, finally, it was written itself. She would have allowed her per- us get to the bottom of these matters. in a way they could not figure out a sonal views, political pressures from There is a truth. We can ascertain way to get around it. That was shortly perhaps her appointing officer, Presi- what happened. Let us find out what before she barred them from the cam- dent Obama, to influence her decision happened in these matters. Let us get pus, subjecting Harvard to loss of Fed- in a way that went against her duty as to the bottom of it. eral funds, which resulted in the mili- Solicitor General. We are going to talk Some raise the question of how many tary, when they finally realized that about that in great detail as we go Republicans will vote for the nominee. she had reversed this policy and found along. Another question to ask is: How many out they had been stonewalled and the As Solicitor General in the 14 months Democrats will vote against the nomi- front door of the university had been that she was there, she approved a fil- nee? I call on every Senator to study closed to them, appealed to the presi- ing of a brief calling on the Supreme the record and make an informed and dent of Harvard University and he re- Court to review and overturn a ruling independent decision. We are not lem- versed her position. It was not justi- by the Ninth Circuit Court of Appeals mings. We have a constitutional duty fied. It was wrong. It should not have that had affirmed an Arizona law that to make an independent decision. So I been done. said Arizona businesses that failed to urge my Democratic colleagues to not She did not seem to complain about use E-Verify or otherwise hire people just be a rubberstamp, to not allow po- the policy when she worked for Presi- who are illegally in the country would litical pressures to influence your deci- dent Clinton, who signed the law. But lose their business license. There is a sions but conduct an independent and she punished the men and women who Federal statute that explicitly says fair analysis of the nominee. I believe were prepared to serve and defend our States can revoke licenses of busi- if Senators strongly advocate and be- country, and Harvard’s freedom to nesses that violate our immigration lieve judges should follow the law, not carry on whatever these silly activities laws. make it; that they should serve under they want to carry on. So this is not a This is quite a bit stronger case than the Constitution and not above it; that little bitty matter. the other Arizona case that I think is they should be impartial and objec- When she was nominated for Solic- improvidently being challenged, also tive—if Senators believe in that—they itor General, this was raised and she by the Obama Department of Justice. should have very serious trouble with was asked what if this don’t ask, don’t But she approved this and again the this nomination. tell law is challenged in the Court? We trial court had ruled the law was good. At this moment I am going to briefly know you oppose it. We know you have The Ninth Circuit, the most liberal ac- mention a few of the serious concerns steadfastly opposed it. Will you defend tivist circuit in the country, approved

VerDate Mar 15 2010 00:08 Aug 04, 2010 Jkt 089060 PO 00000 Frm 00008 Fmt 4637 Sfmt 0634 E:\CR\FM\G03AU6.009 S03AUPT1 smartinez on DSKB9S0YB1PROD with SENATE August 3, 2010 CONGRESSIONAL RECORD — SENATE S6605 it unanimously, and now it is before her again. Settled law became mere under the quorum call be charged the Supreme Court and now she asked precedent. That precedent is the 5-to-4 equally to both sides. that the Supreme Court take it and re- decision in two cases, Heller and The PRESIDING OFFICER. Without verse that. McDonald, where by one vote the Su- objection, it is so ordered. I think this was bad judgment le- preme Court is upholding the right to The clerk will call the roll. gally, and I believe it is another exam- keep and bear arms. If one vote were to The legislative clerk proceeded to ple of her personal policy views influ- switch, the Court could rule 5 to 4 that call the roll. encing the decisions she made as a gov- any city and any State in America Mr. MCCONNELL. I ask unanimous ernment official—not the kind of thing could ban completely the right to keep consent that the order for the quorum you want in a Supreme Court Justice. and bear arms, violating what I would call be rescinded. Then there was the time she was in say are the plain words of the Constitu- The PRESIDING OFFICER. Without the Clinton White House and became tion. Her actions, both as a law clerk objection, it is so ordered. involved in the great debate we had in and in the Clinton White House, indi- Mr. MCCONNELL. I will proceed on the Senate, that went on for a period of cate she has a hostile view to gun own- leader time. years, over the partial-birth abortion ership. She grew up on the upper west RECOGNITION OF THE MINORITY LEADER issue, where unborn babies are par- side of New York. It is pretty clear she The PRESIDING OFFICER. Without tially removed from the mother and is one of a group who sees the NRA as objection, it is so ordered. there are techniques used to remove a bad group and does not believe in gun The minority leader is recognized. the child’s brain. It is a horrible proce- ownership as a constitutional right. FMAP dure. The physicians group, the Amer- This is a serious matter because it is Madam President, the American peo- ican College of Obstetricians and Gyne- such a narrowly decided Court. ple are getting a good reminder this cologists, ACOG, had issued a finding Who is this nominee? We will learn week of why they have lost faith in that there was never any medical ne- more about it as the days go by. I be- Washington Democrats. Not only is one cessity for this horrible procedure that lieve her actions, her background, and of the last things Democrats plan to Senator Daniel Patrick Moynihan re- her approach to judging is unhealthy. vote on here before the August recess ferred to as so terribly close to infan- It is not the kind of thing we need on another bailout, it is also just the kind ticide. the Supreme Court. It evidences a of bloated, slapdash affair Americans President Clinton apparently was tendency to promote her political have come to expect and to loathe from prepared to support a ban on this pro- agenda rather than being objective. Democrats in Washington. Basically cedure. But Ms. Kagan, as a member of Who is she? Vice President BIDEN’s what we are seeing here this week is his staff, advised that it might be un- chief of staff, Ron Klain, a lawyer with the final act in Washington’s guide for constitutional. In her notes from her whom she worked closely in the Clin- responding to a recession. time at the Clinton White House, she ton administration and a longtime On Thursday they threw together a said the groups, that is, the pro-abor- friend, said of her not long ago: bill without even knowing how much it tion groups—the groups will go crazy. Elena is clearly a legal progressive . . . I would cost the taxpayers, expecting us She even got ACOG to issue a new think Elena is someone who comes from the to vote on it yesterday. When they progressive side of the spectrum. She clerked found out last night it cost more than statement and was able to influence for judge Mikva President Clinton to oppose the legisla- they thought it would, they threw an- A renowned Federal activist judge— tion. Six or 8 years went by before we other bill together and expect us to clerked for Justice Marshall— finally passed a law banning the proce- vote on that one tomorrow—just before dure. One of the most activist Justices on Senators head out of town. This is pre- When I raised this at her hearing, she the Supreme Court— cisely the kind of rushed and reckless tried to make it seem like she had worked in the Clinton administration, approach to lawmaking that has most nothing much to do with it, like she worked in the Obama administration. I don’t Americans thinking congressional think there’s any mystery to the fact that just happened to be in the White she is, as I said, more of the progressive role Democrats can’t go on their August re- House. She said, ‘‘at all times trying to than not. cess fast enough. If it means one less ensure that President Clinton’s views What does that mean, a legal pro- bailout cobbled together without re- and objectives were carried forward.’’ gressive? In the early 20th century, gard for details or its impact on the That is all I was doing. progressives thought that intellectuals taxpayers or its impact on the debt, She was asked about that: If that was and the elites in this country knew taxpayers would probably be glad to your view, say so. more than the great unwashed, and help book Democrats’ plane tickets out Well, I was just doing whatever the they were seeking to advance political of here. President wanted me to do. agendas that went beyond what a lot of Americans are fed up. They have had I do not think that was an accurate people thought was appropriate and enough. The trillion-dollar stimulus analysis of it. Sometime after it be- constitutional. The progressives saw bill was supposed to be timely, tar- came clear that ACOG had reversed its the Constitution as an impediment, not geted and temporary. Yet here we are, position—it caused quite a bit of na- as a protector of our liberties, of our a year and a half later, and they are al- tional controversy. She was right at freedom, of our prosperity, of our prop- ready coming back for more. The $100 the center of that, contacting the lead- erty. They saw it as an impediment to billion they got for State education ers of ACOG and prompting them to getting done what they would like to budgets the first time wasn’t enough, change the wording of their statement do. It is a dangerous philosophy. even though more than a third of the without talking to the professionals on Ultimately, all our liberties depend original $100 billion hasn’t even been the committee that had issued the on faithful adherence to the Constitu- spent yet, and none of the extra money original analysis. There was never any tion—the free speech, free press, the they are asking for will necessarily be need for this kind of procedure to take right to a trial by jury. All those used to save teachers’ jobs. The pur- place. This was concerning to a lot of things that are so important to our pose of this bill is clear: it is to create members of the committee. Her testi- rights are in that document. a permanent need for future State bail- mony is relevant to that. This nominee is indeed of that back- outs, at a time when we can least af- With regard to the second amend- ground. She is not sufficiently respect- ford it. ment, she used the same language in ful of the plain words of the Constitu- Same goes for health care spending. her testimony to give the impression tion. She will be the kind of activist The original stimulus included about that she understood that the Heller and judge who seeks to advance her vision $90 billion in additional Federal Med- the McDonald cases, recently out of of what America should be. That is not icaid spending. That too was supposed Chicago, were settled law and implied an appropriate approach for a Justice to be temporary. Yet here we are, a that if she were on the Court, she on the Supreme Court to take. That is year and a half later, and they want would vote to uphold the right to keep why I will be opposing the nomination. more. and bear arms, which is plainly in the I suggest the absence of a quorum So, as I said, the purpose of this bill Constitution. I went back and asked and ask unanimous consent that time is clear. It is a last-minute effort by

VerDate Mar 15 2010 00:08 Aug 04, 2010 Jkt 089060 PO 00000 Frm 00009 Fmt 4637 Sfmt 0634 E:\CR\FM\G03AU6.012 S03AUPT1 smartinez on DSKB9S0YB1PROD with SENATE S6606 CONGRESSIONAL RECORD — SENATE August 3, 2010 Democrats in Washington to funnel all as to her being a person who is very Justice on the Supreme Court of the more money to the public employee capable to be the next Associate Jus- United States. unions before an election and to set the tice of the Supreme Court. What we want from an Associate Jus- stage for the massive tax hike that the Previous Solicitor Generals, includ- tice is a judge who will follow legal administration plans to spring on ing Charles Fried, Ken Starr, Ted precedent, giving due deference to Con- America’s small business owners on Olson, and Paul Clement—Democrats gress, following the best traditions of January 1 of next year. Once again, and Republicans—stated that Elena the Supreme Court in protecting the Democrats are showering money on Kagan would ‘‘bring to the Supreme rights of Americans against the abuses their favored constituencies and asking Court a breadth of experience and a of power. To me, that is judicial re- the American people to pay for it with history of great accomplishment in the straint, to stay within the mainstream higher taxes, more government, and law.’’ They are Democratic and Repub- of American values. fewer private sector jobs. lican former Solicitors General. I believe Solicitor General Kagan It is time our friends on the other She has the integrity. We have seen represents that best tradition of fol- side actually do something to address third-party validators—Democrats and lowing legal precedent, giving due def- the jobs crisis in this country. As it is, Republicans—testify to her integrity erence to Congress, standing for ordi- virtually every bill they pass adds and legal career. She certainly has the nary Americans against the abuse of more burdens on the very people we temperament. She put up with the Sen- power. For those reasons, I will vote to need to get us out of the recession and ators’ interrogations with a calm de- confirm her to be the next Associate create jobs. If a bill doesn’t kill jobs or meanor and good humor, which I think Justice of the Supreme Court of the make it harder to create them, they will serve her well on the Supreme United States. are not interested. It is time for a dif- Court of the United States. During the confirmation hearings, I ferent approach. The approach of the She brings to this position experience used that opportunity to explain to my past year and a half just is not work- from being a clerk for Justice constituents, indeed, to the people of ing. Thurgood Marshall. I heard his name this Nation, that Supreme Court deci- I suggest the absence of a quorum. mentioned many times during this con- sions have real consequences on the The PRESIDING OFFICER. The firmation process. We in Maryland are lives of our constituents. If you are a clerk will call the roll. particularly proud of Thurgood Mar- woman, if you are a consumer, if you The legislative clerk proceeded to shall. He comes from the State of are a worker, if you are a voter, if you call the roll. Maryland. He comes from Baltimore. care about the air you breathe or the Mr. CARDIN. Madam President, I ask He was one of the great leaders on the water you drink, you should be very unanimous consent that the order for Supreme Court, one of the great law- concerned about Supreme Court deci- the quorum call be rescinded. yers of our time. I think we all are sions. It affects your life. The PRESIDING OFFICER. Without very proud of what America is today I am very concerned, and I think my objection, it is so ordered. thanks to Justice Thurgood Marshall. I constituents are concerned, about re- Mr. CARDIN. Madam President, let think it only adds to the qualifications cent 5-to-4 decisions where the major- me start by first expressing my appre- of Solicitor General Elena Kagan to ity, the so-called conservative Justices, ciation to Senator LEAHY and Senator have clerked for Justice Thurgood Mar- legislated from the bench on the side of SESSIONS. I have the honor of serving shall. powerful corporate interests over pro- on the Judiciary Committee, and I I heard my colleague talk about her tecting ordinary citizens. think our leadership—our chairman, commitment to our military. Let me During the confirmation process, I Senator LEAHY, and our ranking Re- point this out: This was a very difficult raised these issues and questioned So- publican member, Senator SESSIONS— issue for Harvard Law School in regard licitor General Kagan on these cases in conducted the confirmation process in to their policies. But let me quote, if I which there were 5-to-4 decisions, the best tradition of the Senate. might, from a letter from Iraqi war which reversed precedents. In my view, We had 4 days of hearings before the veterans: they were cases where they were legis- Judiciary Committee. Every member During her time as dean, she has created lating from the bench and they were of the committee was afforded ample an environment that is highly supportive of restricting the rights of ordinary opportunity to question Solicitor Gen- students who have served in the military. Americans. eral Kagan on a far range of issues, and . . .Under her leadership, Harvard Law I mentioned the Ledbetter case. I we got complete responses. We had School has also gone out of its way to high- know the Presiding Officer is very fa- chances for followup questions. We light our military service. . . . miliar with the Ledbetter case, in even had a third round of questioning. Students have complimented the way which a 5-to-4 decision from the Su- We had outside witnesses who were be- she acted as dean to support our vet- preme Court effectively told the fore our committee. We had a chance erans. She comes from a military fam- women of our Nation they would have to ask them questions as third-party ily. In fact, during the time in ques- no effective rights to bring wage dis- validators. We also went through tens tion, the number of Harvard Law crimination cases based upon gender. of thousands of pages of documents. School students who were recruited The Supreme Court basically said the This was a very thorough confirma- into military service went up. So I statute of limitations would run even if tion process, a very open confirmation think you have to look at the record. you did not have knowledge of the dis- process, and a very fair confirmation She has been extremely supportive of criminatory act. Lilly Ledbetter was process. I do thank Senator SESSIONS, our veterans, extremely supportive of denied her claim as a result of that de- the ranking Republican member, for those who serve our Nation in military cision. the way he cooperated with Senator service. I think it is going to be healthy for LEAHY to make sure the Senate did its As a last point, let me quote from America to have more women on the business in getting a full record before Miguel Estrada. I think most people Supreme Court of the United States. voting to confirm Elena Kagan to be an know Miguel Estrada. He was nomi- When Elena Kagan is confirmed, she Associate Justice of the Supreme Court nated to the DC Circuit Court of Ap- will, for the first time in America’s his- of the United States. peals and considered to be one of the tory, be the third woman out of nine on Solicitor General Elena Kagan has conservative nominees. He said: the Supreme Court of the United the experience, the intelligence, the in- If such a person, who has demonstrated States. I think that is going to give us tegrity, and the temperament to serve great intellect, high accomplishments and more commonsense justice in this Na- as an Associate Justice of the Supreme an upright life, is not easily confirmable, I tion and certainly one that reflects the Court of the United States. As to her fear we will have reached a point where no diversity of our country. experience, she was the first woman capable person will readily accept a nomina- It was not just the Ledbetter case. Solicitor General in the history of our tion for judicial service. There have been other cases in which Nation. She was the first woman to be So I would hope we all could agree workers have found the Supreme Court dean at the Harvard Law School. Her that Solicitor General Elena Kagan is has ruled on the side of special interest intelligence has been acknowledged by well qualified to serve as an Associate corporate America over the rights of

VerDate Mar 15 2010 00:08 Aug 04, 2010 Jkt 089060 PO 00000 Frm 00010 Fmt 4637 Sfmt 0634 E:\CR\FM\A03AU6.001 S03AUPT1 smartinez on DSKB9S0YB1PROD with SENATE August 3, 2010 CONGRESSIONAL RECORD — SENATE S6607 ordinary workers. In the Gross case, against protecting our environment, General Kagan, as Associate Justice the Supreme Court reversed precedent, against congressional intent, against Kagan, will give Americans a fair here again by a 5-to-4 decision, and prior decisions of the Supreme Court, shake and will continue in the best tra- ruled that we would use a different test ruling on the side of corporate America ditions of the Supreme Court in ad- for age discrimination, effectively de- over protecting our environment for fu- vancing Americans’ rights against the nying claims by those who were dis- ture generations. abuses of power. For that reason, I in- criminated against because of their That was also true very recently in tend to vote for the confirmation of age. This is another example where the the Exxon v. Baker case. This was par- Elena Kagan to be the next Associate so-called conservative Justices on the ticularly important because it took Justice of the Supreme Court of the Supreme Court reversed precedent, re- over a decade for those who were dam- United States. versed the clear intent of Congress, and aged by the Exxon Valdez oilspill, by With that, I suggest the absence of a ruled against workers in favor of cor- the episode in Alaska, to be able to get quorum. porate America. their claims brought through the The PRESIDING OFFICER (Mr. It is not just limited to worker cases courts. The Supreme Court, again, by UDALL of New Mexico). The clerk will or wage cases. In the Citizens United the narrowest margin, reduced the call the roll. case—this is a case we have talked claims of those who were damaged as a The assistant legislative clerk pro- about a great deal on the floor—the Su- result of the Exxon Valdez spill. ceeded to call the roll. preme Court not only ruled against I know all of us are very concerned The PRESIDING OFFICER. The Sen- Congress, because we had legislated the about what is happening in the Gulf of ator from Maryland. McCain-Feingold bill, but ruled against Mexico. We want to make sure BP is Mr. CARDIN. Mr. President, I ask prior Supreme Court decisions to re- held fully accountable for all the dam- unanimous consent that the order for verse the rights of ordinary Americans age it has caused. We in Congress need the quorum call be rescinded. The PRESIDING OFFICER. Without in their election process. What the to do our work to make sure that is objection, it is so ordered. Citizens United case said is corporate done. I expect we will get it done. But Mr. CARDIN. Mr. President, while America could spend more on elec- we also need the Supreme Court of the speaking in support of Solicitor Gen- tions—not already spending enough, United States to uphold the power of eral Elena Kagan, I quoted from a let- but they could spend more. Even Congress to pass laws. We are the legis- ter received from former Solicitors though Congress had passed bipartisan lative branch of government, and too General in support of Solicitor General laws to rein in the amount of special often this so-called conservative ma- Kagan for the position of Associate interest corporate money and even jority of the Supreme Court has ruled Justice of the Supreme Court. It is though other cases were upheld by the the other way. dated June 22, 2010, signed by former Supreme Court, the Supreme Court I believe Solicitor General Elena Solicitors General in support of the went out of its way, by a 5-to-4 deci- Kagan will follow in the best traditions confirmation of Elena Kagan. sion, to rule on the side of corporate of the Supreme Court. She will follow I also spoke about the endorsement America against ordinary Americans. legal precedent, allowing Congress to received from Miguel Estrada. He Here, if I might, let me quote from legislate. I say that, in part, because of wrote an extraordinary letter that Justice Stevens in his dissent. Justice her testimony before our committee. I speaks to the qualifications of Solic- Stevens said: questioned Solicitor General Kagan as itor General Elena Kagan for Associate Essentially, five Justices were unhappy to our environmental statutes and the Justice of the Supreme Court. It is ad- with the limited nature of case before us, so role Congress plays. dressed to the chairman of the com- they changed the case to give themselves an She replied: opportunity to change the law . . . there mittee, PATRICK LEAHY, and the rank- Congress certainly has broad authority ing member, JEFF SESSIONS, dated May were principled, narrower paths that a Court under the Constitution to enact legislation that was serious about judicial restraint 14, 2010. involving the protection of our environment. I ask unanimous consent these two could have taken. When Congress enacts such legislation, the I agree with Justice Stevens. We all job of the Court is to construe it consistent letters be printed in the RECORD. talk about wanting to see judicial re- with Congressional intent. There being no objection, the mate- rial was ordered to be printed in the straint. We all talk about wanting to That is the type of Justice I want on RECORD, as follows: see a Supreme Court that will give due the Supreme Court in order to protect respect to the actions of Congress. We our air and protect our water, while JUNE 22, 2010. talk about following judicial prece- Hon. PATRICK J. LEAHY, yielding to Congress to pass the stat- Chairman, Committee on the Judiciary, U.S. dent. We talk about following the tra- utes rather than legislating from the Senate, Washington, DC. dition to protect your constitutional bench. Basically, I want to make sure Hon. JEFF SESSIONS, rights. Well, this Supreme Court, too the next Associate Justice of the Su- Ranking Member, Committee on the Judiciary, many times, by 5-to-4 decisions by the preme Court is on the side of ordinary U.S. Senate, Washington, DC. so-called conservative Justices, has Americans. DEAR CHAIRMAN LEAHY AND SENATOR SES- been the most activist Court on ruling Once again, let me quote from Solic- SIONS: We write to support the nomination of on the side of corporate America over Elena Kagan to be the next Associate Justice itor General Kagan from her opening of the Supreme Court of the United States. ordinary Americans. statement to the Judiciary Committee. We have served as Solicitors General in the It is also true in environmental When she was talking about equal jus- administrations of Presidents Ronald cases—the Rapanos case. I have the tice under the law she said: Reagan, George H. W. Bush, William Clinton, honor of chairing the Water Sub- It means that everyone who comes before and George W. Bush. We support the Kagan committee on the Environment and the Court—regardless of wealth or power or nomination in the same spirit of fairness and Public Works Committee. We work station—receives the same process and pro- bipartisanship, and deference to presidential very hard, Congress has worked very tections . . . What it promises is nothing less appointments of well-qualified individuals to hard, to protect our environment. It is than a fair shake for every American. serve on the Supreme Court, that was also That, again, is what I would like to due the nominations of then-Judges John G. not easy to get legislation passed in Roberts, Jr. and Samuel A. Alito, Jr. to the Congress. I know all of us are frus- see from the Supreme Court. I want serve on the Supreme Court. trated that we cannot get more legisla- them to be on the side of ordinary Elena Kagan would bring to the Supreme tion passed. But we have gotten some Americans, giving them a fair shake, Court a breadth of experience and a history very important bills passed to protect protecting them from the abuses of of great accomplishment in the law. In addi- our environment, such as the Clean power, whether those abuses come from tion to her most recent service as Solicitor Water Act, and we have protected our the halls of government or from cor- General, at various points of her career she waterways. The courts have upheld our porate America. In too many cases, has served as a law clerk to Supreme Court Justice Thurgood Marshall, she has been in power to do that. this Supreme Court, by narrow mar- private practice at one of America’s leading But in the Rapanos case, the Court gins through the more conservative law firms, she has served in the office of the ruled, again, by the narrowest of mar- Justices, has not been on the side of or- Counsel to the President, she has been a pol- gins, on the side of corporate America dinary Americans. I believe Solicitor icy advisor to the President, she has served

VerDate Mar 15 2010 00:08 Aug 04, 2010 Jkt 089060 PO 00000 Frm 00011 Fmt 4637 Sfmt 0634 E:\CR\FM\G03AU6.014 S03AUPT1 smartinez on DSKB9S0YB1PROD with SENATE S6608 CONGRESSIONAL RECORD — SENATE August 3, 2010 as a law professor at two of the nation’s Elena possesses a formidable intellect, an Mrs. FEINSTEIN. Mr. President, I leading law schools, Harvard and Chicago, exemplary temperament and a rare ability ask unanimous consent that the order and she has served as Dean of the Harvard to disagree with others without being dis- for the quorum call be rescinded. Law School. agreeable. She is calm under fire and mature The PRESIDING OFFICER. Without During the past year, Kagan has honored and deliberate in her judgments. Elena would the finest traditions of the Office of the So- also bring to the Court a wealth of experi- objection, it is so ordered. licitor General and has served the govern- ence at the highest levels of our government Mrs. FEINSTEIN. Mr. President, I ment well before the Supreme Court. The job and of academia, including teaching at the rise to speak in support of the nomina- of Solicitor General provides an opportunity University of Chicago, serving as the Dean of tion of Elena Kagan to be an Associate to grapple with almost the full gamut of the Harvard Law School and experience at Justice on the Supreme Court. issues that come before the Supreme Court the White House and as the current Solicitor Having served on the Senate Judici- and requires an understanding of the Court’s General of the United States. If such a per- ary Committee now for 17 years, I have approach to numerous issues from the cri- son, who has demonstrated great intellect, seen the impact that new Justices have teria for certiorari review to the Justices’ high accomplishments and an upright life, is on the Court, and I strongly believe approach to oral argument. The constant not easily confirmable, I fear we will have interaction with the Supreme Court that reached a point where no capable person will these votes are among the most impor- comes with being the most-frequent litigator readily accept a nomination for judicial tant we cast in this Chamber. before the Court also ensures an appreciation service. There is no question that the con- for the rhythms and traditions of the Court I appreciate that considerations of this firmation process has become heated in and its workload. Moreover, as Solicitor type are frequently extolled but rarely hon- recent years. Outside interest groups General, Kagan had the opportunity to work ored by one side or the other when the oppos- and the 24-hour news cycle have placed with the immensely talented career lawyers ing party holds the White House. I was dis- far too much emphasis on sound bites, in the Office of the Solicitor General, who mayed to watch the confirmation hearings half truths, and hyperbole. But none of have a deep understanding of and apprecia- for then-Judge Alito, at the time one of our tion for the Court. Kagan’s most recent expe- most distinguished appellate judges, and find this should obscure the fact that these rience as Solicitor General will serve her that they ranged from the anodyne and are, in fact, important votes because well as she wrestles with the difficult ques- uninformative to the utterly disgraceful. the stakes are high. tions that come before the Court. And one could readily identify members of A Supreme Court Justice, once con- The Constitution gives the President broad the current Senate majority, including sev- firmed, will serve a life appointment on leeway in fulfilling the enormously impor- eral who serve on the Judiciary Committee, a Court that is truly foundational to tant responsibility of determining who to who, when they previously assessed the judi- our democratic system. nominate for seat on the Supreme Court of cial nominees of the other party, earnestly For over 200 years, our independent the United States. In that spirit, we support articulated many of the same objections that judiciary has served as a model to the the nomination of Elena Kagan to be Asso- doubtless will be raised against Elena (such ciate Justice and believe that, if confirmed, as a lack of judicial experience, a perceived world. We have watched as other coun- she will serve on the Court with distinction, absence of a ‘‘paper trail,’’ or whether the tries have struggled with courts that as have prior Solicitor Generals who have nominee’s views truly are in the legal main- have become beholden to political pres- had that great honor. stream). I respectfully submit that it brings sures or fallen subject to corruption. Respectfully, no credit to our government, and risks af- I think of Pakistan, where in 2007 WALTER DELLINGER; firmative harm to our courts, when our President Musharraf proclaimed a THEODORE B. OLSEN elected representatives simply swap talking state of emergency and used it to sus- On behalf of: points—emphasizing the same considerations pend the country’s constitution and re- CHARLES FRIED, they previously minimized or derided—only Solicitor General, 1985– to revert to their former arguments as soon move justices from the supreme court; 1989; as electoral fortunes turn. or Mexico, where corruption is so bad KENNETH W. STARR, Lest my endorsement of Elena’s nomina- that in 2008 President Calderon called Solicitor General, 1989– tion erode the support she should receive for a fundamental redesign of the en- 1993; from her own party, I should make clear that tire judicial system. DREW S. DAYS III, I believe her views on the subjects that are In the United States we have guarded Solicitor General, 1993– relevant to her pending nomination—includ- our judiciary, and it has served us well. 1996; ing the scope of the judicial role, interpre- Our Supreme Court has acted as a true WALTER DELLINGER, tive approaches to the procedural and sub- Acting Solicitor Gen- stantive law, and the balance of powers check on government abuses, as a reli- eral, 1996–1997; among the various institutions of govern- able and impartial tribunal for the res- SETH P. WAXMAN, ment—are as firmly center-left as my own olution of private disputes, and as a Solicitor General, 1997– are center-right. If Elena is confirmed, I final arbiter where the American peo- 2001; would expect her rulings to fall well within ple can come to seek protection of THEODORE B. OLSON, the mainstream of current legal thought, al- their fundamental constitutional Solicitor General, 2001– though on the side of what is popularly con- rights. 2004; ceived of as ‘‘progressive.’’ This should come As Justice Breyer said in a recent PAUL CLEMENT, as a surprise to exactly no one: One of the public address, the virtue is that ‘‘a Solicitor General, 2004– prerogatives of the President under our Con- 2008; stitution is to nominate high federal officers, country of 300 million very diverse peo- GREGORY G. GARRE, including judges, who share his (or her) gov- ple will resolve their differences under Solicitor General, 2008– erning philosophies. As has often been said, law and not with guns on the street or 2009. though rarely by senators whose party did through riots.’’ not control the White House at the time, In the context of world history, this GIBSON, DUNN & CRUTCHER LLP, elections have consequences. is most impressive. Washington, DC, May 14, 2010. Elena Kagan is an impeccably qualified When it comes to the Supreme Court, Hon. PATRICK LEAHY, nominee. Like Louis Brandeis, Felix Frank- nominations merit careful attention as Chairman, Senate Committee on the Judiciary, furter, Robert Jackson, Byron White, Lewis U.S. Senate, Washington, DC. Powell and William Rehnquist—none of well because any one Justice can have Hon. JEFF SESSIONS, whom arrived at the Court with prior judi- a substantial effect on the Court’s rul- Ranking Member, Senate Committee on the Ju- cial service—she could become one of our ings. diciary, U.S. Senate, Washington, DC. great Justices. I strongly urge you to con- The cases that reach the Supreme Re: Nomination of Elena Kagan. firm her nomination without delay. Court are not easy ones. When the law DEAR CHAIRMAN LEAHY AND SENATOR SES- Very truly yours, is clear, a case is settled by the parties SIONS: I write in support of Elena Kagan’s MIGUEL A. ESTRADA. or resolved by the district courts or the confirmation as an Associate Justice of the Mr. CARDIN. Mr. President, I suggest courts of appeal. It is when the law is Supreme Court of the United States. I have the absence of a quorum. open to multiple interpretations or known Elena for 27 years. We met as first- The PRESIDING OFFICER. The when constitutional values must be year law students at Harvard, where we were clerk will call the roll. weighed against each other that a case assigned seats next to each other for our classes. We were later colleagues as editors The assistant legislative clerk pro- is likely to reach the Supreme Court. of the Law Review and as law clerks to dif- ceeded to call the roll. In these cases, decisions are not ferent Supreme Court Justices; and we have The PRESIDING OFFICER. The Sen- automatic. Instead, each of the nine been friends since. ator from California. Justices must examine the facts, study

VerDate Mar 15 2010 05:38 Aug 04, 2010 Jkt 089060 PO 00000 Frm 00012 Fmt 4637 Sfmt 0634 E:\CR\FM\A03AU6.002 S03AUPT1 smartinez on DSKB9S0YB1PROD with SENATE August 3, 2010 CONGRESSIONAL RECORD — SENATE S6609 the law, and reach his or her best con- Supreme Court. She is a woman of re- tribute of having first-hand working clusion about what the law requires. peated firsts. If confirmed, she will be knowledge of all three branches of gov- The Court’s rulings stand not just as the fourth—not the first—woman to sit ernment. If confirmed, she, Justice abstract statements for the law books on the Supreme Court. Breyer, and Justice Thomas, will be but binding decisions with lasting im- Frankly, I have been surprised to the only Justices to share that distinc- pact on the lives of the American peo- hear some of my colleagues question tion. ple. Elena Kagan’s credentials for the Take her experience with the Su- There are examples in the newspaper Court. preme Court itself. As a ‘‘27-year-old every day. In 2005, the Justices held Let me start with the argument pipsqueak,’’ as she said before the com- that a school district in Seattle had made by some that her record is some- mittee, Elena Kagan had the privilege violated the equal protection clause by how inadequate because she lacks prior of working as a law clerk on the Su- using race as one of a series of factors judicial experience. preme Court to Justice Thurgood Mar- in assigning students to schools within It is true that all nine Justices on shall. The job itself is prestigious, and that district. The real impact of this the current Supreme Court come di- it is impressive that Kagan was se- will be to make it far more difficult for rectly from the U.S. Court of Appeals. lected. The real value, however, was in school administrators to maintain ra- But that is a historic anomaly. It has giving Kagan an inside view of the cial diversity in our public schools. never happened before. In fact, in the Court through the eyes of one of our Another example: In a recent anti- history of the Court, approximately great Justices, the lawyer who argued trust case—Leegin Creative Leather one-third of our Justices have come to Brown v. Board of Education, the first Products v. PSKS—the Justices put the bench with no prior experience as a African-American Justice on the Su- forth a new interpretation of the law judge. preme Court, and a man who brought that will allow manufacturers to set When the President announced this to life the Court’s most basic promise minimum prices for certain products. nominee, Justice Scalia, for one, said of ‘‘equal justice under law.’’ She had What this means for Americans is, he was happy to see that she is not a that experience. when they go to the store, they may Federal judge and not a judge at all. As Elena Kagan said at her confirma- find that a particular electronic device Justice Felix Frankfurter went much tion hearing, through Justice Marshall, she learned that our courts are ‘‘spe- or even a shampoo has the same price further, stating in a speech in 1957: cial as compared with other branches at every store and can never be put on One is entitled to say, without qualification, that the correlation between prior judi- of government. In other words, that it sale. Legislation to overturn this deci- cial experience and fitness for the functions is the courts’ role to make sure that sion is still pending before the Senate. of a Supreme Court is zero. The significance In each of these cases, Justices were even when people have no place else to of the greatest among the justices who have go, they can come to the courts and divided on the law. Five Justices had such experience, Holmes and Cardozo, the courts will hear their claim fairly. agreed on the Court’s ruling, but the derived not from that judicial experience, That is a valuable lesson indeed for remaining four Justices dissented and but from the fact they were Holmes and both a young lawyer and a new Su- explained in vehement terms why they Cardozo. In my own view, judicial experience preme Court Associate Justice.’’ disagreed with their colleagues’ rea- Today, Kagan has an equally unique is a useful background, but it is only soning and result. The decisions, in perspective on the Court. As the Solic- one of many, and it is a background other words, were not formulaic. itor General, she sometimes is referred that is well represented on the Court So when I undertake my constitu- to as the ‘‘tenth justice,’’ because there today. As a matter of fact, it is en- tional role of providing advice and con- is no other lawyer who interacts as fre- tirely represented on the Court today. sent, I do so with the understanding quently with the Justices. In her time The point is this: When we examine that every nominee to the Court is not as Solicitor General, she has filed hun- Elena Kagan’s records, we should not the same, and each and every one could dreds of briefs and argued six cases be- allow the characteristics of the current have a lasting impact on the future of fore the Supreme Court itself. If con- Court to make us shortsighted. In the our country. firmed, she will be one of only five sit- course of American history, the Senate With this in mind, I am very pleased ting Justices who have appeared on the has confirmed Justices with a broad to support the nomination of Elena advocate’s side of the Supreme Court variety of backgrounds—Justices who Kagan to be the next Associate Justice bench. of the United States Supreme Court. were law professors, such as Felix Solicitor General Kagan also brings Look at her professional record. Frankfurter; attorneys in private prac- practical experience with the legisla- Summa cum laude and Phi Beta Kappa tice, such as Warren Burger; elected of- tive branch. She worked in the halls of from Princeton; a master’s degree in ficials, such as John McKinley, Earl the Senate as a special counsel to the philosophy from Oxford University; Warren, and James Byrnes; and over 10 Senate Judiciary Committee for the magna cum laude from Harvard Law percent of our Justices have—like Ginsburg nomination, and during the School; a supervising editor of the Har- Elena Kagan—come directly from the Clinton administration, she bore re- vard Law Review; legal clerkships with executive branch, with no judicial ex- sponsibility for advancing President U.S. Circuit Court Judge Abner Mikva perience in between. These include Clinton’s domestic policy agenda as the and Supreme Court Justice Thurgood Chief Justice William Rehnquist, who Deputy Director of the Domestic Pol- Marshall; two years at the law firm of was Assistant Attorney General; Jus- icy Council. She served, for example, as Williams and Connolly; a professor of tice Byron White, who was Deputy At- the administration’s chief negotiator constitutional and administrative law torney General; Justice Robert Jack- for tobacco reform legislation. So she at the University of Chicago; a special son and Chief Justice Harlan Fiske knows the ins and outs of the legisla- counsel to the Senate Judiciary Com- Stone, who were both the Attorney tive process. mittee for the nomination of Justice General of the United States; and Chief This position enabled her to experi- Ruth Bader Ginsburg; an associate Justice John Marshall, who was the ence firsthand the hard work, negotia- White House counsel to President Clin- Secretary of State. tion, collaboration, and navigation of ton; the deputy director of President Again, these are Justices who distin- procedural obstacles that are required Clinton’s Domestic Policy Council; a guished themselves on the Court, who to move a difficult bill through Con- professor at Harvard Law School; the came directly from the political experi- gress. first woman dean of Harvard Law ence. In my mind, the President has When the Justices are called upon to School; the first woman to ever serve made a wise choice with this nomina- interpret a statute, or determine its as the Solicitor General of the United tion because, in addition to this wom- constitutionality, it is essential that States. an’s impressive brain power—and I sat they have some appreciation for the That is an amazing background. You there and listened to her hour after process by which that law came to be would think she is 106 instead of a very hour keep her calm, show humor, and and the intent of Congress in writing young woman. display an impressive ability to cite and shaping that law. Elena Kagan It is easy to see why her name has so cases, and even footnotes of those knows the legislative process, and I be- often appeared on short lists for the cases—she brings the valuable at- lieve that will serve our Nation well.

VerDate Mar 15 2010 00:08 Aug 04, 2010 Jkt 089060 PO 00000 Frm 00013 Fmt 4637 Sfmt 0634 E:\CR\FM\G03AU6.020 S03AUPT1 smartinez on DSKB9S0YB1PROD with SENATE S6610 CONGRESSIONAL RECORD — SENATE August 3, 2010 Finally, Elena Kagan also brings ex- proof of that. However, they do provide thinking through hard issues than advo- perience as a participant in the execu- important assurance that she will ap- cating particular ideological or political per- tive branch. As the Solicitor General, preciate the core principles and perspectives. she has represented the U.S. Govern- spectives that undergird the work of Former Clinton Chief of Staff John ment before the Supreme Court; as an each and every branch of this govern- Podesta has written that during the associate White House counsel, she had ment. Like Justice Jackson, this has Clinton administration, Kagan ‘‘distin- to advise President Clinton on the the potential to make her a very per- guished herself as deeply loyal to the scope of Presidential powers and privi- suasive and impressive Justice. Constitution and the law’’ and said leges; and as a Deputy Director of the In sum, I believe Elena Kagan’s pro- that ‘‘on issues ranging from adoption Domestic Policy Council, she super- fessional background makes her su- to religious freedom to tobacco regula- vised the President’s policy initiatives perbly qualified to sit on the Supreme tion, [she] eschewed ideology in favor not only by advancing legislation in Court. of practical solutions.’’ Congress but also in cooperation with An excellent professional background Her friends, her admirers, her col- Federal agencies. is, of course, a necessary qualification, leagues repeatedly describe her in Already, the debate has begun among but a nominee must also show that he those terms: a problem-solver, a concil- legal commentators about whether or she has the appropriate judicial tem- iator, someone who brings people to- Kagan’s work on the executive branch perament, has a commitment to follow gether even when they have very dif- will skew her rulings in key cases—we the law, and brings a judicial philos- ferent views. heard this earlier this morning—deal- ophy that will not pull the Court out- What really impresses me, though, is ing with the scope of the President’s side of the mainstream. And I have what we have heard from conserv- powers with respect to indefinite de- confidence in her in each of these atives. Let me note that the very fact tention, warrantless surveillance, or areas. we have heard from these conservatives the use of force outside of a declaration The Senate Judiciary Committee has is impressive. In today’s political at- of war. received over 170,000 pages of docu- mosphere, lawyers take a risk when The lessons of history again provide ments spanning Kagan’s entire career. they cross party lines to support Su- perspective here. I think of Justice She testified before us for 18 hours over preme Court nominees. Key people Robert Jackson, a former Attorney a space of 3 days. She has answered have done so for Kagan. General of the United States, who over 200 additional questions for the Former Bush appointee to the Tenth wrote an opinion that now stands as record, and scores of letters have been Circuit and current Stanford law pro- the cornerstone for all analysis—and I sent to us regarding her qualifications. fessor Michael McConnell sent us an 8- mean that—of limits on executive What repeatedly emerges from all of page letter outlining the reasons for power. We have heard this quoted by this is that Elena Kagan is a prag- his strong support for Kagan’s nomina- virtually every nominee before the Ju- matist, a problem-solver, and a concil- tion. Elena Kagan, he said, shows ‘‘re- diciary Committee when a question of iator. spect for opposing argument, fair- executive power is levied. Her time as dean of Harvard Law mindedness, and willingness to reach In the famous Youngstown case, in School—misinterpreted often—paints a across ideologic divides, independence, 1952, the Court was called upon to de- vivid picture. Elena Kagan arrived at and courage to buck the norm.’’ ‘‘No cide whether the President’s authority Harvard in 1999. She was selected to be one,’’ he said, ‘‘can foresee the future, as Commander in Chief allowed him to dean only 4 years later. She was the but I would not be surprised to find seize the Nation’s steel mills in order first woman ever named so—a signifi- that Elena Kagan, as a Justice, serves to ensure sufficient wartime produc- cant accomplishment in itself. more as a bridge between the factions tion to meet the Defense Department’s What is most important, however, is of the Court than as a reliably progres- needs for the Korean war. that during her time at Harvard, she sive vote.’’ In his prior role as the Attorney Gen- developed a reputation as a steady Senator GRAHAM, my colleague on eral of the United States, Robert Jack- leader who would bring all sides to the the committee, has pointed to the son had vigorously defended the Presi- table and work to solve a problem. As words of Miguel Estrada, a deeply con- dent’s prerogative to take steps nec- described in a letter from 69 former servative lawyer who has known Kagan essary to advance the Nation’s war ef- deans supporting her nomination, she for 27 years. He describes her as having fort. But as Justice Jackson, he took a had a unique ‘‘willingness to listen to ‘‘a formidable intellect, an exemplary different tack. He agreed with the ma- diverse viewpoints and give them all temperament, and a rare ability to dis- jority that the President did not have serious consideration. She revealed a agree with others without being dis- the authority to seize the private steel strong and consistent aptitude for forg- agreeable. She is calm under fire and mills, but in doing so, he set forth a ing coalitions that achieved smart and mature and deliberate in her judg- compromise framework, stating that sensible solutions, often in the face of ments.’’ the President’s power was greatest seemingly insoluble conflict.’’ Quite a Today, we have a divided Court—a when he acted pursuant to an act of statement from 69 deans of law schools. Court in which the Justices are repeat- Congress, in a zone of ‘‘twilight’’ when She brought conservative faculty, edly split five to four on major rulings the Congress has not spoken, and at its such as Bush administration lawyer of the day. These rulings determine lowest ebb, when he acted contrary to Jack Goldsmith, to the school and ral- what kinds of gun laws legislatures can the stated will of the Congress. lied the faculty to come together to pass to protect the public safety in our When a colleague pointed out that support them. Former Solicitor Gen- cities, how much money will be spent Justice Jackson’s compromise frame- eral Charles Fried described her effect in Federal elections, what school dis- work differed from the position he had this way: ‘‘The place is like it’s never tricts can and cannot do to maintain taken as Attorney General, he replied been before.’’ She ‘‘managed to calm racial diversity in our schools, what that a Justice does not ‘‘bind present the factionalism, so it’s completely remedy our older and women workers judicial judgment by earlier partisan disappeared.’’ That is according to have when their employers discrimi- advocacy.’’ That is a very profound former Solicitor General Charles Fried. nate against them, what the appro- statement from a great Justice, who The Boston Globe stated it more sim- priate role for religion is in our public wrote an opinion that has stood the ply, saying that she ‘‘thawed Harvard life, or how much a company can be re- test of time. law.’’ quired to pay for causing significant I tell this story to make this point: This same knack for the pragmatic harm to our environment. And these Elena Kagan’s clerkship for Justice and drive toward consensus echoes Justices are split down the middle on Marshall, her work with the Congress throughout her career. these major questions. They cannot in the 1990s, and the positions she takes A liberal scholar from the University find compromise or agreement. Major now as Solicitor General cannot fore- of Chicago has characterized her aca- questions of the day are adjudicated on cast, with any certainty, what results demic work this way: a bare majority. she will reach in cases before the She is much more of a lawyer than a par- We badly need a Justice who can Court. I think Justice Jackson is living tisan. She is more interested as a scholar in drive this Court toward consensus, and

VerDate Mar 15 2010 00:08 Aug 04, 2010 Jkt 089060 PO 00000 Frm 00014 Fmt 4637 Sfmt 0634 E:\CR\FM\G03AU6.021 S03AUPT1 smartinez on DSKB9S0YB1PROD with SENATE August 3, 2010 CONGRESSIONAL RECORD — SENATE S6611 I have high hopes Elena Kagan will be Marine Corps CPT Bob Merrill grad- in the art of argument, perhaps to a just such a Justice. uated from Harvard Law School in 2008. fault. Ignoring her own advice in the Her record also gives me confidence He is currently serving in Afghanistan. now famous University of Chicago Law that she will follow the law and put He writes: Review article, she did not testify aside any personal policy preference Kagan’s positions never affected the serv- meaningfully before the Judiciary when deciding cases on the Court. In ices’ ability to recruit at Harvard. Behind Committee, concealing and disguising the course of her career, whether work- the scenes the dean assured that our tiny her views and playing the same game ing on policy or on law, law has always Harvard Law School Veterans Association of ‘‘hide the ball’’ as some who went come first. And as Solicitor General, never lacked for funds or access to facilities. before her, albeit with more skill. she has proven quite clearly that she She treated the veterans at Harvard like Probably because she criticized the VIPs, and she was a fervent advocate of our practice so directly, many expected her can put her personal views aside, filing, veterans association. for example, a brief that defended the to set a different standard. constitutionality of don’t ask, don’t First Lieutenant David Tressler Others have asked whether Judiciary tell. Although she is known to strongly graduated from Harvard Law School in Committee hearings have been ren- disagree with that policy, she defended 2007 and is currently serving in Afghan- dered largely free of substance and it and stated that the Court should let istan with the U.S. Army Reserves. He what, if anything, can be done about it. stand a First Circuit decision that wrote that ‘‘while Dean of Harvard Law The former Judiciary Committee upheld the policy because it properly School, [Kagan] adequately proved her chairman, ARLEN SPECTER, who la- deferred to the reasoned military judg- support for those who had served, were mented that Ms. Kagan, during her tes- ment of the executive and legislative currently serving, and all those who timony, had not ‘‘answered much of branches. felt called to serve.’’ anything,’’ went on to say this: Finally, I believe she has set forth an Navy Judge Advocate General Corps It would be my hope that we could find appropriate judicial philosophy. In 3 LT Zachary Prager graduated in 2006 some place between voting no and having days of hearings before our committee, and wrote that ‘‘Dean Kagan set a some sort of substantive answers. But I standard at Harvard of respect for mili- think we are searching for a way how Sen- she has revealed herself as a person ators can succeed in getting substantive an- who believes that judges should follow tary servicemembers’’ and that without Kagan’s ‘‘leadership and swers, as you advocated in the Chicago Law precedent, stare decisis, and exercise Review, short of voting no. restraint in their rulings. She said: evenhandedness as Dean,’’ he would not have joined the military. I confess that, similar to Senator [N]o judge should look at a case and say, SPECTER, I don’t know how we can Like Admiral Mike Mullen, Sec- ‘‘Oh, I would have decided it differently; I’m force nominees to be forthcoming ex- retary of Defense Robert Gates, Sec- going to decide it differently.’’ [A] judge cept through our votes. should view prior decisions with a great deal retary of the Navy Ray Maybus, retired To be clear, my threshold for sup- of humility and deference. General Colin Powell, myself, and porting a nominee does not require an- She told us: many others in this Chamber, Kagan swering how one would vote on issues The time I spent in the other branches of has said she personally disagrees with sure to come before the Court, nor nec- government remind me that [the role of the the don’t ask, don’t tell policy. And she essarily expressing agreement or dis- Court] must also be a modest one—properly is not alone. agreement with decisions or Court deferential to the decisions of the American At certain dark moments in our his- opinions. It is possible to learn much people and their elected representatives. tory, institutions of higher education about a nominee’s approach to judging Hers will be a welcome voice on the have shown a hostility in this sense, without committing one to a specific Court. but those contexts should not be con- position in future cases. What we I wish to take one last moment, if I fused. should expect, however, is candor and a may, to address questions about her ac- To oppose the exclusionary policy of willingness to honestly discuss back- tions related to military recruiting at don’t ask, don’t tell is not to oppose or ground and general constitutional prin- Harvard Law School because I believe, show hostility toward the military; it ciples, approaches to judging and to some extent, they have been inac- is instead to say that the time has writings and matters within the nomi- curately depicted. While each Member come for all willing and able Ameri- nee’s background that bear on the will have to draw his or her own con- cans to be able to serve. Like Elena nominee’s suitability for the bench. clusions about whether Dean Kagan Kagan, I strongly believe the criteria In explaining why I could not vote took the wisest course, I believe it is for military service in our country for now-Justice Sotomayor, I said I essential that we get the facts straight. should be competence, courage, and a thought she was disingenuous with the As dean, Elena Kagan never barred willingness to serve, not race, gender, Judiciary Committee. Obviously, military recruiters from the Harvard or sexual orientation. reaching such a conclusion precludes Law School campus. For one semester, Members should draw their own con- support, notwithstanding other quali- after the U.S. Court of Appeals for the clusions about whether Kagan made fications for the position. Reluctantly, Third Circuit held that the Solomon the right choice as dean in returning to after analysis of her testimony, amendment was unconstitutional, Harvard’s old recruiting policy in 2005, weighed with her past writings, state- Kagan reverted to an earlier school but I want to be clear that nothing in ments, and actions, I have reached the policy that had been used for many her record shows any hostility toward same conclusion regarding Elena years before she became dean. That is the military or the men and women Kagan. fact. Under that policy, the military who serve our country. In fact, service- Exhibit A is her insistence on rede- recruited through the Harvard Law men and women who were there at the fining her position on military recruit- School Veterans Association but was time have come forward, and the evi- ing on Harvard campus. Her ‘‘separate excluded from the Office of Career dence is to the contrary. but equal’’ defense and attempt to Services. At all times, the military had In sum, and in conclusion, I believe downplay the steps she took to under- access to students. In fact, military re- Elena Kagan will be a fine Justice on mine the legal policy of don’t ask, cruitment levels at Harvard remained the U.S. Supreme Court, and I look for- don’t tell were, ultimately, unbeliev- steady and even increased at times dur- ward to the day soon when she takes able. It is almost unfathomable, for ex- ing Kagan’s tenure as dean. her seat as the fourth woman in his- ample, that someone with Ms. Kagan’s But what is most striking to me in tory to serve on that Court. I am very considerable legal acumen could have, reviewing all of this is that although proud to support her nomination. as she asserted, always thought we the judiciary has heard from service- I thank the Chair, and I yield the were acting in compliance with the members on both sides of this issue, floor. Solomon amendment. every report we have received from a The PRESIDING OFFICER. The Sen- Ms. Kagan tried to convince the Judi- veteran or servicemember who actually ator from Arizona is recognized. ciary Committee that her actions attended Harvard at the time has been Mr. KYL. Mr. President, Elena Kagan against the military were a justifiable in strong support of Kagan’s nomina- is intelligent, well spoken, personable, response to a policy she viewed as dis- tion to the Court. and schooled in the law. She is skilled criminating against homosexuals. But

VerDate Mar 15 2010 00:08 Aug 04, 2010 Jkt 089060 PO 00000 Frm 00015 Fmt 4637 Sfmt 0634 E:\CR\FM\G03AU6.022 S03AUPT1 smartinez on DSKB9S0YB1PROD with SENATE S6612 CONGRESSIONAL RECORD — SENATE August 3, 2010 as Senator SESSIONS noted, her stand Ms. Kagan also attempted to recast as chief counsel of the Senate Judici- against homosexual discrimination was her praise of Israeli Supreme Court ary Committee, Chief of Staff to Attor- not universal. She did not speak out, Justice Aharon Barak, who, in the ney General Reno, and Chief of Staff to for example, when Harvard accepted $20 words of the Associated Press, is wide- Vice President Gore—has known Ms. million from a member of the Saudi ly acknowledged as someone who took Kagan as far back as 1993, when they royal family to establish a center for an activist approach to judging. Well, worked together on the Ginsburg hear- the study of Sharia law, even though that is exhibit D. Judge Richard ings. At Ms. Kagan’s hearing, Senator under Sharia law ‘‘sexual activity be- Posner described Judge Barak’s history SESSIONS pointed out that after Ms. tween two persons of the same gender on the Israeli Supreme Court as ‘‘cre- Kagan was nominated, Mr. Klain said: is punishable by death or flogging.’’ ating a degree of judicial power un- Elena [Kagan] is clearly a legal progres- Her decision to punish the military for dreamed of even by our most aggressive. I think Elena is someone who comes a policy adopted by Congress is espe- sive Supreme Court justices.’’ from the progressive side of the spectrum. cially perplexing, given her failure to Under his leadership, the Israeli Su- She clerked for Judge Mikva, clerked for express concern over or take action preme Court aggrandized its own power Justice Marshall, worked in the Clinton ad- against the establishment of a center far beyond what even many of those on ministration, worked in the Obama adminis- to promote a legal system linked to the tration. I don’t think there’s any mystery of the left would view as acceptable in the fact that she is, as I said, of more of the abuse of homosexuals, women, and oth- America. To cite one example of Jus- progressive role than not. ers. tice Barak’s judicial philosophy, he Exhibit B is her astonishing legal Senator SESSIONS then asked Ms. wrote a judge’s role ‘‘is not restricted Kagan: definition of what she meant in her ef- to adjudicating disputes in which par- fusive praise for Justice Marshall’s vi- Do you agree with the characterization ties claim that their personal rights that you’re a legal progressive? sion of the role of the Court, presum- have been violated’’ but rather ‘‘to She replied: ably to avoid the obvious conclusion bridge the gap between law and soci- that she agreed with his activist ap- ety.’’ I honestly don’t know what that label means. proach to judging. Justice Marshall Well, bridging gaps, clearly, and had an enormous influence on our ju- using the law to address societal prob- So Senator SESSIONS pressed Ms. risprudence, starting with his advocacy lems is not the job of the courts. That Kagan: before—and most especially with— is a political approach. I’m asking about his firm statement that Brown v. Board of Education. But no Ms. Kagan claimed, during her hear- you are a legal progressive, which means serious student would argue that he ing, that her praise for Justice Barak something. I think he knew what he was talking about. He’s a skilled lawyer who’s didn’t try to push the law as far as he had nothing to do with his leftwing ju- could in furtherance of his philosophy. been in the midst of the great debates of this dicial philosophy. But an examination country about law and politics, just as you Indeed, consider the comments of an- of her statements tells a different other former Marshall clerk, liberal have. And so I ask you again: Do you think story. In 2002, Ms. Kagan praised that is a fair characterization of your views? law professor Cass Sunstein, who now Aharon Barak for ‘‘presiding over the Certainly, you don’t think he was attempt- serves in the Obama administration, development of one of the most prin- ing to embarrass you or hurt you in that who has said this: cipled legal systems in the world.’’ process. A serious commitment to Marshall’s vision In 2006, she again heaped professional She again dodged with an answer of constitutional liberty would entail an ex- that strains credulity. traordinary judicial role, one for which praise on Justice Barak, calling him courts are quite ill suited. her ‘‘judicial hero.’’ Ed Whelan, who is I love my good friend, Ron Klain, but I guess I think that people should be allowed He has also acknowledged: a noted legal commentator, summa- rized this event well: to label themselves. And that’s—you know, I Even if the best substantive theory calls don’t know what that label means and so I Kagan begins by referring to the portraits for something like Marshall’s vision, institu- guess I’m not going to characterize it one of four ‘‘great justices’’ with whom Harvard tional considerations would argue powerfully way or the other. against it. Law School has been associated—Brandeis, So a nominee to the highest Court in Ms. Kagan’s attempt to define Jus- Holmes, Brennan, and Frankfurter. But, she says, ‘‘the Harvard Law School association the land and a former dean of one of tice Marshall’s philosophy as meaning of which I’m most proud’’—more proud, that the Nation’s most prestigious law only that he wanted everyone to have is, than of the associations with Brandeis, schools insists that she doesn’t know equal access to the courts is—there is Holmes, Brennan, or Frankfurter—‘‘is the what the term ‘‘legal progressive’’ no other word for it—disingenuous. one we have with President Barak of the means. Because Ms. Kagan apparently em- Israeli Supreme Court. But later in the hearing, Senator braces his philosophy but feared public And then she continued: GRAHAM mentioned that Greg Craig, acknowledgment of that would confirm I told President Barak, and I want to re- President Obama’s first White House the concern that she would be a repeat in public, that he is my judicial hero. Counsel, had praised Ms. Kagan. Mr. sults-oriented judge, she fudged. In He is the judge or justice in my lifetime Craig said: doing so, she confirmed the suspicion whom [sic], I think, best represents and has and compounded the problem with de- best advanced the values of democracy and [Elena Kagan] is largely a progressive in ceptive testimony. human rights, of the rule of law and of jus- the mold of Obama himself. Exhibit C is the explanation of sev- tice. So Senator GRAHAM asked: eral of her bench memos to Justice During her confirmation hearing, Ms. Would you consider them, your political Marshall, insisting they did not con- Kagan, under oath, testified that she views, progressive? tain her views but were merely a chan- admired Justice Barak for his role in: Then Ms. Kagan acknowledged that, neling of his. Ms. Kagan offered this ex- . . . creating an independent judiciary for yes, her ‘‘political views are generally planation of her memo categorizing Israel. . . . not for his particular judicial phi- progressive.’’ litigants as ‘‘good guys’’ and ‘‘bad losophy, not for any of his particular deci- It is hard to believe Ms. Kagan knows guys,’’ another memo stating that the sions. what a political progressive is but not government was ‘‘for once on the side That testimony cannot be squared a legal progressive. of the angels,’’ and a memo expressing with her public declaration that Jus- Exhibit F: Her attempt to redefine fear that the Court might ‘‘create some tice Barak ‘‘is the judge or justice in her views in the letter sent to Judici- very bad law on abortion and/or pris- my lifetime whom [sic], I think, best ary Committee on November 14, 2005, in oners’ rights.’’ Reading these memos, represents and has best advanced the which she objected to the Graham-Kyl- one gets the sense that Ms. Kagan was values of democracy and human rights, Cornyn amendment dealing with treat- not simply channeling her boss but was of the rule of law and of justice.’’ ment of enemy detainees. Her charac- instead expressing her own personal Exhibit E is Ms. Kagan’s answer to terization of our approach as being policy views on matters before the whether she is a legal progressive. Her similar to the ‘‘fundamentally lawless’’ Court and that they had as much to do statements, again, were designed to actions of ‘‘dictatorships’’ was clearly, with who the litigants were as what cloud her views. Vice President BIDEN’s I believe, injudicious and revealed the the issues were. Chief of Staff, Ron Klain—who served fervor of her position, much like her

VerDate Mar 15 2010 00:08 Aug 04, 2010 Jkt 089060 PO 00000 Frm 00016 Fmt 4637 Sfmt 0634 E:\CR\FM\G03AU6.023 S03AUPT1 smartinez on DSKB9S0YB1PROD with SENATE August 3, 2010 CONGRESSIONAL RECORD — SENATE S6613 characterization of the don’t ask, don’t When nominated for the job of Solic- be cited by litigants in state and federal liti- tell policy as ‘‘a moral injustice of the itor General, Ms. Kagan emphasized in gation, and will no doubt make its way into first order,’’ and it could suggest a her opening statement the ‘‘critical re- judicial opinions. Indeed, some state court viewpoint that she would have a hard decisions have relied very heavily on sponsibilities’’ that the Solicitor Gen- procreation and child-rearing rationales to time laying aside if similar questions eral owes to Congress, ‘‘most notably reject SSM [same-sex marriage] claims. The ever came before her as a Supreme the vigorous defense of the statutes of DOJ is helping knock out a leg from under Court Justice. this country against constitutional at- the opposition to gay marriage. Her attempt to distance herself from tack.’’ Later, Ms. Kagan reiterated The Smelt case was later dismissed the obvious application of her views to that she could represent the interests by the district court for other reasons. places other than Gitmo—obvious be- of the United States ‘‘with vigor, even And that brings us to the second DOMA cause her letter bemoaned the ‘‘serious when they conflict with my own opin- case in which Ms. Kagan was in- and disturbing reports of the abuse of ions. I believe deeply that specific roles volved—Gill v. Office of Personnel prisoners in Guantanamo, Iraq and Af- carry with them specific responsibil- Management. In Gill, the Justice De- ghanistan’’—and issues other than con- ities and that the ethical performance partment again offered the same half- viction and sentencing—even though of a role demands carrying out these hearted defense of DOMA and repudi- her letter stated that our amendment responsibilities as well and completely ated its strongest legal arguments. ‘‘unfortunately’’ would ‘‘prohibit chal- as possible.’’ This time, however, the district court lenges to detention practices, treat- Ms. Kagan even cited former Solic- seized on the Justice Department’s re- ment of prisoners, adjudications of itor General Ted Olson’s defense of the jection of the procreation and child- their guilt and their punishment’’— campaign finance laws as an example bearing rationales and found that suggests either that she was uncom- of the way a Solicitor General should DOMA was unconstitutional. Ed fortable defending her position or she approach the job. She said, ‘‘I know wanted to preserve her right to sit on Whelan, the noted legal commentator that Ted Olson would not have voted such cases in the future or both. The and a former principal deputy of the for the McCain-Feingold bill, but he attempt to obscure positions she had Office of Legal Counsel, has explained previously stated was, I believe, an at- . . . did an extraordinary job of defend- that the decision in Gill ‘‘would be ri- tempt to run away from those posi- ing that piece of legislation.... And diculous but for DOJ’s abandonment of tions and mislead the committee. that’s what a solicitor general does.’’ Congress’s stated justifications for Exhibit G: Ms. Kagan’s doublespeak Yet, there is substantial reason to DOMA. Under proper application of the on the question of same-sex marriage. doubt that Ms. Kagan genuinely car- very deferential ‘rational basis’ review, Prior to her confirmation as Solicitor ried out her obligation to ‘‘vigorously for example, it would be enough to rec- General, when she was not restricted, defend’’ a Federal statute in district ognize that it would have been reason- as judicial nominees are, in her ability court, the Defense of Marriage Act. In able for Congress in 1996 to regard tra- to comment on issues that may come response to questions at her Supreme ditional marriage as a valuable vehicle before the courts, Senator CORNYN Court hearing, Ms. Kagan acknowl- for encouraging responsible procrea- asked Ms. Kagan a direct question edged that she was involved in two dis- tion and childbearing.’’ about her personal views: trict court cases involving DOMA. Her Although Ms. Kagan admitted being Do you believe that there is a fundamental personal involvement in these cases involved in both Smelt and Gill, she re- constitutional right to same-sex marriage? was itself unusual as she admitted in fused to tell us her role in the delibera- Her answer then seemed clear. She response to written questions: ‘‘In the tions. In response to written questions, wrote: normal course, the [Solicitor Gen- Ms. Kagan did admit that her partici- There is no Federal constitutional right to eral’s] Office does not participate in pation in Smelt was ‘‘sufficiently sub- same-sex marriage. district court litigation.’’ stantial’’ that she would recuse herself But at the hearing, when I asked Ms. Her involvement would not have nec- should the case come before the Su- Kagan to confirm her views on this essarily raised concerns were it not for preme Court. But this promise itself subject, she distorted both Senator the position that the government advo- was disingenuous because the Smelt CORNYN’s question and her answer. She cated in the cases. In the first case, case had already been dismissed, so told me Senator CORNYN had asked Smelt v. United States, the Depart- there was no chance that it would whether she could ‘‘perform the role of ment of Justice filed a brief that, as come before the Supreme Court. On the the Solicitor General’’ and vigorously part of its so-called ‘‘defense’’ of the other hand, the Gill case may very well defend DOMA, given her opposition to DOMA statute, admitted to the court make its way to the Supreme Court, don’t ask, don’t tell. When I pointed that ‘‘this Administration does not but Ms. Kagan did not promise to out that Senator CORNYN’s question support DOMA as/matter of policy, be- recuse herself from participating in it, was about a constitutional right to lieves that it is discriminatory, and despite her involvement in formulating same-sex marriage, not DOMA, Ms. supports its repeal.’’ How can a lawyer the Justice Department’s flawed de- Kagan then asserted that her answer to mount a ‘‘vigorous’’ defense of a stat- fense of DOMA in the case. Senator CORNYN—that ‘‘there is no ute while declaring the statute to be We will likely never know what Ms. Federal constitutional right to same- discriminatory? But it gets worse. The Kagan’s advice was in these cases. sex marriage’’—intended to convey Justice Department’s brief also asked What we do know is that Ms. Kagan that she ‘‘understood the state of the the court to ignore one of the strongest has a history of ignoring the law when law and accepted the state of the law.’’ arguments in support of DOMA—name- it conflicts with the gay rights agenda. Having reinterpreted her previous an- ly that traditional marriage serves as a We also know that she took the un- swer, she then told me that, as a Su- valuable vehicle for encouraging re- usual step of getting involved in these preme Court nominee, it would not be sponsible procreation and childbearing. district court cases challenging DOMA. ‘‘appropriate’’ for her to share her per- The brief asserted that the government And we know that the Justice Depart- sonal views on the subject, since such a ‘‘does not believe that DOMA is ration- ment went out of its way to abandon case may come before the Court. ally related to any legitimate govern- one of the fundamental rationales for It strikes me that Ms. Kagan was, at ment interests in procreation and the DOMA statute, which resulted in a the time of her nomination to be Solic- child-rearing.’’ court, for the first time ever, ruling itor General, trying to create an im- It is clear that the Justice Depart- that DOMA was unconstitutional. On pression—apparently a false one—that ment’s brief, which was supposed to be the basis of these facts, I believe that she did not personally believe the Con- filed in support of the DOMA statute, any reasonable observer would ques- stitution could be read to include a in fact undercut the law’s constitution whether Ms. Kagan kept her prom- right to same-sex marriage. tionality. As one legal scholar and pro- ise to us that she would ‘‘vigorously That leads to Exhibit H: her involve- ponent of same-sex marriage said about defend’’ Federal statute as Solicitor ment, while serving as Solicitor Gen- the Justice Department’s argument: General. eral, in a case concerning the constitu- This new position is a gift to the gay-mar- Exhibit I is her dubious explanation tionality of the Defense of Marriage riage movement, since it was not necessary of why, in another case that she han- Act, DOMA. to support the government’s position. It will dled as Solicitor General, she declined

VerDate Mar 15 2010 05:38 Aug 04, 2010 Jkt 089060 PO 00000 Frm 00017 Fmt 4637 Sfmt 0634 E:\CR\FM\G03AU6.024 S03AUPT1 smartinez on DSKB9S0YB1PROD with SENATE S6614 CONGRESSIONAL RECORD — SENATE August 3, 2010 to appeal the Ninth Circuit’s adverse Yet, in Lopez-Rodriguez, another im- I agree that the commerce clause ruling in Witt v. Department of the Air migration case, she refused to appeal a gives the Congress substantial author- Force, a case challenging the constitu- decision by the Ninth Circuit that perity, but it does not give Congress un- tionality of the government’s don’t mits ordinary deportation hearings to limited authority. That Ms. Kagan was ask, don’t tell statute. At her hearing, be bogged down by long legal fights unwilling to say a law requiring the Ms. Kagan claimed that allowing the over the admissibility of clear evidence consumption of produce is beyond Ninth Circuit decision to stand, and ac- that a person is illegally here. Unlike Congress’s authority suggests she cepting a remand and trial in district Candelaria, the Ninth Circuit’s deci- would vote to uphold statutes that ex- court, would provide the Supreme sion in Lopez-Rodriguez was in conflict ceed the boundaries of the commerce Court with a ‘‘fuller record’’ and would with the decisions of other courts—in- clause. Stretching the commerce help the government ‘‘show what the cluding the Supreme Court—involved a clause gives too much power to Con- Ninth Circuit was demanding that the significant constitutional issue. It is gress. government do’’ to defend don’t ask, difficult not to conclude that Ms. Finally, it is worth noting that Ms. don’t tell. Kagan’s actions in these two cases Kagan came to the Senate with a lack But a review of the Ninth Circuit were driven less by the law, and more of legal and judicial experience, espe- opinion and the record in the case by political expediency. cially when compared to other recent shows that Ms. Kagan’s explanation My second concern about ideology is nominees. Some have reached back 40 was disingenuous. The Ninth Circuit that Ms. Kagan has shown she may years to compare Ms. Kagan’s experi- itself had already said what the gov- hold a limited reading of the second ence to that of Chief Justice ernment would need to prove for the amendment, even after the Heller and Rehnquist, the last nominee without Federal law to survive—there was no McDonald cases. When asked whether prior judicial experience confirmed to need to develop a ‘‘fuller record’’ or the right to bear arms was a ‘‘funda- the Supreme Court in 1972. William seek further clarification from the mental right,’’ Ms. Kagan said, ‘‘I Rehnquist, however, spent 16 years as a courts. think that that’s what the court held practicing litigator in my home State Ms. Kagan’s decision to let the case in McDonald.’’ She also said that the of Arizona and 2 more years as Assist- return to the district court ensured holding was ‘‘[g]ood precedent going ant Attorney General, Office of Legal that members of the military would be forward.’’ Of course, there is a record of Counsel, a position that was later held subjected to invasive and humiliating nominees describing the holding of a Justice Scalia 1974–1977 and that, ac- trials in the Witt case and in all other case and proclaiming that it is ‘‘good cording to the Department of Justice, challenges against don’t ask, don’t precedent,’’ only to vote to overturn or ‘‘typically deal[s] with legal issues of tell—trials in which soldiers would be distinguish that precedent once they particular complexity’’ and ‘‘provides compelled to testify against their com- ascend to the bench. Justice authoritative legal advice to the Presi- rades, discuss their views of a fellow Sotomayor did just that on this issue. dent and all the executive branch agen- But we need not rely on cynicism to soldier’s sexual practices, and watch as cies.’’ In contrast, Ms. Kagan’s law demonstrate that Ms. Kagan may not the unit’s personnel files become fod- practice is confined to two years in pri- view the recent second amendment der for lawyers trying to condemn vate practice shortly after law school precedents as settling the question of and 1 year as the Solicitor General. what is supposed to be a military-wide whether gun ownership is a ‘‘funda- policy. The government rightly argued Her limited experience is not by mental right.’’ itself disqualifying, but it did increase before the trial court that such trials Generally speaking, when a constitu- are guaranteed to destroy unit cohe- the importance of her hearing. Had she tional right is ‘‘fundamental,’’ any gov- answered questions in an honest and sion—the very thing that Congress ernment restriction of that right is sought to protect when it passed the straightforward manner, we might subject to ‘‘strict scrutiny’’ by the have a better basis to know what kind don’t ask, don’t tell statute. And the courts. But at her hearing, Ms. Kagan trial court records show that Kagan of judge she would be. But instead, Ms. left open the possibility that some Kagan either dodged questions or gave knew in advance that the trial process other, lesser standard of scrutiny would harm the military’s interests. what were clearly disingenuous an- should apply to second amendment re- swers intended to mask her views. She But she decided to thrust the govern- strictions. She said that ‘‘going for- ment into exactly the position the also failed to make the case that her ward the Supreme Court will need to political ideology would not influence military’s lawyers most wanted to decide what level of constitutional her judging. For all of the reasons I avoid, perhaps to keep in place, and in- scrutiny to apply to gun regulations.’’ have discussed, I cannot support her sulate from Supreme Court review, a This does not sound like a commitment nomination. Ninth Circuit ruling that places don’t to the principle that the second amend- The PRESIDING OFFICER. The Sen- ask, don’t tell policy in jeopardy. ment guarantees a fundamental right. ator from Oklahoma is recognized. In addition to my concerns that Ms. When weighed with her well-docu- Mr. INHOFE. Mr. President, I cer- Kagan was less than candid with the mented work in the Clinton adminis- tainly could not improve upon the Judiciary Committee, I am also con- tration to advance gun control legisla- statements and arguments that have cerned about her leftist ideology and tion, I believe there is a justifiable con- been made by my good friend from Ari- the potential it will influence her judg- cern that Ms. Kagan would vote to con- zona. I come from a little different per- ing. I will discuss three areas of construe Heller and McDonald as narrowly spective. There are six things I think cern. as possible. any one of which would seriously make First, is her defense of the brief filed Third, I am concerned that Ms. us consider voting against her. in Chamber of Commerce v. Candelaria. Kagan sees few, if any, limitations on I want to say this, first, though. It takes a clever lawyer to argue that Congress’s authority to regulate behav- Back when she was first nominated I the Court should take this immigra- ior, or interstate commerce. In a re- was the first one to say I was opposed tion case, but not Lopez-Rodriguez v. markable exchange, Senator Coburn to her. The main reason was these Holder on the traditional reasons for asked Ms. Kagan whether it would be things came up, most of them, when granting certiorari. In Candelaria, she constitutional for Congress to pass a she was up to be confirmed for Solic- asked the Supreme Court to strike law requiring Americans ‘‘to eat three itor General. At that time I objected to down an Arizona law that permits the vegetables and three fruits every day.’’ her being in that position. State to suspend or revoke the business Although Ms. Kagan said that such a I have a policy—I think it is good; licenses of companies that knowingly law sounded ‘‘dumb,’’ she refused to people in Oklahoma know it—and that employ illegal aliens. She did this even say that such a law would be unconsti- is, if you oppose someone’s confirma- though Federal law expressly author- tutional. In fact, during the course of tion for a position and then they come izes States to enforce immigration the exchange, Ms. Kagan repeatedly back later for a higher position, it is laws ‘‘through licensing’’ and even emphasized that a court analyzing such automatic because the bar should be though the courts that have considered a statute should ‘‘read the [commerce] higher. the issue have determined that States clause broadly’’ and give ‘‘real def- Anyway, today I want to reemphasize could do precisely what Arizona did. erence’’ to Congress. a couple of things that were mentioned

VerDate Mar 15 2010 01:33 Aug 04, 2010 Jkt 089060 PO 00000 Frm 00018 Fmt 4637 Sfmt 0634 E:\CR\FM\A03AU6.005 S03AUPT1 smartinez on DSKB9S0YB1PROD with SENATE August 3, 2010 CONGRESSIONAL RECORD — SENATE S6615 by my friend from Arizona. One objec- agenda, then mislead the committee criticized the Supreme Court decision tion to the Kagan nomination is that with her statements. of Rust v. Sullivan which upheld the she undeniably lacks the experience. During her tenure as dean of Har- Department of Health and Human I think Senator KYL said it very well. vard, Kagan sent a letter with three Services regulations prohibiting title X People say there have been others in other law school deans to the Senate in family planning funds from being di- history that didn’t have any judicial 2005 opposing legislation that sought to rected toward programs where abortion experience, but in those cases, they prevent terrorists convicted in mili- is a method of family planning. averaged 21 years of practicing law. tary tribunals from appealing their Additionally, while clerking for Jus- They had that experience. This would convictions in Federal courts. She tice Marshall, she authored a memo ar- be the first time in history we have compared this legislation to the ‘‘fun- guing that all religious organizations someone with less than 2 years’ experi- damentally flawless’’ actions of a ‘‘dic- should be off limits from receiving Fed- ence and no judicial experience. That tatorship’’ that has ‘‘passed laws strip- eral funds for programs authorized by would be reason enough, but that is not ping courts of power to review execu- the Adolescent Family Life Act such as my major objection. tive detention or punishment of pris- pregnancy testing, prenatal/postnatal My major objection is her disdain for oners.’’ That is not what I said. That is care, adoption counseling, and the U.S. military. While dean at Har- what Ms. Kagan said. childcare, because these programs are vard, Kagan banned the military dur- We have the best judicial system in so close to the central concerns of reli- ing a time of war from recruiting on the world. Equating our laws relating gion. campus due to her objection over the to the war on terror to that of a dicta- I also seriously question Kagan’s don’t ask, don’t tell policy. That was torship would be laughable, were it not willingness to honor and defend the the policy put together during the so pervasive in liberal academia. second amendment, getting into an Clinton administration while she was Kagan has a history of misrepre- area that is probably more sensitive to in the administration. She did not ob- senting facts to push her liberal agen- a lot of my friends, including my son ject to it at that time, but she objects da, including her efforts while working and members of the family, who are ac- to it now. in the Clinton administration to tive and strong believers in second There has been much made by her change statements of two medical asso- amendment rights. While clerking for supporters about her role in this inci- ciations to withhold the truth about Justice Marshall, Kagan wrote a memo dent, but the truth is that in November partial-birth abortion. This is inter- about a case challenging Washington, of 2004, after the Third Circuit Court of esting. Both groups had a firm posi- DC’s strict gun control laws. In only Appeals struck down the Solomon tion, and she influenced a change in four sentences she was dismissive of amendment—I was there when the Sol- that position. During the debate over the case, writing that she was ‘‘not omon amendment was passed in the the Partial Birth Abortion Ban Act, sympathetic’’ to an individual-rights House—Kagan affirmatively disallowed Kagan wrote a memo to President Clin- view of the second amendment. As ev- the military from recruiting at the ton in December 1996 objecting to the eryone knows, the Supreme Court has school’s office of career services. Sub- release of the American College of Ob- since upheld the individual right to sequently, she joined 40 other schools stetricians and Gynecologists—ACOG— keep and bear arms. Kagan also used in filing an amicus brief with the Su- proposed statement that partial-birth her position with the Clinton adminis- preme Court in the case opposing the abortion is never medically necessary. tration to advocate various anti-second Solomon amendment which was then This is what their position was. They amendment initiatives. Documents overwhelmingly opposed and reversed came out and said that it was never from the Clinton library illustrate that by the Supreme Court unanimously. necessary. she supported background checks for She was taking advantage of that op- ‘‘The release of the statement would, secondary market gun purchases as portunity when she didn’t allow re- of course, be a disaster.’’ Those are her well as municipal liability suits cruiters at the university. We have words, talking at that time to the Clin- against gun manufacturers. seen this happen around the country, ton administration. We have evidence She helped develop an executive not only Harvard but in California. from Kagan’s handwritten notes that order banning the importation of cer- This is something that is definitely in she advocated a change in the state- tain types of semiautomatic weapons opposition to the law that is still in ment to reflect that partial-birth abor- that were not covered by the 1994 as- place, referred to as the Solomon tion may be medically necessary. One saults weapons ban. She also sought to amendment. month later, ACOG released a state- permit law enforcement to retain Equally alarming to these actions is ment with language nearly identical to Brady background checks information her misrepresentation of the facts be- Kagan’s language that such abortions on lawful gun sales. fore the Judiciary Committee. I wasn’t may be medically necessary to save the Finally, in an internal document re- aware of this, certainly not back when life and preserve the health of the garding the Volunteer Protection Act, she was up for Solicitor General. She mother. In addition to seeking to she described the NRA as ‘‘a bad guy testified that military recruiters had change ACOG’s position, Kagan also organization.’’ ‘‘full and good access’’ to Harvard’s sought to alter the American Medical She might get by with that in this campus. Military recruiters clearly did Association position on partial-birth Chamber, but she wouldn’t get by with not have full and good access, as they abortion. She once again tried to alter it in Oklahoma. We read the Constitu- had to work through the school’s vet- the facts and encourage AMA to tion. We know what it says. She has no erans group as opposed to being al- change its medical policy on partial- respect for the second amendment. I am also gravely concerned, based on lowed to go through the office of career birth abortion. Kagan’s writings and statements, that services, a part of the university. What is perhaps more concerning she would be a judicial activist who Internal Pentagon documents reveal about Kagan’s efforts to manipulate would seek to legislate from the bench. that under her deanship ‘‘The Army the medical policy of ACOG and AMA In her 1998 masters thesis at Oxford she was stonewalled at Harvard.’’ Further- is that these medical policy statements wrote: more, Kagan told the committee that were then used, sometimes success- in banning recruiters she ‘‘always fully, in Federal courts to invalidate As participants in American life, judges will have opinions, prejudices, and values. thought we were acting in compliance’’ State laws and the Partial Birth Abor- Perhaps more important, judges will have with Federal law. Yet in her own e- tion Ban Act. She manipulated medical goals. And because this is so, judges will mail to Harvard students and faculty, facts to advance a barbaric practice often try to mold and steer the law in order she wrote that she had ‘‘hope’’ that the and push a political agenda. to promote certain ethical values and government ‘‘would choose not to en- We are talking about two highly re- achieve social ends. Such activity is not nec- force’’ the law. spected medical associations that said essarily wrong or invalid. I am alarmed that Kagan would not partial-birth abortion was not some- She is stating, not just from today only ban military recruiters on campus thing that was necessary, changing but going all the way back to her Ox- in a time of war but that she would do their positions. Then that was later ford days, that judicial activism is ap- it to advance her own liberal and social used in court cases. Moreover, Kagan propriate. Rather than affirm the role

VerDate Mar 15 2010 05:38 Aug 04, 2010 Jkt 089060 PO 00000 Frm 00019 Fmt 4637 Sfmt 0634 E:\CR\FM\G03AU6.025 S03AUPT1 smartinez on DSKB9S0YB1PROD with SENATE S6616 CONGRESSIONAL RECORD — SENATE August 3, 2010 of judges as the faithful interpreters of This is already being done on a stitution, recognizing that such a lim- the law, Kagan voiced her support for State-by-State basis. Things aren’t the ited approach will not always solve our judges who seek to serve as legislators, same in Oklahoma as they are in New 21st-century problems. I was pleased who develop their own empathy stand- York. In Oklahoma, we have very she unequivocally expressed her sup- ards and apply the law in a matter strict rules. They know exactly what port for opening the Supreme Court to they personally see fit. Her self-ac- chemicals are used. By the way, 99 per- cameras. So I believe with General knowledged judicial hero, Aharon cent of what is used on these forma- Kagan’s confirmation, the American Barak, perfectly fits this mold. In her tions is water and sand. people will be one step closer to seeing testimony before the committee, she I am looking forward to talking in for themselves the Supreme Court de- even affirmed that she would consider more detail with my good friend Sen- bate our most pressing legal and con- foreign law when she decides cases. She ator CASEY. He is kind of the author of stitutional issues. said: this portion of the bill. Yet his State of But despite the strength of her quali- I guess I’m in favor of good ideas from Pennsylvania has huge opportunities fications, like so many nominees be- wherever they come. for natural gas. I think we need to talk fore her, General Kagan often retreated We are talking about referring to about that. We have enough natural to the generalities and platitudes she other countries that have a different gas that if we would take away all the once criticized. I am pleased she re- judicial system and saying maybe they inhibitions we have and keep hydraulic jected the analogy that Supreme Court are right and maybe we are wrong. I fracturing as a process to be used, we Justices are like umpires, simply call- simply cannot support a nominee who could run the country for 100 years. I ing balls and strikes. Instead, she ac- looks to other judicial systems or judi- think it is our job to make sure we pro- knowledges that each Justice’s legal cial philosophies or evolving standards tect that. judgment determines the outcome of close cases. But at times her answers of decency rather than the text of the f Constitution to interpret law. gave us too little insight into what in- RECESS I have thoroughly reviewed the forms her unique legal judgment and record of Elena Kagan and have come The PRESIDING OFFICER. Under how it will impact those close cases. to the firm conclusion that she lacks the previous order, the Senate stands As I have said before, the confirma- the qualification and experience to be a in recess until 2:15 p.m. tion process demands more than that. Supreme Court Justice. Thereupon, at 12:29 p.m., the Senate This was the public’s only opportunity I have named six things. Any one of recessed until 2:15 p.m., and reassem- to hear from General Kagan. In my these six should be disqualifying. One bled when called to order by the Pre- opinion, she made small inroads, but is, she wants to consider foreign judi- siding Officer (Mr. BEGICH). we still have a long way to go in meeting the high standard to which we ciaries. Two, she has no judicial or f trial experience. Third, she is a judicial should hold Supreme Court nominees NOMINATION OF ELENA KAGAN TO activist. Four, she is extreme in her during their confirmation hearings. BE ASSOCIATE JUSTICE OF THE In sum, I am voting for General philosophy on abortion and anti-second SUPREME COURT OF THE Kagan because she is unquestionably amendment views, and she is anti- UNITED STATES—Continued well qualified, has a record of being a military. I think of all the things I have men- The PRESIDING OFFICER. Under principled, consensus-building lawyer, tioned, probably the part that concerns the previous order, the time until 8:15 and because I believe her judicial philosophy is within the mainstream of me most is her position that if we are p.m. will be divided in alternating 1- our country’s legal thought. I am con- trying someone in a military trial, hour blocks, with the majority control- fident she will make a superb Supreme maybe a terrorist or an activist, that ling the first block. Court Justice and is a worthy nominee they would be given the right to appeal The Senator from Wisconsin. to carry on Justice Stevens’ long leg- to our court system and inherit all the Mr. KOHL. Mr. President, I join my acy of exemplary public service to our benefits any citizen of the United colleagues today in congratulating Nation. States has. Chairman LEAHY and Senator SESSIONS for conducting fair and impartial hear- Mr. President, I yield the floor. I can only say what I said several The PRESIDING OFFICER. The Sen- ings for Solicitor General Kagan. I am months ago when she was first nomi- ator from Minnesota. nated. In my opinion, as 1 of 100 Sen- here today to support General Kagan’s Mr. FRANKEN. Mr. President, above ators, if she is not qualified to be Solic- nomination to the Supreme Court. Her the entrance of the U.S. Supreme Court itor General, she is certainly not quali- confirmation will be a milestone that are four words, and four words only: fied for the higher job of Justice of the we can all be proud of. For the first ‘‘Equal Justice Under Law.’’ U.S. Supreme Court. time in history, three women will be I rise today to support the nomina- HYDRAULIC FRACTURING serving on the Supreme Court at one tion of Solicitor General Elena Kagan I also wish to discuss one of the prob- time. to be an Associate Justice of the U.S. lems that is going to come up tomor- General Kagan came before the Judi- Supreme Court. But I also rise today to row, and that is with the Democratic ciary Committee with an impressive put General Kagan’s nomination in the and Republican energy bills. I am very resume that had all the trappings of an context of the history of the Supreme concerned about a process that has accomplished lawyer worthy of ap- Court and how that Court has affected been successful in extracting oil and pointment to the Supreme Court. Dur- the lives, the jobs, and the safety of primarily gas out of tight formations, ing her hearings, she proved herself to working Americans. known as hydraulic fracturing. Hy- be very well qualified for the job. I want to ask if working Americans draulic fracturing started in Oklahoma She impressed us with her sharp and are actually getting equal justice in 1949. We have used hydraulic frac- keen mind, her intellect, and com- under law in the highest Court of our turing to get at these tight formations prehensive knowledge of the Constitu- land. And I do not want to talk about for 60 years, and there has never been tion and the law. She pledged to con- the Court’s impact on working Ameri- one case of any kind of contamination sider each case with an open mind and cans in terms of stare decisis or def- of water. to impartially uphold the rule of law. erence to the political branches or ju- There are people who want to do She appeared mindful of the need for dicial modesty. I want to talk about away with our ability to run this ma- judicial modesty and fidelity to prece- this in terms of the real things that are chine called America. They don’t want dent, but not when it stands in the way happening to real people—real working oil, gas, coal, or nuclear. That kind of of ending injustice or guaranteeing our people—right here in the United gives an idea of what might be behind fundamental rights. States. this. At times during the hearings, Solic- In 2003, a 54-year-old man named Some say: No, we are not against hy- itor General Kagan seemed to be some- Jack Gross was working for an insur- draulic fracturing. This bill merely what more candid than previous nomi- ance company in Iowa. A few years ear- says we want the Federal Government nees. She disavowed a purely lier, his company had chosen him to re- to know what chemicals are used. originalist interpretation of the Con- write all of their policies in 1 year. And

VerDate Mar 15 2010 01:33 Aug 04, 2010 Jkt 089060 PO 00000 Frm 00020 Fmt 4637 Sfmt 0634 E:\CR\FM\G03AU6.027 S03AUPT1 smartinez on DSKB9S0YB1PROD with SENATE August 3, 2010 CONGRESSIONAL RECORD — SENATE S6617 he did it. In fact, he was one of the Sound. To this day the herring in interests could wield far too much in- company’s top employees. His 13 years Prince William Sound have not come fluence, not because of the strength of of performance reviews placed him in back. To this day generations of fisher- their arguments but because of the size the top 3 to 5 percent of the company. men such as Joe Banta are out of work. of their bank accounts. In fact, he But when his company merged with With the help of a Minnesota attor- wrote a book about this. It is called another company, Jack Gross got de- ney, Brian O’Neill, the fishermen of ‘‘Other People’s Money—and How moted. In fact, so did all of the other Prince William Sound took Exxon to Bankers Use It.’’ In that book, Bran- Iowa employees who were 50 or older. court. They took Exxon before a jury deis catalogued example after example So Mr. Gross sued for age discrimina- of their peers, and they won. The jury of how Wall Street bankers took ad- tion under a Federal law called the Age awarded them $5 billion. That is a frac- vantage of their position to enrich Discrimination in Employment Act. He tion of Exxon’s $45 billion in profit in themselves at the expense of the Amer- went to trial before a jury of his peers, 2008. But the Roberts Court slashed the ican people. Does this sound familiar? and he won. verdict to one-tenth of its original size. And it was in this book that he fa- The Roberts Court overturned that Five million dollars is, of course, a lot mously stated that ‘‘sunlight is said to verdict. They said the Age Discrimina- of money, but it had to be divided be the best of disinfectants’’—that you tion in Employment Act did not ban all among 32,000 people. have to train an unwavering spotlight kinds of age discrimination, only age Here is the other thing: There was on the schemes and machinations of discrimination where age was the sin- not a rule that called for this. There is corporate America. gle determinative reason for a firing or no statute or precedent that said the After he joined the Supreme Court, a demotion. Court had to cap the fishermen’s dam- Justice Brandeis wrote in a dissent in a The funny thing is that before the ages. So the Roberts Court just made 1933 case that our Nation’s Founders Roberts Court decided this, no one had one up. They made up a cap for what understood the ‘‘insidious menace in- made that argument—not Gross, not the fishermen could recover—after the herent in large aggregations of capital, the company, not Congress, no one. fishermen sued and got a verdict from particularly when held by corpora- The Court just pulled it out of thin air a jury of their peers. tions,’’ and that this ‘‘difference in in favor of the company. When the Court needed to justify power between corporations and nat- Is that equal justice under law? that cap, it said jury verdicts were too ural persons is ample basis’’—ample In 1979, Lilly Ledbetter went to work unpredictable for companies and that basis—for treating them differently at a Goodyear tire plant in Gadsden, even a ‘‘bad man’’ deserves reasonably under the law. AL. She was also very good at her job. predictable jury verdicts. This is the Justice William Douglas joined the She even earned the company’s top per- standard that will soon be applied to Supreme Court upon Justice Brandeis’s formance award. Being one of just a the fishermen of the gulf coast. retirement. Before joining the Court, few women at the plant, she endured Is this equal justice under law? Justice Douglas was Chairman of the harassment that her male colleagues Jack Gross, Lilly Ledbetter, and Joe SEC, where he crusaded for investor never faced. Banta are not alone. protections and led investigations into But one day, after 19 years on the Since 2005, the Roberts Court has also unethical corporations. While Chair- job, she found a note in her locker struck down a century-old precedent man of the SEC, in an address to the which told her she was making much that protected small business owners Fordham University Alumni Associa- less than her male coworkers. So she from price fixing. It has made it harder tion, Douglas warned that ‘‘one aspect went to court and tried to get Good- for investors to sue the firms that of modern life which has gone far to year to pay her the same thing they knowingly participated in a scheme to stifle men is the rapid growth of the had paid the men who had her same defraud them. In fact, it has made it tremendous corporation’’ and that in job. She went to trial before a jury of harder for everyone to get their day in these conglomerates, ‘‘service to her peers, and she won. The jury award- court, especially individual employees human beings becomes subordinate to ed Ms. Ledbetter $3 million. and investors. profits.’’ But the Roberts Court struck down It has removed half of the Nation’s In a 1949 case, Justice Douglas wrote the award. Why? Because Lilly largest known polluters from coverage that if Americans ‘‘want corporations Ledbetter had not gone to court within under the Clean Water Act. It has to be treated as humans are treated, if 180 days of her first discriminatory found that corporations—corpora- they want to grant corporations this paycheck decades earlier, even though tions—have the same free speech rights large degree of emancipation from she had no way of knowing what her in our elections as human beings. state regulation, they should say so. male coworkers were making back When the Roberts Court chooses be- [...] We should not do it for them then, even though the company contin- tween corporate America and working through the guise of interpretation.’’ ued to discriminate against her for dec- Americans, it goes with corporate Justice Douglas understood that cor- ades after that, even though the Con- America almost every time, even when porations are not people, don’t have gress did not write the law that way. the citizens of this country, sitting in the same rights as people, and that our Is that equal justice under law? a duly appointed jury, have decided it laws are critical in keeping their power In February 1989, a man named Joe the other way. in check. Banta was preparing for the herring That is not right. It is not equal jus- Justice Stevens continued this tradi- fishing season in his hometown of Cor- tice under the law. tion. In Ledbetter, in Gross, in Exxon, dova, AK. For three generations, the Today we consider the nomination of in Stoneridge, in Rapanos, and in Citi- Banta family had made their living Solicitor General Elena Kagan to a zens United, Justice Stevens fought the fishing herring—as the Presiding Offi- Court that has made those words an empowerment of big business at the ex- cer well knows this story—and digging empty promise to most working Ameri- pense of working Americans. In fact, in for clams in Prince William Sound. cans. It is fitting that General Kagan most of these cases, Justice Stevens All of that ended on March 24, 1989, has been nominated for Justice Ste- led the dissent. He is the Justice who when the Exxon Valdez—the oil tank- vens’ seat because the last three Jus- said in no uncertain terms that ‘‘cor- er—crashed into a reef and spilled hun- tices to occupy this seat—Justice Ste- porations are not a part of ‘We, the dreds of thousands of barrels of crude vens, Justice Douglas, and Justice People,’ by whom and for whom our oil into the sound in the Presiding Offi- Brandeis—were all deeply skeptical of Constitution was established.’’ cer’s home State. corporate power. All three Justices re- I have said it before—General Kagan Shortly before leaving port, the cap- jected the idea that the Constitution has big shoes to fill. But after months tain of the Valdez had downed not one, cannot tell the difference between cor- of learning more about General Kagan not two, but five double Vodka shots. porations and human beings. and a week of confirmation hearings, I There was proof that Exxon knew full Justice Louis Brandeis argued think it is safe to say there is no ques- well about his alcohol problem. To this throughout his career that the massive tion she can do it. day we can find oil from the Exxon wealth held by corporations was dan- Some have criticized General Kagan Valdez in the waters of Prince William gerous to democracy; that corporate because she lacks experience as a

VerDate Mar 15 2010 01:33 Aug 04, 2010 Jkt 089060 PO 00000 Frm 00021 Fmt 4637 Sfmt 0634 E:\CR\FM\G03AU6.039 S03AUPT1 smartinez on DSKB9S0YB1PROD with SENATE S6618 CONGRESSIONAL RECORD — SENATE August 3, 2010 judge, even though 40 out of the 111 is an activist Court. It is a Court that glasses, but I need a magnifying glass Justices in the Supreme Court’s his- has replaced Congress’s policy judg- to read the contract, and I am a law- tory had not been judges before they ments with its own perspective, with yer. Trying to understand what they served on the High Court and even its own prejudices, a Court that has are doing to me is very hard. But then though Justice Scalia said only this legislated from the bench. in bold print you will see an interest January in a speech in Jackson, MS, But, as I said, in her confirmation rate number that has just gone up or a that the Court needs Justices who hearings, General Kagan didn’t just de- charge that has just gone up. haven’t been judges. fine activism, she didn’t just acknowl- My wife said to me: What is this all It seems to me that Senators have edge its existence, she also said clearly about? I thought you reformed credit been going to absurd lengths to dis- and repeatedly that she would avoid it. cards. count General Kagan’s qualifications. If she is confirmed and if we have a This morning’s Wall Street Journal, We even had a Senator in the hearings Justice Kagan, as I am certain we will, in an article entitled ‘‘The New Credit who acknowledged that, yes, there has she will continue a long tradition of Card Tricks,’’ tells the story about been a long history of Justices who protecting and serving the American what has been happening since 2009 have never served previously as judges people. She will serve them with equal when we decided to reform credit cards. but that those Justices averaged more justice under law. Well, as one man said, whose name is than 20 years of private practice expe- I urge all of my colleagues to support Victor Stango and who is an associate rience, whereas General Kagan only her nomination. economist with the Federal Reserve worked for 2 years in a law firm. To Thank you, Mr. President. I yield the Bank of Chicago—he has been ana- me, this has a tortured ring of someone floor. lyzing the Credit Card Reform Act, and arguing that every southpaw Cy Young The PRESIDING OFFICER. The Sen- he said it is a race between regulators winner in the American League since ator from Illinois. writing ever more complex laws and the advent of the designated hitter has Mr. DURBIN. Mr. President, I wish to credit card companies setting up ever- had a lower ERA in away games on thank the Senator from Minnesota. I more complex fees. AstroTurf than any right-hander. certainly concur with his conclusion. Just to give an idea of what we are To people making these kinds of ar- We serve on the Judiciary Committee talking about, the article says: guments, I wish to say this: You only together. We both heard the testimony So the banks are getting aggressive. Ac- have one life. I think that in her 50 of Elena Kagan as well as had a chance cording to a July 22 report from Pew Chari- years, General Kagan has amassed an to ask her questions and listen to her table Trust, a nonpartisan research group, incredible record of service and accom- responses to other Senators. She is an the industry’s median annual fee on bank plishment. She has been a clerk for a extraordinarily talented woman who credit cards jumped 18 percent to $59 between Justice of the U.S. Supreme Court; spe- could bring to the Supreme Court a July of 2009 and March of this year, 2010. cial counsel to the Senate Judiciary wealth of experience. I couldn’t agree Credit unions, which are often viewed Committee; a top adviser to the 42nd with the Senator from Minnesota more as the hometown, smalltown mom-and- President of the United States; the that the fact that she has not worn a pop, closest to the people, your best first woman dean of Harvard Law judicial robe before does not in any friends when it comes to banking—lis- School; and the first woman to be So- way disqualify her. She has an exem- ten to this: licitor General in the history of the plary resume. At credit unions, annual fees soared United States. So is she qualified for I thank the Senator for noting the 67 percent in that same period to $25. the job? Of course. Of course she is. But most important element here is that During the same period, the median General Kagan has done more than many of the arguments that have been cash-advance and balance-transfer fees show she is qualified for the job; she used against judicial nominees in the jumped by 33 percent. has also shown she understands it. She past have evaporated on the other side So it isn’t just a matter of raising has shown she understands the obliga- of the aisle because the Roberts Court fees; it turns out they are raising them tion of the Supreme Court to the is in the midst of an activist phase— at a gallop, at a fast rate, trying to get American people and to the Congress something they promised would never ahead of the credit card reform bill. that represents them. happen, and it has happened, but it has They have also dreamed up a dozen For years, conservatives have warned happened to the satisfaction of one different ways to beat the law. Give us that we should beware of activist part of the political spectrum, where a year, they said, so we can change our judges who overreach their powers, there are fewer critics as a result. books and get everything ready for the that we should beware of judges who I thank the Senator from Minnesota new credit card reform. They spent legislate from the bench. Now that the for his eloquent remarks in relation to their year with their lawyers and ac- Roberts Court is in power, suddenly Elena Kagan. countants dreaming up new ways to these same conservatives are saying CREDIT CARD REFORM avoid the law. We should have known there is really no such thing as judicial Mr. President, this morning I took a it. We shouldn’t have given them all activism, it is all in the eye of the be- look at the Wall Street Journal Web this time. holder, and that an activist judge is site, and there was an article entitled They have dreamed up something just a judge who issues decisions you ‘‘The New Credit Card Tricks.’’ I called professional cards. These are don’t like. But General Kagan hasn’t thought to myself, I hope my wife like corporate cards but carry the same taken the bait. General Kagan said doesn’t get a chance to see this because terms as consumer cards and they there is such a thing as activism. She ever since last year when we reformed aren’t covered under the new law. They said it herself: An activist judge is a credit cards in America, I come home are reinventing the credit card with a judge who doesn’t defer to the policy on the weekends to Springfield, IL, and new name and a higher fee and a higher decisions of the political branches, who my wife hands me a new envelope she interest rate, and they skirt around the doesn’t respect precedent, and who has opened. laws we passed. doesn’t decide cases narrowly, avoiding Guess what they are doing, Mr. Sen- We said in the law—incidentally, we constitutional questions when possible. ator. stipulate that late-payment fees And when she said that, I think most In that envelope will be the latest shouldn’t be triggered on a Sunday or a people sitting in the committee room changes in our credit cards from these holiday because you couldn’t put any- at her confirmation hearing liked that companies. I have to say we pay off our thing in the mail. Well, here is a man, definition. credit cards. We do our best and almost whom they talk about in this article, When you apply that definition to always pay them off on a monthly by the name of Alan Condon of Wood- the Roberts Court—to the cases upon basis. We have a pretty good credit rat- stock, GA. He ended up facing one of cases where the Roberts Court has lim- ing—maybe not the best but a pretty these penalty fees, and he noticed that ited the rights of workers or pensioners good one. Yet we have been receiving the day it was triggered was a Sunday. or investors or small business owners notices for the last year from these He has read the new Credit CARD Act. or voters—you find there is no ques- credit card companies about changes That is not supposed to happen. You tion, no question whatsoever that this and to read the contract. I wear these can imagine what it took for Mr.

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How many people have that kind biggest U.S. banks, a coalition of consumer of at least 21 days from when a statement is groups including the National Consumer Law mailed and when payment is due. of determination to stick with it, as he Center, the Consumer Federation of America Yet the National Consumer Law Center did? and Consumer Action flagged several ‘‘poten- and Consumer Action say they have received They have new cards such as a rebate tial violations of the Credit Card Act.’’ complaints from borrowers who allege that card which, if you don’t read it care- Other banks are ramping up their mar- their billing cycles have been shortened to fully, sounds like a great deal on a keting of so-called professional cards. These fewer than 21 days. credit card and ends up taking money are like corporate cards but can carry the ‘‘Since the passage of the act, we’ve heard away from you. same terms as consumer cards—and aren’t from numerous borrowers alleging that they I could go on and on. covered under the new law. In the first quar- are shortchanged on billing cycle time,’’ says Mr. President, I ask unanimous con- ter of this year, issuers sent out 47 million Joe Ridout, a consumer-services manager at sent that this article be printed in its professional-card offers to U.S. households, Consumer Action. up from 13.2 million in the corresponding pe- INACTIVITY FEES RETURN entirety in the RECORD. riod last year, according to research firm As expected, issuers also are raising basic There being no objection, the mate- Synovate. rial was ordered to be printed in the fees in the wake of the Card Act, in some ‘‘This can be a very easy way around the cases significantly. Many credit-card compa- RECORD, as follows: Card Act,’’ says Josh Frank, a senior re- nies, for example, are increasing their bal- [From the WSJ.com, Aug. 3, 2010] searcher at the Center for Responsible Lend- ance-transfer charges sharply. ‘‘We are see- (By Jessica Silver-Greenberg) ing, a consumer group. ing an increase across the board in fees be- The upshot: Borrowers must be more vigi- Whomever President Barack Obama taps cause card companies are sensitive about lant than ever—even before they make their to head the new Bureau of Consumer Finan- their ability to price for risk,’’ says Mr. Rob- first charge on a new credit card. cial Protection could find it difficult to keep ertson of the Nilson Report. ahead of the credit-card industry. SADDLED WITH LATE FEES Last June, for example, J.P. Morgan’s The Credit Card Accountability Responsi- Alan Condon of Woodstock, Ga., says he Chase unit alerted customers that its max- bility and Disclosure Act of 2009, known as carefully reviews his card statements each imum balance-transfer fee was rising to 5% the Card Act, was intended to reshape the month, and even read the Card Act—all 33 from 2% on a wide range of its cards. contours of consumer finance. Among other pages—after it was passed in May 2009. ‘‘In a higher-loss environment, it’s impor- things, it forces card issuers to give cus- Among other things, the Card Act stipu- tant that we are prudent with our balance- tomers more notice about interest-rate in- lates that late-payment fees shouldn’t be transfer offers,’’ says Stephanie Jacobson, a creases and restricts certain controversial triggered on a Sunday or holiday, when there spokeswoman for the bank. She adds that billing practices such as inactivity fees. is no mail delivery. ‘‘We often do have lower rates in a competi- Yet some of the biggest card issuers in the The rule ‘‘is clearly meant to offer card- tive marketplace.’’ U.S., including Citigroup Inc., J.P Morgan holders some semblance of relief so that they Companies are raising their minimum fi- Chase & Co. and Discover Financial Services, don’t get saddled with late fees for making a nance charges, too. Before the Card Act, the are already rolling out a slew of fees de- reasonable payment on the next business average minimum monthly finance charge signed to recapture some of their lost in- day,’’ says Chi Chi Wu, a consumer credit was about 50 cents, according to Nick come, in part by skirting the new rules. lawyer at the National Consumer Law Cen- Bourke, director of the Safe Credit Card Some banks may even be violating the law ter. Project at Pew. Now, he says, those fees can outright, say consumer advocates. Mr. Condon says he was shocked when he reach $1.50. ‘‘Card companies are figuring out how to opened his credit-card statement dated June That difference might not seem like a lot, replace old fees with new ones,’’ says Victor 18 and saw that Discover had charged him $39 but it adds up. Borrowers pay $430 million a Stango, an associate economist with the for a late payment—and had upped his inter- year in minimum-finance charges alone, ac- Federal Reserve Bank of Chicago and a pro- est rate on future purchases from 17% to cording to the Center for Responsible Lend- fessor at the University of California, Davis, 24.99%. He says the company considered him ing. who has been analyzing how the Card Act late because he paid on June 14, instead of The Card Act’s provisions are being imple- will affect consumer banking. ‘‘It’s a race be- June 13, a Sunday. mented in stages, with the last phase taking tween regulators writing ever-more-complex ‘‘I just got mad,’’ says the 56-year-old com- effect on Aug. 22. After that, issuers will no laws and credit-card companies setting up puter-software developer, who says he had longer be able to charge ‘‘inactivity fees,’’ or ever-more-complex fees.’’ never before been late on a Discover pay- extra charges for people who don’t spend a The banks have a big gap to fill. The Card ment. certain amount each year. Act is expected to wipe out about $390 mil- ‘‘We were in compliance with the Card So companies are dressing them up in lion a year in fee revenue, according to Act,’’ says Discover spokesman Matthew other ways. David Robertson, the publisher of industry Towson. ‘‘The law states that if a creditor Citigroup, for example, has started charg- newsletter Nilson Report. On July 16, during does not receive or accept payments on ing some of its customers an annual fee, its second-quarter earnings call with ana- weekends or holidays, then the date is ex- which can be waived if a customer’s card ac- lysts, Bank of America Corp. Chief Financial tended. But we accept payments seven days tivity exceeds $2,400 a year. Officer Charles Noski warned that the Card a week.’’ Tristan Denyer of San Francisco says he Act and other regulatory changes would Nevertheless, Discover reviewed Mr. was surprised when he got a notice that prompt the bank, the nation’s largest in as- Condon’s account at The Wall Street Jour- Citigroup was instituting a $60 annual fee on sets, to write off up to $10 billion in the third nal’s request and decided to waive the late his card. Mr. Denyer, 37, a senior Web de- quarter. fee and reduce Mr. Condon’s interest rate to signer, says he rarely carried a balance on ‘‘If you have every major issuer saying its earlier level. his card, and refused to rack up the $2,400 in that we are losing our shirt, then that The Card Act also stipulates that issuers charges necessary to erase the fee. speaks volumes,’’ Mr. Robertson says. ‘‘Pro- can’t jack up rates on existing balances un- ‘‘I figured this was just a tactic to get me portionately, these fees should be understood less a cardholder is at least 60 days late. But to spend more and give them more money,’’ as almost inconsequential compared to the there is a creative maneuver around that: Mr. Denyer says. He says he decided to close losses.’’ the so-called rebate card. his account. So the banks are getting aggressive. Ac- Citibank rolled out rebate-card offers to Citigroup’s Mr. Wang acknowledges that cording to a July 22 report from Pew Chari- some of its customers last fall, offering to re- Card Act rules forbid the waiving of annual table Trusts, a nonpartisan research group, fund up to 70% of finance charges when cus- fees based on ‘‘a customer’s annual spending the industry’s median annual fee on bank tomers pay on time. The problem: Rebate of- on the card.’’ He adds, however, that ‘‘the credit cards jumped 18% to $59 between July fers aren’t governed by the Card Act, and an rules will not prohibit cash-back rewards or 2009 and March 2010. At credit unions, annual issuer can revoke them suddenly and hit similar incentives that encourage account fees soared 67% to $25. During the same pe- cardholders with high charges. usage.’’ riod, the median cash-advance and balance- The net result is the same as raising Another potential trap: low-credit-limit transfer fees jumped by 33%. rates—and because it is perfectly legal, cus- cards, which are popular among college stu- All of these increases are perfectly legal, of tomers have little recourse. ‘‘Rebates on fi- dents. course. Banks and other issuers would have a nance payments may seem like a good deal, The Card Act says a card’s total annual difficult time extending credit to consumers, but you could end up with a very high inter- fees can’t exceed 25% of a borrower’s credit even at high interest rates, if they couldn’t est rate suddenly,’’ says Mr. Frank, of the line. But some issuers may be evading the augment those revenues with fee income. Center for Responsible Lending. fee restrictions by charging an upfront proc- ‘‘We’re coming out of a deep recession that ‘‘The rebate offer is clear, transparent, and essing fee that doesn’t fall under the 25% issuers are still working through,’’ says we believe fully within the spirit of the Card cap. Peter Garuccio, a spokesman for the Amer- Act,’’ says Citigroup spokesman Samuel First Premier Bank, headquartered in ican Bankers Association. Wang. Sioux Falls, S.D., offers several low-credit-

VerDate Mar 15 2010 01:33 Aug 04, 2010 Jkt 089060 PO 00000 Frm 00023 Fmt 4637 Sfmt 0634 E:\CR\FM\G03AU6.042 S03AUPT1 smartinez on DSKB9S0YB1PROD with SENATE S6620 CONGRESSIONAL RECORD — SENATE August 3, 2010 limit cards. Its Centennial card comes with a place, for that matter, and which we In the spring of last year, she worked $300 limit and a $95 upfront processing fee. should ask ourselves is, Are we power- to change the bill, and we renamed it Melinda Robinson of Lorena, Texas, less to stop this? Are we powerless to the Financial Product Safety Commis- learned firsthand how rapidly fees could eat stop these banks, credit unions, and into her credit limit. After receiving a card sion. with a $250 credit limit from First Premier, credit card companies from basically Last summer, when the Obama ad- she says, she was immediately charged $170 ignoring reform in the law, from find- ministration released its plan for rein combined fees. When she tried to use the ing ways to skirt the law and charge forming Wall Street, our idea was re- card for the first time, she exceeded her cred- even more? christened as the Consumer Financial it limit, triggering more fees. Well, the answer is we are not. I will Protection Agency. ‘‘When they first send you the card, they tell you why. Because last week Presi- It is now officially called the Bureau automatically charge you fees that eat up dent Obama signed into law the strong- of Consumer Financial Protection, and half of it,’’ says Ms. Robinson. est consumer financial protections in it is now the law of the land. Whatever First Premier Bank’s president and chief the history of the United States. The executive, Miles Beacom, says the $95 proc- the name, Professor Elizabeth Warren essing fee doesn’t violate the Card Act be- bill, which was authored by Senator of Harvard Law School, more than any cause it is assessed before the account is CHRIS DODD, chairman of the Senate person in this country, was the driving opened. He adds that the fee offsets the risk Banking Committee, and Congressman force behind the creation of this agen- associated with offering these cards to BARNEY FRANK, his counterpart in the cy. ‘‘high-risk individuals.’’ House, the Wall Street Reform and Years ago, Professor Warren made a Foreign-transaction fees are on the march Consumer Protection Act included name for herself when she wrote a book as well. The average fee for foreign trans- many provisions that will help con- called ‘‘The Two-Income Trap,’’ in actions has jumped to 3% of the transaction sumers immediately—especially re- from roughly 2% in 2008, according to Ben which she described how hard it is for Woolsey, director of marketing and con- garding mortgages and credit cards. working families to get by in today’s sumer research at Creditcards.com. Make no mistake, as this article tells economy. She taught a popular course Some card holders are finding they don’t us, the big banks on Wall Street are at Harvard on bankruptcy and has even need to leave their living room to get working overtime already to dream up written extensively on how difficult it hit with a foreign-transaction fee. Ruth Ann ways to avoid this new law as well. The is for many families to start over when Sando, a small-business owner in Wash- law will never keep up with their law- their lives take a turn for the worse. ington, says she has been burned repeatedly yers and accountants. They will always She has most recently last served as on her Visa card issued by Pentagon Federal find a way around it. a watchdog, a chairwoman of the con- Credit Union, the third-largest credit union That is why the bill included some- in the U.S. gressional oversight panel for the Ms. Sando used to do a lot of business with thing we have never had before in the Troubled Asset Relief Program, other- AbeBooks, an online retailer. But she found United States: a Bureau of Consumer wise known as TARP. She has taken a that she was getting hit with foreign-trans- Financial Protection. look at the money—the taxpayer dol- action fees even though her purchases were This bureau has one responsibility: lars—given to these banks to make in dollars. That is because while the seller to make consumer financial markets sure we weren’t cheated and to blow and shipper were based in the U.S., Abe, work for American families, not just the whistle on banks that didn’t do the headquartered in Canada, provides the forum for the banks. The bureau will ensure for book sellers and collects a portion of the right thing. that sellers of mortgages, credit cards, She has done that and done it ex- proceeds from all sales. private student loans, pay-day lenders, So late last year, Ms. Sando says, she de- tremely well. For the past 3 years, she and other types of financial products cided to stop buying from the site alto- has advocated tirelessly for the cre- must compete for customers based on gether. ‘‘Not buying books is the only way I ation of this agency. The purpose of the quality of their products, rather can protest the fee,’’ she says. this agency is to empower every single than the number of tricks and traps ‘‘The fee is legal, but all these fees cir- one of us, as consumers, to get the cumvent the [Card Act’s] goal of clear and they can hide in the fine print they right information and not be tricked or straightforward pricing,’’ Mr. Woolsey says. stick behind your monthly statement. Pentagon Federal Credit Union says some Here is the thing. This agency is only deceived, so we can do the right thing of its cards carry a foreign-transaction fee of going to be as effective as the people for ourselves and our families and our 2% of the U.S. dollar amount of the trans- who run it and work for it. That is even small businesses. action. more true for a brandnew agency such Throughout her work, a common FIGHTING BACK as this one. The person who is chosen theme has emerged: Government While the credit-card landscape may seem as the first leader will set the tone for should work for the American people littered with landmines, there are ways to the regulators for years to come, even and not the other way around. Eliza- guard against some of the worst pitfalls. The beth Warren is the right person to head first and simplest: Make your card payments decades. It is critical that the Bureau of Con- this new agency. on time. Much has been written—some of it Second, say consumer advocates, people sumer Financial Protection be put in should dispute fees directly with the issuer place with a director who is aggressive, critical—on the prospect of Professor when they believe something is amiss. intelligent, and understands the chal- Warren being nominated as Director of ‘‘Cardholders would be surprised at how lenge they will face; a director who is this new consumer bureau. Wall Street much they can raise hell and get a change,’’ fair, one who believes in the power of banks anonymously argue to the says Mr. Condon, who says he immediately the marketplace but understands that media—and even to Senators—that she contacted Discover after the late charge ap- markets work better if everybody par- would restrict access to credit. Non- peared on his statement. sense. The only types of credit she They might have to make repeated calls, ticipating in those markets benefits; a however. director who will listen to what bank- would restrict are predatory loans. ‘‘While the Credit Card Act did make great ers are saying but can see through That is just a smokescreen for saying strides in protecting consumers, it in no way them when they try to slant lending the banks are going to face their re- closed all avenues for cardholders to get hit markets too far in their favor; a direc- sponsibilities and perhaps not take all with fees,’’ says Ms. Wu, from the National tor who thinks, first and foremost, the profit they want at the expense of Consumer Law Center. ‘‘It’s a first step.’’ about how American families can consumers who are deceived. Mr. DURBIN. Mr. President, I say to thrive in today’s complicated economy. Professor Warren has said publicly— those who will be critical of the re- Fortunately, there is a person who and I believe her—that she doesn’t be- marks I am about to make, this is not can fill that job effectively. Her name grudge banks making profits; they are from some French Socialist journal; is Elizabeth Warren. in business. She would prefer—as I and this is not from some left-leaning mag- Professor Elizabeth Warren first pro- I think most Americans would—that azine; this is a news story in the Wall posed the creation of an independent fi- banks make money by providing Amer- Street Journal this morning which is nancial regulator to look out for con- ican families with good products, good talking about what the credit card sumers 3 years ago, in 2007. In 2008, she credit cards, good mortgages, and good companies are doing. helped me draft a bill based on her student loans. So the obvious question one would idea. We called it the Consumer Credit The banks also argue she doesn’t un- ask if you live in Illinois or any other Safety Commission back then. derstand their business well enough to

VerDate Mar 15 2010 01:33 Aug 04, 2010 Jkt 089060 PO 00000 Frm 00024 Fmt 4637 Sfmt 0634 E:\CR\FM\A03AU6.009 S03AUPT1 smartinez on DSKB9S0YB1PROD with SENATE August 3, 2010 CONGRESSIONAL RECORD — SENATE S6621 regulate it. They are afraid of her. wonder, occasionally, when they hear tice Stevens’ example. I predict today They know how smart she is and that us refer to the nominee as ‘‘general’’— that, in the years ahead, if and when she would not be teaching at Harvard General Kagan. It reminds me of when confirmed, Justice Kagan will surprise Law School successfully and leading so I was privileged to be elected attorney many people, including Senators who many efforts forward for this country general of Connecticut. I went to an on this vote will vote for her and those if she didn’t have the skill and intel- orientation for new attorneys general who will vote against her. She will not ligence it takes. and I walked in and somebody said, be predictable. That is one of the best Professor Warren will bring to the ‘‘Hello, General.’’ I turned around, things I think we can say about a Su- bureau passion and compassion, a big- thinking somebody was behind me. It preme Court nominee. She will be judi- picture vision and nuts-and-bolts was the first time I had been addressed cial and independent-minded. She will knowledge. She is the right person for that way. Solicitors General are reserve the Constitution and the national the most important job in the country. ferred to as ‘‘general’’ as well. interest, not any party or people or I say to my wife and to anybody who So establishing the standard as I rigid ideology. read the Wall Street Journal this have, I would say General Elena Kagan I must say I have been encouraged in morning, with the right person at this possesses impressive academic and pro- this view by the way in which General new Consumer Financial Protection fessional qualifications, with her broad Kagan has carried out her duties as So- Bureau, help is on the way. We need to range of experiences as a clerk for a licitor General of the United States. put into place someone who will blow Supreme Court Justice, a lawyer in pri- She has consistently demonstrated her the whistle on those who break the vate practice, a legal and policy ad- commitment to upholding the Con- law, abuse the law, and engage in prac- viser to President Clinton, a law pro- stitution, as well as her understanding tices that deceive Americans and fessor at the University of Chicago, and of and respect for the appropriate roles American families. We need somebody then at Harvard, where she ultimately of Congress, the executive branch, and at that agency who empowers us, as became dean, and most recently as So- the courts. She has not shied away consumers, to make the right decisions licitor General of the United States, from difficult cases or taking difficult for our families. Elizabeth Warren, pro- which will enable her to serve our Na- positions when she has come to the fessor of Harvard Law School, is the tion and the cause of justice well if— conclusion that those positions were right person. and I hope when—she is confirmed as demanded by the Nation’s needs and by I yield the floor. an Associate Justice of the Supreme the law’s requirements. The PRESIDING OFFICER. The Sen- Court. I wish to cite one powerful example, ator from Connecticut. General Kagan showed, on the day to me, which I discussed with her when Mr. LIEBERMAN. Mr. President, I the President nominated her, that she I met her on her rounds in the Senate; rise to speak in support of the nomina- understands the importance and unique that is, her case before the U.S. Court tion of our Solicitor General, Elena importance of the Supreme Court. She of Appeals for the District of Columbia, Kagan, as Associate Justice of the Su- said: in the case of Al Maqaleh v. Gates. It preme Court of the United States. The Court is an extraordinary institution was a Federal district court judgment, The power the Constitution gives the in the work it does and in the work it can do where the court ruled it had jurisdic- Senate to advise and consent to Presi- for the American people by advancing the te- nets of our Constitution, by upholding the tion to consider the habeas petitions of dential nominations is a very impor- rule of law, and by enabling all Americans, prisoners of war being held by the U.S. tant one but never more significant regardless of their background or their be- military at Bagram Air Force Base in than when we are called upon to re- liefs, to get a fair hearing and an equal Afghanistan. In other words, the court spond to a President’s nomination of a chance at justice. said that if we captured an enemy ter- Justice to the U.S. Supreme Court be- General Kagan then continued by rorist or soldier in Afghanistan and put cause this nomination is for a lifetime complimenting retiring Justice John them in the U.S. prison facility or de- to the Court, from which there is no Paul Stevens, whose seat she will fill if tention facility at Bagram Air Force appeal. It is the final arbiter of justice confirmed to this position, for the ‘‘dis- Base in Afghanistan, that individual in our system of justice, in our system tinguished and exemplary role’’ Justice could file a habeas petition before the of government. So these are important Stevens has played on the Supreme Supreme Court of the United States in moments, when we are called upon to Court for the last 35 years. Washington to have his or her deten- respond to a President’s nomination to I wish to say that, in my opinion, the tion reviewed by our highest Court. To the Supreme Court. most significant thing about Justice me it is an unbelievable decision and a I remember once, early on, after I Stevens’ service has been his independ- harmful decision. came to the Senate, during a con- ence of mind, his single-minded focus The Solicitor General typically rep- troversial nomination to the Supreme and commitment to the cause of jus- resents our government only in cases Court, and our late and truly great col- tice because this is the branch of our before the U.S. Supreme Court. I asked league, Robert C. Byrd of West Vir- government that must be beyond poli- General Kagan why she got involved in ginia, said something I will never for- tics and even rigid ideology. this case. She told me that she felt so get. He said that, normally, when we The Founders, in all their genius, strongly about how harmful the Dis- consider whether to advise and consent when they put together the form of the trict Court decision would be to our to a President’s nomination to a Fed- American Government, coming from Nation’s ability to succeed in the wars eral position, we give, understandably, England as so many of them did, wor- against radical Islamist extremism we the benefit of the doubt to the nomi- ried about the autocratic power of the are involved in now that she made this nee, the person whom the President King, wanted to create a democracy case the exception in which she felt it has nominated; when it comes to the and yet wanted to make sure there appropriate and necessary for her as Supreme Court—Senator Byrd said and were checks and balances. The Su- Solicitor General to argue on behalf of counseled—the benefit of the doubt preme Court was set up as one of the the United States in the Court of Ap- should go to the Supreme Court be- three branches of our government that peals, not just in the U.S. Supreme cause of the lifetime tenure of Justices was not accountable to the people; its Court. of the Supreme Court and their be- accountability was solely to the Con- I could not agree more with General yond-appeal role in our system of gov- stitution. I think Justice Stevens, Kagan’s assessment of the importance ernment. whether you agreed with every decision of the case and wrongness of the Dis- I have that in mind by way of saying, he wrote or not—and I agreed with trict Court decision. I agree with her beyond any doubt, I feel certain Elena some but not others—always dem- assessment of the merits of the case. I Kagan, Solicitor General, will serve the onstrated an ability to transcend poli- appreciate that she chose to get in- cause of justice and our Nation very tics and ideology and put the require- volved. And I was extremely pleased well as an Associate Justice of the U.S. ments of justice and the law, as he saw when the DC Court of Appeals agreed Supreme Court. them, above all else. with the position argued by General Those either in the galleries or I am confident General Kagan, as a Kagan and reversed the decision of the watching the debate on C–SPAN may Supreme Court Justice, will follow Jus- District Court. That, I think, tells us a

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I suppose it is true of perience extolled the virtue of that cent decision in Citizens United is an many nominated to the Supreme very thing when the Senate was consid- unbelievable decision to me: that cor- Court. They both have impeccable aca- ering the nomination of William porations should be treated as individ- demic credentials. They both clerked Rehnquist who similarly had no judi- uals for the purpose of campaign fi- for Supreme Court Justices at the be- cial experience. nancing without any precedent or plain ginning of their legal careers. They I find it a significant asset for Elena text basis. They overturned a statute both then served in private practice, Kagan. She brings different kinds of ex- by Congress because they said corpora- followed by times in academia and then periences to the Federal bench, and I tions are people. the government. think she will make an exceptional Su- Oh, really? Most of us understand The important point I am making preme Court Justice. corporations are artificial people cre- and what I believe would be a simi- I might say, every Solicitor General, ated by the State for the purpose of al- larity between these two great Ameri- the position Elena Kagan now occupies, lowing an entity to be created, to sue cans is that General Kagan, like the ju- since 1985, including Kenneth Starr and and be sued, contract and be con- rist she will be replacing, will be Ted Olson, have said that Kagan tracted with. But no one ever sug- viewed at the end of her career as a ‘‘would bring to the Supreme Court a gested corporations represent a real Justice who put partisanship, politics, breadth of experience and a history of person. If so, I assume one of these and ideology aside and put justice first. great accomplishment in the law . . . days we will have corporations running The PRESIDING OFFICER (Mrs. We support the nomination of Elena for office, perhaps a corporate can- Kagan . . . and believe that, if con- GILLIBRAND). The Senator has con- didate for the Senate. We can have sumed 10 minutes. firmed, she will serve on the Court General Motors running against IBM. Mr. LIEBERMAN. I, therefore, say in with distinction.’’ That is from every Get your money together because it is conclusion that I support Elena Kagan. former Solicitor General going back to going to be expensive. Which desk in the mid-1980s. That is, in my judgment, I urge my colleagues to give her a the Senate chamber will belong to some support. strong vote of confirmation to be our which corporation? The determination of who sits on the next Associate Justice of the Supreme If corporations are, in fact, real peo- Supreme Court in this Nation is one of Court. ple, as the Supreme Court has ruled, the most important decisions the Sen- I yield the floor. I suggest the ab- then it will not be long before we have ate makes. It is a judgment by the sence of a quorum. that kind of political race in our coun- President, first of all, to send a nomi- The legislative clerk proceeded to try. It is an absurd decision. nation to the Senate, and then the ad- call the roll. The 5-to-4 decision in the Court in vise-and-consent responsibility of the Mr. DORGAN. Madam President, I Ledbetter v. Goodyear is another Senate is to make a judgment about ask unanimous consent that the order shocking example of standing common that nomination. for the quorum call be rescinded. The decisions the Court makes have sense and a commonsense reading of The PRESIDING OFFICER. Without a profound impact on the lives of the the Constitution on its head. Lilly objection, it is so ordered. American people, have an impact on Ledbetter worked 19 years at Goodyear Mr. DORGAN. Madam President, I the questions of what kind of freedoms and had consistently gotten sterling, have also come to support the nomina- exist in this country. We have at this very high performance evaluations by tion of Elena Kagan. She has an im- moment one of the most conservative her supervisors. Once she learned she pressive background. I was very courts we have had in a long time in had been paid much less than other pleased with her nomination by the this country, perhaps in this country’s workers who happened to be male—she President for a lifetime term on the history the most conservative court. learned this after 19 years, by the way. Supreme Court. A recent study by Richard Posner, For 19 years, she worked hard, got paid, I had the opportunity to meet with who sits on the Seventh Court of Ap- and then discovered all of those years her in my office, and I found her engag- peals, and William Landes, University she had been paid much less than the ing and interesting, with a lively sense of Chicago law professors, ranked all 43 male counterparts doing exactly the of humor. I found her to be a very in- Supreme Court Justices who have same job. teresting person. I had the opportunity served since 1937 on their ideology and She finally sued, and the Federal to interview and talk with a number of their decisions. Their conclusion was courts said: You are right; Goodyear, folks who have been nominated to the that four of the five most conservative you have to make back payments. The Supreme Court. She stands out to me. Justices since Franklin Roosevelt sit appeals court then overturned it, and She has a very impressive back- on this Supreme Court right now. the Supreme Court ruled that this ground: bachelor’s degree in history I do not think we ought to be think- woman had to have taken action with- from Princeton; master of philosophy ing of this in terms of conservative in 180 days of the discrimination begin- from Oxford; a law degree from Har- versus liberal. I only use that category ning. vard. She has done a lot of things—as- because so many of my colleagues said The fact is, she could not have done sociate White House counsel for Presi- it is very important to have a conserv- that in the first 180 days. She did not dent Clinton. She was a professor at ative Justice. What I want on the Su- have the foggiest idea they were mis- Harvard Law School and then dean of preme Court is a Justice who will use treating her, saying: If you are a man, the Harvard Law School. She was con- common sense in interpreting the Con- you get this salary, and if you are a firmed by the Senate as Solicitor Gen- stitution and do so without an under- woman, you get this salary for doing eral on March 19 of last year. I voted standing that they are on one team or the same thing, working side by side. for that confirmation. I think she will another. She did not discover they were mis- make an excellent Justice of the Su- Frankly, it is disappointing not just treating her for 19 years. preme Court. to me but most Americans to see that The Supreme Court did not care I want to say that some of the criti- the Supreme Court has become a court about that. They just said that if she cism of Elena Kagan has been that she of nine Justices who break into teams: did not pick it up in 180 days, sorry, does not have judicial experience. In Our side, your side; five on one side, out of luck, tough luck. It stands logic other words, she has not been a judge. four on the other. That is not what we on its head once again. That is true, in fact. Forty of the 111 would expect of the Supreme Court. The fact is, the Supreme Court has a Supreme Court Justices, including Jus- My hope would be that the Supreme profound impact in terms of the way tices John Marshall, Louis Brandeis, Court would take a look at issues not they interpret the Constitution of the

VerDate Mar 15 2010 01:33 Aug 04, 2010 Jkt 089060 PO 00000 Frm 00026 Fmt 4637 Sfmt 0634 E:\CR\FM\G03AU6.047 S03AUPT1 smartinez on DSKB9S0YB1PROD with SENATE August 3, 2010 CONGRESSIONAL RECORD — SENATE S6623 United States. What I have seen re- from having to run for office and seek the Chief Executive, the President, and cently and certainly in the case of Citi- election. They are given a limited but not judges who are completely insu- zens United—and I believe it is the case very important role in our government; lated from any political accountability in Ledbetter v. Goodyear—the Supreme that is, to render impartial justice, to for their decisions. Court too often these days divides into make decisions based on the law, not The only reason the Constitution teams. By the way, the team that based on perhaps their own political or gives that sort of lifetime tenure and seems to be winning is the team on the ideological preference or a political protection from the voters is because side of the powerful, the team on the agenda. under the Constitution judges are not side of the big interests, the team on I think it is very important that this supposed to be making policy but the side of the corporate interests. process be fair and dignified, and I merely enforcing the law that is made That ought not be the way the Su- commend not just the chairman of the by the Congress and the President. It is preme Court operates. Judiciary Committee, Senator LEAHY, very important that the power to make I came to support the Kagan nomina- but the ranking member, Senator SES- new laws belongs to the people—we the tion because I think she is someone SIONS of Alabama, who is in the Cham- people—and not to unelected judges. with a facile, interesting mind who is ber, for making sure this nominee got When the Supreme Court presumes to going to bring a new spark to the de- the kind of confirmation hearing in the create new rights, the Justices take bate among Justices about what this Judiciary Committee that, frankly, she away the power of the people to govern Constitution means. I do not know if deserves and that every nominee de- themselves through their elected rep- she is a liberal or a conservative. I serves whether or not they are con- resentatives. It is completely turning don’t care very much. What I care is firmed. But at the same time, we need democracy on its head—this idea of that we put some people on the Su- to make sure in addition to a dignified saying judges ought to be making pol- preme Court we believe have the capa- and fair process that it is thorough and icy even though unelected and serving bility to make good decisions—deci- it is careful and it is comprehensive. with lifetime tenure and substituting sions that will make life in this coun- It is vital, in my view, to recall the their view for the views of the people try better, that will reflect accurately core principles that should guide the and their elected representatives. That the interpretation of the U.S. Constitu- Senate in carrying out its constitu- is not the way our democracy is sup- tion. tional duty because I think today there posed to work. I hope very much when the dust set- is more of a sense than there has been Some have disagreed over the years tles and the vote is taken that we will at any other time in my adult life that and embraced this concept of judicial have a very strong vote in support of the Federal Government simply does activism. According to those who sub- Elena Kagan to become the next Su- not recognize any constraints imposed scribe to this view, the Constitution is preme Court Justice. I think her back- upon its authority under the Constitu- somehow not a written document that ground, her skill, her capability will tion. Frankly, I think there is a wide- we can read and understand what is in make her an outstanding Supreme spread feeling across the country that it, but it has become a ‘‘living docu- Court Justice. I will be proud to vote the Federal Government—the National ment,’’ which has changed over time, for her nomination when we have that Government—believes it is, in effect, even though the words on the paper re- vote this week. the only government in our country main the same. Unfortunately, this no- Madam President, I yield the floor. anymore and that the States and local tion of a living document often is an The PRESIDING OFFICER. The Sen- governments are just the servants of excuse for judges to reach a desired ator from Texas. the National Government. outcome or a result in a lawsuit. This Mr. CORNYN. Madam President, So- But that isn’t, of course, how our activist view takes the power to make licitor General Elena Kagan has been Framers of the Constitution conceived and change the law away from we the nominated to fill the upcoming Su- of this unique form of government people and gives that power to preme court vacancy left by the retire- known as federalism, where the Fed- unelected judges who are insulated ment of Justice John Paul Stevens. eral Government, under our Constitu- from any kind of accountability for I know of few, if any, responsibilities tion, is a government of delegated—or their decisions, and it lets the Supreme of the Senate that are more important sometimes it is called enumerated— Court decide what rights we have and than the confirmation process pro- powers, and all rights—or all power— what rights we don’t have, which is the viding, in the terms of the Constitu- not given to the Federal Government opposite of what the Framers thought tion, ‘‘Advice and Consent’’ to the are reserved, under the terms of the they were doing when they wrote our nomination of an individual to serve tenth amendment of the Constitution, constitution and when the States rati- for life on the U.S. Supreme Court. to the people and to the States. fied it. There are two constitutional respon- I am afraid that Washington, DC, and The question raised by every Su- sibilities that are invoked every time a particularly this Congress at this par- preme Court nomination is whether the nominee is chosen. One is by the Presi- ticular time, seem to have that turned nominee believes in this activist vision dent of the United States. It is his pre- around. Unfortunately, I worry that a for judges or whether, in contrast, they rogative to choose whomsoever he Supreme Court Justice who does not believe in a traditional role for judges. wishes. But that is not the end of it. recognize the limited nature of the au- The question is, Will the nominee en- The second constitutional duty that is thority given to the Federal Govern- force a written constitution and laws invoked anytime a vacancy occurs and ment, and who isn’t willing to enforce passed by Congress or will they pre- a nomination is made is that of the it, is not qualified to serve on the U.S. sume to be able to invent new rights Senate to provide, again in the terms Supreme Court. according to their subjective view of of the Constitution, ‘‘Advice and Con- As the Federalist Papers remind us the law? Will the nominee enforce a sent’’ on the nomination. That is what in Federalist 78: written constitution or will he or she we are engaged in doing now—in decid- The courts must declare the sense of the see that it is their job to change the ing whether that advice and consent law; and if they should be disposed to exer- Constitution to match their policy should be, yes, she shall serve, she cise will instead of judgment, the con- preferences when they do not like the shall be confirmed or, no, she should sequence would equally be the substitution outcome? not be confirmed. of their pleasure to that of the legislative To be confirmed, I believe a nominee We know judges are different. In the body. must establish that he or she should words of the high school civics class, That is a little archaic—that kind of embrace the role of a traditional vision we are called the three branches of gov- language, of course, going back a cou- of a judge. I believe that is absolutely ernment, and all three serve different ple of centuries—but, basically, it critical because someone who presumes functions. But the role of the judge is means the people who are responsible to say: After I get confirmed, I am entirely different from the role of a for making policy are those who are going to call cases the way I see them; Senator or the role of the President be- elected and who have to stand before and if I don’t like the way the Con- cause they are nominated and ap- the people and ask for their vote; stitution calls for those cases to be de- pointed to serve for life and protected namely, the Members of Congress or cided, or the way Congress has written

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A change the law in response to ‘‘new Constitution, in the entire Constitu- judge who presumes to be a lawmaker, conditions and new circumstances’’— tion, are too important to leave to I believe, is a lawbreaker. changes that she testified occur ‘‘all such an empty promise. Elena Kagan, our nominee, is obvi- the time.’’ Madam President, I see my friend ously enormously bright. She has ex- She says that because the Constitu- and colleague from Utah here to speak. cellent academic credentials and has tion is written in general terms, the Let me just say that the last thing I had an accomplished career. Her testi- courts are empowered to change the wanted to address—and I will plan on mony before the committee, however, law in response to new conditions and coming back, assuming we have enough did not persuade me that she agrees new circumstances—changes that she time to talk about it—is, frankly, the with this traditional role for a judge. testified ‘‘occur all the time.’’ stigma that Ms. Kagan and the folks at In fact, her testimony about judicial Well, I have an alternative sugges- Harvard imposed on our men and philosophy is open to multiple inter- tion. Rather than ceding to an women of the military by banning pretations and was intentionally unelected Supreme Court or a Federal them from the Career Services Office vague. In her own responses following judiciary, why isn’t it that we the peo- at Harvard Law School and, in effect, the hearing, for example, Solicitor ple have the right to petition Congress stigmatizing them and causing people General Kagan indicated that she to change the law? That is the way de- to disrespect them, even though they would decide cases based on not the mocracies are supposed to work. It is were merely applying the law that Con- written Constitution, not the laws the job of a judge to enforce that law, gress passed and over which they had passed by Congress, but based on her and if we don’t like the way the Con- no control. ‘‘constitutional values.’’ But she ac- stitution is written, well, we have I am very troubled by that, and I will knowledged that her constitutional passed 27 amendments during the come back to talk about that more as values can point in different directions course of our history amending the time permits. But for these reasons I at different times and claimed that she Constitution. But that reserves the have given, and others I will expand would exercise prudence and judgment right to we the people and does not upon later, I oppose the nomination. in resolving the tension between them. cede that authority to any unelected, I yield the floor. The PRESIDING OFFICER. The Sen- Well, that all sounds pretty fine and lifetime-tenured judge. ator from Utah. well, but what that means is she would I was also troubled by a couple of Mr. HATCH. Madam President, I not agree that her decisions should be other specific areas and her interpreta- compliment the distinguished Senator confined to the written Constitution tion of the law—one that has to do from Texas. There is hardly anybody in that has been ratified by we the people with the power of the Federal Govern- this body who can equal the expertise and the laws passed by the elected rep- ment. I mentioned that a moment ago. and experience he has, not only as an resentatives of the American people, Under the commerce clause of the Con- attorney general in his State but also for which we are electorally account- stitution, the Supreme Court has pre- as a justice on the Texas Supreme able every election. She presumes, it viously basically given the Federal Court. With that experience, he is seems to me, by her vague and subjec- Government almost limitless powers. someone we should all listen to. I tive language, to suggest that her con- We have seen that at play in the de- thank the distinguished Senator for his stitutional values—which point in dif- bate over the individual mandate in comments. ferent directions depending on the the health insurance bill that was re- I rise today to discuss the appoint- case—and the fact that she says she cently passed, with an unprecedented ment of Elena Kagan to be Associate would exercise prudence and judgment reach of Federal power into your living Justice of the U.S. Supreme Court. The in resolving tensions is somehow a sub- rooms, where we are sitting on our Senate’s role of advice and consent is a stitute for taking an oath to uphold couches, and which says: You know check on the President’s power to ap- the Constitution and laws of the what. The Federal Government de- point—not a substitute for it. At the United States. That is simply unac- mands that you purchase a govern- same time, the Senate’s role must be ceptable. ment-approved health insurance pol- more than an empty formality or a In voting on a Supreme Court nomi- icy. If you don’t, we are going to penal- mere rubberstamp. nee, I think we need more certainty ize you. I have examined Ms. Kagan’s record, than the simple assurance that a nomi- That power is unprecedented. That is I participated in her entire hearing be- nee would exercise their judgment. Of why it is being litigated now. fore the Judiciary Committee, and I course, we expect for the nominee to But Solicitor General Kagan did not have listened to supporters and oppo- exercise judgment, but that is not suf- seem to recognize that the Federal nents both in Utah and across the ficient. We need a Justice who will fol- Government’s powers are one of enu- country. low the law, someone who will follow merated powers, delegated by the I can say this: I lectured at Harvard and enforce the Constitution of the States and by the people, and all rights when she was dean at Harvard. I appre- United States. You know what. If we not delegated were reserved to the peo- ciated the way I was treated while I don’t like the Constitution as written, ple and to the States. was there. It was clear she probably did and we think it needs to be amended, I was also troubled by her testimony not agree with some of the things I was well, under article V of the Constitu- with regard to the second amend- saying, but she was courteous and de- tion there is a process to do that. And ment—the right to keep and bear arms. cent. I like her personally. But if I you know what. If we don’t like the law She did say the recent decisions in apply the standard I have consistently Congress makes, well, Congress, of Heller and McDonald are ‘‘settled law,’’ used for judicial nominees, that stand- course, is free to change it. But if we but I worry that her interpretation of ard leads me to conclude that I just the people still don’t like the way Con- settled law means until there are five cannot support her appointment. gress writes the law, and they refuse to new Justices who take a look at that Qualifications for judicial service in- respond to the will of the people, we settled law and just decide to change clude both legal experience, which have a right to replace Members of it. summarizes the past, and judicial phi- Congress. That is the way a democracy Unfortunately, we saw the same losophy, which describes the future. is run, not by a judge dictating to us sleight of hand with Justice Two categories of legal experience what he or she thinks is good for us. Sotomayor’s testimony regarding the stand out among the 111 men and In voting on a nominee, I think we second amendment. Last year, she tes- women who have served on the U.S. Su- need more assurance from the nominee tified that Heller was settled law. But preme Court. Two-thirds of them, in- than she will simply exercise her judg- last month, she joined in a dissenting cluding every current Justice and the

VerDate Mar 15 2010 01:33 Aug 04, 2010 Jkt 089060 PO 00000 Frm 00028 Fmt 4637 Sfmt 0634 E:\CR\FM\G03AU6.049 S03AUPT1 smartinez on DSKB9S0YB1PROD with SENATE August 3, 2010 CONGRESSIONAL RECORD — SENATE S6625 Justice Ms. Kagan has been nominated stitution’s meaning in such things as dicial philosophy for what it is some- to replace, had previously been a judge. social practices, evolving norms, prac- how disparages Justice Marshall him- The 39 previous Justices who lacked ju- tical consequences, and even foreign self. I assume that this ridiculous and dicial experience had an average of 21 law. President Obama has clearly offensive notion is their way of chang- years of legal practice. In other words, taken sides in the judicial philosophy ing the subject because they cannot de- Supreme Court Justices have had expe- debate. fend an activist, politicized role for rience behind the bench as a judge, be- Ms. Kagan has identified a general judges. fore the bench as a lawyer, or both. and a specific source of evidence for us In 2006, when she was dean of the Ms. Kagan has neither. She was a to examine. She told the Judiciary Harvard Law School, Ms. Kagan junior associate in a large law firm for Committee generally that ‘‘you can praised as her judicial hero Aharon only 2 years. She has never tried a look to my whole life for indications of Barak, who served for many years on case, never argued before any appellate what kind of judge or justice I would the Supreme Court of Israel. Aharon court before becoming Solicitor Gen- be.’’ And she told one of my Judiciary Barak has been described by U.S. cir- eral just last year. I am sure the reason Committee colleagues specifically that cuit judge Richard Posner, one of the they made her Solicitor General was to we can learn a lot about her ‘‘by seeing leading lights on the judiciary in this give her some experience so they could how I did when I worked at the White country, as an aggressively interven- do what they have now done and nomi- House.’’ tionist judge who has ‘‘created a degree nate her to the Supreme Court. Al- In graduate school, Ms. Kagan wrote of judicial power undreamt of by our though Harvard law students must con- that the Supreme Court may overturn most aggressive Supreme Court Jus- tribute at least 40 hours of law-related previous decisions because, as she put tices’’ and for whom ‘‘the judiciary is a pro bono service as a condition of grad- it, ‘‘new times and circumstances de- law unto itself.’’ Ms. Kagan did not uation, Harvard’s former Dean Kagan mand a different interpretation of the simply describe Justice Barak’s judi- appears to have done none at all. Constitution.’’ She wrote that judges cial philosophy or praise him as a per- Ms. Kagan’s experience is, instead, may ‘‘mold and steer the law in order son; she called him ‘‘the judge or jus- academic and political. One of my to promote certain ethical values and tice in my lifetime whom I think best Democratic colleagues said here on the achieve certain social ends.’’ Ms. represents and has best advanced the floor that Ms. Kagan’s best qualifica- Kagan was describing a judicial philos- values of democracy and human rights, tions for the Supreme Court are her ex- ophy guided by moral reflections rath- of the rule of law, and of justice.’’ perience making policy and her ability er than by enduring mandates. My friends on the other side of the to build consensus. I, for one, believe When asked about this thesis at her aisle try to spin away Ms. Kagan’s that the line between the political and hearing, Ms. Kagan said, ‘‘Let us just praise of Justice Barak by noting that the judicial is already too blurred. throw that piece of work in the trash, Justice Antonin Scalia once warmly While the political or policy mindset why don’t we?’’ I cannot do that. While introduced him. But while Justice focuses on achieving desirable results, every piece of a nominee’s record must Scalia said he had ‘‘respect for the judges must focus on following the be viewed in its proper context, I can- man,’’ he made clear that he and Jus- right process. not simply ignore whatever may raise tice Barak had ‘‘fundamental philo- Without any real experience or questions or doubts about Ms. Kagan’s sophical, legal and constitutional dis- grounding in the actual practice of law, judicial philosophy. It was Ms. Kagan, agreements.’’ Ms. Kagan, in contrast, Ms. Kagan’s experience makes me after all, who told us to examine her said that Justice Barak was her judi- more, not less, skeptical of her suit- whole life for evidence of the kind of cial hero and represented the rule of ability for the Supreme Court. It puts Justice she would be. This obviously law better than any other judge. It ap- even more emphasis on her judicial includes writings such as her Oxford pears that the very first time she philosophy, which is the second and graduate thesis. distanced herself from his judicial phi- more important qualification for judi- Writing as a law professor several losophy was at her confirmation hear- cial service. years later, Ms. Kagan agreed that in ing. As I said at the confirmation hearing most cases that come before the Su- When she was dean, Ms. Kagan had for Justice Ruth Bader Ginsburg in preme Court, the Justice’s own experi- opportunities to choose between her 1993, there must be clear and con- ence and values are the most impor- personal views and the law. Federal vincing evidence that a nominee under- tant elements in the decision. If that is law, known as the Solomon Amend- stands the proper role of the judiciary too results-oriented, Ms. Kagan wrote, ment, requires that military recruiters in our system of government. What is so be it. Well, to be candid about it, it have equal access to students as other the proper role of judges in our system is indeed too results-oriented and employers. Harvard protested the don’t of government? One of my predecessors echoes the same activist approach Ms ask, don’t tell law regarding military as Senator from Utah, George Suther- Kagan embraced in her graduate thesis. service by homosexuals by allowing land, served on the Supreme Court for While Ms. Kagan has not herself been military recruiters access not through 16 years. He distinguished between in- a judge, she has singled out for par- its Office of Career Services but terpreting the Constitution and amend- ticular praise judges who share this ac- through the Harvard Law School Vet- ing it in the guise of interpretation. tivist judicial philosophy. In a tribute erans Association, a private group with Confusing the two, he wrote, converts she wrote for her mentor, Justice no office, no staff, and no budget. The ‘‘what was intended as inescapable and Thurgood Marshall, for example, she Defense Department told Harvard in enduring mandates into mere moral re- described his belief that the Supreme 2002 that this policy did not comply flections.’’ These are fundamentally Court today has a mission to ‘‘safe- with the Solomon Amendment. different judicial philosophies that guard the interests of people who had Ms. Kagan, who had very publicly de- identify inherently different relation- no other champion.’’ Ms. Kagan did nounced the military service law, ships between the judge and the law. more than simply describe Justice joined a lawsuit challenging the Sol- The central confirmation question Marshall’s judicial philosophy but omon Amendment. Within 24 hours of before us today is what kind of a Jus- wrote: ‘‘And however much some re- the decision of the U.S. Court of Ap- tice Ms. Kagan would be. The answer cent Justices have sniped at that vi- peals for the Third Circuit enjoining it, begins with the President who nomi- sion, it remains a thing of glory.’’ she again banned military recruiters nated Ms. Kagan. When he was a Sen- Justice Marshall was a pioneering from the career office even though the ator, President Obama said judges de- leader in the civil rights movement. He ruling did not apply to Harvard, which cide cases based on their deepest val- blazed trails, he empowered genera- is in the First Circuit. In other words, ues, their core concerns, and what is in tions, he led crusades. But he was also she reinstated a policy that she knew their heart. As a Presidential can- an activist Supreme Court Justice. He violated Federal law and even kept didate, he said he would appoint judges proudly took the activist side in the ju- that policy in place when the Third who have empathy for certain groups. dicial philosophy debate. Some on the Circuit stayed its own injunction. Ms. As President, he has nominated judges other side have suggested that hon- Kagan could have opposed the law in who believe they may find the Con- estly identifying Justice Marshall’s ju- various ways but chose to do so in a

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She was, for example, approach to answering questions that the kind of Justices who sit on the a key player behind the Clinton admin- was far different from what she once highest Court in the land. istration’s extreme abortion policy, in- argued was necessary for the Senate George Washington said in his Fare- cluding its defense of the barbaric properly to evaluate nominees and edu- well Address: practice of partial-birth abortion. In a cate the public. I asked three times, for The basis of our political systems is the 1996 legislative strategy memo, she la- example, if she had written the 1996 right of the people to make and to alter their beled as a disaster a proposed state- memo I discussed a minute ago. Mind constitutions of government. But the Con- ment by a key medical group that you, the memo has her name on it and stitution which at any time exists, till there exists no circumstances in which includes a page of her own handwritten changed by an explicit and authentic act of partial-birth abortion is the only op- notes. After three tries, Ms. Kagan the whole people, is sacredly obligatory upon all. tion for doctors to take. That was the would say only that it was in her hand- organization representing the obstetri- writing which I suppose leaves open the Judges who bend the Constitution to cians and gynecologists. She drafted possibility that it was forged. It was their own values, who use the Constitu- and persuaded that group to adopt lan- certainly her prerogative not to give tion to pursue their own vision for so- guage with a much different political Senators anything meaningful during ciety, take this right away from the spin. At her hearing, Ms. Kagan offered her hearing, but it leaves the rest of people and undermine liberty itself. the implausible claim that she was her record as the basis for determining As my colleagues can see, I am very merely trying to ensure that the med- what kind of Justice she would be. worried about this nomination. I never ical group accurately expressed its own Other Senators will discuss in more voted against a Supreme Court nomi- medical opinion. In other words, the depth additional troubling issues raised nee before when I voted against now disaster she identified was a PR dis- by her record. These certainly include Justice Sonia Sotomayor but I think I aster for the medical group, not a po- positions she has taken and arguments have been proven right in a number of litical disaster for the Clinton adminis- she has made that signal a sweeping, instances. Let me mention one. She ba- tration. That is too hard to believe, es- unprecedented view of Federal Govern- sically said that the Heller case on the pecially in light of evidence that Ms. ment power. At the hearing, for exam- right to keep and bear arms was settled Kagan also sought to persuade the ple, I questioned her about the trou- law. Yet within a year or so, she voted American Medical Association to bling position she took before the Su- that the right to keep and bear arms is change its similar conclusion that par- preme Court in the Citizens United v. not a fundamental right. tial-birth abortion is not medically FEC case. She argued that the first I hope that soon-to-be Justice Kagan necessary. Political objectives appear amendment allows the Federal Govern- proves me wrong. I hope that she will to have trumped medical science. ment to determine who may say what, use her legal mind and the abilities she Let’s understand what partial-birth when, and in what manner about polit- has to uphold rather than tear down abortion is, this barbaric practice. It is ical candidates. She argued that the the Constitution. I hope she will do where they turn the child around, even government may ban certain print or what the Founding Fathers expected a child capable of living on its own out- electronic books, movies, and pam- all Justices on the Court to do. But side the womb, until its head is coming phlets that mention candidates close to like Justice Sotomayor, I think the first. Then they ram scissors or some an election. Political speech is the evidence about her judicial philosophy other sharp instrument into the back speech perhaps most protected by the shows that I am right. of the skull, suck out the brains, then Constitution. Yet she argued that the I yield the floor. pull the baby out and say it is not a government may silence unions, for- The PRESIDING OFFICER (Mr. human being. I don’t know anybody profit corporations, nonprofit groups KAUFMAN). The Senator from Ohio. who should not consider that tremen- and even tiny mom-and-pop businesses, Mr. VOINOVICH. Mr. President, I dously offensive and barbaric. if they organize legally as a corpora- rise to speak on the nomination of So- In May 1997, after President Clinton tion. Thankfully the Supreme Court licitor General Elena Kagan to be an had vetoed the Partial Birth Abortion sided with freedom of speech. Associate Justice of the U.S. Supreme Ban Act, Ms. Kagan wrote a memo rec- As if that breathtaking degree of Court. I will not support General ommending that he support a sham ban Federal power were not bad enough, Kagan’s nomination. I did not come to offered by Democratic Senators. Every- Ms. Kagan also worked in the Clinton this decision lightly. As I said last Au- body here knew it was a sham. She ar- administration to weaken and limit gust during the debate on Justice gued that this step might attract votes other individual rights such as the sec- Sotomayor, the role of the Senate in from Senators who otherwise would ond amendment right to keep and bear the nomination of a Supreme Court vote to override President Clinton’s arms. In her hearing, Ms. Kagan re- Justice is to give its advice and con- veto. Since the substitutes would not fused to acknowledge any real limits sent on the President’s nomination, pass—she knew they would not—par- on the Federal Government’s power, with the Senate to judge whether an tial-birth abortion would remain legal. which the Supreme Court has already individual is qualified based on a num- Whether you are for or against abor- expanded far beyond anything Amer- ber of factors. Among these factors are tion, most people find that practice ica’s Founders intended, to regulate ev- the nominee’s education, legal experi- barbaric. erything imaginable in the name of ence, prior judicial experience, written Significantly, however, Ms. Kagan interstate commerce. record, judicial temperament, commit- noted that the Office of Legal Counsel I will summarize. Ms. Kagan’s aca- ment to the rule of law, and overall had concluded that these substitute demic and primarily political experi- contributions to the law. Based on my bans were unconstitutional under the ence make critical the need for clear review of Elena Kagan’s record and Supreme Court’s Roe v. Wade decision. and convincing evidence that she is using these factors, I have determined There is no indication that she dis- committed to the proper role of judges General Kagan at this time does not agreed with this conclusion. The point in our system of government. The crit- meet the criteria for membership on is that Ms. Kagan urged a purely political confirmation question is the kind our Nation’s highest Court. ical position on abortion that was at of Justice Ms. Kagan would be. Will the The President deserves deference in odds with what the Clinton administra- Constitution control her, or does she his nominations and, of course, Presi- tion then believed the Constitution re- believe she may control the Constitu- dential elections have a direct impact quired. That is something that really tion? Looking where she directed me to on the makeup of our judiciary; that is bothered me and I do not think she was look, I believe the evidence shows she to say, elections do have consequences.

VerDate Mar 15 2010 01:33 Aug 04, 2010 Jkt 089060 PO 00000 Frm 00030 Fmt 4637 Sfmt 0634 E:\CR\FM\G03AU6.051 S03AUPT1 smartinez on DSKB9S0YB1PROD with SENATE August 3, 2010 CONGRESSIONAL RECORD — SENATE S6627 But Senate confirmation should not be I also think it is worth noting that out of touch with our society, thou- a simple mechanical affirmation of the the independent Congressional Re- sands, if not tens of thousands, of State President’s selection, especially when search Service has found that, on aver- court judges are out there with lengthy the nominee will enjoy a lifetime ap- age, the 39 Justices who lacked prior judicial records, many ready to serve pointment. A Senator is duty bound to judicial experience had over 20 years of on the Supreme Court. I think back to conscientiously review the qualifica- experience in the practice of law. Gen- Justice Sandra Day O’Connor, who was tions of the President’s nominee and eral Kagan’s experience pales in com- on the supreme court of the State of make an independent assessment of the parison. Arizona for 8 years before she became a nominee’s qualifications. During Justice Sotomayor’s con- member of the Supreme Court. General Kagan is well educated, in- firmation, I spoke about how President As an aside, only a former law pro- telligent, bright, and engaging, and ad- Obama’s standard for selecting judicial fessor would think that the dean of a vanced quite rapidly in her career of nominees based on what was in their law school is somehow more in touch teaching and law school administra- heart flew in the face of meritocracy— with everyday people than a judge. tion. But one must ask, is that enough? flew in the face of meritocracy. We, as Every day, a judge is presented with I believe it is not. I believe a judicial a nation, aspire to hire people for jobs the facts of everyday life and must nominee must have substantial experi- based on their skill, not on where they apply them to the law. A dean at a law ence in the law, especially when the are from or who they know. Justice school, surrounded by professors earn- nominee is seeking a lifetime appoint- Sotomayor, in addition to her 17 years ing hundreds of thousands of dollars a ment to the highest Court in the land. of total service on the trial and appel- year and donors worth millions and After reviewing her background, I be- late benches, was in private practice students soon to enter into a profes- lieve General Kagan does not have that for 8 years and was a district attorney sional career, never gets to see every- relevant experience. General Kagan is for 4 years. Justice Sotomayor’s expe- the first nominee to the Supreme Court day life and is never faced with the fac- rience as a lawyer and a judge, her ju- with no prior judicial experience since tory worker, the farmer, or any other dicial temperament, and the fact that 1971, almost 40 years ago. While I do hardworking blue-collar Americans. her opinions were within the judicial not believe a lack of judicial experi- How is a law school dean more in mainstream gave me confidence that ence should bar one from serving on touch—more in touch—with everyday she had the relevant experience to sit the Supreme Court, I note that review- people? on the Supreme Court. Some of my colleagues would like to ing prior judicial service is obviously Because there is such a limited have had a less liberal person nomi- the easiest way to assess a nominee’s record with General Kagan and because nated by the President. My position is, fitness for the Court. This lack of judi- she has gone out of her way, quite the President will surely nominate a cial experience does not prevent her frankly, not to answer questions, I liberal. The most important question nomination, but in my opinion it does have no idea what she will do on the is, Is that liberal nominee qualified to shift the burden to the nominee to bench and whether she will be able to be a member of the Supreme Court? I demonstrate her relevant experience. suppress her own values to apply the For example, when the Senate con- would argue that General Kagan has sidered Justice Sotomayor’s nomina- law. The fact is, we really do not know been nominated based on her friend- tion, there were over 1,000 prior opin- much about her views. ships and personal attachments with Frankly, I have been surprised by ions one could review to decide if she President Obama and others at the some of my colleagues who attempt to was ready for the job. With General White House, not based on objective compare her to the famous Justice Kagan, there are none. When I asked qualities that would indicate she is Brandeis, another Justice with no prior her to name opinions she worked on qualified to be a member of the U.S. judicial experience. Justice Brandeis with Justice Marshall with which she Supreme Court. practiced the law for almost 30 years disagreed, she stated she could not re- In closing, lack of judicial experience member any individual opinion she before his nomination, much of his should not be an absolute bar to serv- worked on, much less whether she dis- practice being pro bono in his later ing on the Supreme Court. However, agreed with Justice Marshall on any of years. Furthermore, Justice Brandeis Solicitor General Kagan not only lacks them. She could not remember. is widely regarded as one of the great judicial experience but has limited ex- During our meeting, General Kagan legal minds of not just his time but of perience as a practicing attorney with noted her service as Solicitor General, American history, having developed only the last year as Solicitor General another job I did not think she was numerous areas of modern law from and 2 years as a junior associate mak- qualified to hold, and said it was rel- scratch. Yet, again, General Kagan ing up her entire practice. evant because she was the Solicitor pales in comparison. Additionally, General Kagan has had General. I agree it is relevant, but her In my meeting with General Kagan, I an extremely limited written record—I time as Solicitor General has been too asked her about how little writing she mean limited written record—which short. Since President Kennedy’s Solic- had published, and she responded that should make all of us unsure as to itor General, Archibald Cox, only one she had more academic writing than what sort of Justice General Kagan confirmed Solicitor General has served other members of the Supreme Court. will be. for a shorter period of time than Gen- This is factually incorrect and mis- For these reasons, I cannot in good eral Kagan. leading. First, this is incorrect. Justice conscience support the nomination of General Kagan argued her first case Scalia is widely published with numer- General Kagan to be a member of the before the Supreme Court less than a ous articles and books. Justice Gins- U.S. Supreme Court. year ago, and now we are going to con- burg went so far as to learn Swedish to Mr. President, I yield the floor and firm her as a member of that Court? coauthor a book on Swedish judicial suggest the absence of a quorum. If we base her qualifications on her procedure. And Justice Breyer was one The PRESIDING OFFICER. The earlier legal experience, her experience of the most foremost authorities on ad- clerk will call the roll. is particularly limited. General Kagan ministrative law, with many books and The bill clerk proceeded to call the worked for 2 years as a practicing at- articles to his name before joining the roll. torney. Justices Rehnquist and Powell, Court. Second, it is misleading because Mr. SESSIONS. Mr. President, I ask the last two Supreme Court nominees each Justice publishes hundreds of unanimous consent that the order for without prior judicial experience, each pages a year in the form of opinions, the quorum call be rescinded. spent many years in the active practice greatly eclipsing General Kagan’s aca- The PRESIDING OFFICER. Without of law. Justice Rehnquist practiced in demic production. objection, it is so ordered. Arizona for over 16 years. Justice Pow- There are over 800 Federal judges, Mr. SESSIONS. Mr. President, a ell was a partner in a major Virginia many of whom clearly have the experi- number of comments have been made law firm for over 25 years and in prac- ence, intelligence, and legal skill to about Ms. Elena Kagan’s actions at tice for 38 years. General Kagan has 2 serve on our Supreme Court. Addition- Harvard in barring the military from years of experience in private practice ally, if one believes, which I do not, utilizing or having access to the Career and 1 as Solicitor General. that the Federal judiciary is somehow Services Office and asking the veterans

VerDate Mar 15 2010 01:33 Aug 04, 2010 Jkt 089060 PO 00000 Frm 00031 Fmt 4637 Sfmt 0634 E:\CR\FM\G03AU6.053 S03AUPT1 smartinez on DSKB9S0YB1PROD with SENATE S6628 CONGRESSIONAL RECORD — SENATE August 3, 2010 group—that was not able, as they The statistics reveal that our recruiting ef- Finally, I would note: What was the said—to somehow fill that role. forts have greatly improved since the change purpose of all this? Why did they have I will take a few minutes, as we have in policy by Harvard to comply with the Sol- this policy? It was to harm and hamper a few minutes left, to deal with one of omon Amendment. We only assessed 2 Har- the U.S. military in their effort to re- vard Law students in the 1990s. the arguments I have heard my col- cruit on campus. Apparently, it was ef- leagues repeat; that, well, she did not This is not accurate, what we have fective in reducing their ability. They reduce recruiting, therefore, no harm, been hearing. Then she reversed that had a direct intent to punish the mili- no foul. I do not agree. There was a policy and went back to the policy of tary for a policy the military did not foul and there was a harm. But even if discrimination. The reports show it ob- establish but Congress and President there had not been a harm, there was a structed their recruiting efforts. The Clinton established and it was wrong foul. chief of recruiting for the Air Force then and it is wrong now. It was very wrong to blame the U.S. JAG Corps was repeatedly blocked The PRESIDING OFFICER. The Sen- military for the don’t ask, don’t tell from participating in Harvard’s spring ator’s time has expired. policy, and very, very, very wrong to 2005 recruiting season, after Ms. Kagan Mr. SESSIONS. I thank the Chair blame some young officer who was changed the policy, saying this: and I yield the floor. there to recruit people to serve in the Harvard is playing games and won’t give us The PRESIDING OFFICER. The Sen- JAG Corps of the U.S. military, per- an OCI [On-Campus Interviewing] date; their ator from Minnesota. haps having just returned from combat official window for employer registration has Ms. KLOBUCHAR. Mr. President, I duty in Iraq or Afghanistan, and to be closed. Their recruiting manager told me am so honored to come to the floor told: You can’t come in the front door today that she’s still ‘‘waiting to hear’’ with a number of women Senators to whether they’ll allow us. of the building. You can’t use the re- discuss the President’s nomination of cruiting services because we don’t like The chief of Air Force JAG recruit- Solicitor General Elena Kagan to be your policy. ing also recounted a conversation with the Associate Justice on the U.S. Su- But it was not the military’s policy; Harvard’s dean of career services after preme Court. it was the Congress’s policy. It was the close of the recruiting season, when As is the Presiding Officer, I am a President Clinton’s policy. He signed you are supposed to be recruiting— member of the Senate Judiciary Com- the bill. I do not believe that Ms. they missed the whole season—this is mittee, and we both had the oppor- Kagan complained to President Clinton what he says, talking about the dean. tunity to question Elena Kagan and to when she was on his staff for 5 years The PRESIDING OFFICER. The 1- listen to her brilliant and insightful re- and he signed the bill. Was there any hour time of the minority has expired. sponses. Everyone heard her, and no protest to him? No. Her protest was Mr. SESSIONS. Mr. President, I matter how anyone is voting on this lodged, and the discrimination was di- don’t see anyone here—I ask unani- nomination—although it is hard for me rected against the men and women in mous consent to speak for 1 additional to understand how they could oppose uniform who defend our country, who minute. her—I think there was very much con- The PRESIDING OFFICER. Without had nothing to do with the policy. sensus on this idea that she knew what That is a fact, and I do not think it objection, it is so ordered. she was doing, that she has done every Mr. SESSIONS. The dean of career is a matter that should be lightly dis- job that she has had very well, that she services told the Air Force JAG: missed. ‘‘Oh, the recruiting didn’t go has confronted very difficult situa- down,’’ they say. Well, let’s just talk He stated that the faculty had still not de- tions, and that she has always been a cided whether to allow us to participate in leader and someone who can bring con- about that. They said she merely rein- on-campus interviews. . . . I asked him if I stated Harvard Law’s pre-2002 policy, could at least post a job posting via their of- sensus. She consistently demonstrated which forced the military to work fice and he said no. the quality that some of us had already through this veterans association, and The Army was blunt in their seen in her records; that is, of prag- recruiting did not suffer. But that is afteraction report: matism and reasonableness and a con- not true. sensus builder. The Army was stonewalled at Harvard. So I will save my remarks until later Harvard’s pre-2002 policy—before she Phone calls and e-mails went unanswered became dean—had obstructed military and the standard response was—‘‘We’re wait- because I have been joined by the Sen- recruiting. As an internal memo- ing to hear from our higher authority.’’ ator from New York, Mrs. GILLIBRAND, randum authored by the recruiting That certainly would appear to be who is from Elena Kagan’s home State. chief of the Air Force JAG Corps in Dean Kagan, who had reversed the pol- While she may have worked in Massa- 2002 states—this is what the chief of re- icy, personally. chusetts for quite a while, she actually cruiting for the Air Force JAG said: This is what the veterans group said came from New York. It is an honor to Career Services Offices are the epicenter when Dean Kagan reversed the policy have Senator GILLIBRAND, who is also for all employer hiring activities at a law and said: We want you to help take an attorney, joining us today. school. . . . Without the support of the Ca- care of the military. We are not going I yield for Senator GILLIBRAND. reer Services Office, we are relegated to wan- The PRESIDING OFFICER. The Sen- to let them in our office. They are not dering the halls in hopes that someone will ator from New York. worthy to be in our office. This is what stop and talk to us. . . . [D]enying access to Mrs. GILLIBRAND. Mr. President, I they wrote and sent an e-mail to all the Career Services Office is tantamount to thank the Senator from Minnesota for chaining and locking the front door of the the students: law school—as it has the same impact on our her leadership, for her guidance, for her Given our tiny membership, meager budg- distinguished career, and for her serv- recruiting efforts. et, and lack of office space, we possess nei- The military’s ‘‘after action reports’’ ther the time nor the resources to routinely ice on the Judiciary Committee. It is from pre-2002 recruiting efforts orga- schedule campus rooms or advertise exten- so meaningful to all of us to have her nized through the veterans association sively for outside organizations as is the ability to review these candidates in on campus show mixed results, but re- norm for most recruiting events. . . . [Our such depth. cruiting clearly improved after her effort] falls short of duplicating the excel- I am so proud to stand in support of lent assistance provided by the HLS Office of Solicitor General Kagan’s nomination predecessor, Dean Clark, granted the Career Services. military equal access through the Ca- to the U.S. Supreme Court. With his To claim that 2005 had increased re- reer Services Office. This is what the decision, President Obama has chosen cruiting is inaccurate. The 2005 class at Air Force said: an individual of the highest caliber, a Harvard would have been recruited dur- women with an enormous history of Since Harvard’s policy change, the Air ing the time the military enjoyed full Force has . . . had very positive responses achievement, a history of service and, from a number of students. . . . [I]n the 16 access of the career services office be- perhaps most importantly, a history of months since Harvard’s change in policy, we fore she reversed the policy, not in the bridge building. have attracted at least four Harvard stu- spring of 2005, a mere 3 months before Elena Kagan is widely regarded as dents, when in the prior twelve years, we re- graduation. They were counting the one of the Nation’s leading legal schol- cruited a total of only nine. graduates, not people who signed up. ars. She is a stalwart defender of the That is while the discrimination was The recruiting has not been shown to Constitution, and through her sharp in- in effect. increase after this effort. tellect, steadfast integrity, sensible

VerDate Mar 15 2010 05:38 Aug 04, 2010 Jkt 089060 PO 00000 Frm 00032 Fmt 4637 Sfmt 0634 E:\CR\FM\G03AU6.055 S03AUPT1 smartinez on DSKB9S0YB1PROD with SENATE August 3, 2010 CONGRESSIONAL RECORD — SENATE S6629 judgment, and extraordinary work mark of the Roberts Court. These deci- U.S. Supreme Court. I am happy to join ethic, Elena Kagan has made it clear sions have often been overreaching in Senators KLOBUCHAR, GILLIBRAND, MI- she is eminently qualified to serve as a scope and have repeatedly ignored set- KULSKI, and HAGAN to support this ex- U.S. Supreme Court Justice. tled law and congressional intent. For cellent candidate for the High Court. Dean of Harvard Law School, magna example, in the Citizens United case, The members of the Senate Judiciary cum laude from Harvard Law, editor of the Court not only disregarded the ex- Committee did a thorough job in vet- the Harvard Law Review, and summa tensive record compiled by Congress ting Ms. Kagan, and I thank them all cum laude from Princeton, these are but abandoned established precedent. for their hard work. I think the hear- just some of the many accolades she Solicitor General Kagan’s unique abil- ings they held on her nomination re- obtained during her vast and distin- ity to build coalitions will be very vealed three things; first, that Elena guished career. helpful in bridging this very serious di- Kagan is a person of good character; Throughout the course of this nomi- vide. second, that she is someone who under- nation process, it has been made abun- Since the announcement of her nomi- stands and respects the rule of law and dantly clear that Solicitor General nation, I know more than a few of my the role of courts in our democracy; Elena Kagan has a profound and excep- colleagues have struggled to find a via- third, that she is indeed qualified to be tional understanding of the Constitu- ble reason to object to her nomination. a Supreme Court Justice. I believe the tion and our system of law. Unfortu- The bottom line remains that there has President chose wisely when he nomi- nately, it appears that some of my col- yet to be a credible reason to oppose nated her. leagues are determined to criticize this outstanding confirmation. Back in June, after the nomination, I Elena Kagan regardless of these facts. I look forward to enthusiastically spoke about Ms. Kagan’s impressive They can no longer find partisan or casting my vote in support of General list of professional accomplishments, ideological fodder by which to create a Kagan’s nomination and confirmation so I am not going to repeat them this straw man of opposition, so they are to the Supreme Court of the United afternoon. It is clear Elena Kagan has now questioning her intellect, her clar- States. I urge my colleagues to join me thrived in a number of settings and ity of mind, and her temperament. It is and support her nomination as well. that she will bring a diverse set of ex- deeply concerning to me that my col- The PRESIDING OFFICER. The Sen- periences and abilities to the Court. In leagues would dismiss the judgment of ator from Minnesota. her rise to the top of the legal profes- every Solicitor General of the past 25 Ms. KLOBUCHAR. Mr. President, I sion, Ms. Kagan gained practical expe- years and dismiss the views of law pro- thank the Senator from New York for rience that forced her to evaluate the fessors from all across the United that enthusiastic endorsement. I like impact of laws on people. She also has States and even sitting Supreme Court how she took on some of these criti- a track record of building bridges Justices who have suggested that cisms that have been lodged against across the ideological spectrum, some- Elena Kagan is eminently qualified to Solicitor General Kagan. I also under- thing I saw firsthand when I was the di- sit on the Court. stand that at least one of my col- rector of the Institute of Politics at These distinguished legal experts leagues who spoke out in opposition the Kennedy School at Harvard and she from across the country and across the has stated that, in his words: ‘‘I believe was dean of the Harvard Law School. ideological spectrum say Elena Kagan she does not have the gifts and quali- She had that reputation on campus as is not only an intellectual giant, but ties of mind or temperament that one someone who could work with every- she is as qualified to serve on the Na- must have to be a Justice.’’ Well, anyone. These are critical skills for a Jus- tion’s highest Court as any of her other one who sat through those hearings or tice, and I am glad we have a Supreme predecessors. Every Solicitor General watched them on TV, as Senator Court nominee before us who has a va- over the last quarter century—Demo- GILLIBRAND has pointed out, would riety of real-world experiences and has crats and Republicans—wrote a letter have to disagree. Anyone would have not been isolated only within the judi- of support for her nomination as Solic- seen an incredibly smart, intellectu- cial system. itor General, noting her brilliant intel- ally engaged person who answered Sen- Perhaps most impressively, in her lect, her candor, and the ‘‘high regard ators’ questions astutely and whose en- latest role as Solicitor General, Ms. in which she is held by persons of a ergy never seemed to flag. Neither did Kagan has served as the representative wide variety of political and social her sense of humor, I will add. She had of the American people before the Su- views.’’ immediate recall about every single preme Court. She has represented us The support of Miguel Estrada, Ken case or constitutional doctrine that forcefully in complex cases, including Starr, and Ted Olson, along with the she was asked about, and to say she ones that dealt with major issues, such support of some of my Republican col- doesn’t have the gift or quality of mind as our ability to conduct the war on leagues such as Senator LINDSEY is simply ridiculous. terror and the amount of influence GRAHAM, all speak to her ability to This is a woman who is a trailblazer: that big businesses should have in our build bridges and to find common the first woman dean of Harvard Law elections. As is the case for every at- ground. These are the traits we need in School, first woman Solicitor General. torney who regularly appears in court, a Justice when so many decisions right To say she does not have the gifts or she won some and she lost some. now are narrowly being decided at the the qualities of mind to be a Justice is But above all, Ms. Kagan has shown 5-to-4 margin. nothing short of ridiculous. she is capable of analyzing the law at An attorney with over two decades of I next will yield for someone who the level required by the Nation’s high- experience working in all three knows something about having a good est Court. She has the talent and the branches of the Federal Government, temperament and a good quality of intellect to join the Court as a Justice. Kagan’s breadth of experience will mind, the Senator from New Hamp- I think that is something on which bring diversity to a Court consisting shire, who is also a trailblazer in her most of us can agree. Unfortunately, entirely of former judges. Many of the own right: the first woman to serve as the politics that have come to sur- Justices on both sides of the aisle are both a Governor and a Senator, Mrs. round judicial confirmations in modern quite fond of Elena Kagan from her JEANNE SHAHEEN of New Hampshire. times mean that Ms. Kagan’s qualifica- time as Solicitor General and have The PRESIDING OFFICER. The Sen- tions to serve on the Court are just one commented on how her distinct profes- ator from New Hampshire. piece of this debate. I wish this weren’t sional background is a welcome con- Mrs. SHAHEEN. Thank you very the case. tribution to the Court. much, to my colleague, Senator These proceedings should force us to Based on her record of achievement, KLOBUCHAR, and a special thanks for take a hard look at the role our Found- it is clear Elena Kagan possesses the bringing us together this afternoon to ers intended for the Senate in the con- temperament that will distinguish her speak on this important nomination. firmation process. When we provide ad- as a consensus builder on a deeply di- I am very pleased to once again be vice and consent on judicial nomina- vided Court. able to come to the floor and speak in tions, Senators are not supposed to be Narrow 5-to-4 decisions by a conserv- support of the confirmation of Elena substituting their individual political ative majority have become the hall- Kagan to be the next Justice of the judgments for those of the President.

VerDate Mar 15 2010 01:38 Aug 04, 2010 Jkt 089060 PO 00000 Frm 00033 Fmt 4637 Sfmt 0634 E:\CR\FM\G03AU6.056 S03AUPT1 smartinez on DSKB9S0YB1PROD with SENATE S6630 CONGRESSIONAL RECORD — SENATE August 3, 2010 We are collectively supposed to be his job was to look to see if that person In sum, she has had a lot of practical checking that a nominee is qualified, was qualified to be on the Supreme experience reaching out to people who that a nominee falls somewhere in the Court. Despite political differences— hold very different beliefs, and that is mainstream of legal philosophy, and and he didn’t agree with everything she increasingly important on a very di- that a nominee respects the rule of law said—he said his job was to see if she vided Supreme Court. I believe that is and understands that judges are not was qualified. He said at the hearing, why, when you look at the past, all the meant to be politicians. which I will never forget, that he was previous Solicitor Generals from the A few weeks ago, Senator LINDSEY proud to be supporting her. past 25 years, under Democratic and GRAHAM, as my colleague from New I imagine the Senator from New Republican administrations, support York, Senator GILLIBRAND, alluded to Hampshire has had similar experiences Elena Kagan’s confirmation. This prac- earlier, gave a powerful reminder of in her State with having to grapple tical experience is also why she has the this when he spoke at the Judiciary with those kinds of things when ap- support of the National District Attor- Committee’s final hearing on Ms. pointing judges. neys Association, which I used to be- Kagan. I appreciated especially his ref- Mrs. SHAHEEN. That is correct. long to in my previous job. They actu- erence to Alexander Hamilton’s words Like the Senator from Minnesota, I am ally wrote about her, saying that the in Federalist Paper No. 76: The Senate certainly pleased to see people who National District Attorneys Associa- should have a ‘‘special and strong rea- have been willing to come out and take tion believes Solicitor General Kagan’s son for the denial of confirmation.’’ We a leadership position and say: Even diverse and impressive life experiences should remain focused on that stand- though we understand the nominee will be a welcome addition to the Court ard, keep politics to a minimum, and may not be one who is supported by all in fashioning theory that will work in really strive to conduct an evenhanded of the Members of our party, we still practice. review of nominees. believe she is qualified, and we will One of the things that I think show Prior to joining the Senate, I had the support her. the practicality of her and how she re- privilege of serving as Governor of the Ms. KLOBUCHAR. One thing about sponded to our questions is when I State of New Hampshire. New Hamp- Elena Kagan: When you look at her se- asked her about the metaphor Chief shire is one of those States where ries of jobs, you realize she has been in Justice Roberts made famous at his judges are not elected but appointed by the arena as a manager, a teacher, an confirmation hearing. I asked what she the Governor. Once appointed, they can adviser, a consensus builder, and a law- thought about the idea that judges serve until age 70. So having been in yer. In every job, she has worked very were like umpires who just need to the position of appointing judges, I hard and has done very well. ‘‘call balls and strikes’’ and whether fully understand that making lifetime Her work on the front lines tells me that was a useful metaphor. She gave appointments to our courts is a very she has the practical experience in an interesting and insightful response. solemn responsibility. thinking about the impact of the law She said the metaphor is useful in Knowing that, I believe the President and policies on ordinary people, and I some respects but maybe not in others. has made an excellent selection. In think sometimes that is missing in It is useful because judges have to be Elena Kagan, we have been presented some of these decisions. There is a case fair and neutral like umpires and with a nominee who is a loyal Amer- I dwell on involving prosecutions and judges have to be aware that they have ican, an upstanding individual, and a what kind of evidence can come before a powerful but limited role—that they supremely talented lawyer. Lawyers the court when you are dealing with can’t legislate from the bench, they are, by definition, legal advocates for some of the DNA tests, and I disagree aren’t elected officials. But she also others. It is to be expected that, as a with the recent Court decision that ac- said the metaphor has its limits if it lawyer, Elena Kagan may have advo- tually wasn’t decided on ideological suggests that judging is some kind of cated certain positions with which we grounds but I believe was decided in an ‘‘robotic enterprise,’’ if it makes people may not agree. That, however, does not impractical way. I believe Solicitor think judging is an easy, automatic disqualify her from being a judge. It al- General Kagan will bring that kind of kind of thing because issues are always most goes without saying that her practicality to the Court. When you clear-cut. That isn’t right, and it defi- record presents no ‘‘special and strong are involved in considering the nitty- nitely isn’t right at Supreme Court reason’’ to vote against confirmation. gritty details of different policies, level. These facts have been recognized by when you are actually in the game as a Cases that come before the Supreme conservatives both in this body and decisionmaker, as she has been, you Court, I say, are by their very nature outside of it who are willing to drop po- have to figure out when to compromise not clear-cut or they would not have litical rhetoric and speak candidly. and when to hold firm. You have to ended up there. What is necessary is This includes Senator GRAHAM as well know what the consequences of your good judgment. We have to look for as my own senior Senator from New recommendations will be. nominees who are going to bring that Hampshire, JUDD GREGG. I hope more As a law school dean, Elena Kagan kind of good judgment to the Court. of my colleagues from across the aisle was widely credited with bringing to- I see I have been joined by the Sen- will follow their lead. gether a faculty that was rife with di- ator from North Carolina, Mrs. HAGAN, I intend to proudly cast my vote in vision. Whether she was helping recruit which rhymes with the name of our favor of Elena Kagan’s confirmation, talented professors from across the po- nominee, Solicitor General Kagan. We and I am confident that, as a Justice, litical spectrum or later, when she was are pleased to be joined by Senator she will serve this country with honor working with Senators from both par- HAGAN. and distinction. ties on tobacco legislation, she forged We have now had four women Sen- I yield back to my colleague from coalitions and found resolution be- ators here today in support of Solicitor Minnesota. tween seemingly intractable parties. General Kagan’s nomination. We are The PRESIDING OFFICER. The Sen- It strikes me that it takes a pretty also well aware that if she is con- ator from Minnesota. extraordinary person who, after work- firmed, we will have three women on Ms. KLOBUCHAR. Mr. President, I ing in the Clinton administration, still the Supreme Court when the Court thank the Senator from New Hamp- gets a standing ovation from the con- goes into session in the fall—something shire, my neighbor in the Chamber. I servative Federalist Society; who in- that has never happened in the history thank her for her fine remarks. spires a group of 600 law students, who of the United States. I was listening when she talked about can be a bit cynical, to show up for a The PRESIDING OFFICER. The Sen- Senator GRAHAM’s comments. I truly rally wearing ‘‘I love Elena’’ T-shirts; ator from North Carolina. believe that was a moment of leader- someone who earned the respect of the Mrs. HAGAN. Mr. President, I am ship, where basically he said he had law professors she worked with, regard- here today to speak in support of Solic- spent a lot of time in the last 2 years less of their ideology, a group that I itor General Elena Kagan’s nomination trying to elect a different person for would say, as I said in the hearing, can to be an Associate Justice of the Su- President, but President Obama won be somewhat fearless in the face of supreme Court of the United States. So- and he respected his nominee and that pervision. licitor General Kagan’s background

VerDate Mar 15 2010 01:38 Aug 04, 2010 Jkt 089060 PO 00000 Frm 00034 Fmt 4637 Sfmt 0634 E:\CR\FM\G03AU6.058 S03AUPT1 smartinez on DSKB9S0YB1PROD with SENATE August 3, 2010 CONGRESSIONAL RECORD — SENATE S6631 demonstrates that she is an extremely fications to serve on the Supreme Her knowledge of law and skills in legal well-qualified nominee and has a bril- Court. I believe members of the Judici- analysis are first rate. Her writings in con- liant legal mind. She has the utmost ary Committee saw in Solicitor Gen- stitutional and administrative law are high- respect for precedent and believes in fi- eral Kagan the same qualities Presi- ly respected and widely cited. She is an incisive and astute analyst of law; with a deep delity to the law. I believe she will dent Obama saw: fairness of mind, su- understanding of both doctrine and policy make our Nation proud as a Justice on preme intellect, and an unsurpassed de- . . . Elena Kagan has, over the course of her the Supreme Court. votion to the law and to our system of career, consistently exhibited patience, a I have always said I do not believe government. willingness to listen, and an ability to lead, there should be any one litmus test for Some opponents have sought to stir alongside enormous intelligence. judicial nominees. We have to look at a up controversy by quoting Solicitor Former Solicitors General recently nominee’s record in its entirety. Solic- General Kagan out of context, trying wrote a letter, including North Caro- itor General Kagan’s record is nothing to suggest she will not be impartial. linian Walter Dellinger. In it they said: short of remarkable. With over 20 years However, she has made it clear that Elena Kagan would bring to the Supreme of legal experience and government her background does not influence her Court a breadth of experience and a history service, she has distinguished herself interpretation of the law. of great accomplishment in the law . . . The throughout her career with the highest If Senators are not persuaded by her Constitution gives the President broad lee- integrity and sound judgment. statements to the Judiciary Com- way in fulfilling the enormously important In the 220-year history of the Su- mittee, then they should be by her re- responsibility of determining who to nomi- preme Court, 111 Justices have served markable, impartial, 24-year legal ca- nate for a seat on the Supreme Court of the United States. In that spirit, we support the on the bench. Yet only three have been reer. As Solicitor General Elena Kagan has nomination of Elena Kagan to be Associate women. It took almost two centuries— Justice and believe that, if confirmed, she close to 200 years—before the first said: will serve on the Court with the distinction. woman, Justice Sandra Day O’Connor, I think a judge should try, to the greatest I thank and congratulate the mem- extent possible, to separate constitutional was confirmed to the Supreme Court. bers of the Judiciary Committee for Solicitor General Kagan’s profes- interpretation from his or her own values and beliefs. In order to accomplish this re- holding an extraordinarily civil and sional achievements are clear. Let me sult, the judge should look to constitutional open Supreme Court nomination proc- highlight a few of her triumphs that text, history, structure, and precedent. ess. I commend President Obama for hold historical significance as well as With respect to the military, let me selecting an extremely well-qualified personal significance for me and many say I am proud to represent the most nominee who will serve this country women across America. She was the military-friendly State in the Nation, with distinction. Based on my con- first woman to serve as dean of Har- and I have the fullest confidence in So- versations with the nominee, her state- vard Law School. She was the first licitor General Kagan’s respect and ad- ments at her confirmation hearings, woman to be appointed as U.S. Solic- miration for our men and women in and my review of her record, I intend itor General. When confirmed, she will uniform. to support her confirmation when it is become, as Senator KLOBUCHAR just She has said that she respects and, voted on, hopefully later this week. I said, the fourth woman to serve as an indeed, reveres the military. Her father urge my colleagues to do the same. Associate Justice on the U.S. Supreme was a veteran. One of the great privi- I yield the floor. Court. For the first time in history, leges of her time at Harvard Law The PRESIDING OFFICER. The Sen- the Supreme Court will have three School was dealing with the wonderful ator from Minnesota. women serving at the same time. students there who had served in the Ms. KLOBUCHAR. Mr. President, I Women in America can take pride in military and students who wanted to thank the Senator from North Carolina Solicitor General Kagan’s achieve- go into the military. She always tried for her comments. I like how she point- ments, learn from them, and set their to make sure she conveyed her honor ed out how Solicitor General Kagan goals just as high. for the military, and she always tried has received support from so many peo- Elena Kagan has a compelling per- to make sure the military had excel- ple on both sides of the aisle, and then sonal story. She was born into a family lent access to their students. also Solicitor General Kagan’s support of Russian-Jewish immigrants. Her Veterans at Harvard Law wrote: for the military. mother was a public school teacher, Kagan has created an environment that is I remember one of the most touching and her father was a tenants’ lawyer. highly supportive of students who have points of the hearing—that long and la- She inherited a strong work ethic and served in the military . . . and under her borious hearing—was when Elena a focus on education. She graduated leadership, Harvard Law School has gone out Kagan spoke about reading a letter summa cum laude from Princeton Uni- of its way to highlight our military service. from a student who had been at her law versity and received a master’s degree Solicitor General Kagan’s sensible school in which, after she was nomi- in philosophy from Oxford University’s attitude toward following the law and nated, he actually wrote a letter to the Worcester College and a law degree her ability to objectively evaluate all newspaper. He served in Iraq, and he from Harvard Law School, where she angles of the Constitution has resulted wrote a letter about how fair she was was supervising editor of the Harvard in high ratings and endorsements by to him and her strong support for him Law Review. numerous organizations. The American as a soldier. She said it was the only She went on to clerk for Judge Abner Bar Association unanimously found So- moment during the whole leadup to the Mikva on the U.S. Court of Appeals for licitor General Kagan to be well quali- hearing, with all those things that hap- the District of Columbia and then for fied, which is the highest rating the pen, that she said she shed some tears. Justice Thurgood Marshall on the Su- ABA gives to judicial nominees. I will never forget that moment in the preme Court. She also became active in Solicitor General Kagan has an im- hearing. her community, demonstrating her pressive list of law organization en- As we consider this nomination, I strong desire to serve others. dorsements and supporters, including want to reflect on how far we have In the years following her time as a the National Association of Women come. clerk, Solicitor General Kagan prac- Judges, the Women’s Bar Association I see I have been joined by the dean ticed law and began her long career in of the District of Columbia, the Na- of the women Senators, Senator MI- academia as a professor of law and tional Minority Law Group, the Con- KULSKI from Maryland. later as a dean. In addition, she worked stitutional Accountability Center, the When Sandra Day O’Connor grad- under two Presidents—first under Hispanic National Bar Association, the uated from law school more than 50 President Clinton as an Associate Leadership Conference on Civil and years ago, as the Senator from Mary- Counsel and as a Deputy Assistant for Human Rights, and the National Asso- land knows, the only offer she got back Domestic Policy and now under Presi- ciation for the Advancement of Colored then after she graduated high up in her dent Obama as Solicitor General of the People. class from Stanford Law School, the United States. Solicitor General Kagan has also only offer she got at a law firm was as Her confirmation hearings were a been endorsed by a group of law school a secretary. Justice Ginsburg faced testament to her overwhelming quali- deans, who stated: similar obstacles. When she entered

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We want to have a Jus- case made it all the way to the Su- aware of the strides women have made. tice on that Court who is extremely preme Court. In appeal after appeal, In a 2005 speech, quoting Justice Gins- qualified but brings a strong commit- she won. But, oh, the big guys with the burg, she described a student resolu- ment to civil rights, to equal justice— big guns and the big bucks kept appeal- tion at the University of Pennsylvania someone who brings not only legal ing, but she persisted. And then before Law School. This resolution would scholarship but an independent voice. the Court she was turned down. It was have introduced a 25-cent per week Ms. Kagan is extremely qualified in so appalling that Justice Ginsburg penalty on all students without mus- these areas. Her record demonstrates from the bench asked Congress to take taches. an understanding of how the Court af- action. We did. But we should not be The women who came before Elena fects the lives of ordinary Americans. the Congress to overturn Supreme Kagan to be considered by the Judici- She clerked for Justice Thurgood Mar- Court decisions because they trample ary Committee helped blaze that trail shall, another distinguished Mary- on the rights of people, because they for Elena Kagan—people such as Jus- lander, someone who served on the trampled on the rights of a woman to tice Ginsburg, Sandra Day O’Connor, Court, a trailblazer in civil rights and get equal pay for equal work, trampled and Sonia Sotomayor. Although Elena a trailblazer on the Court. on the rights of a woman not to face Much was made during the Judiciary Kagan’s record stands on her own, she retaliation in sexual harassment and Committee hearings about her clerking is also, to borrow a line from Isaac humiliation when she tried to speak up for Marshall and somehow or another Newton, ‘‘standing on the shoulders of for herself on the floor of the factory or that was not a good thing. I thought it giants.’’ on the courtroom floor. was a fantastic thing for us in Mary- All the women Senators I know— I believe we need someone on the land who revere Thurgood Marshall for both Democratic and Republican—al- bench who understands the needs of the his brilliance, his tell-it-like-it-is legal ways feel they are standing on the people but, most of all, understands the style, who brought scholarship and yet shoulders of giants, maybe somewhat laws of the United States of America street corner savvy out from some of short giants, when they see the dean of and loves this Constitution—the entire the meanest streets in Baltimore to the women Senators, Senator MIKULSKI Constitution of the United States of the Court. We thought it was great. We from Maryland, who has entered the America. think Justice Thurgood Marshall was a Senate Chamber. I am here today because of the Con- great member of the Supreme Court. The PRESIDING OFFICER. The Sen- stitution. The first amendment enabled And they think it is great Kagan ator from Maryland. me to speak up and organize and be Ms. MIKULSKI. Mr. President, I mentored and learned under him. During her tenure as dean of Harvard able to make it here. There was an- thank the Senator from Minnesota for Law School, she, again, not only devel- other amendment of the Constitution her kind words but also her leadership oped the best faculty but made sure that enabled the direct election of the in terms of a leadership roll on the Ju- there were legal clinics to help the Senate. There is this whole other diciary Committee in the usual due poor, the left out, the marginalized, crowd out there in the community that diligent way she went about looking at but she also wanted to make sure that wants to overturn that. I am here be- Ms. Kagan’s record, becoming an advo- Harvard was to ensure a more diverse cause the American people insisted in a cate for her and now urging us on the student body. constitutional amendment that women floor to speak on her behalf. In the face of this current Court that have the right to vote. Another con- Also on behalf of myself and the peo- increasingly is on the side of big cor- stitutional amendment took it away ple of Maryland, we extend our condo- porations rather than with the little from the State legislature and put it in lences to her on the passing of her guy or the little gal, we need a Justice the hands of the American people. mother. It is a tribute to Senator such as Kagan who will understand I love the Constitution. I love every KLOBUCHAR that she is here today what is going on in our communities. single amendment of the Constitution. doing her duty. But from what I have I take my advise-and-consent respon- And I want somebody on the Supreme heard about her mother, that is exactly sibilities very seriously. It is one of the Court who feels the way I do. where she would want her to be and ex- most important jobs we have as Sen- Mr. President, I yield the floor. actly with those of us who are speaking ators, and it is one I approach with The PRESIDING OFFICER. The Sen- today. thorough deliberation. ator from Minnesota. I come today in strong support of I look at three criteria for the Su- Ms. KLOBUCHAR. Mr. President, I Elena Kagan. I am of the generation preme Court: absolute integrity, judi- thank the Senator from Maryland for when a woman on the Court was going cial competence and temperament, and her fine words. She is someone who to be viewed as a novelty. I remember a commitment to core constitutional knew the Court before there were any very well when Ronald Reagan nomi- principles. I want someone who is com- women on that Court. She has seen nated Sandra Day O’Connor and the mitted to the whole Constitution, the many changes. I thank her for her world and the United States of Amer- entire Constitution, the basic body of work. ica was abuzz: Wow, a woman is going the Constitution and every single one To break the glass ceiling, we have to go on the Court. She went to the of its amendments. There is a whole now been joined by one of our male col- Court, and I think history, legal schol- crowd in the Senate who only seems to leagues, after hearing from five female ars, and the American people think she like the second amendment. I like all colleagues. But we are going to let him did a great job. of them, and I am particularly devoted speak. We have been joined by the sen- Then came Ginsburg, Sotomayor, and to the first one and the 14th one. ior Senator from the State of New Mex- now Kagan. We are at the point now Every day, the Supreme Court will ico. We are honored to have Senator where women are being taken seri- make decisions that transcend genera- BINGAMAN here to speak about Solic- ously—they are being put forth for tions. But today we have a Court that itor General Kagan. high positions in government—and are has an increasing willingness to favor Mr. BINGAMAN. Mr. President, I no longer viewed as a novelty. We corporate interests over the voice of yield myself 5 minutes off the Demo- never wanted to be novelties. We want people at the community level. cratic time. to do the job we are either elected to We also have a Court that seems to The PRESIDING OFFICER. Without do or we are being recommended to do. be increasingly out of touch with the objection, it is so ordered. I can tell my colleagues that Elena American people. We want to be able to Mr. BINGAMAN. Mr. President, let Kagan brings that right stuff of the reassure that we have a member of the me first just commend all my col- women who are currently on the Court, Court who understands this. leagues for their eloquent statements

VerDate Mar 15 2010 01:38 Aug 04, 2010 Jkt 089060 PO 00000 Frm 00036 Fmt 4637 Sfmt 0634 E:\CR\FM\G03AU6.060 S03AUPT1 smartinez on DSKB9S0YB1PROD with SENATE August 3, 2010 CONGRESSIONAL RECORD — SENATE S6633 in support of Solicitor General Elena rience prior to serving on the Supreme know others have touched on this, but Kagan’s nomination, and I join them in Court, including, I would point out, I will do it again—her life and experi- that support of her nomination to be former Chief Justice William ence. an Associate Justice of the U.S. Su- Rehnquist. As others have reminded us, she preme Court. I strongly believe Ms. Kagan has the graduated summa cum laude from I strongly believe Solicitor General qualifications necessary to be an excel- Princeton University. She received a Kagan has the skill set, the intellect, lent Justice of the Supreme Court. I scholarship to pursue her graduate and the experience necessary to be an urge my colleagues to support her studies at Oxford University, and after exceptional Justice. She has a diverse nomination. that she earned her law degree magna legal background, with a distinguished Madam President, I yield the floor. cum laude from Harvard Law School. career in government and academia, The PRESIDING OFFICER (Mrs. Following law school, she clerked for and she has served as our Nation’s top HAGAN). The Senator from Minnesota. DC Circuit Court and then for U.S. Su- lawyer before the Court. After review- Ms. KLOBUCHAR. Madam President, preme Court Justice Thurgood Mar- ing her record, as Senator KLOBUCHAR we have now been joined by the Sen- shall. Starting in 1989, Ms. Kagan spent pointed out, I believe Senator HAGAN ator from Delaware, and we are pleased 2 years in private practice before tak- also—and others have pointed out in to have him here as well as we con- ing on a position as professor of law at their comments as well—the American tinue our discussion about the fine the University of Chicago. Then in 1995, Bar Association unanimously voted qualities of Solicitor General Kagan she went to work in the White House that she was ‘‘well qualified’’ to serve for the job of Justice of the Supreme and she rose there to the position of on the Court, which is the highest Court. Deputy Assistant to the President for ranking the American Bar Association Senator CARPER. Domestic Policy. In 2001, with the bestows. Mr. CARPER. I thank the Senator, change in administrations, Ms. Kagan I have also met with Ms. Kagan and and I yield myself 10 minutes. returned to the study of law as a pro- closely followed her confirmation hear- The PRESIDING OFFICER. The Sen- fessor first, and then as Dean of the ings before the Senate Judiciary Com- ator from Delaware is recognized. Harvard Law School. I believe she is mittee. She clearly demonstrated that Mr. CARPER. Madam President, I the first woman to achieve that. she has the right temperament for this rise today in support of Solicitor Gen- More recently, in 2009, Elena Kagan position and that her legal views are eral Elena Kagan’s confirmation to the was confirmed by the Senate, with the well within the mainstream of judicial U.S. Supreme Court. I am confident support of seven or eight of our Repub- thought in this country. Ms. Kagan that in the years to come, she will lican colleagues, to serve as the first also affirmed her commitment to inter- make proud the President who has female Solicitor General of the United pret the law with fidelity and dem- nominated her as well as those of us States. onstrated that she understands how the who vote to confirm her. Ms. Kagan is widely recognized as decisions of this High Court have a I would like to begin today, if I may, one of our Nation’s leading legal minds very real impact on the lives and lib- first by explaining why I am sup- and has been hailed as a preeminent erties of Americans. porting the nomination, and after I scholar of administrative law. The Ms. Kagan’s wide range of experience have done that I will outline why I be- American Bar Association has be- will serve the country well. She has lieve a number of our Republican col- stowed upon her their highest rating of served as a faculty member at the Uni- leagues shouldn’t just consider sup- ‘‘well qualified’’ in assessing her record versity of Chicago Law School, as a porting that nomination but should and in evaluating her judicial tempera- former dean of the Harvard Law support her nomination along with the ment. School, as a clerk to former Justice rest of us. I realize some have criticized Elena Thurgood Marshall, as a White House This is my fourth opportunity to vote Kagan for not having previously served aide to former President Bill Clinton, on a nomination to the Supreme Court. on the bench. I take a different view. and in her current position as Solicitor As do each of my colleagues, I take se- As a nominee from outside the judicial General of the United States. In her riously our constitutional obligation to monastery, I believe Ms. Kagan’s back- current position as Solicitor General, provide advice and consent to deter- ground and experience will actually she has filed approximately 100 briefs mine whether a President’s judicial bring a valuable perspective and a and argued six cases before the Su- nominees truly merit a lifetime ap- breath of fresh air to the Supreme preme Court. Ms. Kagan has dem- pointment. I realize a number of con- Court. As my colleagues consider her onstrated sound judgment and has ex- siderations are weighed not just by me nomination, I hope they take into ac- hibited great skill in the cases she has but by each of us who serve here when count the fact that in our Nation’s his- handled before the Supreme Court. making a decision that is as important tory—listen to this—more than one- She has been lauded by individuals as this one is for our Nation. third of our Supreme Court Justices across the political spectrum for her Before coming to the Senate, I was have had no prior experience on the ability to build consensus and for her privileged to have served as Governor bench, either in Federal Government or respect for those with differing views. of Delaware, and in that role I nomi- outside of Federal Government. For example, she has received support nated, over the course of 8 years, doz- Others have objected to Ms. Kagan’s from eight former Solicitors General ens, maybe scores, of men and women nomination on the grounds that while from both parties, including Kenneth to serve as judges in our State courts. serving as the dean of the Harvard Law Starr and Ted Olsen. At Harvard she The qualities I sought then in judicial School, she allegedly limited military worked to hire a faculty representing nominees included unimpeachable in- recruiters access to students. This diverse political views, including con- tegrity, a keen intellect, a thorough charge of my opponents on Ms. Kagan’s servative faculty members in order to understanding of the law, sound judi- nomination was one I took very seri- ensure that students received a broad cial temperament, a willingness to lis- ously as I considered her nomination to perspective on the issues they were ten and to consider both sides of an ar- serve on our highest Court. studying. gument, and a strong work ethic. As some of my colleagues know, I at- While Ms. Kagan has a great deal of These qualities are also the ones that tended Ohio State University as a Navy legal experience, much has been said guide me today as I decide how to vote ROTC midshipman and went on to about her lack of judicial experience. on the judicial nominees that come be- serve 5 years as a naval flight officer Although she has not served as a judge, fore us in the Senate, whether that during a hot war in Southeast Asia and Ms. Kagan is widely respected in the President is Barack Obama or George for another 18 years as a ready reserv- legal community. She will bring need- W. Bush. ist until the end of the Cold War. I ed diversity to the bench with respect In applying each of these standards deeply appreciate all that the military to her legal background. It is impor- to Elena Kagan, it has become clear to has done for me, and I believe our mili- tant to note that about 40 of the 111 me while examining her record that tary recruiters should be allowed to previous Supreme Court Justices who she meets or exceeds all of them. First, have access to college campuses and to have served did not have judicial expe- if you will, just consider with me—I the students there.

VerDate Mar 15 2010 01:38 Aug 04, 2010 Jkt 089060 PO 00000 Frm 00037 Fmt 4637 Sfmt 0634 E:\CR\FM\G03AU6.062 S03AUPT1 smartinez on DSKB9S0YB1PROD with SENATE S6634 CONGRESSIONAL RECORD — SENATE August 3, 2010 Having examined this issue in some joined by a number of other Republican would say that no words meant more to detail, I can say with confidence that I Senators when the final vote is taken me than the words of our colleague, believe Elena Kagan honors and reveres later this week. Senator GRAHAM, who is here across the men and women who serve our Many of us remember when, in 1986, the aisle. He had the courage to stand country in its Armed Forces, as do I. President Reagan nominated William up and explain why he made the deci- The fact is, military recruiters did con- Rehnquist to serve as Chief Justice of sion to support her nomination. tinue to have access to students the United States, and his subsequent He made very clear that he didn’t throughout her tenure, and in some confirmation by the Senate with the agree with every position she had ever years recruitment actually rose rather support of 16 Democratic Senators. taken or would agree with every deci- than diminished. However, not many recall that in 1971, sion that she would ever make. But he Last month, I had the privilege of when William Rehnquist was nomi- talked about our role as Members of meeting personally with Elena Kagan, nated to serve as an Associate Justice the Senate to not be political arbiters as a lot of my colleagues have as well. on the Court, he had no prior experi- in terms of who the judge should be but We spoke about many matters. We ence on the bench. Even so, in 1971, to have the role of oversight and to fig- spoke about her life, her work, her some 29 Democratic Senators joined ure out what the qualifications are and views of the law. It was a revealing their Republican colleagues in sup- does this person meet the qualifica- conversation for me and actually quite porting his confirmation. As you know, tions and does the person have the an encouraging one in no small part be- Justice Rehnquist went on to have a judgment to make decisions in very cause I walked away feeling that Elena long and distinguished career on the difficult cases. And, as Senator Kagan is not just uncommonly bright Supreme Court. GRAHAM so eloquently stated that day and a scholar of the law. Perhaps just The fact that Chief Justice during the hearing, Solicitor General as important, she has the potential to Rehnquist’s nomination was supported Kagan— become, over time, the kind of con- by a large number of Democratic Sen- The PRESIDING OFFICER. The time sensus-builder that the Supreme Court ators not just once but twice is an im- controlled by the majority has expired. needs at this time in our Nation’s his- portant testament to the strength of Ms. KLOBUCHAR. Makes the grade. tory. our democratic process and our ability With that, I yield to my colleague Given the plethora of closely decided to work across party lines. I hope we from South Carolina. 5-to-4 decisions emanating from the can make a similar statement later The PRESIDING OFFICER. The Sen- Supreme Court in recent years, it is this week with the confirmation of Ms. ator from South Carolina. clear, at least to me, that they could Kagan to the Supreme Court with the Mr. GRAHAM. Madam President, I use another Justice there who has the support of Senators from both sides of appreciate the kind comments of the experience and the ability to help them the aisle, including the Senator sitting Senator from Minnesota. I have en- find common ground and work toward across this Chamber today from the joyed working with her on the com- sound, reasonable, commonsense solu- State of South Carolina who I think mittee and hope to be able to work tions and opinions. Come to think of it, sets, in this instance, a particularly with her on a lot of different topics, in- we could use a few more people like good example for us all. cluding confirming judges. that here in the legislative branch of With that, Madam President, I yield My view of Elena Kagan is quite sim- our government and on both sides of the floor. ple. I found her to be a good, decent the aisle. The PRESIDING OFFICER. The Sen- person; well qualified in terms of her Fortunately, among her colleagues ator from Minnesota. legal background to sit on the Court. Ms. KLOBUCHAR. Madam President, and in the legal community, Elena The people who know her the best, who I think this concludes our very broad Kagan is known as a consensus builder. worked with her, have nothing but discussion about all of the fine quali- Even those who may have a different good things to say about her. She is fications of Elena Kagan for this job judicial philosophy than Ms. Kagan not someone a Republican President and, again, refuting the words of one of nonetheless respect her judgment and would have picked—she is definitely in our colleagues—unfortunate words—in her abilities. the liberal camp when it comes to judg- which he said, I believe, that she One of them is Michael McConnell. ing—but I think within the main- doesn’t have the gifts and the qualities He is a constitutional law scholar who stream of the left wing of the Court. of mind and the temperament one must was nominated by President George W. The Court has two wings to it. A lot have to be a Justice. Bush to serve as a U.S. circuit court of decisions are—not a lot, some deci- Look at the words of so many people judge on the Tenth Circuit. He had this sions are 5–4. But you know who the across this country, along so many dif- to say about her: conservatives on the Court are and you ferent ideological lines—69 law school know who the liberals are. The one Publicly and privately, in her scholarly deans who wrote about her knowledge thing they have in common is that work and in her arguments on behalf of the of the law and skills in legal analysis United States, Elena Kagan has dem- they are highly qualified, great Ameri- onstrated a fidelity to legal principle even as being ‘‘first-rate.’’ They say: cans who happen to view the law a bit when it means crossing her political and ide- Her writings in constitutional law and ad- differently in terms of philosophy. But ological allies. I urge you to confirm Elena ministrative law are highly respected and they have brought honor to the Court. Kagan to be an Associate Justice of the Su- widely cited. She is an incisive and astute Justice Ginsburg is definitely in the preme Court. analyst of law, with a deep understanding of left wing of the Court. Justice Scalia is both doctrine and policy. We thank Mr. McConnell for that ad- definitely in the right wing of the vice. Listen at what the National Associa- Court. From what I have been told, It is clear to me, and I believe to tion of Women Judges has said: they have a deep personal friendship; many others on both sides of the aisle, We recognize the essential qualifications that Justices Scalia and Ginsburg have that if confirmed, a ‘‘Justice Kagan’’ that a justice of our highest court must have: superior intellectual capacity as well become fast friends and admire each would base her approach to deciding as an intimate knowledge and a deep under- other even though they often cancel cases solely on the law and our con- standing of constitutional law. It cannot be out each other’s vote and they have stitution, and not on any ideological seriously disputed that General Kagan brings some real good give and take in their agenda or on the politics of a case. these qualifications with her in abundance. opinions. In that regard I think they Let me close, if I may, by expressing From the Women’s Bar Association: represent the best in judging and the my appreciation to the handful of Re- Solicitor General Kagan’s intellect and best in our democracy, and that is two publican Senators who have announced legal acumen have been recognized by those different philosophies competing on publicly in recent days that they in- across the political spectrum. the battlefield of ideas but under- tend to support Ms. Kagan’s nomina- Of course, I already read into the standing that neither one of them is tion. I am sure it was not an easy deci- RECORD the words of the National Dis- the enemy. They have a lot of respect sion. I do believe, however, it is the trict Attorneys Association. for each other. right decision for our country, and I So many people have written in sup- What brought me to the conclusion hope those men and women will be port of Solicitor General Kagan. But I to vote for Solicitor General Kagan? I

VerDate Mar 15 2010 01:38 Aug 04, 2010 Jkt 089060 PO 00000 Frm 00038 Fmt 4637 Sfmt 0634 E:\CR\FM\G03AU6.063 S03AUPT1 smartinez on DSKB9S0YB1PROD with SENATE August 3, 2010 CONGRESSIONAL RECORD — SENATE S6635 believe the advise and consent clause I think that powerful and silent oper- days and having people tell me about of the Constitution had a very distinct ation is meant to be a firm but not her is I think she is a very fine person purpose. Under our Constitution, arti- overly political check and balance; not with stellar character. cle 2, it allows the President of the a continuation of the campaign. Be- The letter that moved me the most United States to appoint Supreme cause the campaign is a loud experi- about Elena Kagan the person, I wish Court Justices and judges to the Fed- ence. It is 50 plus 1, rah-rah-rah, build to share with the Senate and read, if I eral bench in general. That is an au- yourself up, tear your opponent down. may. This comes from Miguel Estrada. thority and a privilege given to him by So when Alexander Hamilton indicated For those of you who may not remem- the Constitution. You have to earn to the Senate his view of the advise ber, Miguel Estrada was chosen by that by getting elected President. and consent clause, that it would be President Bush to be on the court of After having watched Senator powerful, though in general a silent op- appeals. For a variety of reasons— MCCAIN literally about kill himself to eration, I think he is telling us: The there is no use retrying the past—he try to be President, I have a lot of ad- campaign is over. Now is the time to never got a vote by the Senate. He miration for those who will seek that govern. So when this nominee comes never got out of committee. All I can office. It is very difficult to go through your way from the person the Constitu- say from my point of view is, it was the process of getting nominated and tion confers the ability to pick and one of the great mistakes. I am sure winning the office. I daresay that Sen- choose, you should have in mind a pow- there have been times when Repub- ator MCCAIN would indicate it is one of erful but silent operation. licans have done the same thing or the highlights of his life to be nomi- ‘‘It would be an excellent check upon something like it to a well-qualified nated by his party and to go out and a spirit of favoritism. . . .’’ I think Democratic selection. But I happened fight for the vote of the American peo- that is pretty self-evident, that one of to be here when Miguel Estrada was ple. the things we do not want to have with chosen by President Bush. So he had a Senator Obama was a Member of this our judiciary is it becomes an award or very unpleasant experience when it body before being elected President. I prize for somebody who helped in the came to getting confirmed as a judge. can only imagine what he went campaign, picking somebody who is But here is what he wrote about Elena through, going through the primary close to you personally, related to you, Kagan, a Republican conservative law- process, beating some very qualified, so that the job of Federal judge be- yer chosen by President Bush to be on high-profile Democrats to get the nom- comes sort of political patronage. The the court of appeals, writing for Elena ination of his party. When it was all Senate could be a good check and bal- Kagan: said and done, after about $1 billion ance for that. I think that is one of the I write in support of Elena Kagan’s con- and a lot of sweat and probably sleep- reasons we are involved in the process, firmation as an Associate Justice of the Su- less nights, he was elected by the peo- to make sure that once the election is preme Court of the United States. I have ple of the United States to be our over, the President himself does not known Elena for 27 years. We met as first President. I want to honor elections. continue the campaign. The campaign year law students at Harvard, where we were My job, as I see it—and I am just is over and we have a silent operation assigned seats next to each other for our classes. We were later colleagues as editors speaking for me—each Senator has to in terms of how we deliver our advice of the Law Review and as law clerks to dif- determine what they believe the advise and consent. So he is telling the Presi- ferent Supreme Court Justices; and we have and consent clause requires. From my dent through the Senate that once the been friends since. point of view I will tell you what I campaign is over, you should not pick Elena possesses a formidable intellect, an think my job is in this process. No. 1, someone who will help you politically exemplary temperament, and a rare ability it is not to be a rubberstamp. Why or return a favor; you should pick to disagree with others without being dis- would you even have the Senate in- someone who will be a good judge. agreeable. She is calm under fire and mature volved if the President could pick It ‘‘would tend greatly to prevent the and deliberate in her judgments. Elena would also bring to the Court a wealth of experi- whomever he or she chose? So there is appointment of unfit characters from ence at the highest level of our Government a collaboration that goes on here. State prejudice.’’ That is another view and of academia, including teaching at the There is a check and balance in the that Alexander Hamilton had, as to University of Chicago, serving as the Dean of Constitution where we have to advise how the Senate should use its advise the Harvard Law School and experience at and consent. So I do not expect myself and consent duties, to make sure that the White House and as the current Solicitor or any other Senator to feel once the unfit characters do not go on the General of the United States. If such a per- election is over, you have to vote for Court. I can imagine that has probably son, who has demonstrated great intellect, whomever they pick. You do not. There been used in the past. high accomplishments and an upright life, is ‘‘From family connection,’’ that one not easily confirmable, I fear we will have may be a time when I vote ‘‘no’’ to a reached a point where no capable person will President Obama nominee. is obviously self-evident. You don’t readily accept a nomination for judicial But my view of things is sort of de- want to pick someone from your family service. fined by the Federalist Paper No. 76, unless there is a good reason to do so. I appreciate that considerations of this Alexander Hamilton, who was one of ‘‘[F]rom personal attachment or from a type are frequently extolled but rarely hon- our great minds of this country’s his- view to popularity.’’ ored by one side or the other when the oppos- tory. He said, ‘‘The Senate should have When I add up all these things, I am ing party holds the White House. I was dis- mayed to watch the confirmation hearings special and strong reasons for denial of looking at the necessity of their concurrence with a: ‘‘powerful, though, in for then-Judge Alito, at the time one of our confirmation.’’ most distinguished appellate judges, and find I think his comment to us is that, general, silent operation. It would be that they range from the— an excellent check upon the spirit of yes, you can say no, but you need to Well, I am not going to read it all. have a special and strong reason be- favoritism . . . to prevent the appoint- . . . one could readily identify the members cause the Constitution confers upon ment of unfit characters . . . from family connection, from personal attach- of the current Senate majority, including the President the right to pick. What several who serve on the Judiciary Com- would those strong and special reasons ment, or from a view to popularity.’’ mittee [and their partisan views]. be? Whatever you want it to be. That is In other words, we are trying to Lest my endorsement of Elena’s nomina- the fact of politics. Those strong and make sure the President, he or she, tion erode the support she would see from special reasons can literally be what- picks a good, qualified judge, not some her own party, I should make it clear that I ever you want it to be as a Senator. unfit character, some person tied to believe her views on the subjects that are But here is what Alexander Hamilton him or her personally, not someone relevant to her pending nomination—includ- who would be a popular choice but ing the scope of judicial role, interpretive had in mind as to strong and special approaches to the procedure and substantive reasons. He continued: would be a lousy judge. When I apply that standard to Elena law, and the balance of powers among the To what purpose, then, require the co- various institutions of government—are as operation of the Senate? I answer, that the Kagan, I cannot find anything about firmly center-left as my own are center- necessity of their concurrence would have a her that makes her an unfit character right. If Elena is confirmed, I would expect powerful, though, in general, a silent oper- to me. Frankly, what I know about her her rulings to fall well within the main- ation. from listening to her for a couple of stream of current legal thought, although on

VerDate Mar 15 2010 01:38 Aug 04, 2010 Jkt 089060 PO 00000 Frm 00039 Fmt 4637 Sfmt 0634 E:\CR\FM\G03AU6.064 S03AUPT1 smartinez on DSKB9S0YB1PROD with SENATE S6636 CONGRESSIONAL RECORD — SENATE August 3, 2010 the side of what is popularly conceived as have been found to be part of the polar opposite than Ginsburg and ‘‘progressive.’’ This should come as a sur- enemy force. She understands detain- Scalia. But not that long ago, in the prise to exactly no one: One of the preroga- ees held at Bagram Airfield in Afghani- 1990s, this body, without a whole lot of tives of the President under our Constitution stan should not be subject to judicial fussing and fighting, was able to put on is to nominate high federal officers, including judges, who share his (or her) governing review in the United States because the Court two people who could not be philosophies. As has often been said, though they are prisoners of war in an active more different but chose to be good rarely by Senators whose party did not con- theater of combat. If she gets on the friends. trol the White House at the time, elections Court—and I am certain she will—she The history of confirming nominees have consequences. will be able to bring to the Court some to the Supreme Court is being lost. Elena Kagan is an impeccably qualified frontline, real-world experience in the Madam President, 73 of the 123 Justices nominee. Like Louis Brandeis, Felix Frank- war on terror. She has had an oppor- who served on the Supreme Court were furter, Robert Jackson, Byron White, Lewis Powell and William Rehnquist—none of tunity to represent the United States confirmed without even having a roll- whom arrived at the Court with prior judi- before the Supreme Court, arguing that call vote. Something is going on. It is cial service—she could become one of our this Nation is at war, and the people on the left, and it is on the right. I great Justices. I strongly urge you to con- who attacked us on 9/11 and who con- hope this body will understand one firm her nomination without delay. tinue to join al-Qaida are not some thing: The judiciary is the most fragile I think that says a lot of Elena common criminals but people subject branch of government. They can’t go Kagan. I think it says a lot about to the law of armed conflict. Her testi- on cable TV and argue with us as to Miguel Estrada. She wrote a letter ba- mony when she was confirmed as Solic- why they are qualified. They cannot sically—I asked her to—to tell me what itor General was reassuring to me that send out mailings advocating their po- she thought about Miguel Estrada. I she understood that very important sitions. They have no army. All they will read that in a minute. But at the concept. have is the force of the Constitution, end of the day, those of us in the Sen- How she rules, I don’t know. I expect the respect of the other branches and, ate have to understand that every she will be more similar to Justice Ste- hopefully, the support of the American branch of government includes human vens in the way she decides cases. The people. beings and there is a rule that stood person she is replacing is one of the gi- Having gone to Iraq and Afghanistan the test of time. I didn’t make this one ants of the Court from the progressive many times, the one thing I can tell up. It was somebody far wiser than I side. I expect she will follow his lead my colleagues that is missing in most am, somebody far more gifted than I most of the time. I do believe she is an countries that are having difficult ever hope to be, somebody I put a lot of independent-minded person. When it times is the rule of law. What is it? To trust in. comes to war on terror issues, she will me, the rule of law is a simple but pow- It is called the Golden Rule. ‘‘Do be a valuable member of the Court and erful concept. If you ever find yourself unto others as you would have them do may provide a perspective other judges in a courtroom or before a magistrate unto you.’’ That is probably one of the would not possess. That is my hope. or a judge, you will be judged based not most powerful statements ever made. I don’t vote for her expecting her to on what tribe you came from. You will It is divine in its orientation, and it is do anything other than what she be judged based on what you did, not probably something that would serve thinks is right, ruling with the Court who you are. us all well if we thought about it at most of the time in a way a Republican The one thing we don’t want to lose moments such as this. nominee would not have ruled. It gets in this country is an independent judi- I am going to vote for Elena Kagan back to my point of a minute ago. If I ciary. We are putting the men and because I believe constitutionally she can’t vote for her, then how can I ask women who are willing to serve in meets the test the Framers envisioned someone on the other side to vote for these jobs sometimes through hell. for someone to serve on the Court. I that conservative lawyer, maybe judge, Judge Alito was poorly treated. I am don’t think the Framers ever envi- who has lived their life on the conserv- very proud of what Senator SESSIONS sioned LINDSEY GRAHAM from South ative side of the aisle, fighting for con- was able to do as ranking member. We Carolina voting no because President servative causes, fighting for the pro- had a good, spirited contest with Obama picked someone who is clearly life movement, standing for the con- Sotomayor and Kagan. I thought the different than I would have chosen. Be- servative causes I believe in, a strong minority performed their role in an ad- cause if that were the case, the cam- advocate of a second amendment right mirable fashion. I appreciate what Sen- paign never ended. It would undercut for every American? That day will ator LEAHY did working with Senator the President’s ability to pick someone come. I hope sooner. But one day that SESSIONS. I thought these two hearings of like philosophy. My job is to make day will come. What I hope we can do were conducted in the best traditions sure the person he chose is qualified, of from this experience is remember that of the Senate. fit character, not chosen for favoritism when that day does come, the Constitu- The votes will be in soon. She is or close connection but chosen based tion has not changed at all. The only going to get a handful of votes on our on merit. thing changed was the American people side. I have chosen to be one of those I have no problem with Elena Kagan chose a conservative Republican Presi- handful. From a conservative point of as a person. I have no problem with her dent. I ask my colleagues to honor that view, there are 100 things one can find academic background. I have no prob- choice, when that conservative Presi- at fault in terms of philosophy and ju- lem with her experience as a lawyer. dent, whoever he or she may be, picks dicial viewpoint with Elena Kagan. I Even though she has worked for Jus- someone whom my colleagues on the have chosen not to go down that road. tices whom I would not have ruled like, other side would not have chosen. But I have chosen to go down a different even though she has taken up political that has been the way it has been for a path, a path that was cleared and causes I oppose, that is part of democ- couple hundred years now. marked for me long before I got here, a racy. Justice Ginsburg, the ACLU general path that has a very strong lineage, a Her time as Solicitor General, where counsel, got 96 votes. Justice Scalia path that I believe leads back to the she represents the United States before got 96 or 97 votes. Senator Thurmond, Constitution, where the advice and the Supreme Court, was reassuring to my predecessor, voted for Justice Gins- consent clause is used in a way not to me. She has had frontline experience in burg. There is no way on God’s green extend the election that is now over the war on terror. She has argued be- Earth Strom Thurmond would have but as a reasonable, powerful but silent fore the Supreme Court that terrorist voted for Justice Ginsburg if he be- check on a President who chose a judge suspects should be viewed under the lieved his job was to pick the nominee. for all the wrong reasons. Choosing a law of war. She supports the idea that There is no way many of my colleagues liberal lawyer from a President who someone who joins al-Qaida has not on the other side would have ever voted campaigned and governs from the left committed a crime. They have taken for Justice Scalia if they thought it is not a wrong reason. Choosing a con- up arms against the United States, and was their job or they had the ability to servative lawyer or judge once you they can be held indefinitely without make a selection in line with their phi- campaign for the job running right of trial if, under proper procedures, they losophy. No one could have been more center, in my view, is not the wrong

VerDate Mar 15 2010 01:38 Aug 04, 2010 Jkt 089060 PO 00000 Frm 00040 Fmt 4637 Sfmt 0634 E:\CR\FM\G03AU6.065 S03AUPT1 smartinez on DSKB9S0YB1PROD with SENATE August 3, 2010 CONGRESSIONAL RECORD — SENATE S6637 reason. The wrong reason would be if ing them, not allowing them equal ac- reasonable time this week. I just do the person you chose was not worthy of cess like any other law firm, presum- not want someone who gets mad be- the job, did not have the background or ably, in America and demeaning them cause I have done something they do the moral character to administer jus- in that fashion. So I really think this not like saying: I am not going to let tice. I cannot find fault with Elena issue is not a little one. It is a very big you have a vote on this judge until I Kagan using that standard. one. It says something very significant get what I want. I will vote for her. I will say to any- about her ability and her objectivity. I want to make sure everyone who body in South Carolina and throughout So for that reason, I think it calls into wants to has the opportunity to speak the country who is listening: She is not question her ability to serve on the on Kagan. No one on the Republican someone I would have chosen, but it is bench as an objective person in justice. side has even suggested a filibuster. not my job to choose. It is President’s I see the majority leader. He just ap- OK. And I understand that. But this is Obama’s job. He earned that right. I pears out of the blue. I know he is to make sure one Senator in this have no problem with Elena Kagan as a busy, so I will yield the floor. body—not on the nomination of Kagan person. I think she will do a good job, The PRESIDING OFFICER. The ma- but on anything—they get their dander consistent with her judicial philos- jority leader. up a little bit, and he or she can cause ophy. I hope and pray that the body Mr. REID. Madam President, I want the whole Senate to come to a stand- over time will get back to the way we my friend from Alabama to know that still. used to do business. If we don’t watch when I see him on the floor, I do not So I repeat, if there is more time it, we are going to wake one day, and run to the floor. It just happens to needed, there will be ample time. When we will politicize the judiciary to the work out a lot of times. So I appreciate the time for voting comes up, I will point that good men and women, such his yielding. give whatever time is necessary. What as Sam Alito, Justice Roberts, and I am going to send a cloture motion I have been trying to get—and I am Elena Kagan, will not want to come be- to the desk dealing with the Kagan sure it is too early to have done that— fore this body and be a judge. If that nomination. I want the ranking mem- is a time certain to vote on Elena ever happened, it would be a great loss ber to understand that I have spoken to Kagan. But I think my friends on the to this country. the Republican leader. other side of the aisle have told me it I suggest the absence of a quorum. Could I have the attention of the is too early to do that. But I say to my The PRESIDING OFFICER. The Senator from Alabama? I want the friend, there is no direction to prevent clerk will call the roll. Senator from Alabama to hear this. I anyone from speaking on this nomina- The assistant bill clerk proceeded to am filing a cloture motion on the tion for however long they want. call the roll. Kagan nomination. I have spoken to Mr. SESSIONS. Well, I just do not Mr. SESSIONS. Madam President, I the Republican leader. This is in no want somebody to come back and say ask unanimous consent that the order way to cut off debate. We have had 20 in the future that we had to file cloture for the quorum call be rescinded. Senators who have spoken today. I to get a vote on this nomination, and The PRESIDING OFFICER. Without want Senators to have the ability to you filibustered this nomination. I feel objection, it is so ordered. speak in whatever means they feel ap- pretty strongly about that and am a Mr. SESSIONS. Madam President, propriate, but I just do not want a ren- bit uneasy that the leader has felt he there has been some suggestion in the egade Senator to stop us from being needed to do this. course of the discussion of Elena I thank the Chair. able to complete this nomination. Mr. REID. I will just repeat what I Kagan’s nomination that her decision Mr. SESSIONS. If the Senator will said before. Any one Senator, as we to bar the military from access to Har- yield? have learned—those of us who have vard’s recruiting office was a prin- Mr. REID. I will just say this: If it served in the Senate and those who cipled one and had no impact on the comes time for the cloture vote and have not been around here a long lives of Harvard law students in the more time is needed, everyone over time—any one Senator can really military. I think that is not a fair way here will be happy to make sure people throw things into a turmoil, on your to describe it. Her decision relegated have ample time. We will postpone the side or on my side. And the purpose of the military to second-class status at cloture vote as long as necessary to this is to make sure we finish the Harvard Law School. Military recruit- make sure people will have the oppor- Kagan nomination before we leave. ers were, as she indicated in one state- tunity to speak. Mr. MCCONNELL. Will the majority ment, ‘‘alienating’’ to some students The PRESIDING OFFICER. The Sen- leader yield for an observation? and were not welcome, and students ator from Alabama. Mr. REID. I am happy to. who made public their interest in the Mr. SESSIONS. Madam President, I The PRESIDING OFFICER. The Re- military service otherwise might be os- will just say to the leader, I am a bit publican leader. tracized in that climate. But she want- hurt. I do not think this is a necessary Mr. MCCONNELL. We had this con- ed the student veterans to quietly help step, that the leader has indicated we versation earlier today on the tele- the classmates who might be interested will move forward in maybe 3 days and phone. I think filing a cloture motion in military service to overcome the ob- finish this debate. And to file a cloture is completely unnecessary and— stacles there. motion—if it in any way suggests there Mr. REID. Let me just interrupt my Well, let me just say it this way: Ms. is a deliberate attempt on this side to friend. If my two friends feel this way— Kagan protested against don’t ask, block an up-or-down vote, I will just my concern is that we get locked into don’t tell in reality by obstructing the say I have tried to make clear that I the 30-hour time. But I guess I could mission of the junior military officers have a high standard before I would at- still do it on Thursday. So I know ev- who had at that point in their career tempt to block an up-or-down vote, and eryone—— been assigned the duty of recruitment I have not suggested and I think very Mr. MCCONNELL. I cannot imagine at law schools around the country, re- few on this side have suggested—a vote what incentive anyone would have to cruiting JAG officers for the military. at the time that is right should go for- create the scenario under which the But these junior officers had no control ward. I would expect that it would. majority leader is concerned with. whatsoever over this law. We often The PRESIDING OFFICER. The ma- Mr. REID. The Republican leader and refer to it as a military policy, but it is jority leader. I know the many things we are trying not a policy, it is law passed by the Mr. REID. Madam President, I stated to complete in the next few days. And Congress of the United States. on the floor earlier today that I think because I do not do something, as I So her effort to make a political the conduct of the chairman and rank- have had happen before—that some- point at the expense of the U.S. mili- ing member on this nomination has body on either side of the aisle gets dis- tary and in defiance of clear Federal been exemplary. I said that already. turbed because of something I did or law passed by this Congress calls into But if my friend from Alabama would did not do—they say: I am not going to question, really, her willingness to be listen just for a minute, I have so many let you have a vote on Kagan now. governed by that law because she was things I am trying to work through That could be on my side or on your punishing the military, really demean- procedurally so we can leave here at a side.

VerDate Mar 15 2010 01:38 Aug 04, 2010 Jkt 089060 PO 00000 Frm 00041 Fmt 4637 Sfmt 0634 E:\CR\FM\G03AU6.067 S03AUPT1 smartinez on DSKB9S0YB1PROD with SENATE S6638 CONGRESSIONAL RECORD — SENATE August 3, 2010 So here is what I will do: I have not nee. Last year, almost to the day, I ated. On two occasions, Dean Kagan filed this motion yet. Based on the spoke on the Senate floor on the nomi- signed court briefs opposing the Sol- statement of my friend from Alabama nation of Judge Sonia Sotomayor to be omon Amendment. In 2004, when a and my friend the Republican leader, I on the Supreme Court. So I come to lower court rejected the Solomon will just hold this in abeyance. I just the floor today to speak on the nomi- Amendment, Dean Kagan immediately know what is coming tomorrow. If we nation of Solicitor General Elena denied military recruiters the same ac- get stuck in a 30-hour time period, re- Kagan. cess afforded to other recruiters on alistically, it would take consent to During the debate in the Senate on campus. She took this action even even allow the debate to go forward on Judge Sotomayor’s nomination, I laid though the court making the ruling did Kagan. I would certainly not stand in out the three criteria I use in evalu- not have jurisdiction over Harvard Law the way of that. And during the time of ating an individual to fulfill the re- School. Harvard Law School is located the 30 hours pending, as I understand sponsibilities of filling a vacancy on in the First Circuit. The court that the rules, I cannot file another cloture the Supreme Court. First, of course, we made the ruling was the Third Circuit. motion. want to select the best candidate. Sec- The Pentagon notified Harvard that But recognizing that everyone wants ond, the Justice must be impartial and the restrictions on military recruiters to operate in the best way, what I allow the facts and the Constitution to violated the law. In 2006, the U.S. Su- would do is ask my two friends here, speak. And, third, a Justice has a re- preme Court ruled on the challenge to the ranking member of the Judiciary sponsibility to apply the law, not to the Solomon Amendment. The U.S. Su- Committee and my friend the Repub- write the law. Those are the criteria I preme Court rejected the lawsuit as lican leader—would the Republican have used in evaluating Elena Kagan’s well as the arguments that were put leader consider allowing, if we get nomination. forth in the brief signed by Dean stuck in some procedural thing tomor- I met with Solicitor General Kagan Kagan, and it did so unanimously. All row, which is Wednesday—we have to following her appearance before the of the Justices on the Supreme Court, complete this by Friday, I would Senate Judiciary Committee. She is both conservative and liberal—all of think—would my friend consider a personable and she is bright. Her career them—agreed the Solomon Amend- unanimous consent request to allow me as an attorney has been exceptional. ment did not violate the rights of law to file tomorrow? Because if we are Although she has limited trial experi- schools. The law was unanimously postcloture with 30 hours, I cannot file ence, she does understand the impor- upheld, and that is an extremely rare cloture tomorrow. tant role the judiciary plays in Amer- occurrence from a Court usually di- Mr. MCCONNELL. Yes. I would say to ica. It is the second criteria that vided. my friend the majority leader, I would causes me concern: Solicitor General For America’s judicial system to be willing to consider that. The point I Kagan’s ability to remain impartial. In work, judges must always remain im- am trying to make here and the Sen- particular, her actions and judgment as partial. I do believe that as dean of one ator from Alabama has tried to make dean of the Harvard Law School as it of America’s most prestigious law is we are unaware of anybody on our related to military recruitment is, to schools, Solicitor General Kagan al- side who does not expect a vote on me, a serious problem. lowed her personal biases to interfere Kagan on Thursday. As you and I have Military recruitment on college cam- with her judgment. Solicitor General discussed on and off the floor, the puses is protected by what is com- Kagan had very strong opinions about thought was that we would have the monly referred to as the Solomon military policies, including President Kagan vote. That would be the last Amendment. The Solomon Amendment Clinton’s don’t ask, don’t tell policy. vote prior to the August recess. That is is legislation that Congress passed in Like every American, she is entitled to the scenario under which we have been the mid-1990s. The Solomon Amend- her personal beliefs and the right to ex- operating, and I am perplexed as to ment directs that institutions of high- press those views. As the dean of Har- why my friend the majority leader er learning shall not be eligible for vard Law School, she is also respon- feels this is a step he needs to take. Federal funding if they refuse to follow sible to know the law and to not dis- Mr. REID. The only thing I cannot do Federal law. Funding shall be denied— regard it. is guarantee that will be the last vote. denied—if it is determined that the So, then, how can one explain the ac- There may be something else that school, as a policy or a practice, either tions of Elena Kagan while dean of the comes up. But I will do my best to co- prohibits or, in effect, prevents ROTC Harvard Law School? No. 1, she didn’t operate, as I know you will. So I will access to campus or military recruiting know the law; No. 2, she didn’t under- see if this is necessary some other on campus. stand the law; or No. 3, she simply time. In the late 1970s, Harvard Law School chose to ignore the law because of her The PRESIDING OFFICER. The Re- adopted a policy that barred organiza- strongly held personal beliefs. publican leader. tions that discriminated against any Many Americans may be able to get Mr. MCCONNELL. Madam President, group from recruiting on campuses. away with these explanations. Such ex- I appreciate the majority leader with- The ban applied to military recruiters. planations don’t work for an individual holding. We can continue to discuss Other universities adopted similar poli- seeking to become a Justice on the this, even tonight if he would like, the cies. But following the passage of the U.S. Supreme Court. two of us, privately. Solomon Amendment, many institu- Elena Kagan has been nominated for Mr. REID. We will wait until the vote tions, including Harvard, adjusted a lifetime appointment to the Supreme takes place tomorrow and find out their policies. Court. If confirmed, she will be en- what, if anything, we need to do. Ms. Kagan became dean of Harvard trusted to make decisions that will im- Mr. MCCONNELL. Fair enough. Law School in the year 2003. In 2003, pact America for a long time. The deci- Mr. REID. I am not filing the motion America was fighting two wars. Amer- sions she will be asked to make on this at this time, and I appreciate very ican men and women were voluntarily Court must be based on the law not in- much the sincerity of my friend from joining the military to serve and to de- fluenced by personal experiences or Alabama, as usual, and, of course, my fend our country. At a time when mili- personal convictions. friend from Kentucky. He and I have tary recruiters were being allowed on In the case involving the Solomon worked together on a lot of things over campuses across the country, Dean Amendment, Dean Kagan failed to the years, and I appreciate him being Kagan was looking for ways to make it meet that standard. I believe Dean so candid today. difficult for military recruiters to do Kagan knew the law. I have no doubt The PRESIDING OFFICER. The Sen- their job at Harvard Law School. She she understood the law and wanted to ator from Wyoming. wrote at the time: find ways to get around the law. Mr. BARRASSO. Madam President, I abhor the military’s discriminatory re- I will not be supporting Solicitor this is the second time since I have be- cruitment policy. . . . This is a profound General Kagan’s nomination to the Su- come a U.S. Senator that I have been wrong—a moral injustice of the first order. preme Court. I believe she allowed her asked to provide the President advice Well, eventually, a legal challenge to personal beliefs to guide her. As a pri- and consent on a Supreme Court nomi- the Solomon Amendment was initi- vate citizen, that may be acceptable.

VerDate Mar 15 2010 05:38 Aug 04, 2010 Jkt 089060 PO 00000 Frm 00042 Fmt 4637 Sfmt 0634 E:\CR\FM\G03AU6.068 S03AUPT1 smartinez on DSKB9S0YB1PROD with SENATE August 3, 2010 CONGRESSIONAL RECORD — SENATE S6639 As a member of the U.S. Supreme her distinguished career, she has shown Mrs. MURRAY. Mr. President, I am Court, it is not. a remarkable knack for reaching out to proud to support the nomination of So- Thank you, Mr. President. I yield the people across the ideological spectrum. licitor General Elena Kagan as the floor and I suggest the absence of a As Harvard Law School’s dean, she next Associate Justice of the U.S. Su- quorum. broadened the school’s diversity of preme Court. The Senate has few re- The PRESIDING OFFICER (Mr. legal points of view, strengthened the sponsibilities more important than our UDALL of Colorado). The clerk will call academic program, and improved qual- constitutional obligation to advise and the roll. ity of life for students and faculty consent on the President’s Supreme The bill clerk proceeded to call the alike. Court nominees. Supreme Court Jus- roll. Elena Kagan will bring a different tices are appointed for life, and the de- Mr. LEVIN. Mr. President, I ask perspective to the Court, and we should cisions they make affect the lives and unanimous consent that the order for welcome that. Justice Antonin Scalia livelihoods of every single family the quorum call be rescinded. put it this way: across the country. From the laws gov- The PRESIDING OFFICER. Without Currently, there is nobody on the Court erning the role of corporations and spe- objection, it is so ordered. who has not served as a judge—indeed, as a cial interests in our electoral process, Mr. LEVIN. Mr. President, I wish to Federal judge—all nine of us. I am happy to to the rights of women over their own add my support to the many voices see that this latest nominee is not a Federal reproductive health—we have seen judge—and not a judge at all. calling for the confirmation of Solic- clearly over the years the impact of itor General Elena Kagan to the posi- Elena Kagan’s sense of fairness, prob- this Nation’s highest court. tion of Associate Justice of the Su- lem-solving ability, and balance is il- So I am very glad that President preme Court. lustrated by one of the episodes in her Obama nominated Elena Kagan to fill At a time when the discussion of our career that some have inaccurately this critical position. I met with Solic- legal system is so often dominated by criticized her for. During her time as itor General Kagan and talked to her ideological labels, Elena Kagan would dean of Harvard Law School, that about how she envisioned her role on bring years of practical, pragmatic ex- school, similar to many around the the Court. I asked her about her judi- perience to our highest Court. She is country, had a policy to not use the cial philosophy, and what she felt the extraordinarily well qualified and will campus to promote discriminatory ac- Court’s role was in protecting ordinary bring a valuable new perspective to the tivities, such as don’t ask, don’t tell. Americans. I followed her testimony Some have sought to portray Elena Court. before the Senate Judiciary Com- Kagan’s actions throughout this epi- The highlights of Solicitor General mittee. I was extremely impressed with sode as antimilitary. I find nothing in Kagan’s career are well known. Most what she had to say. Elena Kagan has her words or actions that constitutes recently, in 2009, she was the first proven herself to be someone who un- hostility to the military. Quite the op- woman to be nominated by a President derstands the importance of a fair and posite. But don’t take my word for it. and confirmed by the Senate to serve independent approach to rendering jus- Take the words of former students of as Solicitor General of the United tice. She is committed to making sure States. In this position in which she hers—for instance, one who when he received his promotion to captain in the the voices of families across the coun- represents the interests of the U.S. try are represented in the chambers of Government before the Supreme Court, Massachusetts National Guard asked Elena Kagan to pin on his captain’s the Supreme Court. And she possesses she has received numerous accolades an evenhanded view of our justice sys- from a broad range of observers. For bars at his promotion ceremony—hardly an honor for a soldier to bestow on tem that gives me every assurance that example, Professor Michael McConnell, any individual or group from Wash- director of the Constitutional Law Cen- someone who is antimilitary. CPT Robert Merrill, who wrote an ington State could stand before her and ter at Stanford Law School and former op-ed in the Washington Post, put it receive fair treatment. circuit court judge nominated by this way: Solicitor General Kagan also has a George W. Bush, in urging her con- She treated the veterans at Harvard like strong legal background and is without firmation said the following: VIPs, and she was a fervent advocate of our a doubt a highly qualified choice for Publicly and privately, in her scholarly veterans association. She was decidedly the Supreme Court. Following her work and in her arguments on behalf of the against ‘‘don’t ask, don’t tell,’’ but that graduation from Harvard Law School United States, Elena Kagan has dem- never affected her treatment of those who she served as a law clerk for Judge onstrated a fidelity to legal principle even had served. Abner Mikva on the U.S Court of Ap- when it means crossing her political and ide- Listen to 1LT David Tressler, who peals, before moving on to clerk for Su- ological allies. wrote: preme Court Justice Thurgood Mar- Miguel Estrada, Assistant Solicitor During the brief period when recruiters shall. After spending some time in pri- General in the George H.W. Bush ad- were not given access to students officially vate practice, Elena Kagan went back ministration, said Solicitor General through the law school’s Office of Career into public service to work for Presi- Kagan: Services, they still had access to students on dent Clinton on the Domestic Policy . . . possesses a formidable intellect, an ex- campus through other means . . . Kagan’s Council. She then went back to Har- positions on the issue were not antimilitary emplary temperament and a rare ability to vard Law School to teach and ulti- disagree with others without being disagree- and did not discriminate against members or able. She is calm under fire and mature and potential recruiters of the military. . . . She mately became the first woman to deliberate in her judgments . . . If [she] is always expressed her support for those who serve as dean of the school, where she confirmed, I would expect her rulings to fall serve in the military and encouraged stu- cemented her reputation as a fair- well within the mainstream of current legal dents to consider military service. minded leader who reaches out to all thought. . . . Finally, you can take the word of sides and builds consensus. When Presi- Ten former Solicitors General, rep- veterans who attended Harvard Law dent Obama was elected he called resenting both parties, have praised School who said that ‘‘Elena Kagan has Elena Kagan back into public service her ‘‘breadth of experience and a his- created an environment that is highly to serve as Solicitor General. In this tory of great accomplishment in the supportive of students who have served new role as the so-called 10th Justice, law’’ and said further that her ‘‘most in the military.’’ she argued before the Court on a broad recent experience as Solicitor General Elena Kagan is smart, she is experi- range of issues, including a vigorous will serve her well as she wrestles with enced, she is learned, and she is fair. defense of the government’s right to the difficult questions that come be- She has the support of a host of organi- limit the influence of corporations and fore the Court.’’ zations, a broad cross-section of orga- special interests in the electoral proc- Among those former Solicitors Gen- nizations, including the National Dis- ess. eral were Kenneth Starr and Drew S. trict Attorneys Association, as well as When I hear some of my colleagues Days. a broad range of prominent scholars. on the other side of the aisle say that In 2003, Elena Kagan was named dean She will make an excellent Justice of Elena Kagan lacks the experience to sit of the Harvard Law School, the first the Supreme Court. I hope she is over- on the Supreme Court because she has woman to hold that title. Throughout whelmingly confirmed. never been a judge, I find that a little

VerDate Mar 15 2010 05:38 Aug 04, 2010 Jkt 089060 PO 00000 Frm 00043 Fmt 4637 Sfmt 0634 E:\CR\FM\G03AU6.069 S03AUPT1 smartinez on DSKB9S0YB1PROD with SENATE S6640 CONGRESSIONAL RECORD — SENATE August 3, 2010 hard to believe. Forty-one Justices throughout the day to the debate that mal rules of appellate decisionmaking. have served on the Nation’s highest has taken place on the Senate floor re- Because the rules might constrain you court without having any prior judicial garding her nomination and I have from getting where you want to go, and experience. Democrats and Republicans heard over and over concerns ex- they would be a nuisance because you alike have expressed the notion that pressed—particularly from the other had a purpose—you had a place you prior judicial experience is not a pre- side of the aisle—about this terrible wanted to get with your decision, and requisite for serving on the Supreme spectre of judicial activism, the judi- so that the rules would be less of a hin- Court. In fact, for most of the Court’s cial activism that looms over the Court drance for you, because you would history there was a diversity of career and looms over the Kagan nomination. want to get beyond them, you would experiences represented on the bench. I know it is a familiar tune from the set them aside. Most recently, Chief Justice other side. I think most of them could One of the dangers of the Supreme Rehnquist, who never served as a judge sing it in their sleep, frankly. But if Court is that it is the court of final ap- before he was nominated to the highest you actually look at where the activ- peal. They have only their own self-re- court. Neither did Justice Powell or ism is coming from, the surprising constraint that prevents them from going Justice White. Nor did Justices Black, clusion that I think objective people anywhere. They stand above the checks Warren, Jackson, or Marshall. So I find would have no choice but to reach is and balances of our government in that it interesting that the standard was that it is the rightwing of the Supreme respect. So these rules the Court tends changed with this nomination. Court—the rightwing; the Roberts wing to impose on itself to keep itself within Elena Kagan is clearly qualified, and of the Court—that is in fact engaged in proper bounds are important rules. One of them is that appellate courts she is going to make an outstanding all of the activism. do not engage in factfinding. It is not Supreme Court Justice. Her nomina- I think to a certain extent activism is a term of general criticism and that their province. Factfinding is done by tion is also another step forward to- juries and it is done by trial judges. it applies to decisions you don’t like. ward making sure that we have a Su- Those facts are established at the trial So if it is a decision that goes a way preme Court that is reflective of the court level. Once you get up above that you don’t like, it is an activist deci- country whose laws it safeguards. We and into the appellate courts you sion. If it is a decision that goes your are now on the verge of having the should be looking just at questions of most women to serve together on the way, no matter how much it changes law. The courts should not be engaging court at any one time. While we still the law, then that is not activism be- in factfinding at those upper levels, have work to do to achieve a court that cause I agree with it. So I think the certainly not at the Supreme Court is truly representative of the full diver- discussion about activism is a little bit level. The exception to that principle is sity of American experiences, I am flavored by the question of point of where the fact is so obvious that the proud that we are taking this strong view. Court can take what they call judicial Trying to set that point of view ques- step forward toward that goal. notice of it. The Court can take judi- After meeting with Solicitor General tion aside, I thought a bit about what cial notice that San Francisco is west Kagan, hearing her testimony, and ex- might the objective indicators of an ac- of Denver. It is an indisputable fact. It amining her record, I am confident tivist Court—or in our case an activist is no big deal. But other than that, that she has the judgment and impar- bare majority on the Court—look like. factfinding is discouraged. So another tiality to serve our Nation honorably What would the telltales be that you little telltale would be is where the on the Supreme Court. She is thought- had an activist Court doing its thing? Court is running over those principles ful and fairminded in her approach to Well, I think there are a few, and they that are principles of self-restraint. some of the most pressing legal issues seem to be ones that are actually pret- Sure enough, you see the Roberts we face as a nation. She understands ty germane to this activist bloc on the Court doing just that. Indeed, in one of the struggles working families face and Supreme Court. its biggest leaps in which it knocked the role of the Supreme Court in pro- For instance, if you were an activist out enormous amounts of precedent, in tecting them. And she is committed to Court, or an activist bloc on the Court, which it knocked out enormous protecting the rights and liberties of you would issue a lot of 5-to-4 deci- amounts of legislative practice and all Americans. sions, and you would issue 5-to-4 deci- made a huge doctrinal shift, was the I am proud to represent families from sions in major cases. The reason you case of Citizens United. In that case, my home State of Washington and I am would do that is because the Court is the Court made a finding of fact. It proud to join with my Democratic and constantly presented with the choice made a finding of fact that was critical Republican colleagues to cast my vote to reach far with a bare majority or to getting where it wanted to go in to confirm Elena Kagan as the next As- dial its aspirations back and achieve a that decision. The finding of fact was sociate Justice of the U.S. Supreme broader consensus on the Court. So the following—the finding of fact was Court. every decision presents, to one degree that corporate money, the independent I yield the floor, and I suggest the ab- or another, this choice. When you see expenditure of corporate money in sence of a quorum. recurring 5-to-4 decisions, you see a elections, cannot contribute to the cor- The PRESIDING OFFICER. The majority of five that would appear to ruption of those elections. Corporate clerk will call the roll. want to go to a particular place, even money, independently spent in an The assistant editor of the Daily Di- if they can’t bring the other four American election, cannot possibly gest proceeded to call the roll. judges with them, and who have delib- tend to corrupt that election. Mr. WHITEHOUSE. Mr. President, I erately chosen not to write a narrower It is an interesting finding of fact be- ask unanimous consent that the order decision, a more modest decision, a cause I think, as anybody who has been for the quorum call be rescinded. more conservative—small ‘‘c’’—deci- through a contested election would un- The PRESIDING OFFICER. Without sion that could have attracted six or derstand, it is a finding of fact that is objection, it is so ordered. seven or eight, or even perhaps all nine in fact wrong. It is untrue. Yet they Mr. WHITEHOUSE. Mr. President, I members of the Court. made it as a finding of fact. It is also have come to the floor to speak for a That is a flag that would fly over an a finding of fact that ran contrary to few moments about the Kagan nomina- activist Court—a penchant for 5-to-4 the vast legislative record that had tion, and I believe we have about 20 decisions. Sure enough, the Roberts been built up in Congress on this ques- minutes of time on our side. If some- Court is notorious for 5-to-4 decisions, tion when it had come up in previous body wishes to come and speak, I would particularly in major cases, and par- matters before the Court. But because gladly yield the floor, since I have had ticularly in cases that change the of the peculiar manner in which they the chance to speak on her nomination law—that change the interpretation of got to this question in Citizens as a member of the Judiciary Com- the Constitution. So there is one flag, United—it was not a question pre- mittee. But in the absence of somebody and they seem to be flying that warn- sented by the parties; they added the who has not had that chance, I wanted ing flag right now. question themselves, the Court did, and to go ahead and say a few words be- If you were an activist Court, you asked the parties to brief it in, so there cause I have been listening off and on would probably tend to break the infor- had not been a record on this.

VerDate Mar 15 2010 05:38 Aug 04, 2010 Jkt 089060 PO 00000 Frm 00044 Fmt 4637 Sfmt 0634 E:\CR\FM\G03AU6.018 S03AUPT1 smartinez on DSKB9S0YB1PROD with SENATE August 3, 2010 CONGRESSIONAL RECORD — SENATE S6641 They put themselves in a position you did not have an intention to try to In every major case since he became the where they could ignore the previous shift the precedent to support a par- nation’s seventeenth Chief Justice, Roberts record of fact and then they created ticular direction? If you are an activist has sided with the corporate defendant over their own finding of fact notwith- Court, you would give Congress very the individual plaintiff. standing that findings of fact are not little deference. And this is a Court Again, that was only effective May 25 something an appellate court is sup- that gives Congress very little def- of 2009, so it is a dated statistic. But posed to do, and in doing so they found erence. Jeffrey Toobin, who writes on certainly as of May 25 that was the a fact that was in fact not true. It is a the Supreme Court frequently, in an record when corporations came before false claim to assert that. It is not a article entitled ‘‘No More Mr. Nice this Court. fact. Guy, The Supreme Court’s Stealth A recent article—not May 25 of 2009; When you look at that, another flag Hard-Liner,’’ an article about Chief this one is July 24, 2010—was written goes up. That is the kind of thing an Justice Roberts, back in May of a year by Adam Liptak. The headline was activist Court would be doing. They ago—so this is a little bit dated, May ‘‘Court Under Roberts Has Become would be trespassing over the self-im- 25, 2009—said that: Most Conservative in Decades.’’ It was posed rules of judicial restraint when In every major case since he became the published in the New York Times. Here necessary to get to the point they wish Nation’s seventeenth Chief Justice, Roberts are some of the findings: to achieve. Again, it was 5–4, so you has sided with the prosecution over the de- In the 5 years [of the Roberts Court], the fendant, the State over the condemned, the court not only moved to the right but also have a ‘‘two-fer’’ on that decision. executive branch over legislative, and the became the most conservative one in living If you are an activist Court, you corporate defendant over the individual memory, based on analysis of four sets of po- would probably want to keep doing plaintiff. Even more than Justice Scalia has litical science data. what you are doing so you would start embodied judicial conservatism during a The ideological direction of the court’s ac- generation of service on the Supreme Court, advancing theories that allowed you to tivism has undergone a marked change to- Roberts has served the interests, and re- look at the precedents of the Court, the ward conservative results. history of its decisions, and selectively flected the values, of the contemporary Re- publican Party. Another quote from the article. knock down precedent you did not like. The first term of the Roberts court was a Nothing could give a Court more power ‘‘Served the interests and reflected the values of the contemporary Repub- sharp jolt to the right. and more room for activism than to be lican Party’’—by, in every major case, free of the constraint of precedent, of Another quote from the article. siding with the executive branch over the previous decisions of the Court. [F]ive years of data are now available, and The only way you can get yourself the legislative. they point almost uniformly in one direc- That is just one piece of it. The other free of precedent—because it is there. tion: to the right. is the disrespect for laws that have The previous courts made those deci- That was another quote from the ar- been passed by Congress and their in- ticle. sions. It is in the records. You go to the tent. Lilly Ledbetter is the perfect United States Supreme Court Reporter A more human reaction was of Jus- case. Congress wanted to protect tice Sandra Day O’Connor: and you can look them up. So what you women from discrimination in the have to do is you have to knock it ‘‘Gosh,’’ Justice Sandra Day O’Connor said workplace, on what they are paid. in the law school forum in January a few down if you do not like it. In order to Rather than read the statute to protect do that, if that was your intention, you days after the Supreme Court undid one of Lilly Ledbetter’s right to a judgment, her major achievements by reversing a deci- would want to come up with a theory they came down with a finding that for sion on campaign spending limits. ‘‘I step that allowed you to do that. Sure so long as the company was success- away for a couple of years and there’s no enough, in Citizens United, in his con- fully able to prevent her from finding telling what’s going to happen.’’ curring opinion, the Chief Justice of out that she had been discriminated That was the reaction of Sandra Day the United States did that. He came up against, they were able to get away O’Connor, a Republican appointee. with a theory that says if a precedent with it. That is not a finding this body They turn things very quickly when is hotly contested, then over time it ever would have accepted. But it was they have the chance. clearly will be deemed not as valid as what the Court came down with. And it In 2000, the Court struck down a Nebraska other precedent and ultimately it can gave Congress no deference—again, a law banning an abortion procedure by vote of be replaced with precedent that is not tradition in these Roberts Court deci- 5 to 4, with Justice O’Connor in the major- hotly contested. sions. Why would you want to defer to ity— Who gets to decide on the Supreme Congress if you have a point of view making it a 5-to-4 striking down of Court whether a precedent is hotly that you want to bring to the Court? that statute. contested? Obviously, the Justices You wouldn’t want Congress’s point of Seven years later, the court upheld a simi- themselves. So you can create a self- view involved, you would want your lar federal law, the Partial-Birth Abortion fulfilling prophecy in which Chief Jus- point of view, and therefore deferring Act, by the same vote. ‘‘The key to the case tice Roberts and his bloc of four other to Congress would not be part of your was not in the difference in wording between conservative voters who make up the goal. the Federal law and the Nebraska act,’’ group of five that is always steering So the lack of deference, a striking Erwin Chemerinsky wrote in 2007 in The the Court to the right, can hotly con- pattern in the Roberts Court, is again Green Bag, a law journal.’’ It was Justice test any precedent they please. They consistent with what you would expect Alito having replaced Justice O’Connor. can hotly contest it, and hotly contest from an activist Court. Most of all, if A new person on the Court, almost it, until they undermine it more and you were an activist Court, a pattern identical set of facts, complete rever- more and finally they knock it down. would begin to emerge to those decision of decision, 5–4 to 5–4. Despite all the things they said about sions as the Court issued them, par- Similarly, in 2003, Justice O’Connor respect for precedent and judicial mod- ticularly those 5–4 decisions. On the wrote the majority opinion in a 5–4 esty when they went through their Roberts Court, one pattern is striking, opinion to allow public universities to hearings before the Senate, what they the clear pattern of corporate victories take account of race in university ad- have actually done is create an analyt- at the Roberts Court. It reaches across missions decisions. A month before her ical tool, a device for selectively under- many fields—across arbitration, anti- retirement in 2006, a similar decision mining precedent they do not like, trust, employment discrimination, came up, and because that decision was hotly contesting it, disabling it, and campaign finance, legal pleading stand- there on the books, that opinion, the taking it out. They can reshape the ards, and many others. Over and over Court refused to hear a case chal- precedent of the Court to their liking on this current Supreme Court, the lenging the use of race to achieve inte- using this doctrine. Roberts bloc guiding it has consist- gration in public schools. There is another flag that goes up. ently, repeatedly rewritten our law in Almost as soon as she left, the article Why would you create a doctrine such the favor of corporations versus ordi- says, the Court reversed course. A 2007 as that, that allows you to selectively nary Americans. That is one of the rea- decision limited the use of race for disrespect, hotly contest, and knock sons why Jeffrey Toobin, in his article, such a purpose, also on a 5–4 vote. So I out the precedent of the Courts past if was able to say: suppose you could add another flag to

VerDate Mar 15 2010 01:38 Aug 04, 2010 Jkt 089060 PO 00000 Frm 00045 Fmt 4637 Sfmt 0634 E:\CR\FM\G03AU6.073 S03AUPT1 smartinez on DSKB9S0YB1PROD with SENATE S6642 CONGRESSIONAL RECORD — SENATE August 3, 2010 the list of signs of an activist Court firefight that occurred on July 23, 2010. cation ceremony will take place next and that would be that they change Petty Officer McNeley was serving in weekend, on August 7. very recent decisions as soon as the support of Operation Enduring Free- Calvin Coolidge, our 30th President, majority changes so they control the dom in Logar Province, Afghanistan. remains the only President born, sworn votes, the way we might here in the He was 30 years old. into office and buried in the State of legislature. It is very appropriate in A native of Wheat Ridge, CO, Petty Vermont. President Coolidge was origi- the Senate when the majority shifts. Officer McNeley enlisted in the Navy in nally elected to the Vice Presidency in I see the distinguished ranking mem- 2001, following in his father’s footsteps. 1920, winning that election alongside ber of the Finance Committee. If he Although his initial term of service Warren G. Harding. were to be the chairman of the Finance had already finished, Petty Officer Three years into President Harding’s Committee, I am sure the focus of the McNeley decided to stay in the Navy first term, then-Vice President Coo- Finance Committee would change from and continue to serve his country. lidge received an unexpected messenger that under Democratic leadership, and During over 9 years of service, Petty one evening while he was vacationing that is part of majority control, but it Officer McNeley distinguished himself at his family’s home in Plymouth is not supposed to be that way on the through his courage, dedication to Notch. The messenger informed him of Supreme Court. The Supreme Court is duty, and willingness to take on any President Harding’s sudden and un- supposed to be not dealing with par- challenge—no matter how dangerous. timely death. It was at 2:47 the next tisan questions, not going for a simple Commanders recognized his extraor- morning that Calvin Coolidge was majority, but answering to the Con- dinary bravery and talent. They de- sworn in as President, in the parlor of stitution. scribed him with the words ‘‘hard- his family home, alongside his wife The PRESIDING OFFICER. The time working’’ and ‘‘dedicated,’’ and noted Grace Coolidge, a capable and re- of the Senator has expired. that he regularly volunteered for haz- spected First Lady and a leading Mr. WHITEHOUSE. Mr. President, I ardous duty. Vermonter in her own right. The oath ask unanimous consent that the Sen- Petty Officer McNeley worked on the of office was administered by President ate resume legislation session and pro- front lines of battle, serving in the Coolidge’s father, a State notary public ceed to a period of morning business most dangerous areas of Afghanistan. official, by the light of a kerosene with Senators permitted to speak He is remembered by those who knew lamp. The new President left for Wash- therein for up to 10 minutes each; that him as a consummate professional with ington the next morning to assume the upon the conclusion of the so-called an unending commitment to excel- burdens of his new office. wrap-up period, the Senate then re- lence. His family remembers him as a President Coolidge was always sume executive session and continue dedicated father, who loved to serve his known as a man of few words—the in- the debate on the Kagan nomination as country. Friends and neighbors remem- spiration for his famous nickname, Si- provided for under a previous order and ber him as a motorcycle enthusiast lent Cal. Stoic in the New England train the specified hour blocks; that upon with undeniable charisma. He even dition, President Coolidge also was an the conclusion of the debate previously traded pen pal letters with students eloquent speaker who felt an obligation specified in the hour blocks, the Senate from an elementary school in Arizona, to communicate often with the Amer- then resume legislative session. where he used to live. ican people to explain his policies. The PRESIDING OFFICER. Without Mark Twain once said, ‘‘The fear of Today, the Calvin Coolidge Memorial objection, it is so ordered. death follows from the fear of life. A Foundation is dedicated to preserving man who lives fully is prepared to die the Nation’s memory of Calvin Coo- f at any time.’’ Petty Officer McNeley’s lidge. Founded in 1960, the foundation LEGISLATIVE SESSION service was in keeping with this senti- is now celebrating its 50th year. By ment—by selflessly putting country working closely with the Vermont Di- first, he lived life to the fullest. He vision for Historic Preservation, the MORNING BUSINESS lived with a sense of the highest honor- Coolidge Foundation collects and pre- UNANIMOUS-CONSENT AGREEMENT—H.R. 1586 able purpose. serves artifacts and resources related At substantial personal risk, he to the President. Many of the buildings Mr. WHITEHOUSE. I ask unanimous braved the chaos of combat zones within the village have become State- consent that on Wednesday, August 4, throughout Afghanistan. And though owned historical properties, and Plym- after any remarks of the leaders, the his fate on the battlefield was uncer- outh Notch has been named the best- Senate resume consideration of the tain, he pushed forward, protecting preserved Presidential site in the Na- House message to accompany H.R. 1586, America’s citizens, her safety, and the tion. The development of the new mu- with an hour of debate prior to a vote freedoms we hold dear. For his service seum and education center—solid and on the motion to invoke cloture on the and the lives he touched, Petty Officer useful in the Yankee tradition—will ex- motion to concur in the House amend- McNeley will forever be remembered as pand the accessibility of these archives ment to the Senate amendment to H.R. one of our country’s bravest. to the public, while providing a venue 1586, with amendment No. 4575, with To Petty Officer McNeley’s entire for students to learn about their coun- the time equally divided and controlled family, I cannot imagine the sorrow try’s history. between the leaders or their designees, you must be feeling. I hope that, in We Vermonters take pride in our his- with Senator MURRAY designated to time, the pain of your loss will be eased tory and heritage, and we feel the obli- control the time of the majority lead- by your pride in Justin’s service and by gations of stewardship in these things. er; that upon the use or yielding back your knowledge that his country will The Calvin Coolidge Memorial Founda- of the time, the Senate proceed to vote never forget him. We are humbled by tion is faithfully tending to the preser- on the motion to invoke cloture on the his service and his sacrifice. vation and dissemination of this part motion to concur. of Vermont’s legacy and our country’s The PRESIDING OFFICER. Without f history. It is my pleasure to congratu- objection, it is so ordered. PRESIDENT CALVIN COOLIDGE late the Calvin Coolidge Memorial MUSEUM AND EDUCATION CENTER f Foundation, in partnership with the Mr. LEAHY. Mr. President, I take HONORING OUR ARMED FORCES State of Vermont, on the occasion of this opportunity to call the Senate’s the commemoration and dedication of PETTY OFFICER SECOND CLASS JUSTIN MCNELEY attention to the imminent opening of the President Calvin Coolidge Museum Mr. BENNET. Mr. President, it is the new President Calvin Coolidge Mu- and Education Center. with a heavy heart that I rise today to seum and Education Center, a wonder- f honor the life and heroic service of PO2 ful year-round tribute to President Justin McNeley. Petty Officer Coolidge, located in the graceful and RECOGNIZING MIKOLE BEDE McNeley, a member of Assault Craft historic setting of the President’s Mr. BARRASSO. Mr. President, I Unit One, ACU–1, based in San Diego, home town of Plymouth Notch, VT. would like to take the opportunity to died from wounds sustained during a The center’s formal opening and dedi- express my appreciation to Mikole

VerDate Mar 15 2010 05:38 Aug 04, 2010 Jkt 089060 PO 00000 Frm 00046 Fmt 4637 Sfmt 0634 E:\CR\FM\G03AU6.074 S03AUPT1 smartinez on DSKB9S0YB1PROD with SENATE August 3, 2010 CONGRESSIONAL RECORD — SENATE S6643 Bede for her hard work as an intern in future endeavors. I wish him all my an invaluable asset to our office. The my Sheridan office. I recognize her ef- best on his next journey. quality of his work is reflected in his forts and contributions to my office as f great efforts over the last several well as to the State of Wyoming. months. Mikole is a native of Wyoming and RECOGNIZING JASON DESPAIN I thank Cameron for the dedication graduated from Sheridan High School. Mr. BARRASSO. Mr. President, I he has shown while working for me and She currently attends the University of would like to take the opportunity to my staff. It was a pleasure to have him Wyoming, where she is majoring in his- express my appreciation to Jason as part of our team. I know he will tory and minoring in American politics Despain for his hard work as an intern have continued success with all of his and German. Throughout her intern- in my Washington, DC, office. I recog- future endeavors. I wish him all my ship, she has demonstrated a strong nize his efforts and contributions to best on his next journey. work ethic which has made her an in- my office as well as to the State of Wy- f valuable asset to our office. The qual- oming. RECOGNIZING KELSEY ity of her work is reflected in her great Jason is a native of Wyoming and MONTGOMERY efforts over the last several months. graduated from Kelly Walsh High I thank Mikole for the dedication she School. He currently attends Brigham Mr. BARRASSO. Mr. President, I has shown while working for me and Young University, where he is major- would like to take the opportunity to my staff. It was a pleasure to have her ing in economics. Throughout his in- express my appreciation to Kelsey as part of our team. I know she will ternship, he has demonstrated a strong Montgomery for her hard work as an have continued success with all of her work ethic which has made him an in- intern in my Washington, DC, office. I future endeavors. I wish her all my valuable asset to our office. The qual- recognize her efforts and contributions best on her next journey. ity of his work is reflected in his great to my office as well as to the State of f efforts over the last several months. Wyoming. Kelsey is a native of Wyoming and RECOGNIZING LESLIE BRAZIL I thank Jason for the dedication he has shown while working for me and graduated from Cheyenne Central High Mr. BARRASSO. Mr. President, I my staff. It was a pleasure to have him School. She currently attends Grinnell would like to take the opportunity to as part of our team. I know he will College, where she is majoring in polit- express my appreciation to Leslie have continued success with all of his ical science. Throughout her intern- Brazil for her hard work as an intern in future endeavors. I wish him all my ship, she has demonstrated a strong my Casper office. I recognize her ef- best on his next journey. work ethic which has made her an in- forts and contributions to my office as valuable asset to our office. The qual- well as to the State of Wyoming. f ity of her work is reflected in her great Leslie is a native of Wyoming and RECOGNIZING EMILY ELLIOTT efforts over the last several months. graduated from Kelly Walsh High I thank Kelsey for the dedication she Mr. BARRASSO. Mr. President, I School. She currently attends the Uni- has shown while working for me and would like to take the opportunity to versity of Wyoming, where she is ma- my staff. It was a pleasure to have her express my appreciation to Emily El- joring in sociology and criminal justice as part of our team. I know she will liott for her hard work as an intern in and minoring in Russian. Throughout have continued success with all of her my Washington, DC, office. I recognize her internship, she has demonstrated a future endeavors. I wish her all my her efforts and contributions to my of- strong work ethic which has made her best on her next journey. fice as well as to the State of Wyo- an invaluable asset to our office. The f quality of her work is reflected in her ming. great efforts over the last several Emily is a native of Wyoming and RECOGNIZING SAMUEL (S.J.) months. graduated from Natrona County High TILDEN I thank Leslie for the dedication she School. She currently attends Saint Mr. BARRASSO. Mr. President, I has shown while working for me and Michael’s College, where she is major- would like to take the opportunity to my staff. It was a pleasure to have her ing in political science and minoring in express my appreciation to Samuel as part of our team. I know she will global studies. Throughout her intern- (S.J.) Tilden for his hard work as an in- have continued success with all of her ship, she has demonstrated a strong tern in my Indian Affairs Committee future endeavors. I wish her all my work ethic which has made her an in- office in Washington, DC. I recognize best on her next journey. valuable asset to our office. The qual- his efforts and contributions to my of- ity of her work is reflected in her great f fice as well as to the State of Wyo- efforts over the last several months. ming. RECOGNIZING ANDREW CRAWFORD I thank Emily for the dedication she Samuel is a native of Wyoming and Mr. BARRASSO. Mr. President, I has shown while working for me and graduated from St. George’s School. He would like to take the opportunity to my staff. It was a pleasure to have her currently attends George Washington express my appreciation to Andrew as part of our team. I know she will University, where he is majoring in Crawford for his hard work as an intern have continued success with all of her international studies and politics and in my Indian Affairs Committee office future endeavors. I wish her all my minoring in francophone studies. in Washington, DC. I recognize his ef- best on her next journey. Throughout his internship, he has dem- forts and contributions to my office as f onstrated a strong work ethic which well as to the State of Wyoming. has made him an invaluable asset to RECOGNIZING CAMERON LEACH Andrew graduated from McLean High our office. The quality of his work is School. He currently attends Wake Mr. BARRASSO. Mr. President, I reflected in his great efforts over the Forest University, where he is major- would like to take the opportunity to last several months. ing in history and minoring in environ- express my appreciation to Cameron I thank Samuel for the dedication he mental studies and political science. Leach for his hard work as an intern in has shown while working for me and Throughout his internship, he has dem- my Rock Springs office. I recognize his my staff. It was a pleasure to have him onstrated a strong work ethic which efforts and contributions to my office as part of our team. I know he will has made him an invaluable asset to as well as to the State of Wyoming. have continued success with all of his our office. The quality of his work is Cameron graduated from Richland future endeavors. I wish him all my reflected in his great efforts over the High School. He attended Western Wy- best on his next journey. last several months. oming Community College for his asso- f I thank Andrew for the dedication he ciate’s degree in science and will at- has shown while working for me and tend the University of Wyoming to re- RECOGNIZING CHARLES my staff. It was a pleasure to have him ceive his bachelor’s degree. Throughout WESTERMAN as part of our team. I know he will his internship, he has demonstrated a Mr. BARRASSO. Mr. President, I have continued success with all of his strong work ethic which has made him would like to take the opportunity to

VerDate Mar 15 2010 03:06 Aug 04, 2010 Jkt 089060 PO 00000 Frm 00047 Fmt 4637 Sfmt 0634 E:\CR\FM\G03AU6.029 S03AUPT1 smartinez on DSKB9S0YB1PROD with SENATE S6644 CONGRESSIONAL RECORD — SENATE August 3, 2010 express my appreciation to Charles Kathi Metzler, director of Fremont Joe served his country honorably Westerman for his hard work as an in- County Emergency Management, and during World War II. He volunteered in tern in my Cheyenne office. I recognize her assistant Vonda Huish opened a the Merchant Marine and the Coast his efforts and contributions to my of- temporary office so they could manage Guard, serving as a staff officer in the fice as well as to the State of Wyo- the logistics that is part and parcel Pacific theater. ming. with coordinating so many different Despite his humble upbringing in the Charles is a native of Wyoming and agencies. It was comforting having Mining City, Joe became a successful graduated from Wheatland High Kathi and Vonda close by to orches- entrepreneur. He started his own School. He currently attends Wash- trate the flurry of activity. plumbing company in Helena, which he ington State University, where he is We can only estimate the number of later expanded into electrical and gen- majoring in journalism and minoring hours volunteers devoted to keeping eral construction. He then went on to in humanities. Throughout his intern- the flood waters at bay. Some estimate form the Reber Realty and Develop- ship, he has demonstrated a strong 35,000 hours, others say it might be up ment Company and the Capitol Whole- work ethic which has made him an in- to 50,000 hours. Almost a half million sale Plumbing Supply Company, among valuable asset to our office. The qual- sandbags were filled. Folks donated other businesses he owned. Even with ity of his work is reflected in his great their pickups and trailers to haul prop- all this success Joe never forgot his efforts over the last several months. erty and livestock to higher ground. working class roots, growing up the son I thank Charles for the dedication he This is quite an investment for a coun- of a miner in Butte. has shown while working for me and ty with only 36,000 people. Joe was very active in public service my staff. It was a pleasure to have him While the help of the government on a local and national level. He served as part of our team. I know he will agencies was so important, neighbors as treasurer for the Montana Demo- have continued success with all of his helping neighbors kept damage to a cratic Party, was a State senator, was future endeavors. I wish him all my minimum. Jim Buline and his son Rob- chairman of the Montana Board of Nat- best on his next journey. ert, Lee Hansen and his son Jace, Trav- ural Resources, served on the State f is Becker and his son Lars are a few of Board of Investments, and was a dele- FREMONT COUNTY, WYOMING the many neighbors and friends who gate to a United Nations World Food Program conference. One of his proud- Mr. BARRASSO. Mr. President, a helped Charlie and Linda Griffin save est accomplishments was passing legis- good measure of the strength of a com- their home on their historic ranch. munity is how they come together in a Students from Wyoming Catholic Col- lation in the State legislature that cre- crisis. From June 4 to June 18, 2010, lege devoted all their time to help any- ated a vocational education program. Fremont County, WY, experienced a one in need. Jeri Trebelock and her Joe recognized the importance of edu- 100-year flood. The spring runoff from staff from the Popo Agie Conservation cation and knew how vital the program the snowpack in the Wind River Moun- District organized and worked with would be for economic development tains was heavier than usual, causing volunteers for bank stabilization to and to provide meaningful opportuni- the Big Wind, Little Wind and Popo protect the Hunhke and Guschewsky ties for young people across Montana. Agie Rivers to reach flood stages. Just homes as well as a mobile home park. Over the years Joe got to know and when the citizens didn’t think it could In addition, all the Popo Estates land- befriend some very important folks. He get worse, a cold front passed through, owners came together helping each hosted John F. Kennedy at his Helena with rain and hail in lower elevations, other with sandbagging to protect home during the 1960 Presidential cam- and three to 6 feet of snow in the their homes. These are just a few ex- paign. He also accompanied Ted Ken- mountains. Lander, Riverton, Hudson, amples of the community spirit dem- nedy at the Eastern Montana Fair in and the Wind River Indian Reservation onstrated by the folks in Fremont Miles City in 1960 where Ted took his were all threatened. County. famous ride on a bronc. He met many As the flood waters rose, the Fre- On Thursday, August 5, 2010, folks other Presidents, dignitaries, and ce- mont County commissioners led by from Fremont County will gather at lebrities along the way. These and Chairman Doug Thompson and Vice Mr. D’s Grocery Store for a ‘‘We Sur- many other stories are recounted in Chairman Pat Hickerson along with vived the Flood of 2010’’ party. I ask Joe’s autobiography, ‘‘The Paperboy,’’ the Joint Tribal Councils chaired by my colleagues to join me in congratu- which he published in 2007. Ivan Posey and Harvey Spoonhunter lating the citizens of Fremont County Joe shared his experiences with his came together to request a disaster and the 52 local, State, and Federal wife of 37 years, Rosalyn, who passed designation from Wyoming’s Governor agencies for a job well done. away in May. Today I send my heart- Dave Freudenthal. f felt condolences to Joe’s children—Joe, As the 32 square miles of Fremont Bobbie, Dianna, Bryant, and Susie— County were threatened by flood, the ADDITIONAL STATEMENTS and the entire Reber family for their citizens rolled up their sleeves and loss. They can truly be proud of the life their father lived and take comfort in worked together to protect life, live- REMEMBERING JOE REBER stock, and property. Under the steady knowing that he helped so many others guidance of incident commander, Craig ∑ Mr. BAUCUS. Mr. President, today I along the way. Haslam, along with Joe Moore from pay tribute to a great Montanan who I have always enjoyed visiting with Wyoming Homeland Security, 52 local, led a remarkable life. Joe Reber was Joe over the years and working with county, State and Federal agencies co- deeply involved in public service and him on issues important to Montana. I ordinated flood mitigation efforts. Ac- the communities he called home in will miss his friendship as will folks all cording to Fremont County resident Montana; he passed away on July 23 at across Big Sky country.∑ Bill Sniffin, it was the biggest disaster the age of 91. Joe lived life to the full- f effort of its type in Wyoming’s history. est and I feel lucky to have had him as It was inspiring to see Wyoming’s a dear friend for so long. TRIBUTE TO DR. ROBERT A. National Guard working side-by-side Joe was born in Butte in 1919. He CARTLIDGE with the Fremont County folks. The grew up in a working class family and ∑ Mr. BURRIS. Mr. President, every so 400 soldiers, under the command of is a great symbol of the Montana spirit often, in the pantheon of scientific General Edward Wright and Colonel of hard work and overcoming adver- achievement, there comes an indi- Luke Reiner, bagged sand, transported sity. His first job as a youngster was vidual with both the intellect and the folks from houses, and were at the selling newspapers on the street in drive to further the course of scientific ready for whatever the community Butte to help support his family. Al- thought, an individual of extraordinary needed. Christian Venhuizen, at the though Joe never finished high school abilities, a truly original mind, which Wyoming National Guard Public Af- or went to college, he was a successful not only contributes to the work of fairs, served as information officer businessman and community leader modern science, but steps to the fore- keeping the public and media informed whose experiences gave him many sto- front and blazes a trail for others to throughout the entire flood. ries to tell over his 91 colorful years. follow.

VerDate Mar 15 2010 03:06 Aug 04, 2010 Jkt 089060 PO 00000 Frm 00048 Fmt 4637 Sfmt 0634 E:\CR\FM\G03AU6.037 S03AUPT1 smartinez on DSKB9S0YB1PROD with SENATE August 3, 2010 CONGRESSIONAL RECORD — SENATE S6645 I wish to recognize and honor the ence, encouraged ingenuity across the Mr. Novotny, one of its reading clerks, contributions of one such person, one globe, and reaffirmed the innovative announced that the House has passed of the select fine minds who possesses spirit that will lead our country to a the following bill, in which it requests the drive, determination, and the ex- prosperous future. the concurrence of the Senate: traordinary ability to continually ex- Dr. Cartlidge seized upon the oppor- IH.R. 3534. An act to provide greater effi- plore and challenge the limits of sci- tunity to join his natural intellect ciencies, transparency, returns, and account- entific knowledge. with a world-class education and ability in the administration of Federal min- Today I am proud to recognize the quickly distinguished himself as a sin- eral and energy resources by consolidating important work and achievements of gular figure in modern science. administration of various Federal energy Dr. Robert A. Cartlidge. His is an extraordinary ability, the minerals management and leasing programs Dr. Cartlidge is a leader in the fields into one entity to be known as the Office of likes of which are rarely seen in this or Federal Energy and Minerals Leasing of the of biology, biochemistry, and genetics. any other field. We are all grateful that Department of the Interior, and for other He is a brilliant scholar, laboratory re- he has dedicated himself to such a self- purposes. searcher, and educator. less career in this, most dynamic and f But most important, he has dedi- innovative of nations. cated himself to the advancement and I commend Dr. Cartlidge for his ex- MEASURES REFERRED education of others in his field, and he traordinary contributions to science. I The following bill was read the first continues to pave the way for future celebrate his role in expanding sci- and the second times by unanimous innovators in biological science to entific knowledge across the globe. And consent, and referred as indicated: carry the torch even further. I thank him for his selfless commit- Dr. Cartlidge was educated at one of H.R. 5730. An act to rescind earmarks for ment to the education of other profes- certain surface transportation projects; to the most prestigious and well-respected sionals in his field, both in the United the Committee on Environment and Public institutions in the world, the Univer- States and across the world.∑ Works. sity of Cambridge. Following his under- f f graduate work, which was marked by academic achievement, he was invited FAITH, SOUTH DAKOTA MEASURES PLACED ON THE by the university’s academic adminis- ∑ Mr. THUNE. Mr. President, today I CALENDAR tration to receive an honorary master’s recognize Faith, SD. Founded in 1910, The following bill was read the sec- degree in Natural Sciences, joining Faith will celebrate its 100th anniver- ond time, and placed on the calendar: ranks with some of the greatest minds sary this year. H.R. 5901. An act to amend the Internal in science. Located in Meade County, Faith pos- Revenue Code of 1986 to exempt certain stock Robert Cartlidge was then singled sesses the strong sense of community of real estate investment trusts from the tax out by the Wellcome Trust, a global that makes South Dakota an out- on foreign investment in United States real charity dedicated to supporting the standing place to live and work. The property interests, and for other purposes. brightest minds in biomedical research president of the Milwaukee Railroad f and the medical humanities, to receive named the city at the proposed end of MEASURES READ THE FIRST TIME a significant and nationally recognized the line after his daughter Faith. Faith academic award in Scotland: the pres- has continued to be a strong reflection The following bill was read the first tigious Wellcome Trust PhD Pro- of South Dakota’s greatest values and time: gramme. traditions. The community of Faith H.R. 3534. An act to provide greater effi- From there, he embarked on a career has much to be proud of and I am con- ciencies, transparency, returns, and account- dedicated to cancer research to focus fident that Faith’s success will con- ability in the administration of Federal min- on unlocking the complexities of this tinue well into the future. eral and energy resources by consolidating administration of various Federal energy deadly and indiscriminate disease. Faith will commemorate the centen- Dr. Cartlidge’s innovative findings minerals management and leasing programs nial anniversary of its founding with into one entity to be known as the Office of have been published in leading inter- celebrations held from August 10 national scientific and academic jour- Federal Energy and Minerals Leasing of the through August 15, featuring events Department of the Interior, and for other nals and have been the basis for sci- such as a wagon train, parade, rodeo, purposes. entists who have come after him, and an all-school reunion. I would like The following joint resolution was learning from his publications, build- to offer my congratulations to the citi- ing upon his work, and advancing the read the first time: zens of Faith on this milestone anni- S.J. Res. 38. Joint resolution proposing a causes of science ever further. versary and wish them continued pros- The scientific research tools Dr. balanced budget amendment to the Constitu- perity in the years to come.∑ Cartlidge has created have since been tion of the United States. developed into commercial products, f f and his novel cell system continues to MESSAGES FROM THE PRESIDENT EXECUTIVE AND OTHER find use in laboratories and univer- COMMUNICATIONS sities across the United States and Messages from the President of the Canada. United States were communicated to The following communications were By themselves, any of these accom- the Senate by Mr. Pate, one of his sec- laid before the Senate, together with plishments would be worthy of recogni- retaries. accompanying papers, reports, and doc- tion. But Dr. Cartlidge, for all of his f uments, and were referred as indicated: EC–6909. A communication from the Senior extraordinary ability, was not content EXECUTIVE MESSAGES REFERRED merely to shut himself in the labora- Program Analyst, Federal Aviation Adminis- tory and seek advances on his own. In- As in executive session the Presiding tration, Department of Transportation, transmitting, pursuant to law, the report of stead, he devoted himself to education Officer laid before the Senate messages from the President of the United a rule entitled ‘‘Establishment of Class E and collaboration, working with stu- Airspace; Monterey, CA’’ ((RIN2120– dents and institutions all over the States submitting sundry nominations AA66)(Docket No. FAA–2009–1030)) received world to broaden his field of his exper- which were referred to the appropriate in the Office of the President of the Senate tise. committees. on July 30, 2010; to the Committee on Com- Across the reaches of three con- (The nominations received today are merce, Science, and Transportation. tinents, he has taught, judged, lec- printed at the end of the Senate pro- EC–6910. A communication from the Senior tured, assessed performance, or de- ceedings.) Program Analyst, Federal Aviation Adminis- signed courses for innumerable fellow tration, Department of Transportation, f transmitting, pursuant to law, the report of scientists, peers, educators, and med- MESSAGE FROM THE HOUSE a rule entitled ‘‘Establishment of Class E ical students. Airspace; Paynesville, MN’’ ((RIN2120– And in so doing, Dr. Cartlidge has At 2:40 p.m., a message from the AA66)(Docket No. FAA–2010–0399)) received broadened America’s scientific influ- House of Representatives, delivered by in the Office of the President of the Senate

VerDate Mar 15 2010 03:06 Aug 04, 2010 Jkt 089060 PO 00000 Frm 00049 Fmt 4637 Sfmt 0634 E:\CR\FM\G03AU6.017 S03AUPT1 smartinez on DSKB9S0YB1PROD with SENATE S6646 CONGRESSIONAL RECORD — SENATE August 3, 2010 on July 30, 2010; to the Committee on Com- Monterey, CA’’ ((RIN2120–AA66)(Docket No. transmitting, pursuant to law, the report of merce, Science, and Transportation. FAA–2010–0633)) received in the Office of the a rule entitled ‘‘Airworthiness Directives; EC–6911. A communication from the Senior President of the Senate on July 30, 2010; to Thielert Aircraft Engines GmbH Model TAE Program Analyst, Federal Aviation Adminis- the Committee on Commerce, Science, and 125–01 Reciprocating Engines’’ ((RIN2120– tration, Department of Transportation, Transportation. AA64)(Docket No. FAA–2010–0308)) received transmitting, pursuant to law, the report of EC–6920. A communication from the Senior in the Office of the President of the Senate a rule entitled ‘‘Establishment of Class E Program Analyst, Federal Aviation Adminis- on July 30, 2010; to the Committee on Com- Airspace; Syracuse, KS’’ ((RIN2120– tration, Department of Transportation, merce, Science, and Transportation. AA66)(Docket No. FAA–2010–0400)) received transmitting, pursuant to law, the report of EC–6929. A communication from the Senior in the Office of the President of the Senate a rule entitled ‘‘Standard Instrument Ap- Program Analyst, Federal Aviation Adminis- on July 30, 2010; to the Committee on Com- proach Procedures (20); Amdt. No. 3383’’ tration, Department of Transportation, merce, Science, and Transportation. (RIN2120–AA65) received in the Office of the transmitting, pursuant to law, the report of EC–6912. A communication from the Senior President of the Senate on July 30, 2010; to a rule entitled ‘‘Airworthiness Directives; Program Analyst, Federal Aviation Adminis- the Committee on Commerce, Science, and McCauley Propeller Systems Model tration, Department of Transportation, Transportation. 4HFR34C653/L106FA Propellers’’ ((RIN2120– transmitting, pursuant to law, the report of EC–6921. A communication from the Senior AA64)(Docket No. FAA–2007–29176)) received a rule entitled ‘‘Establishment of Class E Program Analyst, Federal Aviation Adminis- in the Office of the President of the Senate Airspace; Kemmerer, WV’’ ((RIN2120– tration, Department of Transportation, on July 30, 2010; to the Committee on Com- AA66)(Docket No. FAA–2009–1190)) received transmitting, pursuant to law, the report of merce, Science, and Transportation. in the Office of the President of the Senate a rule entitled ‘‘Standard Instrument Ap- EC–6930. A communication from the Senior on July 30, 2010; to the Committee on Com- proach Procedures (86); Amdt. No. 3382’’ Program Analyst, Federal Aviation Adminis- merce, Science, and Transportation. (RIN2120–AA65) received in the Office of the tration, Department of Transportation, EC–6913. A communication from the Senior President of the Senate on July 30, 2010; to transmitting, pursuant to law, the report of Program Analyst, Federal Aviation Adminis- the Committee on Commerce, Science, and a rule entitled ‘‘Airworthiness Directives; tration, Department of Transportation, Transportation. Airbus Model A330–200 and –300 Airplanes and transmitting, pursuant to law, the report of EC–6922. A communication from the Senior Model A340–200, –300, –500, and –600 Air- a rule entitled ‘‘Amendment of Class E Air- Program Analyst, Federal Aviation Adminis- planes’’ ((RIN2120–AA64)(Docket No. FAA– space; Bozeman, MT’’ ((RIN2120– tration, Department of Transportation, 2009–0790)) received in the Office of the Presi- AA66)(Docket No. FAA–2009–1220)) received transmitting, pursuant to law, the report of dent of the Senate on July 30, 2010; to the in the Office of the President of the Senate a rule entitled ‘‘Safe, Efficient Use and Pres- Committee on Commerce, Science, and on July 30, 2010; to the Committee on Com- ervation of the Navigable Airspace’’ Transportation. merce, Science, and Transportation. (RIN2120–AH31) received in the Office of the EC–6931. A communication from the Senior EC–6914. A communication from the Senior President of the Senate on July 30, 2010; to Program Analyst, Federal Aviation Adminis- Program Analyst, Federal Aviation Adminis- the Committee on Commerce, Science, and tration, Department of Transportation, tration, Department of Transportation, Transportation. transmitting, pursuant to law, the report of transmitting, pursuant to law, the report of EC–6923. A communication from the Senior a rule entitled ‘‘Airworthiness Directives; a rule entitled ‘‘Amendment of Class E Air- Program Analyst, Federal Aviation Adminis- The Boeing Company Model 757 Airplanes, space; Mount Airy, NC’’ ((RIN2120– tration, Department of Transportation, Model 767 Airplanes, and Model 777–200 and AA66)(Docket No. FAA–2010–0070)) received transmitting, pursuant to law, the report of –300 Series Airplanes’’ ((RIN2120– in the Office of the President of the Senate a rule entitled ‘‘Establishment of Class D AA64)(Docket No. FAA–2008–0274)) received on July 30, 2010; to the Committee on Com- Airspace; San Marcos, TX’’ ((RIN2120– in the Office of the President of the Senate merce, Science, and Transportation. AA66)(Docket No. FAA–2010–0406)) received on July 30, 2010; to the Committee on Com- EC–6915. A communication from the Senior in the Office of the President of the Senate merce, Science, and Transportation. Program Analyst, Federal Aviation Adminis- on July 30, 2010; to the Committee on Com- EC–6932. A communication from the Senior tration, Department of Transportation, merce, Science, and Transportation. Program Analyst, Federal Aviation Adminis- transmitting, pursuant to law, the report of EC–6924. A communication from the Senior tration, Department of Transportation, a rule entitled ‘‘Amendment of Class E Air- Program Analyst, Federal Aviation Adminis- transmitting, pursuant to law, the report of space; Clemson, SC and Establishment of tration, Department of Transportation, a rule entitled ‘‘Airworthiness Directives; Class E Airspace: Pickens, SC’’ ((RIN2120– transmitting, pursuant to law, the report of Bombardier, Inc. Model DHC–8–400 Series AA66)(Docket No. FAA–2010–00752) received a rule entitled ‘‘Modification of VOR Federal Airplanes’’ ((RIN2120–AA64)(Docket No. in the Office of the President of the Senate Airways V–82, V–175, V–191, and V–430 in the FAA–2010–0229)) received in the Office of the on July 30, 2010; to the Committee on Com- Vicinity of Bemidji, MN’’ ((RIN2120– President of the Senate on July 30, 2010; to merce, Science, and Transportation. AA66)(Docket No. FAA–2010–0241)) received the Committee on Commerce, Science, and EC–6916. A communication from the Senior in the Office of the President of the Senate Transportation. Program Analyst, Federal Aviation Adminis- on July 30, 2010; to the Committee on Com- EC–6933. A communication from the Senior tration, Department of Transportation, merce, Science, and Transportation. Program Analyst, Federal Aviation Adminis- transmitting, pursuant to law, the report of EC–6925. A communication from the Attor- tration, Department of Transportation, a rule entitled ‘‘Amendment of Class D Air- ney-Advisor, Federal Highway Administra- transmitting, pursuant to law, the report of space; Goldsboro, NC’’ ((RIN2120– tion, Department of Transportation, trans- a rule entitled ‘‘Airworthiness Directives; AA66)(Docket No. FAA–2010–0095)) received mitting, pursuant to law, the report of a rule The Boeing Company Model 747–100, 747–100B, in the Office of the President of the Senate entitled ‘‘Certification of Enforcement of the 747–100B SUD, 747–200B, 747–200C, 747–200F, on July 30, 2010; to the Committee on Com- Heavy Vehicle Use Tax’’ (RIN2125–AF32) re- 747–300, 747–400, 747SR, and 747SP Series Air- merce, Science, and Transportation. ceived in the Office of the President of the planes’’ ((RIN2120–AA64)(Docket No. FAA– EC–6917. A communication from the Senior Senate on July 30, 2010; to the Committee on 2010–0383)) received in the Office of the Presi- Program Analyst, Federal Aviation Adminis- Commerce, Science, and Transportation. dent of the Senate on July 30, 2010; to the tration, Department of Transportation, EC–6926. A communication from the Senior Committee on Commerce, Science, and transmitting, pursuant to law, the report of Program Analyst, Federal Aviation Adminis- Transportation. a rule entitled ‘‘Amendment of Class D and E tration, Department of Transportation, EC–6934. A communication from the Senior Airspace; Everett, WA’’ ((RIN2120– transmitting, pursuant to law, the report of Program Analyst, Federal Aviation Adminis- AA66)(Docket No. FAA–2009–1105)) received a rule entitled ‘‘Modification of Restricted tration, Department of Transportation, in the Office of the President of the Senate Area R3404; Crane, IN’’ ((RIN2120–AA66)(FAA transmitting, pursuant to law, the report of on July 30, 2010; to the Committee on Com- Docket No. 2007–28632)) received in the Office a rule entitled ‘‘Airworthiness Directives; merce, Science, and Transportation. of the President of the Senate on July 30, Empresa Brasileira de Aeronautica S.A. EC–6918. A communication from the Senior 2010; to the Committee on Commerce, (EMBRAER) Model ERJ 170 and ERJ 190 Air- Program Analyst, Federal Aviation Adminis- Science, and Transportation. planes’’ ((RIN2120–AA64)(Docket No. FAA– tration, Department of Transportation, EC–6927. A communication from the Senior 2010–0174)) received in the Office of the Presi- transmitting, pursuant to law, the report of Program Analyst, Federal Aviation Adminis- dent of the Senate on July 30, 2010; to the a rule entitled ‘‘Revocation of Class D and E tration, Department of Transportation, Committee on Commerce, Science, and Airspace; Panama City, FL’’ ((RIN2120– transmitting, pursuant to law, the report of Transportation. AA66)(Docket No. FAA–2010–0001)) received a rule entitled ‘‘IFR Altitudes; Miscella- EC–6935. A communication from the Senior in the Office of the President of the Senate neous Amendments (97); Amendment No. Program Analyst, Federal Aviation Adminis- on July 30, 2010; to the Committee on Com- 488’’ (RIN2120–AA63) received in the Office of tration, Department of Transportation, merce, Science, and Transportation. the President of the Senate on July 30, 2010; transmitting, pursuant to law, the report of EC–6919. A communication from the Senior to the Committee on Commerce, Science, a rule entitled ‘‘Airworthiness Directives; Program Analyst, Federal Aviation Adminis- and Transportation. Airbus Model A330–200 and –300 Series Air- tration, Department of Transportation, EC–6928. A communication from the Senior planes, and A340–200, –300, –500, and –600 Se- transmitting, pursuant to law, the report of Program Analyst, Federal Aviation Adminis- ries Airplanes’’ ((RIN2120–AA64)(Docket No. a rule entitled ‘‘Revision of Class E Airspace; tration, Department of Transportation, FAA–2009–0003)) received in the Office of the

VerDate Mar 15 2010 03:06 Aug 04, 2010 Jkt 089060 PO 00000 Frm 00050 Fmt 4637 Sfmt 0634 E:\CR\FM\A03AU6.021 S03AUPT1 smartinez on DSKB9S0YB1PROD with SENATE August 3, 2010 CONGRESSIONAL RECORD — SENATE S6647 President of the Senate on July 30, 2010; to eral Fiscal Year 2011’’ (RIN0938–AP89) re- EXECUTIVE REPORTS OF the Committee on Commerce, Science, and ceived in the Office of the President of the COMMITTEE Transportation. Senate on July 30, 2010; to the Committee on EC–6936. A communication from the Senior Finance. The following executive reports of Program Analyst, Federal Aviation Adminis- EC–6944. A communication from the Pro- nominations were submitted: tration, Department of Transportation, gram Manager, Centers for Medicare and By Mr. KERRY for the Committee on For- transmitting, pursuant to law, the report of Medicaid Services, Department of Health eign Relations. a rule entitled ‘‘Airworthiness Directives; and Human Services, transmitting, pursuant *Robert M. Orr, of Florida, to be United Piper Aircraft, Inc. PA–28, PA–32, PA–34, and to law, the report of a rule entitled ‘‘Medi- States Director of the Asian Development PA–44 Series Airplanes’’ ((RIN2120– care Program; Changes to the Hospital Inpa- Bank, with the rank of Ambassador. AA64)(Docket No. FAA–2009–1015)) received tient Prospective Payment Systems for *Richard M. Lobo, of Florida, to be Direc- in the Office of the President of the Senate Acute Care Hospitals and the Long-Term tor of the International Broadcasting Bu- on July 30, 2010; to the Committee on Com- Care Hospital Prospective Payment System reau, Broadcasting Board of Governors. merce, Science, and Transportation. and Fiscal Year 2011 Rates; Effective Date of *Mimi E. Alemayehou, of the District of EC–6937. A communication from the Senior Provider Agreements and Supplier Approv- Columbia, to be Executive Vice President of Program Analyst, Federal Aviation Adminis- als; and Hospital Conditions of Participation the Overseas Private Investment Corpora- tration, Department of Transportation, for Rehabilitation and Respiratory Care’’ tion. transmitting, pursuant to law, the report of (RIN0938–AP80 and RIN0938–AQ03) received in *Mark Feierstein, of Virginia, to be an As- a rule entitled ‘‘Airworthiness Directives; the Office of the President of the Senate on sistant Administrator of the United States Empresa Brasileira de Aeronautica S.A. August 2, 2010; to the Committee on Finance. Agency for International Development. (EMBRAER) Model EMB–500 Airplanes’’ EC–6945. A communication from the Chief *Nisha Desai Biswal, of the District of Co- ((RIN2120–AA64)(Docket No. FAA–2010–0733)) of the Publications and Regulations Branch, lumbia, to be an Assistant Administrator of received in the Office of the President of the Internal Revenue Service, Department of the the United States Agency for International Senate on July 30, 2010; to the Committee on Treasury, transmitting, pursuant to law, the Development. Commerce, Science, and Transportation. report of a rule entitled ‘‘Qualified Zone *Rose M. Likins, of Virginia, a Career EC–6938. A communication from the Senior Academy Bonds; Obligations of States and Member of the Senior Foreign Service, Class Program Analyst, Federal Aviation Adminis- Political Subdivisions’’ ((RIN1545–BC61)(TD of Minister—Counselor, to be Ambassador tration, Department of Transportation, 9495)) received in the Office of the President Extraordinary and Plenipotentiary of the transmitting, pursuant to law, the report of of the Senate on July 30, 2010; to the Com- United States of America to the Republic of a rule entitled ‘‘Airworthiness Directives; mittee on Finance. Peru. The Boeing Company Model 737–100, –200, EC–6946. A communication from the Chief Nominee: Rose M. Likins –200C, –300, –400, and –500 Series Airplanes’’ of the Publications and Regulations Branch, Post: Lima, Peru ((RIN2120–AA64)(Docket No. FAA–2010–0173)) Internal Revenue Service, Department of the (The following is a list of all members of received in the Office of the President of the Treasury, transmitting, pursuant to law, the my immediate family and their spouses. I Senate on July 30, 2010; to the Committee on report of a rule entitled ‘‘Xilinx, Inc. v. Com- have asked each of these persons to inform Commerce, Science, and Transportation. missioner, 598 F. 3d 1191 (9th Cir, 2010), aff’g me of the pertinent contributions made by EC–6939. A communication from the Senior 125 T.C. 37 (2005)’’ (AOD 2010–33) received in them. To the best of my knowledge, the in- Program Analyst, Federal Aviation Adminis- the Office of the President of the Senate on formation contained in this report is com- tration, Department of Transportation, July 30, 2010; to the Committee on Finance. plete and accurate.) transmitting, pursuant to law, the report of EC–6947. A communication from the Pro- Contributions, amount, date, and donee: a rule entitled ‘‘Airworthiness Directives; gram Manager, Office of Consumer Informa- 1. Self: None. Zaklad Szybowcowy ‘Jezow’ Henryk tion and Insurance Oversight, Department of 2. Spouse: None. Mynarski Model PW–6U Sailplanes’’ Health and Human Services, transmitting, 3. Children and Spouses: James M. Likins ((RIN2120–AA64)(Docket No. FAA–2010–0729)) pursuant to law, the report of a rule entitled and Kelly Ault, none; Kevin M. Likins, none. received in the Office of the President of the ‘‘Pre-Existing Condition Insurance Plan Pro- 4. Parents: Eugene A. McCartney, de- Senate on July 30, 2010; to the Committee on gram’’ (RIN0991–AB71) received in the Office ceased; Merlyn Houghland, deceased. Commerce, Science, and Transportation. of the President of the Senate on July 30, 5. Grandparents: Hoover and Henrietta EC–6940. A communication from the Senior 2010; to the Committee on Health, Education, Houghland, deceased; Robert and Marie Program Analyst, Federal Aviation Adminis- Labor, and Pensions. McCartney, deceased. tration, Department of Transportation, 6. Brothers and Spouses: Sean M. and transmitting, pursuant to law, the report of f Bonnie McCartney: $2300.00, 2008, John a rule entitled ‘‘Airworthiness Directives; REPORTS OF COMMITTEES McCain; Terence E. and Julia McCartney: Eurocopter France (ECF) Model EC255LP $75, 2005, NRA; $50, 2005, RNC; $2000, 2005, Hil- Helicopters’’ ((RIN2120–AA64)(Docket No. The following reports of committees lary Clinton; $500, 2008, RNC. FAA–2010–0721)) received in the Office of the were submitted: 7. Sisters and Spouses: Kathleen and President of the Senate on July 30, 2010; to By Mr. HARKIN, from the Committee on George Deshazor, none; Patricia Fretz, none. the Committee on Commerce, Science, and Health, Education, Labor, and Pensions, Transportation. with an amendment in the nature of a sub- *Luis E. Arreaga-Rodas, of Virginia, a Ca- EC–6941. A communication from the Senior stitute: reer Member of the Senior Foreign Service, Program Analyst, Federal Aviation Adminis- S. 2781. A bill to change references in Fed- Class of Minister-Counselor, to be Ambas- tration, Department of Transportation, eral law to mental retardation to references sador Extraordinary and Plenipotentiary of transmitting, pursuant to law, the report of to an intellectual disability, and to change the United States of America to the Republic a rule entitled ‘‘Airworthiness Directives; references to a mentally retarded individual of Iceland. The Boeing Company Model 767–200, –300, and to references to an individual with an intel- Nominee: Luis E. Arreaga-Rodas. –300F Series Airplanes Powered by General lectual disability (Rept. No. 111–244). Post: U.S. Ambassador to Iceland. Electric or Pratt and Whitney Engines’’ By Mr. DORGAN, from the Committee on (The following is a list of all members of ((RIN2120–AA64)(Docket No. FAA–2010–0671)) Indian Affairs, without amendment: my immediate family and their spouses. I received in the Office of the President of the S. 1448. A bill to amend the Act of August have asked each of these persons to inform Senate on July 30, 2010; to the Committee on 9, 1955, to authorize the Coquille Indian me of the pertinent contributions made by Commerce, Science, and Transportation. Tribe, the Confederated Tribes of Siletz Indi- them. To the best of my knowledge, the in- EC–6942. A communication from the Senior ans, the Confederated Tribes of the Coos, formation contained in this report is com- Program Analyst, Federal Aviation Adminis- Lower Umpqua, and Siuslaw, the Klamath plete and accurate.) tration, Department of Transportation, Tribes, and the Burns Paiute Tribe to obtain Contributions, amount, date, and donee: transmitting, pursuant to law, the report of 99-year lease authority for trust land (Rept. 1. Self: None. a rule entitled ‘‘Airworthiness Directives; No. 111–245). 2. Spouse: None. Aircraft Industries a.s. Model L23 Super By Mr. DORGAN, from the Committee on 3. Children and Spouses: None. Blanik Gliders’’ ((RIN2120–AA64)(Docket No. Indian Affairs, with amendments: 4. Parents: None. FAA–2010–0457)) received in the Office of the S. 2906. A bill to amend the Act of August 5. Grandparents: None. President of the Senate on July 30, 2010; to 9, 1955, to modify a provision relating to 6. Brothers and Spouses: None. the Committee on Commerce, Science, and leases involving certain Indian tribes (Rept. 7. Sisters and Spouses: None. Transportation. No. 111–246). EC–6943. A communication from the Pro- By Mr. ROCKEFELLER, from the Com- *Phillip Carter III, of Virginia, a Career gram Manager, Centers for Medicare and mittee on Commerce, Science, and Transpor- Member of the Senior Foreign Service, Class Medicaid Services, Department of Health tation, with an amendment in the nature of of Minister-Counselor, to be Ambassador Ex- and Human Services, transmitting, pursuant a substitute: traordinary and Plenipotentiary of the to law, the report of a rule entitled ‘‘Medi- S. 3304. A bill to increase the access of per- United States of America to the Republic of care Program; Inpatient Rehabilitation Fa- sons with disabilities to modern communica- Cote d’Ivoire. cility Prospective Payment System for Fed- tions, and for other purposes. Nominee: Phillip Carter III.

VerDate Mar 15 2010 05:38 Aug 04, 2010 Jkt 089060 PO 00000 Frm 00051 Fmt 4637 Sfmt 0634 E:\CR\FM\A03AU6.022 S03AUPT1 smartinez on DSKB9S0YB1PROD with SENATE S6648 CONGRESSIONAL RECORD — SENATE August 3, 2010 Post: Cote d’ Ivoire. * Helen Patricia Reed-Rowe, of Maryland, a Clinton—President; $500.00, 02/21/2008, Hillary (The following is a list of all members of Career Member of the Senior Foreign Serv- Clinton—President; $500.00, 02/29/2008, Hillary my immediate family and their spouses. I ice, Class of Counselor, to be Ambassador Ex- Clinton—President; $229.00, 03/07/2008, Hillary have asked each of these persons to inform traordinary and Plenipotentiary of the Clinton—President; $270.00, 03/07/2008, Hillary me of the pertinent contributions made by United States of America to the Republic of Clinton—President; $500.00, 09/08/2007, Hillary them. To the best of my knowledge, the in- Palau. Clinton—President; Lee M. Murray (Mother), formation contained in this report is com- Nominee: Helen Patricia Reed-Rowe. $50.00, 02/08/2008, Obama for President; $50.00, plete and accurate.) Post: Republic of Palau. 04/10/2008, Obama for President; $50.00, 07/03/ Contributions, amount, date, and donee: (The following is a list of all members of 2008, Obama for President; $100.00, 09/23/2008, 1. Self: $250, 5/7/08, Barack Obama; $250, my immediate family and their spouses. I Obama for President. 10/8/08, Barack Obama. have asked each of these persons to inform 5. Brothers and Spouses: James A. Murray 2. Spouse: Amanda J. Carter: None. me of the pertinent contributions made by 3. Children and Spouses: Justin M. Carter, (Brother), $100.00, 08/12/2008, Obama for Amer- them. To the best of my knowledge, the in- ica. None; Andrew N. Carter, None. formation contained in this report is com- 4. Parents: Phillip Carter Jr., Deceased; plete and accurate.) Hortencia Carter, None. Contributions, amount, date, and donee: *Mark Charles Storella, of Maryland, a Ca- 5. Grandparents: Phillip Carter Sr., De- 1. Self: $75.00, 03/03/8, Obama 4 America; reer Member of the Senior Foreign Service, ceased; Frances Carter, Deceased; Ramon P. $50.00, 08/01/89, Obama 4 America; $10.00, 12/28/ Class of Counselor, to be Ambassador Ex- Cano, Deceased; Rafaela Cano, Deceased. 09, DNC BarackObama.com. traordinary and Plenipotentiary of the 6. Brothers and Spouses: David R. Carter, 2. Spouse: N/A. United States of America to the Republic of None; Nicole Carter, None. 3. Children and Spouses: Nikkia T Rowe: Zambia. 7. Sisters and Spouses: Melissa A. Carter, $10.00, 2008, Obama 4 America; Kevin A. Nominee: Mark C. Storella. None. Rowe: $0. Post: Ambassador to the Republic of Zam- 4. Parents: John W. Reed Sr., and Gladys bia. * Gerald M. Feierstein, of Pennsylvania, a R. are both deceased. (The following is a list of all members of Career Member of the Senior Foreign Serv- 5. Grandparents: Jasper Reed, Wilton Penn my immediate family and their spouses. I ice, Class of Minister-Counselor, to be Am- and Helen Reed Penn are all deceased; Mil- have asked each of these persons to inform bassador Extraordinary and Plenipotentiary ton and Lizzie Laws are both deceased. me of the pertinent contributions made by of the United States of America to the Re- 6. Brothers and Spouses: John W. Reed, Jr. them. To the best of my knowledge, the in- public of Yemen. is deceased; Alvin and Louise Reed: $0. formation contained in this report is com- Nominee: Gerald M. Feierstein. 7. Sisters and Spouses: N/A. Post: U.S. Embassy Sana’a Yemen. plete and accurate.) (The following is a list of all members of *Patrick S. Moon, of Virginia, a Career Contributions, amount, date, and donee: my immediate family and their spouses. I Member of the Senior Foreign Service, Class 1. Self: None. have asked each of these persons to inform of Minister-Counselor, to be Ambassador Ex- 2. Spouse: Anne Marie Huvos—None. me of the pertinent contributions made by traordinary and Plenipotentiary of the 3. Children: Zachary H. Storella and Theo them. To the best of my knowledge, the in- United States of America to Bosnia and H. Storella—None. formation contained in this report is com- Herzegovina. 4. Parents: John A. Storella (Father)— plete and accurate.) Nominee: Patrick S. Moon. None. Marianne V. Storella (Mother)—None, Contributions, amount, date, and donee: Post: Sarajevo. deceased. 1. Self: $100, 06/2006, James Webb. (The following is a list of all members of 5. Grandparents: Alfonse Storella, 2. Spouse: $100, 06/2008, Barack Obama; $100, my immediate family and their spouses. I Tomasina Storella, Calogero Amico and 08/2008, Barack Obama. have asked each of these persons to inform Gaspara Amico—None, deceased. 3. Children and Spouses: Adam J. me of the pertinent contributions made by 6. Elder Brother: John R. Storella, $100, Feierstein, none; Anne E. Feierstein, none; them. To the best of my knowledge, the in- 2010, Brown, Scott (MA Senate Campaign); and Sara P. Feierstein, none. formation contained in this report is com- $25, 2009, Harmer, David (CA Congress Race); 4. Parents: Lester H. Feierstein, deceased; plete and accurate.) $250, 05/26/2008, Wiviott, Don (NM Congres- Rose T. Feierstein, $50, 2006, Democratic Na- Contributions, amount, date, and donee: sional Race); $250, 05/21/2008, ACTBLUE (For tional Committee; $50, 2007, Democratic Na- 1. Self: None. Wiviott Campaign); $900, 03/31/2008, California tional Committee; $50, 2008, Democratic Na- 2. Spouse: None. 2009 GOP Delegation; $1,000, 01/30/2008, tional Committee; $50, 2008, Hillary Clinton; 3. Children and Spouses: Marisa Moon (age McCain, John S. (President); $500, 09/05/2007, $50, 2008, Al Franken; $50, 2008, Al Franken; 21, unmarried)—None; Natalie Moon (age 4)— McCain, John S. (President); $50, 2007, Re- $50, 2009, Democratic National Committee. None; Anya—Moon None. publican Senate Committee. 5. Grandparents: Adam S. Feierstein, de- 4. Parents: Milton R. Moon (Deceased); ceased; Sarah Feierstein, deceased; Abraham Margaret J. Moon (Deceased). Sister-in-law: Lisa Aliferis, $500, 03/30/2008, Thaler, deceased; Rebekah Thaler, deceased. 5. Grandparents: Arthur Pearson (De- Clinton, Hillary (President); $100, 08/2008, 6. Brothers and Spouses: not applicable. ceased); Lacy Pearson (Deceased); Robert Woods, Anthony (CA Congress). 7. Sisters and Spouses: Robert & Cicely Moon (Deceased); Minnie Moon (Deceased). 7. Sister: Janet M. Storella, $2,500, 04/17/ McCracken, $50, 2008, Barack Obama. 6. Brothers and Spouses: Raymond E. 2009, Van Hollen, Christopher (MD Congress), Moon—None; Rassa Moon, spouse—None. $2,300, 05/10/2008, Van Hollen, Christopher * Peter Michael McKinley, of Virginia, a 7. Sisters and Spouses: None. (MD Congress); $1,000, 05/10/2008, Democratic Career Member of the Senior Foreign Serv- Cong. Campaign Comm.; $500, 02/1/2005, Amer- ice, Class of Minister-Counselor, to be Am- *Christopher W. Murray, of New York, a ican College of Radiology Assn PAC. bassador Extraordinary and Plenipotentiary Career Member of the Senior Foreign Serv- Brother-in-law: Andrew Karron, $500, 09/18/ of the United States of America to the Re- ice, Class of Minister-Counselor, to be Am- 2009, ACTBLUE (Owens NY Cong. Campaign); public of Colombia. bassador Extraordinary and Plenipotentiary $300, 09/16/2009, Arnold and Porter LLP PAC; Nominee: Peter Michael McKinley of the United States of America to the Re- $500, 09/1/2009, Owens, William (NY Congress); Post: Colombia. public of the Congo. $300, 06/12/2009, Arnold and Porter LLP PAC; (The following is a list of all members of Nominee: Christopher W. Murray. $300, 04/27/2009, Arnold and Porter LLP PAC; my immediate family and their spouses. I Post: Ambassador Designate U.S. Embassy $300, 01/16/2009, Arnold and Porter LLP PAC; have asked each of these persons to inform Brazzaville. $300, 09/19/2008, Arnold and Porter LLP PAC; (The following is a list of all members of me of the pertinent contributions made by $2,300, 08/31/2008, Obama, Barack (President); immediate family and their spouses. I have them. To the best of my knowledge, the in- $300, 06/12/2008, Arnold and Porter LLP PAC; asked each of these persons to inform me of formation contained in this report is com- $1,000, 05/10/2008, Democratic Congressional the pertinent contributions made by them. plete and accurate.) Camp.; $2,300, 05/10/2008, Van Hollen, Chris- To the best of my knowledge, the informa- Contributions, amount, date, and donee: topher (MD Congress); $900, 04/10/2008, Arnold tion contained in this report is complete and 1. Self: Peter Michael McKinley, None. and Porter LLP PAC; $350, 01/16/2008, Arnold 2. Spouse: Fatima McKinley, None. accurate.) 3. Children: Claire, Peter, Sarah, None. Contributions, amount, date, and donee: and Porter LLP PAC; $350, 09/27/2008, Arnold 4. Parents: Peter M. McKinley, $100–$150, 1. Self: $250.00, 03/02/2008, Obama for Amer- and Porter LLP PAC; $350, 01/19/2007, Arnold 2004, RNC Committee; Enriqueta McKinley ica; *To the best of my recollection, $100.00, and Porter LLP PAC; $350, 04/04/2007, Arnold (d.2001), $50–$100, 2008, RNC Committee. 08/2008*, Obama for America. and Porter LLP PAC; $2,300, 03/05/2007, 5. Grandparents: (all deceased before 1990). 2. Spouse: none. Obama, Barack (President); $1,000, 06/02/2006, 6. Brothers and Spouses: Brian Matthew 3. Children and Spouses: David Murray Forward Together PAC; $500, 06/27/2006, McKinley, None. Rocio McKinley (spouse) (Son), $25.00, 08/02/2008, Obama for America. Cardin, Benjamin (MD Senate); $500, 2009 or None. 4. Parents: David G. Murray (Father), 2010, Bennet, Michael (CO Senate); $500 (est.), 7. Sisters and Spouses: Margaret McKinley $250.00, 10/08/2008, Obama for America; $500.00, 2007, 2008, Democratic National Comm. and Clarke, $75–$100, 2006, DNC Committee; Hyde 01/04/2008, Obama for America; Judith Sayles 2009. Clarke (spouse), $50–$100, 2008, DNC Com- (Step-Mother), $270.00, 08/28/2008, Friends of 8. Younger Brother: James D. Storella— mittee. Hillary Clinton; $500.00, 02/07/2008, Hillary None.

VerDate Mar 15 2010 06:07 Aug 04, 2010 Jkt 089060 PO 00000 Frm 00052 Fmt 4637 Sfmt 0634 E:\CR\FM\A03AU6.030 S03AUPT1 smartinez on DSKB9S0YB1PROD with SENATE August 3, 2010 CONGRESSIONAL RECORD — SENATE S6649 *J. Thomas Dougherty, of Wyoming, a Ca- 7. Sisters and Spouses Names: Megan 7. Sisters and Spouses: N/A. reer Member of the Senior Foreign Service, Connelly Accardi: $50, 2/9/06, Democratic Na- Class of Minister-Counselor, to be Ambas- tional Committee; $20, 6/19/06, Kennedy for *Laurence D. Wohlers, of Washington, a sador Extraordinary and Plenipotentiary of Senate; $15, 3/26/07, John Edwards for Presi- Career Member of the Senior Foreign Serv- the United States of America to Burkina dent; $6.10, 6/1/07, John Edwards for Presi- ice, Class of Minister-Counselor, to be Am- Faso. dent; $50, 8/6/07, Democratic National Com- bassador Extraordinary and Plenipotentiary Nominee: John Thomas Dougherty. mittee; $25, 8/29/08, Obama for America; Jo- of the United States of America to the Cen- Post: Ouagadougou, Burkina Faso. seph Accardi (Megan’s spouse): 0; Meave tral African Republic. (The following is a list of all members of Connelly: 0; Kevin Kelly (Meave’s spouse): 0. Nominee: Laurence D. Wohlers. my immediate family and their spouses. I Post: Bangui. have asked each of these persons to inform *Daniel Bennett Smith, of Virginia, a Ca- (The following is a list of all members of me of the pertinent contributions made by reer Member of the Senior Foreign Service, my immediate family and their spouses. I them. To the best of my knowledge, the in- Class of Minister-Counselor, to be Ambas- have asked each of these persons to inform formation contained in this report is com- sador Extraordinary and Plenipotentiary of me of the pertinent contributions made by plete and accurate.) the United States of America to Greece. them. To the best of my knowledge, the in- Contributions, amount, date, and donee: Nominee: Daniel Bennett Smith. formation contained in this report is com- 1. Self: None. Post: Athens, Greece. plete and accurate.) 2. Spouse: None. (The following is a list of all members of Contributions, amount, date, and donee: 3. Children and Spouses: Peter Dougherty: my immediate family and their spouses. I 1. Self: none. None; Celeste Dougherty: None. have asked each of these persons to inform 2. Spouse: Ann: none. 4. Parents: J.T. Dougherty (Deceased): me of the pertinent contributions made by 3. Children and Spouses: Christopher, none; None; Mary Ann Dougherty: None. them. To the best of my knowledge, the in- Marion, none; Sophie, none. 5. Grandparents: Anton & Celestina Grosso formation contained in this report is com- 4. Parents: Lester—deceased, none; Bar- (Deceased): None; Frank & Lily Dougherty plete and accurate.) bara, none. (Deceased): None. Contributions, amount, date, and donee: 5. Grandparents: (deceased for many 6. Brothers and Spouses: None. 1. Self: None. years). 7. Sisters and Spouses: Leslie Dougherty 2. Spouse: $15, 2007, VA Democratic Party. 6. Brothers and Spouses: Paul Wohlers, Hutchinson: 30.00 USD, 10/02/2009, Democratic 3. Children and Spouses: Andrew B. Smith: none; Mary Jo Wohlers, none; Douglas Nat’l Committee; Atman Hutchinson: 30.00 None. Erik G. Smith: None. Troy D. Smith: Wohlers, none; Kazuko Wohlers, none. USD, 10/02/2009, Democratic Nat’l Committee; None. 7. Sisters and Spouses: none. Sandra Dougherty Lamberton: None; Wil- 4. Parents: Daniel M. Smith (Father)—De- liam J. Lamberton III: None; Robin Dough- ceased; Carolyn A. Smith (Mother): $50, 2008, *Judith R. Fergin, of Washington, a Career erty Tivy: None; Stephen V. Tivy: None. Barack Obama for President; $50, 2008, John Member of the Senior Foreign Service, Class Edwards for President. of Minister-Counselor, to be Ambassador Ex- 5. Grandparents: Benjamin Brown—De- *Eric D. Benjaminson, of Oregon, a Career traordinary and Plenipotentiary of the ceased; Caroline Brown—Deceased; Daniel M. Member of the Senior Foreign Service, Class United States of America to the Democratic Smith—Deceased; Alma Smith—Deceased. of Counselor, to be Ambassador Extraor- Republic of Timor-Leste. 6. Brothers and Spouses: Gregory Smith, Nominee: Judith Ryan Fergin. dinary and Plenipotentiary of the United $150, 2009, Move on.Org PAC; $35, 2009, Act States of America to the Gabonese Republic, Post: Dili, Timor Leste. Blue (Betsy Markey for Congress); $50, 2009, (The following is a list of all members of and to serve concurrently and without addi- Hillary Clinton Committee; $25, 2009, Al tional compensation as Ambassador Extraor- my immediate family and their spouses. I Franken Committee; $150, 2009, Human have asked each of these persons to inform dinary and Plenipotentiary of the United Rights Campaign; $300, 2008, Obama for States of America to the Democratic Repub- me of the pertinent contributions made by America; $100, 2008, Obama On Line Backup; them. To the best of my knowledge, the in- lic of Sao Tome and Principe. $200, 2008, Hillary Clinton for President; $150, Nominee: Eric D. Benjaminson. formation contained in this report is com- 2008, Al Franken for Senate; $300, 2008, Demo- Post: Gabon/Sao Tome. plete and accurate.) cratic Senatorial Campaign Committee; $275, (The following is a list of all members of Contributions, amount, date, and donee: 2008, Democratic Congressional Campaign my immediate family and their spouses. l 1. Self: $300.00, May 2004, American Foreign Committee; $100, 2008, Friends of Mary have asked each of these persons to inform Service Assoc. (AFSA) PAC; $200.00, April Landrieu; $125, 2008, Move On.Org; $310, 2008, me of the pertinent contributions made by 2005, AFSA PAC; $200.00, Oct 2005, AFSA Democracy Engine; $200, 2008, Move On Pac them. To the best of my knowledge, the in- PAC; $200.00, Aug 2006, AFSA PAC; $100.00, Bundling; $150, 2008, Human Rights Campaign formation contained in this report is com- Nov 2006, AFSA Legislative Action Fund; Web; $500, 2006, Democratic Congressional plete and accurate.) $200.00, April 2007, AFSA PAC; $200.00, Oct Campaign; $500, 2006, Democratic Senatorial Contributions and amount: 2007, AFSA Legislative Action Fund; $200.00, Campaign; $200, 2006, CA Democratic Party; 1. Self $0. June 2008, AFSA PAC; $200.00, Oct 2008, 2. Spouse $0. $100, 2006, Jerry McNerney For Congress. AFSA Legislative Action Fund. 7. Sisters and Spouses: Stephanie Smith- 3. Children and Spouses: $0. 2. Spouse: Gregory G. Fergin: $150.00, May Hult: None. 4. Parents: $0. 1995, AFSA Legislative Action; $150.00, Dec 5. Grandparents: $0. 1995, AFSA Legislative Action; $150.00, Dec *James Frederick Entwistle, of Virginia, a 6. Brothers and Spouses: $0. 1996, AFSA Legislative Action; $150.00, Nov Career Member of the Senior Foreign Serv- 7. Sisters and Spouses: $0. 1998, AFSA Legislative Action; $150.00, Sep ice, Class of Minister-Counselor, to be Am- 2000, AFSA Legislative Action; $150.00, May bassador Extraordinary and Plenipotentiary *Maura Connelly, of New Jersey, a Career 2001, AFSA Legislative Action; $200.00, Dec of the United States of America to the Member of the Senior Foreign Service, Class 2001, AFSA Legislative Action; $200.00, Dec Democratic Republic of the Congo. of Minister-Counselor, to be Ambassador Ex- 2002, AFSA Legislative Action; $250.00, Dec Nominee: James F. Entwistle. 2003, AFSA PAC; $250.00, Dec 2004, AFSA Leg- traordinary and Plenipotentiary of the Post: Kinshasa. United States of America to the Republic of (The following is a list of all members of islative Action; $200.00, Apr 2005, AFSA PAC; Lebanon. my immediate family and their spouses. I $200.00, Dec 2005, AFSA Legislative Action; Nominee: Maura Connelly. have asked each of these persons to inform $150.00, Dec 2006, AFSA PAC; $150.00, Dec Post: U.S. Ambassador, Lebanon. me of the pertinent contributions made by 2006, AFSA Legislative Action; $100.00, Dec The following is a list of all members of them. To the best of my knowledge, the in- 2007, AFSA PAC; $150.00, Dec 2007, AFSA Leg- my immediate family and their spouses. I formation contained in this report is com- islative Action. have asked each of these persons to inform plete and accurate.) 3. Children and Spouses: William L. Fergin: me of the pertinent contributions made by Contributions, amount, date, and donee: none. Amalia C. Fergin: none. them. To the best of my knowledge, the in- 1. Self: none. 4. Parents: Harwood E. Ryan, Jr., deceased; formation contained in this report is com- 2. Spouse: Pamela G. Schmoll: none. Dorothy S. Ryan: none. plete and accurate. 3. Children and Spouses: Jennifer B.S. 5. Grandparents: Harwood E. Ryan, Sr.: de- Contributions, amount, date, and donee: Entwistle (Daughter): None; Jeffrey W.S. ceased; Ethel J. Ryan: deceased; Irvin A. 1. Self: 0. Entwistle (Son): None. Sims: deceased; Dorothy H. Sims: deceased. 2. Spouse: N/A. 4. Parents: Barbara G. Entwistle (Mother): 6. Brothers and Spouses: n/a. 3. Children and Spouses: N/A. none; Oliver H. Entwistle, Jr. (Father)—de- 7. Sister and Spouse: Anne R. Wood: none; 4. Parents: Raymond Connelly: 0; Cath- ceased. Robert E. Wood: $25.00, July 2008, Republican erine Connelly (deceased). 5. Grandparents: Geraldine Gaskill—de- Nat’l Committee (RNC); $25.00, Sept 2008, 5. Grandparents: John Connelly (deceased); ceased; Loren B. Gaskill—deceased; Emily G. RNC; $50.00, 2008, Harry Taylor for Congress Edna Walsh Connelly (deceased); Thomas Entwistle—deceased; Oliver H. Entwistle— (defeated) (Democrat, NC). McCann (deceased); Mary McCafferty deceased. McCann (deceased). 6. Brothers and Spouses: Steven D. *Michael S. Owen, of Virginia, a Career 6. Brothers and Spouses: N/A. Entwistle: none; Sharon B. Entwistle: none. Member of the Senior Foreign Service, Class

VerDate Mar 15 2010 05:56 Aug 04, 2010 Jkt 089060 PO 00000 Frm 00053 Fmt 4637 Sfmt 0634 E:\CR\FM\A03AU6.035 S03AUPT1 smartinez on DSKB9S0YB1PROD with SENATE S6650 CONGRESSIONAL RECORD — SENATE August 3, 2010 of Counselor, to be Ambassador Extraor- * Alejandro Daniel Wolff, of California, a eign Service, Class of Career Minister, to be dinary and Plenipotentiary of the United Career Member of the Senior Foreign Serv- Ambassador Extraordinary and Pleni- States of America to the Republic of Sierra ice, Class of Minister-Counselor, to be Am- potentiary of the United States of America Leone. bassador Extraordinary and Plenipotentiary to Jamaica. Nominee: Michael S. Owen. of the United States of America to the Re- Nominee: Pamela E. Bridgewater Awkard. Post: Freetown. public of Chile. Post: Jamaica. (The following is a list of all members of Nominee: Alejandro Wolff. (The following is a list of all members of my immediate family and their spouses. I Post: Chile. my immediate family and their spouses. I have asked each of these persons to inform (The following is a list of all members of have asked each of these persons to inform me of the pertinent contributions made by my immediate family and their spouses. I me of the pertinent contributions made by them. To the best of my knowledge, the in- have asked each of these persons to inform them. To the best of my knowledge, the information contained in this report is com- me of the pertinent contributions made by formation contained in this report is complete and accurate.) them. To the best of my knowledge, the in- plete and accurate.) Contributions, amount, date, and donee: formation contained in this report is com- Contributions, amount, date, and donee: 1. Self: $150, 10/2008, DSCC. plete and accurate.) 1. Self: $300, 2008, Barack H. Obama. 2. Spouse: None. Contributions, amount, date, donee: 2. Spouse: Alfred Russell Awkard: $350, 3. Children and Spouses: None. 1. Self: none. 2004, Anne Northup. 4. Parents: None. 2. Spouse: Alexandra Wolff, none. 3. Children and Spouses: n/a. 5. Grandparents: None. 3. Children and Spouses: Philip Wolff, none; 4. Parents: Mary H. Bridgewater (de- 6. Brothers and Spouses: None. Michael Wolff, none. ceased): $100, 2008, Barack H. Obama; Joseph 7. Sisters and Spouses: None. 4. Parents: Gerard and Toni Wolff, none. N. Bridgewater (Deceased): none. 5. Grandparents: N/A. 5. Grandparents: Blanche A. Hester (de- 6. Brothers and Spouses: Richard and *Robert Porter Jackson, of Virginia, a Ca- ceased): none; B.H. Hester (deceased): none; Susan Wolff, none;; Claudio and Sarah Wolff, reer Member of the Senior Foreign Service, Ethel Bridgewater (deceased): none. none. Class of Minister-Counselor, to be Ambas- 6. Brothers and Spouses: none. 7. Sisters and Spouses: N/A. sador Extraordinary and Plenipotentiary of 7. Sisters and Spouses: none. the United States of America to the Republic * Scot Alan Marciel, of California, a Career of Cameroon. *Michele Thoren Bond, of the District of Member of the Senior Foreign Service, Class Columbia, a Career Member of the Senior Nominee: Robert Porter Jackson. of Minister-Counselor, to be Ambassador Ex- Post: Ambassador to Cameroon. Foreign Service, Class of Minister-Counselor, traordinary and Plenipotentiary of the to be Ambassador Extraordinary and Pleni- The following is a list of all members of United States of America to the Republic of my immediate family and their spouses. I potentiary of the United States of America Indonesia. to the Kingdom of Lesotho. have asked each of these persons to inform Nominee: Scot Alan Marciel. me of the pertinent contributions made by Nominee: Michele Thoren Bond. Post: Jakarta. Post: Lesotho. them. To the best of my knowledge, the in- (The following is a list of all members of formation contained in this report is com- (The following is a list of all members of my immediate family and their spouses. I my immediate family and their spouses. I plete and accurate. have asked each of these persons to inform Contributions, amount, date, and donee: have asked each of these persons to inform me of the pertinent contributions made by me of the pertinent contributions made by 1. Self: None. them. To the best of my knowledge, the in- 2. Spouse: None. them. To the best of my knowledge, the information contained in this report is com- formation contained in this report is com- 3. Children and Spouses: N/A. plete and accurate.) 4. Parents: Francis Marion Jackson, Jr.: plete and accurate.) Contributions, amount, date, donee: Contributions, amount, date, and donee: Deceased. Barbara Buchanan Jackson: None. 1. Self: $50, 2008, Obama. 1. Self: 0. 5. Grandparents: Arthur Perry Buchanan: 2. Spouse: none. 2. Spouse: Clifford G. Bond: 0. Deceased. A. Vaughn Porter Buchanan: De- 3. Children and Spouses: Lauren Marciel, 3. Children: Robert C. Bond, Elisabeth W. ceased. none; Natalie Marciel, none. 6. Brothers and Spouses: 4. Parents: Ronald Marciel, none; Grace Bond, Lillian C. Bond, Matthew M. Bond: 0. 4. Parents (Deceased): 0. Francis M. Jackson Ill, Brother: $2,300, 09/ Marciel (stepmom), none. 5. Grandparents (Deceased): 0. 09/2008, To Thomas H. Allen (D) for Senate; 5. Grandparents: Steven Marciel, deceased; 6. Brothers and Spouses: Peter and Lisa $2,000, 11/04/2008, To Barack ‘‘Obama for Louise Lundy, deceased. Thoren: $2,400, 2010, Gillibrand for Senate; America’’; $200, 7/25/2009, To Democratic Na- 6. Brothers and Spouses: Michael Marciel, $250, 2010, Blumenthal for Connecticut; $250, tional Committee. none; Deborah Marciel, none. 2009, Evan Bayh Committee; $1,000, 2008, Ellen M. R. Jackson, Sister-in-law: $2,300, 7. Sisters and Spouses: Rhonda Donhowe, Lyondell Chemical Co. PAC; $2,500, 2007, All 09/09/2008, To Thomas H. Allen (D) for Senate; none. America PAC (Evan Bayh); $2,500, 2006, All $2,000, 11/04/2008, To Barack ‘‘Obama for America PAC (Evan Bayh). Stephen and America’’. *Terence Patrick McCulley, of Oregon, a Kristiina Thoren: 0. 7. Sisters and Spouses: Career Member of the Senior Foreign Serv- Nancy Vaughan: Jackson Gronbeck, De- ice, Class of Minister-Counselor, to be Am- *Paul W. Jones, of New York, a Career ceased. bassador Extraordinary and Plenipotentiary Member of the Senior Foreign Service, Class David Gronbeck, Brother-in-law: None. of the United States of America to the Fed- eral Republic of Nigeria. of Minister-Counselor, to be Ambassador Ex- traordinary and Plenipotentiary of the * James Franklin Jeffrey, of Virginia, a Ca- Nominee: Terence P. McCulley. United States of America to Malaysia. reer Member of the Senior Foreign Service, Post: Nigeria. (The following is a list of all members of Nominee: Paul Wayne Jones. Class of Career Minister, to be Ambassador my immediate family and their spouses. I Post: Malaysia. Extraordinary and Plenipotentiary of the have asked each of these persons to inform (The following is a list of all members of United States of America to the Republic of me of the pertinent contributions made by my immediate family and their spouses. I Iraq. have asked each of these persons to inform Nominee: James Franklin Jeffrey. them. To the best of my knowledge, the information contained in this report is com- me of the pertinent contributions made by Post: Baghdad. them. To the best of my knowledge, the in- (The following is a list of all members of plete and accurate.) Contributions, amount, date, and donee: formation contained in this report is com- my immediate family and their spouses. I 1. Self: none. plete and accurate.) have asked each of these persons to inform 2. Spouse: none. Contributions, amount, date, and donee: me of the pertinent contributions made by 3. Children and Spouses: Sean P. McCulley 1. Self: none. them. To the best of my knowledge, the in- (17): none. Liam T. McCulley (13): none. 2. Spouse: Catherine C.G. Jones: none. formation contained in this report is com- 4. Parents: William M. McCulley (deceased, 3. Children and Spouses: Aleksandra Jones: plete and accurate.) 2007): none; Doris J. McCulley: none. none. Hale Jones: none. Contributions, amount, date, and donee: 5. Grandparents: Roy Millage (deceased, 4. Parents: Evelyn Jones: none. John 1. Self: None. 1961): none; Grace Millage Smith (deceased Jones, deceased. 2. Spouse: None. 1997): none; Elzie McCulley (deceased 1985): 5. Grandparents: Paul Jones, deceased. 3. Children and Spouses: Julia S. Jeffrey, none; Jessie McCulley (deceased 1990): none. Gladys Jones, deceased. John Hale-White, de- none; Jahn F. Jeffrey, none. 6. Brothers and Spouses: Larry A. ceased. Hetty Hale-White, deceased. 4. Parents: Herbert F. Jeffrey, deceased; McCulley: none; Karen McCulley (sister-in- 6. Brothers and Spouses: none. Helen G. Jeffrey, deceased. law): none; Stephen W. McCulley: none; 7. Sisters and Spouses: Catherine Johnsen: 5. Grandparents: Herbert Jeffrey, deceased; Christine McCulley (sister-in-law): none. none. Sigurd Johnsen: none. Margaret Jones: Grace Jeffrey, deceased; Margaret O’Neill, 7. Sisters and Spouses: None. none. deceased; Joseph O’Neill, deceased. 6. Brothers and Spouses: Edward Jeffrey, *Pamela E. Bridgewater Awkard, of Vir- *Phyllis Marie Powers, of Virginia, a Ca- none; Linda Jeffrey, none. ginia, a Career Member of the Senior For- reer Member of the Senior Foreign Service,

VerDate Mar 15 2010 05:38 Aug 04, 2010 Jkt 089060 PO 00000 Frm 00054 Fmt 4637 Sfmt 0634 E:\CR\FM\A03AU6.038 S03AUPT1 smartinez on DSKB9S0YB1PROD with SENATE August 3, 2010 CONGRESSIONAL RECORD — SENATE S6651 Class of Minister-Counselor, to be Ambas- respond to requests to appear and tes- and psoriatic arthritis, expand psori- sador Extraordinary and Plenipotentiary of tify before any duly constituted com- asis and psoriatic arthritis data collec- the United States of America to the Republic mittee of the Senate. tion, and study access to and quality of of Panama. care for people with psoriasis and pso- Nominee: Phyllis Marie Powers. f riatic arthritis, and for other purposes. Post: Panama. INTRODUCTION OF BILLS AND (The following is a list of all members of S. 987 JOINT RESOLUTIONS my immediate family and their spouses. I At the request of Mr. DURBIN, the have asked each of these persons to inform The following bills and joint resolu- name of the Senator from Georgia (Mr. me of the pertinent contributions made by tions were introduced, read the first ISAKSON) was added as a cosponsor of S. them. To the best of my knowledge, the in- and second times by unanimous con- 987, a bill to protect girls in developing formation contained in this report is com- sent, and referred as indicated: plete and accurate.) countries through the prevention of Contributions, amount, date, and donee: By Mr. BENNET: child marriage, and for other purposes. 1. Self: No contributions. S. 3690. A bill to provide for additional S. 1183 quality control of drugs; to the Committee 2. Spouse: None. At the request of Mr. DURBIN, the on Health, Education, Labor, and Pensions. 3. Children and Spouses: None. name of the Senator from New Mexico 4. Parents: Deceased. By Mr. WEBB: (Mr. BINGAMAN) was added as a cospon- 5. Grandparents: Deceased. S. 3691. A bill to establish rules to assist 6. Brothers and Spouses: None. consumers to compare airfares and other sor of S. 1183, a bill to authorize the 7. Sisters and Spouses: Pamela and Donald costs applicable to tickets for air transpor- Secretary of Agriculture to provide as- Curley, $200, August 2008, Brett Green, Cam- tation, to amend the Internal Revenue Code sistance to the Government of Haiti to paign for District Judge in Wilkesboro, NC; of 1986 to provide that fees charged for carry- end within 5 years the deforestation in Patricia and Charles Miller, No contribu- on and checked baggage on passenger air- Haiti and restore within 30 years the tions. craft are subject to the excise tax imposed extent of tropical forest cover in exist- on transportation of persons by air, and for other purposes; to the Committee on Fi- ence in Haiti in 1990, and for other pur- *Francis Joseph Ricciardone, Jr., of Massa- poses. chusetts, a Career Member of the Senior For- nance. eign Service, Class of Career Minister, to be By Mrs. LINCOLN (for herself and Mr. S. 1553 Ambassador Extraordinary and Pleni- CRAPO): At the request of Mr. GRASSLEY, the potentiary of the United States of America S. 3692. A bill to amend the Internal Rev- name of the Senator from West Vir- enue Code of 1986 to permanently extend the to the Republic of Turkey. ginia (Mr. GOODWIN) was added as a co- Nominee: Francis Joseph Ricciardone, Jr., deductibility of mortgage insurance pre- miums; to the Committee on Finance. sponsor of S. 1553, a bill to require the Post: Ankara. Secretary of the Treasury to mint (The following is a list of all members of By Mr. GRASSLEY: my immediate family and their spouses. I S. 3693. A bill to provide funding for the coins in commemoration of the Na- have asked each of these persons to inform settlement of lawsuits against the Federal tional Future Farmers of America Or- me of the pertinent contributions made by Government for discrimination against ganization and the 85th anniversary of them. To the best of my knowledge, the in- Black Farmers; to the Committee on Agri- the founding of the National Future formation contained in this report is com- culture, Nutrition, and Forestry. Farmers of America Organization. By Ms. CANTWELL (for herself, Ms. plete and accurate.) S. 1703 Contributions, amount, date, and donee: COLLINS, and Mr. SANDERS): 1. Self: None. S. 3694. A bill to prohibit the conducting of At the request of Mr. DORGAN, the 2. Spouse: None. invasive research on great apes, and for name of the Senator from Florida (Mr. 3. Children and Spouses: Francesca Mara other purposes; to the Committee on Envi- LEMIEUX) was added as a cosponsor of Ricciardone and Micah White: None. Chiara ronment and Public Works. S. 1703, a bill to amend the Act of June Teresa Ricciardone: None. By Mr. MENENDEZ (for himself, Mrs. 18, 1934, to reaffirm the authority of 4. Parents: Francis J. Ricciardone, Sr.: GILLIBRAND, and Mr. LAUTENBERG): the Secretary of the Interior to take S. 3695. A bill to fight criminal gangs; to $100, 2008, Republican National Committee. land into trust for Indian tribes. (Mother deceased). the Committee on Finance. 5. Grandparents: Deceased. By Mr. CASEY: S. 3036 6. Brothers and Spouses: Michael and Eliz- S. 3696. A bill to amend the Fair Labor At the request of Mr. BAYH, the name abeth Ricciardone: None. James and Lisa Standards Act with regard to certain exemp- of the Senator from New Hampshire Ricciardone: None. David and Beverly tions under that Act for direct care workers (Mrs. SHAHEEN) was added as a cospon- Ricciardone: None. and to improve the systems for the collec- sor of S. 3036, a bill to establish the Of- 7. Sisters and Spouses: Theresa tion and reporting of data relating to the direct care workforce, and for other purposes; fice of the National Alzheimer’s Ricciardone and Peter Thayer: None. Mar- Project. guerite Ricciardone and David R. Stone: $100, to the Committee on Health, Education, 2/2010, Ellen Gibbs (D), Selectman, Wellesley, Labor, and Pensions. S. 3211 MA. By Mr. DEMINT: At the request of Mrs. SHAHEEN, the Mr. KERRY. Mr. President, for the S.J. Res. 38. A joint resolution proposing a name of the Senator from Minnesota balanced budget amendment to the Constitu- Committee on Foreign Relations I re- (Ms. KLOBUCHAR) was added as a co- tion of the United States; read the first time. port favorably the following nomina- sponsor of S. 3211, a bill to amend title tion lists which were printed in the f XVIII of the Social Security Act to im- RECORDS on the dates indicated, and SUBMISSION OF CONCURRENT AND prove access to diabetes self-manage- ask unanimous consent, to save the ex- SENATE RESOLUTIONS ment training by designating certain pense of reprinting on the Executive certified diabetes educators as certified The following concurrent resolutions Calendar that these nominations lie at providers for purposes of outpatient di- and Senate resolutions were read, and the Secretary’s desk for the informa- abetes self-management training serv- referred (or acted upon), as indicated: tion of Senators. ices under part B of the Medicare Pro- The PRESIDING OFFICER. Without By Mr. NELSON of Nebraska (for him- gram. self and Mr. INHOFE): objection, it is so ordered. S. Res. 605. A resolution designating Sep- S. 3381 * Foreign Service nominations beginning tember 13, 2010, as ‘‘National Celiac Disease At the request of Mr. BAUCUS, the with Karen S. Sliter and ending with Elia P. Awareness Day’’; considered and agreed to. name of the Senator from Wyoming Vanechanos, which nominations were re- f (Mr. BARRASSO) was added as a cospon- ceived by the Senate and appeared in the sor of S. 3381, a bill to amend the Clean Congressional Record on June 28, 2010. ADDITIONAL COSPONSORS Air Act to modify certain definitions of * Foreign Service nominations beginning with James K. Chambers and ending with S. 571 the term ‘‘renewable biomass’’, and for Cameron Munter, which nominations were At the request of Mr. MENENDEZ, the other purposes. received by the Senate and appeared in the name of the Senator from North Caro- S. 3397 Congressional Record on June 28, 2010. lina (Mrs. HAGAN) was added as a co- At the request of Ms. KLOBUCHAR, the * Nomination was reported with rec- sponsor of S. 571, a bill to strengthen name of the Senator from Illinois (Mr. ommendation that it be confirmed sub- the Nation’s research efforts to iden- DURBIN) was added as a cosponsor of S. ject to the nominee’s commitment to tify the causes and cure of psoriasis 3397, a bill to amend the Controlled

VerDate Mar 15 2010 05:38 Aug 04, 2010 Jkt 089060 PO 00000 Frm 00055 Fmt 4637 Sfmt 0634 E:\CR\FM\A03AU6.060 S03AUPT1 smartinez on DSKB9S0YB1PROD with SENATE S6652 CONGRESSIONAL RECORD — SENATE August 3, 2010 Substances Act to provide for take- S. 3578 crats from seniors’ personal health de- back disposal of controlled substances At the request of Mr. JOHANNS, the cisions by repealing the Independent in certain instances, and for other pur- names of the Senator from Georgia Payment Advisory Board. poses. (Mr. CHAMBLISS) and the Senator from S. 3654 S. 3402 Tennessee (Mr. ALEXANDER) were added At the request of Mr. LEAHY, the At the request of Mr. LEMIEUX, the as cosponsors of S. 3578, a bill to repeal name of the Senator from Arkansas name of the Senator from Tennessee the expansion of information reporting (Mrs. LINCOLN) was added as a cospon- (Mr. ALEXANDER) was added as a co- requirements for payments of $600 or sor of S. 3654, a bill to amend title 11 of sponsor of S. 3402, a bill to encourage more to corporations, and for other the United States Code to include fire- residential use of renewable energy purposes. arms in the types of property allowable systems by minimizing upfront costs S. 3581 under the alternative provision for ex- empting property from the estate. and providing immediate utility cost At the request of Mr. LUGAR, the savings to consumers through leasing name of the Senator from Virginia (Mr. S. 3667 of such systems to homeowners, and WEBB) was added as a cosponsor of S. At the request of Mr. KERRY, the for other purposes. 3581, a bill to implement certain de- name of the Senator from Ohio (Mr. BROWN) was added as a cosponsor of S. S. 3447 fense trade treaties. 3667, a bill to amend part A of title IV At the request of Mr. AKAKA, the S. 3585 of the Social Security Act to exclude name of the Senator from Washington At the request of Mr. UDALL of Colo- child care from the determination of (Mrs. MURRAY) was added as a cospon- rado, the name of the Senator from the 5-year limit on assistance under sor of S. 3447, a bill to amend title 38, New Mexico (Mr. UDALL) was added as the temporary assistance to needy fam- United States Code, to improve edu- a cosponsor of S. 3585, a bill to amend ilies program, and for other purposes. cational assistance for veterans who title 10, United States Code, to reform S. RES. 519 served in the Armed Forces after Sep- Department of Defense energy policy, At the request of Mr. DEMINT, the tember 11, 2001, and for other purposes. and for other purposes. name of the Senator from Utah (Mr. S. 3466 S. 3622 HATCH) was added as a cosponsor of S. At the request of Mr. LEAHY, the At the request of Mr. JOHANNS, the Res. 519, a resolution expressing the name of the Senator from Rhode Island name of the Senator from Idaho (Mr. sense of the Senate that the primary (Mr. REED) was added as a cosponsor of CRAPO) was added as a cosponsor of S. safeguard for the well-being and pro- S. 3466, a bill to require restitution for 3622, a bill to require the Adminis- tection of children is the family, and victims of criminal violations of the trator of the Environmental Protection that the primary safeguards for the Federal Water Pollution Control Act, Agency to finalize a proposed rule to legal rights of children in the United and for other purposes. amend the spill prevention, control, States are the Constitutions of the S. 3486 and countermeasure rule to tailor and United States and the several States, and that, because the use of inter- At the request of Mr. BROWN of Ohio, streamline the requirements for the the name of the Senator from Illinois dairy industry, and for other purposes. national treaties to govern policy in the United States on families and chil- (Mr. BURRIS) was added as a cosponsor S. 3624 dren is contrary to principles of self- of S. 3486, a bill to amend title 38, At the request of Mr. DEMINT, the government and federalism, and that, United States Code, to repeal the pro- names of the Senator from Kansas (Mr. because the United Nations Convention hibition on collective bargaining with BROWNBACK) and the Senator from on the Rights of the Child undermines respect to matters and questions re- North Carolina (Mr. BURR) were added traditional principles of law in the garding compensation of employees of as cosponsors of S. 3624, a bill to en- United States regarding parents and the Department of Veterans Affairs courage continued investment and in- children, the President should not other than rates of basic pay, and for novation in communications networks transmit the Convention to the Senate other purposes. by establishing a new, competition for its advice and consent. analysis-based regulatory framework S. 3510 AMENDMENT NO. 4531 for the Federal Communications Com- At the request of Mr. CONRAD, the At the request of Mr. JOHANNS, the names of the Senator from North Caro- mission. name of the Senator from South Da- lina (Mrs. HAGAN) and the Senator S. 3643 kota (Mr. THUNE) was added as a co- from Maine (Ms. SNOWE) were added as At the request of Mr. JOHANNS, his sponsor of amendment No. 4531 in- cosponsors of S. 3510, a bill to amend name was added as a cosponsor of S. tended to be proposed to H.R. 5297, an the Internal Revenue Code of 1986 to 3643, a bill to amend the Outer Conti- act to create the Small Business Lend- permanently extend the 15-year recov- nental Shelf Lands Act to reform the ing Fund Program to direct the Sec- ery period for qualified leasehold im- management of energy and mineral re- retary of the Treasury to make capital provement property, qualified res- sources on the Outer Continental Shelf, investments in eligible institutions in taurant property, and qualified retail to improve oil spill compensation, to order to increase the availability of improvement property. terminate the moratorium on deep- credit for small businesses, to amend S. 3517 water drilling, and for other purposes. the Internal Revenue Code of 1986 to At the request of Mr. AKAKA, the S. 3645 provide tax incentives for small busi- name of the Senator from Washington At the request of Mrs. MURRAY, the ness job creation, and for other pur- (Mrs. MURRAY) was added as a cospon- name of the Senator from Minnesota poses. sor of S. 3517, a bill to amend title 38, (Mr. FRANKEN) was added as a cospon- f United States Code, to improve the sor of S. 3645, a bill to direct the Sec- STATEMENTS ON INTRODUCED processing of claims for disability com- retary of Education to establish and BILLS AND JOINT RESOLUTIONS pensation filed with the Department of administer an awards program recog- By Ms. CANTWELL (for herself, Veterans Affairs, and for other pur- nizing excellence exhibited by public Ms. COLLINS, and Mr. SANDERS): poses. school system employees providing S. 3694. A bill to prohibit the con- S. 3572 services to students in pre-kinder- ducting of invasive research on great At the request of Mrs. LINCOLN, the garten through higher education. apes, and for other purposes; to the name of the Senator from Washington S. 3653 Committee on Environment and Public (Mrs. MURRAY) was added as a cospon- At the request of Mr. CORNYN, the Works. sor of S. 3572, a bill to require the Sec- names of the Senator from Oklahoma Ms. CANTWELL. Mr. President, I retary of the Treasury to mint coins in (Mr. INHOFE), the Senator from Wyo- rise today to introduce legislation to commemoration of the 225th anniver- ming (Mr. BARRASSO) and the Senator end the use of Great Apes in invasive sary of the establishment of the Na- from Georgia (Mr. ISAKSON) were added research and urge my Senate col- tion’s first law enforcement agency, as cosponsors of S. 3653, a bill to re- leagues to support the Great Ape Pro- the United States Marshals Service. move unelected, unaccountable bureau- tection Act.

VerDate Mar 15 2010 05:38 Aug 04, 2010 Jkt 089060 PO 00000 Frm 00056 Fmt 4637 Sfmt 0634 E:\CR\FM\A03AU6.033 S03AUPT1 smartinez on DSKB9S0YB1PROD with SENATE August 3, 2010 CONGRESSIONAL RECORD — SENATE S6653 The Great Ape Protection Act would mans underscore how chimpanzees suf- search over a three-year period, require prohibit invasive research on all Great fer intensely under laboratory condi- permanent retirement to suitable sanc- Apes, including chimpanzees—the only tions. tuaries for the 500 federally-owned Great Ape used in invasive research Their psychological suffering in lab- chimpanzees currently being today. The bill would require the re- oratories produces human-like symp- warehoused in research laboratories, tirement of 500 federally-owned chim- toms of stress, depression and post- and codifies the current administrative panzees to appropriate sanctuaries. traumatic stress disorder after decades ban on breeding of Government-owned Today about 1,000 chimpanzees—half of living in isolation in small cages. and supported chimpanzees. of them federally owned—languish at Given their social nature and capac- We have been delaying this action for great taxpayer expense in 6 research ity for suffering and boredom due to too long. It is time to get this done and laboratories across the nation. lack of stimulation, the 500 privately- end this type of harmful research and These chimpanzees are being held or owned chimpanzees and 500 federally- end this wasteful Government spend- used for invasive biomedical research, owned chimpanzees being held in re- ing. research that may cause death, bodily search laboratories would be signifi- injury, pain, distress, fear, and trauma. cantly better off in sanctuaries. And by By Mr. CASEY: Invasive research practices include doing so we would save more than $170 S. 3696. A bill to amend the Fair techniques such as injecting a chim- million taxpayer dollars throughout Labor Standards Act with regard to panzee with a drug that would be detri- the chimpanzees’ lifetimes. This is be- certain exemptions under that Act for mental to its health, infecting a chimp cause the cost of caring for a chim- direct care workers and to improve the with a disease, cutting a chimp or re- panzee in a sanctuary is a fraction of systems for the collection and report- moving body parts, and isolation or so- the cost of their housing and mainte- ing of data relating to the direct care cial deprivation. nance in a laboratory. And many in the workforce, and for other purposes; to The vast majority of these animals— scientific community believe this the Committee on Health, Education, between 80 and 90 percent—aren’t actu- money could be allocated to more ef- Labor, and Pensions. ally being used in research, but instead fective research. Mr. CASEY. Mr. President, today I are warehoused, simply wasting away In my home State of Washington, I am introducing the Direct Care Work- in these facilities. For example, ap- am proud that we have Chimpanzee force Empowerment Act. proximately half of the government- Sanctuary Northwest. Chimpanzee- Next year the baby boom generation owned chimpanzees have been held for Sanctuary Northwest provides sustain- will start turning 65 and by 2030, all 78 the past 9 years in a facility in New able sanctuary for seven chimpanzees million will have reached that age. We Mexico where no research is being con- retired in 2008 from decades in research must ensure this generation that ducted. facilities. fought in our wars, worked in our fac- Some chimpanzees have been in labs The United States is currently be- tories, taught our children and who for more than 50 years, confined in hind the rest of the world in outlawing gave us life and love are cared for. This steel cages for most of their lives and this sad practice. will require an investment in the enduring sometimes painful and dis- Australia, Austria, Belgium, Japan, health care workforce that was begun tressing experimental procedures. the Netherlands, New Zealand, Sweden, under health care reform and must The fact that the vast majority of and the United Kingdom have all continue into the coming decades. federally-owned chimpanzees are not banned or severely limited experiments It is the direct care worker that pro- being used in active research, but in- on Great Apes. And several other coun- vides most of this care to our loved stead are warehoused in labs at the tries and the European Union are con- ones. Unfortunately, they are often not taxpayer expense, underlines the futil- sidering similar bans as well. given the respect they deserve for the ity of their continued confinement. We are the only country—besides work they do. Direct care workers help Chimpanzees are poor research mod- Gabon in West Africa—that is still more than 250,000 Pennsylvanians and els for human illness, and they have holding or using chimpanzees for their families every day. This is also been of limited use in the study of invasive research. It’s past time for the one of the fastest growing professions, human disease. Despite how similar United States to catch up with the rest according to the Bureau of Labor Sta- they are to us, significant differences of the world by ending this antiquated tistics. It is now our responsibility to in their immunology and disease pro- use of this endangered species. make sure these jobs, while often per- gression make them ineffective models We are lagging behind in action, but sonally rewarding, provide opportunity for human diseases like HIV, cancer the desire to end invasive research on for advancement and economic sta- and heart disease research. Great Apes has been present for more bility for the workers. For example, research published in than a decade. In 1997, the National Re- This bill will do three key things. the Journal of Medical Primatology in search Council concluded that there The bill will ensure that home care 2009 on Hepatitis C indicates that use should be a moratorium on further workers receive the Federal minimum of chimpanzees has produced poor re- chimpanzee breeding. And the National wage and overtime protections of the sults. And the National Center for Re- Institutes of Health, NIH, has already Fair Labor Standards Act; improve search Resources under the National announced an end to funding for the Federal and State data collection and Institutes of Health has prohibited breeding of federally-owned and sup- oversight with respect to the direct breeding of government-owned and supported chimpanzees for research, but care workforce; and establish a grant ported chimpanzees for research. this should be codified. program to help states improve direct Significant genetic and physiological Government needs to take action to care worker recruitment, retention, differences between nonhuman Great make invasive research on chim- and training. Apes and humans also make chimpanzees illegal. I hope my colleagues join me in sup- panzees a poor research model for That is why today I am introducing porting this important legislation. human diseases. We have spent mil- the Bipartisan Great Ape Protection f lions of dollars over several decades on Act, along with my colleagues Sen- chimpanzee-based HIV and Hepatitis C ators SUSAN COLLINS of Maine and BER- SUBMITTED RESOLUTIONS research with no resulting vaccines for NIE SANDERS of Vermont. those diseases. Chimpanzees largely The Great Ape Protection Act is a failed as a model for HIV because the common-sense policy reform to protect SENATE RESOLUTION 605—DESIG- virus does not cause illness in chim- our closest living relatives in the ani- NATING SEPTEMBER 13, 2010, AS panzees as it does to humans. mal kingdom from physical and psy- ‘‘NATIONAL CELIAC DISEASE These are very social, highly intel- chological harm, and to help reduce AWARENESS DAY’’ ligent animals—with the ability, for government spending and our federal Mr. NELSON of Nebraska (for him- example, to learn American Sign Lan- deficit. self and Mr. INHOFE) submitted the fol- guage. Their intelligence and ability to Specifically, this bill will phase out lowing resolution; which was consid- experience emotions so similar to hu- the use of chimpanzees in invasive re- ered and agreed to:

VerDate Mar 15 2010 03:35 Aug 04, 2010 Jkt 089060 PO 00000 Frm 00057 Fmt 4637 Sfmt 0634 E:\CR\FM\A03AU6.036 S03AUPT1 smartinez on DSKB9S0YB1PROD with SENATE S6654 CONGRESSIONAL RECORD — SENATE August 3, 2010 S. RES. 605 AMENDMENTS SUBMITTED AND es climate change through the inclusion of a Whereas celiac disease affects approxi- PROPOSED cap-and-trade program if the Senate has not mately 1 in every 130 people in the United considered and approved a bill addressing cli- SA 4582. Mr. KYL (for himself and Mr. mate change that included such a cap-and- States, for a total of 3,000,000 people; MCCAIN) submitted an amendment intended Whereas the majority of people with celiac trade program. to be proposed by him to the bill H.R. 5875, (b) WAIVER AND APPEAL.— disease have yet to be diagnosed; making emergency supplemental appropria- Whereas celiac disease is a chronic inflam- (1) WAIVER.—Subsection (a) may be waived tions for border security for the fiscal year or suspended in the Senate only by an af- matory disorder that is classified as both an ending September 30, 2010, and for other pur- firmative vote of 2⁄3 of the Members, duly autoimmune condition and a genetic condi- poses; which was ordered to lie on the table. chosen and sworn. tion; SA 4583. Mr. JOHANNS submitted an (2) APPEAL.—An affirmative vote of 2⁄3 of Whereas celiac disease causes damage to amendment intended to be proposed by him the Members of the Senate, duly chosen and the lining of the small intestine, which re- to the bill S. 3663, to promote clean energy sworn, shall be required to sustain an appeal sults in overall malnutrition; jobs and oil company accountability, and for of the ruling of the Chair on a point of order Whereas when a person with celiac disease other purposes; which was ordered to lie on raised under subsection (a). consumes foods that contain certain protein the table. fractions, that person suffers a cell-mediated SA 4584. Mr. REED submitted an amendment intended to be proposed to amendment SA 4584. Mr. REED submitted an immune response that damages the villi of amendment intended to be proposed to the small intestine, interfering with the ab- SA 4575 proposed by Mr. REID (for Mrs. MUR- sorption of nutrients in food and the effec- RAY (for herself , Mr. HARKIN, Mr. REID, and amendment SA 4575 proposed by Mr. tiveness of medications; Mr. SCHUMER)) to the bill H.R. 1586, to mod- REID (for Mrs. MURRAY (for herself, Mr. Whereas such problematic protein frac- ernize the air traffic control system, improve HARKIN, Mr. REID, and Mr. SCHUMER)) tions are found in wheat, barley, rye, and the safety, reliability, and availability of to the bill H.R. 1586, to modernize the oats, which are used to produce many foods, transportation by air in the United States, air traffic control system, improve the medications, and vitamins; provide for modernization of the air traffic safety, reliability, and availability of control system, reauthorize the Federal Whereas because celiac disease is a genetic Aviation Administration, and for other pur- transportation by air in the United disease, there is an increased incidence of ce- poses; which was ordered to lie on the table. States, provide for modernization of liac disease in families with a known history SA 4585. Mr. REED submitted an amend- the air traffic control system, reau- of celiac disease; ment intended to be proposed to amendment thorize the Federal Aviation Adminis- Whereas celiac disease is underdiagnosed SA 4575 proposed by Mr. REID (for Mrs. MUR- tration, and for other purposes; which because the symptoms can be attributed to RAY (for herself , Mr. HARKIN, Mr. REID, and was ordered to lie on the table; as fol- other conditions and are easily overlooked Mr. SCHUMER)) to the bill H.R. 1586, supra; lows: by doctors and patients; which was ordered to lie on the table. Whereas as recently as 2000, the average SA 4586. Mr. HARKIN (for himself, Mr. At the end, add the following: person with celiac disease waited 11 years for LUGAR, Mr. BURRIS, Mr. JOHNSON, Ms. TITLE V—ECONOMIC DEVELOPMENT a correct diagnosis; KLOBUCHAR, and Mr. GRASSLEY) submitted an ASSISTANCE Whereas 1/2 of all people with celiac dis- amendment intended to be proposed by him SEC. 501. ECONOMIC DEVELOPMENT ASSISTANCE ease do not show symptoms of the disease; to the bill S. 3663, to promote clean energy PROGRAMS. Whereas celiac disease is diagnosed by jobs and oil company accountability, and for In chapter 2 of title I of the Act entitled tests that measure the blood for abnormally other purposes; which was ordered to lie on ‘‘An Act making supplemental appropria- high levels of the antibodies of immuno- the table. tions for the fiscal year ending September 30, globulin A, anti-tissue transglutaminase, f 2010, and for other purposes’’, strike the mat- and IgA anti-endomysium antibodies; TEXT OF AMENDMENTS ter under the heading ‘‘ECONOMIC DEVELOP- Whereas celiac disease can be treated only MENT ASSISTANCE PROGRAMS’’ under the head- by implementing a diet free of wheat, barley, SA 4582. Mr. KYL (for himself and ing ‘‘ECONOMIC DEVELOPMENT ADMINISTRA- rye, and oats, often called a ‘‘gluten-free Mr. MCCAIN) submitted an amendment TION’’ under the heading ‘‘DEPARTMENT OF diet’’; intended to be proposed by him to the COMMERCE’’ and insert the following: Whereas a delay in the diagnosis of celiac bill H.R. 5875, making emergency sup- ‘‘Pursuant to section 703 of the Public disease can result in damage to the small in- plemental appropriations for border se- Works and Economic Development Act of testine, which leads to an increased risk for curity for the fiscal year ending Sep- 1965 (42 U.S.C. 3233), for an additional amount malnutrition, anemia, lymphoma, adenocar- for ‘‘ ‘Economic Development Assistance cinoma, osteoporosis, miscarriage, con- tember 30, 2010, and for other purposes; Programs’ ’’, for necessary expenses relating genital malformation, short stature, and dis- which was ordered to lie on the table; to disaster relief, long-term recovery, and orders of skin and other organs; as follows: restoration of infrastructure in areas af- Whereas celiac disease is linked to many On page 3, line 13, strike ‘‘$30,000,000’’ and fected by flooding for which the President autoimmune disorders, including thyroid all that follows through line 16 and insert declared a major disaster during the period disease, systemic lupus erythematosus, type ‘‘$50,000,000 to remain available until Sep- beginning on March 29, 2010, and ending on 1 diabetes, liver disease, collagen vascular tember 30, 2012, for law enforcement activi- May 7, 2010, which included individual assist- disease, rheumatoid arthritis, and Sjogren’s ties targeted at reducing the threat of vio- ance for an entire State or not fewer than 45 syndrome; lence along the Southwest Border of the counties within a State under title IV of the Whereas the connection between celiac dis- United States, of which $20,000,000 shall be Robert T. Stafford Disaster Relief and Emer- ease and diet was first established by Dr. made available for fiscal year 2011 for 150 ad- gency Assistance Act (42 U.S.C. 5170 et seq.), Samuel Gee, who wrote, ‘‘if the patient can ditional law enforcement specialists for $49,000,000, to remain available until ex- be cured at all, it must be by means of diet’’; work at the Law Enforcement Support Cen- pended: Provided, That not more than 50 per- Whereas Dr. Samuel Gee was born on Sep- ter (LESC), administered by U.S. Immigra- cent of the amount provided under this head- tember 13, 1839; and tion and Customs Enforcement.’’. ing shall be allocated to any State.’’. Whereas the Senate is an institution that can raise awareness in the general public and SA 4583. Mr. JOHANNS submitted an SA 4585. Mr. REED submitted an the medical community of celiac disease: amendment intended to be proposed by amendment intended to be proposed to Now, therefore, be it him to the bill S. 3663, to promote amendment SA 4575 proposed by Mr. Resolved, That the Senate— clean energy jobs and oil company ac- REID (for Mrs. MURRAY (for herself, Mr. (1) designates September 13, 2010, as ‘‘Na- countability, and for other purposes; HARKIN, Mr. REID, and Mr. SCHUMER)) tional Celiac Disease Awareness Day’’; which was ordered to lie on the table; to the bill H.R. 1586, to modernize the (2) recognizes that all people of the United as follows: air traffic control system, improve the States should become more informed and At the end, add the following: safety, reliability, and availability of aware of celiac disease; SEC. lll. POINT OF ORDER AGAINST CLIMATE transportation by air in the United (3) calls upon the people of the United CHANGE LEGISLATION. States, provide for modernization of States to observe National Celiac Disease (a) POINT OF ORDER.—Subject to subsection the air traffic control system, reau- Awareness Day with appropriate ceremonies (b), it shall not be in order in the Senate to thorize the Federal Aviation Adminis- and activities; and consider any conference report or other leg- tration, and for other purposes; which (4) respectfully requests the Secretary of islation that originates in the House of Rep- the Senate to transmit a copy of this resolu- resentatives as a message, bill, amendment, was ordered to lie on the table; as fol- tion to the Celiac Sprue Association, the or motion, or any Senate bill or related con- lows: American Celiac Society, and the Celiac Dis- ference report to which the House of Rep- On page 39, after line 21, insert the fol- ease Foundation. resentatives added a provision, that address- lowing:

VerDate Mar 15 2010 03:35 Aug 04, 2010 Jkt 089060 PO 00000 Frm 00058 Fmt 4637 Sfmt 0634 E:\CR\FM\A03AU6.042 S03AUPT1 smartinez on DSKB9S0YB1PROD with SENATE August 3, 2010 CONGRESSIONAL RECORD — SENATE S6655 Subtitle C—Community Development Funds Ms. KLOBUCHAR, and Mr. GRASSLEY) (B) providing subgrants to direct retailers SEC. 221. COMMUNITY DEVELOPMENT FUNDS. submitted an amendment intended to of ethanol fuel blends (including E–85 fuel) Chapter 11 of title I of the Supplemental be proposed by him to the bill S. 3663, for the purpose of installing fuel infrastruc- Appropriations Act, 2010, is amended by to promote clean energy jobs and oil ture for the direct retail sale of ethanol fuel blends (including E–85 fuel), including blend- striking the heading ‘‘Community Develop- company accountability, and for other ment Fund’’ and all the matter that follows er pumps and storage tanks. through the ninth proviso under such head- purposes; which was ordered to lie on (3) LIMITATION.—A major fuel distributor ing and inserting the following: the table; as follows: shall not be eligible for a grant or subgrant ‘‘COMMUNITY DEVELOPMENT FUND At the end of division B, add the following: under this subsection. ‘‘For an additional amount for the ‘Com- TITLE XXII—BIOFUELS MARKET (4) FEDERAL SHARE.—The Federal share of munity Development Fund’, for necessary EXPANSION the cost of a project carried out under this expenses related to disaster relief, long-term SEC. 2201. ENSURING THE AVAILABILITY OF subsection shall be 50 percent of the total recovery, and restoration of infrastructure, DUAL FUELED AUTOMOBILES AND cost of the project. housing, and economic revitalization in LIGHT DUTY TRUCKS. (5) REVERSION.—If an eligible facility or re- areas affected by flooding for which the (a) IN GENERAL.—Chapter 329 of title 49, tailer that receives a grant or subgrant President declared a major disaster between United States Code, is amended by inserting under this subsection does not offer ethanol March 29, 2010, and May 7, 2010, which in- after section 32902 the following: fuel blends for sale for at least 2 years during cluded Individual Assistance for an entire ‘‘§ 32902A. Requirement to manufacture dual the 4-year period beginning on the date of in- State or not fewer than 45 counties within a fueled automobiles and light duty trucks stallation of the blender pump, the eligible State under title IV of the Robert T. Staf- ‘‘(a) IN GENERAL.—For each model year facility or retailer shall be required to repay ford Disaster Relief and Emergency Assist- listed in the following table, each manufac- to the Secretary an amount determined to be ance Act of 1974, $100,000,000, to remain avail- turer shall ensure that the percentage of appropriate by the Secretary, but not more able until expended, for activities authorized automobiles and light duty trucks manufac- than the amount of the grant provided to the under title I of the Housing and Community tured by the manufacturer for sale in the eligible facility or retailer under this sub- Development Act of 1974 (Public Law 93–383): United States that are dual fueled auto- section. Provided, That funds shall be awarded di- mobiles and light duty trucks is not less (6) AUTHORIZATION OF APPROPRIATIONS.— rectly to the State or unit of general local than the percentage set forth for that model There are authorized to be appropriated to government at the discretion of the Sec- year in the following table: the Secretary to carry out this subsection, retary: Provided further, That prior to the ob- ‘‘Model Year Percentage to remain available until expended— ligation of funds a grantee shall submit a Model years 2013 and 2014 .. 50 percent (A) $50,000,000 for fiscal year 2011; plan to the Secretary detailing the proposed Model year 2015 and each (B) $100,000,000 for fiscal year 2012; use of all funds, including criteria for eligi- subsequent model year. .. 90 percent (C) $200,000,000 for fiscal year 2013; bility and how the use of these funds will ad- ‘‘(b) EXCEPTION.—Subsection (a) shall not (D) $300,000,000 for fiscal year 2014; and dress long-term recovery and restoration of apply to automobiles or light duty trucks (E) $350,000,000 for fiscal year 2015. infrastructure: Provided further, That funds that operate only on electricity.’’. (b) INSTALLATION OF BLENDER PUMPS BY provided under this heading may be used by (b) CLERICAL AMENDMENT.—The table of a State or locality as a matching require- sections for chapter 329 of title 49, United MAJOR FUEL DISTRIBUTORS AT OWNED STA- ment, share, or contribution for any other States Code, is amended by inserting after TIONS AND BRANDED STATIONS.—Section Federal program: Provided further, That such the item relating to section 32902 the fol- 211(o) of the Clean Air Act (42 U.S.C. 7545(o)) funds may not be used for activities reim- lowing: is amended by adding at the end the fol- bursable by, or for which funds are made ‘‘32902A. Requirement to manufacture dual lowing: available by, the Federal Emergency Man- fueled automobiles and light ‘‘(13) INSTALLATION OF BLENDER PUMPS BY agement Agency or the Army Corps of Engi- duty trucks.’’. MAJOR FUEL DISTRIBUTORS AT OWNED STATIONS neers: Provided further, That funds allocated (c) RULEMAKING.—Not later than 1 year AND BRANDED STATIONS.— under this heading shall not adversely affect after the date of the enactment of this Act, ‘‘(A) DEFINITIONS.—In this paragraph: the amount of any formula assistance re- the Secretary of Transportation shall pre- ‘‘(i) E–85 FUEL.—The term ‘E–85 fuel’ means ceived by a State or subdivision thereof scribe regulations to carry out the amend- a blend of gasoline approximately 85 percent under the Community Development Fund: ments made by this Act. of the content of which is ethanol. Provided further, That a State or subdivision SEC. 2202. BLENDER PUMP PROMOTION. ‘‘(ii) ETHANOL FUEL BLEND.—The term ‘eth- thereof may use up to 5 percent of its alloca- (a) BLENDER PUMP GRANT PROGRAM.— anol fuel blend’ means a blend of gasoline tion for administrative costs: Provided fur- (1) DEFINITIONS.—In this subsection: and ethanol, with a minimum of 0 percent ther, That in administering the funds under (A) BLENDER PUMP.—The term ‘‘blender and maximum of 85 percent of the content of this heading, the Secretary of Housing and pump’’ means an automotive fuel dispensing which is denatured ethanol. Urban Development may waive, or specify pump capable of dispensing at least 3 dif- ‘‘(iii) MAJOR FUEL DISTRIBUTOR.— alternative requirements for, any provision ferent blends of gasoline and ethanol, as se- ‘‘(I) IN GENERAL.—The term ‘major fuel dis- of any statute or regulation that the Sec- lected by the pump operator, including tributor’ means any person that owns a re- retary administers in connection with the blends ranging from 0 percent ethanol to 85 finery or directly markets the output of a re- obligation by the Secretary or the use by the percent denatured ethanol, as determined by finery. recipient of these funds or guarantees (ex- the Secretary. ‘‘(II) EXCLUSION.—The term ‘major fuel dis- cept for requirements related to fair housing, (B) E–85 FUEL.—The term ‘‘E–85 fuel’’ tributor’ does not include any person that nondiscrimination, labor standards, and the means a blend of gasoline approximately 85 owns or directly markets through less than environment), upon a request by a State or percent of the content of which is ethanol. 50 retail fueling stations. subdivision thereof explaining why such (C) ETHANOL FUEL BLEND.—The term ‘‘eth- ‘‘(iv) SECRETARY.—The term ‘Secretary’ waiver is required to facilitate the use of anol fuel blend’’ means a blend of gasoline means the Secretary of Energy, acting in such funds or guarantees, if the Secretary and ethanol, with a minimum of 0 percent consultation with the Administrator of the finds that such waiver would not be incon- and maximum of 85 percent of the content of Environmental Protection Agency and the sistent with the overall purpose of title I of which is denatured ethanol. Secretary of Agriculture. the Housing and Community Development (D) MAJOR FUEL DISTRIBUTOR.— ‘‘(B) REGULATIONS.—The Secretary shall Act of 1974: Provided further, That the Sec- (i) IN GENERAL.—The term ‘‘major fuel dis- promulgate regulations to ensure that each retary shall publish in the Federal Register tributor’’ means any person that owns a re- major fuel distributor that sells or intro- any waiver of any statute or regulation that finery or directly markets the output of a re- duces gasoline into commerce in the United the Secretary administers pursuant to title I finery. States through majority-owned stations or of the Housing and Community Development (ii) EXCLUSION.—The term ‘‘major fuel dis- branded stations installs or otherwise makes Act of 1974 no later than 5 days before the ef- tributor’’ does not include any person that available 1 or more blender pumps that dis- fective date of such waiver: Provided further, owns or directly markets through less than pense E–85 fuel and ethanol fuel blends (in- That the Secretary shall obligate to a State 50 retail fueling stations. cluding any other equipment necessary, such or subdivision thereof not less than 50 per- (E) SECRETARY.—The term ‘‘Secretary’’ as tanks, to ensure that the pumps function cent of the funding provided under this head- means the Secretary of Energy. properly) for a period of not less than 5 years ing within 90 days after the enactment of (2) GRANTS.—The Secretary shall make at not less than the applicable percentage of this Act: Provided further, That not more grants under this subsection to eligible fa- the majority-owned stations and the branded than 50 percent of the funding provided cilities (as determined by the Secretary) to stations of the major fuel distributor speci- under this heading shall be allocated to any pay the Federal share of— fied in subparagraph (C). State (including units of general local gov- (A) installing blender pump fuel infrastruc- ‘‘(C) APPLICABLE PERCENTAGE.—For the ernment).’’. ture, including infrastructure necessary for purpose of subparagraph (B), the applicable the direct retail sale of ethanol fuel blends percentage of the majority-owned stations SA 4586. Mr. HARKIN (for himself, (including E–85 fuel), including blender and the branded stations shall be determined Mr. LUGAR, Mr. BURRIS, Mr. JOHNSON, pumps and storage tanks; and in accordance with the following table:

VerDate Mar 15 2010 03:35 Aug 04, 2010 Jkt 089060 PO 00000 Frm 00059 Fmt 4637 Sfmt 0634 E:\CR\FM\A03AU6.049 S03AUPT1 smartinez on DSKB9S0YB1PROD with SENATE S6656 CONGRESSIONAL RECORD — SENATE August 3, 2010 ‘‘Applicable percent- 1703(b)(11) shall be in an amount equal to 80 standing the Threat of Agency Cap- age of majority- percent of the project cost of the renewable ture.’’ owned stations and fuel pipeline that is the subject of the guar- The PRESIDING OFFICER. Without branded stations antee, as estimated at the time at which the objection, it is so ordered. Calendar year: Percent: guarantee is issued.’’. SUBCOMMITTEE ON CHILDREN’S HEALTH 2013 ...... 10 (c) RENEWABLE FUEL PIPELINE ELIGI- 2015 ...... 20 BILITY.—Section 1703(b) of the Energy Policy Mrs. FEINSTEIN. Mr. President, I 2017 ...... 35 Act of 2005 (42 U.S.C. 16513(b)) is amended by ask unanimous consent that the Sub- 2019 and each calendar year adding at the end the following: committee on Children’s Health of the thereafter ...... 50. ‘‘(11) Renewable fuel pipelines.’’. Committee on Environment and Public ‘‘(D) GEOGRAPHIC DISTRIBUTION.— (d) RAPID DEPLOYMENT OF RENEWABLE FUEL ‘‘(i) IN GENERAL.—Subject to clause (ii), in Works be authorized to meet during PIPELINES.—Section 1705(a) of the Energy promulgating regulations under subpara- the session of the Senate on August 3, Policy Act of 2005 (42 U.S.C. 16516(a)) is graph (B), the Secretary shall ensure that 2010, at 10 a.m. in room 406 of the Dirk- amended by adding at the end the following: each major fuel distributor described in that ‘‘(4) Installation of sufficient infrastruc- sen Office Building. subparagraph installs or otherwise makes ture to allow for the cost-effective deploy- The PRESIDING OFFICER. Without available 1 or more blender pumps that dis- ment of clean energy technologies appro- objection, it is so ordered. pense E–85 fuel and ethanol fuel blends at priate to each region of the United States, SUBCOMMITTEE ON FEDERAL FINANCIAL MAN- not less than a minimum percentage (speci- including the deployment of renewable fuel AGEMENT, GOVERNMENT INFORMATION, FED- fied in the regulations) of the majority- pipelines through loan guarantees in an ERAL SERVICES, AND INTERNATIONAL SECU- owned stations and the branded stations of amount equal to 80 percent of the cost.’’. RITY the major fuel distributors in each State. Mrs. FEINSTEIN. Mr. President, I ‘‘(ii) REQUIREMENT.—In specifying the min- f imum percentage under clause (i), the Sec- ask unanimous consent that the Com- AUTHORITY FOR COMMITTEES TO mittee on Homeland Security and Gov- retary shall ensure that each major fuel dis- MEET tributor installs or otherwise makes avail- ernmental Affairs’ Subcommittee on able 1 or more blender pumps described in COMMITTEE ON ARMED SERVICES Federal Management, Government In- that clause in each State in which the major Mrs. FEINSTEIN. Mr. President, I formation, Federal Services, and Inter- fuel distributor operates. ask unanimous consent that the Com- national Security be authorized to ‘‘(E) FINANCIAL RESPONSIBILITY.—In pro- mittee on Armed Services be author- meet during the session of the Senate mulgating regulations under subparagraph on August 3, 2010, at 2:30 p.m. to con- (B), the Secretary shall ensure that each ized to meet during the session of the major fuel distributor described in that sub- Senate on August 3, 2010, at 9:30 a.m. duct a hearing entitled ‘‘Transforming paragraph assumes full financial responsi- The PRESIDING OFFICER. Without Government Through Innovative Tools bility for the costs of installing or otherwise objection, it is so ordered. and Technology.’’ making available the blender pumps de- COMMITTEE ON ARMED SERVICES The PRESIDING OFFICER. Without scribed in that subparagraph and any other Mrs. FEINSTEIN. Mr. President, I objection, it is so ordered. equipment necessary (including tanks) to en- f sure that the pumps function properly. ask unanimous consent that the Com- ‘‘(F) PRODUCTION CREDITS FOR EXCEEDING mittee on Armed Services be author- PRIVILEGES OF THE FLOOR BLENDER PUMPS INSTALLATION REQUIRE- ized to meet during the session of the Mr. CARDIN. Mr. President, I ask MENT.— Senate on August 3, 2010, at 2:30 p.m. unanimous consent that Amy diRusso, ‘‘(i) EARNING AND PERIOD FOR APPLYING The PRESIDING OFFICER. Without an APSA legislative fellow in my office CREDITS.—If the percentage of the majority- objection, it is so ordered. owned stations and the branded stations of a from the CIA, be accorded floor privi- COMMITTEE ON BANKING, HOUSING, AND URBAN major fuel distributor at which the major leges during the debate on Elena Kagan AFFAIRS fuel distributor installs blender pumps in a to be a Justice of the Supreme Court of particular calendar year exceeds the percent- Mrs. FEINSTEIN. Mr. President, I the United States. age required under subparagraph (C), the ask unanimous consent that the Com- The PRESIDING OFFICER. Without major fuel distributor shall earn credits mittee on Banking, Housing, and objection, it is so ordered. under this paragraph, which may be applied Urban Affairs be authorized to meet Mr. FRANKEN. Mr. President, I ask to any of the 3 consecutive calendar years during the session of the Senate on Au- unanimous consent that Doug Wilson immediately after the calendar year for gust 3, 2010, at 10 a.m. and Romy Ganschow, two fellows in which the credits are earned. The PRESIDING OFFICER. Without my office, be granted floor privileges ‘‘(ii) TRADING CREDITS.—Subject to clause (iii), a major fuel distributor that has earned objection, it is so ordered. for the duration of the debate on Gen- credits under clause (i) may sell the credits COMMITTEE ON FOREIGN RELATIONS eral Kagan’s nomination. to another major fuel distributor to enable Mrs. FEINSTEIN. Mr. President, I The PRESIDING OFFICER. Without the purchaser to meet the requirement under ask unanimous consent that the Com- objection, it is so ordered. subparagraph (C). mittee on Foreign Relations be author- Mr. LIEBERMAN. Mr. President, I ‘‘(iii) EXCEPTION.—A major fuel distributor ized to meet during the session of the ask unanimous consent that Rachel may not use credits purchased under clause Senate on August 3, 2010, at 2:15 p.m. Fleischer, Marcus Lucero, and Megan (ii) to fulfill the geographic distribution re- Fenton of Senator BINGAMAN’s office be quirement in subparagraph (D).’’. The PRESIDING OFFICER. Without objection, it is so ordered. given the privilege of the floor for this SEC. 2203. LOAN GUARANTEES FOR PROJECTS TO day, August 3, 2010. CONSTRUCT RENEWABLE FUEL SELECT COMMITTEE ON INTELLIGENCE The PRESIDING OFFICER. Without PIPELINES. Mrs. FEINSTEIN. Mr. President, I (a) DEFINITIONS.—Section 1701 of the En- objection, it is so ordered. ergy Policy Act of 2005 (42 U.S.C. 16511) is ask unanimous consent that the Select Mr. VOINOVICH. Mr. President, I ask amended by adding at the end the following: Committee on Intelligence be author- unanimous consent that three law ‘‘(6) RENEWABLE FUEL.—The term ‘renew- ized to meet during the session of the clerks with Senator CORNYN’s staff— able fuel’ has the meaning given the term in Senate on August 3, 2010, at 2:30 p.m. Amanda DeVuono, Suzanne Brangan, section 211(o)(1) of the Clean Air Act (42 The PRESIDING OFFICER. Without and Walker Hanson—be granted the U.S.C. 7545(o)(1)), except that the term in- objection, it is so ordered. cludes ethanol and biodiesel. privileges of the floor for the remain- SUBCOMMITTEE ON ADMINISTRATIVE OVERSIGHT ‘‘(7) RENEWABLE FUEL PIPELINE.—The term der of this week. AND THE COURTS ‘renewable fuel pipeline’ means a pipeline for The PRESIDING OFFICER. Without transporting renewable fuel.’’. Mrs. FEINSTEIN. Mr. President, I objection, it is so ordered. (b) AMOUNT.—Section 1702(c) of the Energy ask unanimous consent that the Com- Mr. GRASSLEY. Mr. President, I ask Policy Act of 2005 (42 U.S.C. 16512(c)) is mittee on the Judiciary, Sub- unanimous consent that Jessica Waters amended— committee on Administrative Over- and Aaron Smith of my Finance Com- (1) by striking ‘‘(c) AMOUNT.—’’ and insert- sight and the Courts, be authorized to mittee staff and Carolyn Coda and ing the following: meet during the session of the Senate Thomas Ryan of my Judiciary Com- ‘‘(c) AMOUNT.— ‘‘(1) IN GENERAL.—Unless’’; and on August 3, 2010, at 10 a.m. in room mittee staff be granted the privileges (2) by adding at the end the following: SD–226 of the Dirksen Senate Office of the floor during the 111th Congress. ‘‘(2) RENEWABLE FUEL PIPELINES.—A guar- Building, to conduct a hearing entitled The PRESIDING OFFICER. Without antee for a project described in section ‘‘Protecting the Public Interest: Under- objection, it is so ordered.

VerDate Mar 15 2010 03:35 Aug 04, 2010 Jkt 089060 PO 00000 Frm 00060 Fmt 4637 Sfmt 0634 E:\CR\FM\A03AU6.050 S03AUPT1 smartinez on DSKB9S0YB1PROD with SENATE August 3, 2010 CONGRESSIONAL RECORD — SENATE S6657 FOREIGN TRAVEL FINANCIAL REPORTS In accordance with the appropriate provisions of law, the Secretary of the Senate herewith submits the following reports for standing committees of the Senate, certain joint committees of the Congress, delegations and groups, and select and special committees of the Senate, relating to expenses incurred in the performance of authorized foreign travel:

CONSOLIDATED REPORT OF EXPENDITURE OF FUNDS FOR FOREIGN TRAVEL BY MEMBERS AND EMPLOYEES OF THE U.S. SENATE, UNDER AUTHORITY OF SEC. 22, P.L. 95–384—22 U.S.C. 1754(b), COMMITTEE ON AGRICULTURE, NUTRITION, AND FORESTRY FOR TRAVEL FROM APR. 1 TO JUNE 30, 2010

Per diem Transportation Miscellaneous Total U.S. dollar U.S. dollar U.S. dollar U.S. dollar Name and country Name of currency Foreign equivalent Foreign equivalent Foreign equivalent Foreign equivalent currency or U.S. currency or U.S. currency or U.S. currency or U.S. currency currency currency currency

Elizabeth Bina: Switzerland ...... Franc ...... 2,647.00 ...... 2,647.70 United States ...... Dollar ...... 1,129.00 ...... 1,129.00 Total ...... 2,647.00 ...... 1,129.00 ...... 3,776.70 SENATOR BLANCHE L. LINCOLN, Chairman, Committee on Agriculture, Nutrition and Forestry, July 26, 2010.

CONSOLIDATED REPORT OF EXPENDITURE OF FUNDS FOR FOREIGN TRAVEL BY MEMBERS AND EMPLOYEES OF THE U.S. SENATE, UNDER AUTHORITY OF SEC. 22, P.L. 95–384—22 U.S.C. 1754(b), COMMITTEE ON APPROPRIATIONS FOR TRAVEL FROM APR. 1, TO JUNE 30, 2010

Alycia Farrell: Germany ...... Euro ...... 1,044.00 ...... 1,044.00 Poland ...... Zloty ...... 147.00 ...... 147.00 Israel ...... Shekel ...... 1,744.00 ...... 200.00 ...... 1,944.00 United States ...... Dollar ...... 9,988.49 ...... 9,988.49 Dennis Balkham: Israel ...... Shekel ...... 1,744.00 ...... 200.00 ...... 1,944.00 United States ...... Dollar ...... 7,193.00 ...... 7,193.00 Senator Thad Cochran: Hungary ...... Forint ...... 262.00 ...... 262.00 Russia ...... Ruble ...... 483.00 ...... 207.00 ...... 690.00 Germany ...... Euro ...... 168.00 ...... 168.00 Norway ...... Krone ...... 470.00 ...... 470.00 Kay Webber: Hungary ...... Forint ...... 262.00 ...... 262.00 Russia ...... Ruble ...... 483.00 ...... 207.00 ...... 690.00 Germany ...... Euro ...... 168.00 ...... 168.00 Norway ...... Krone ...... 470.00 ...... 470.00 Senator Byron Dorgan: Hungary ...... Forint ...... 262.00 ...... 262.00 Russia ...... Ruble ...... 483.00 ...... 207.00 ...... 690.00 Germany ...... Euro ...... 168.00 ...... 168.00 Norway ...... Krone ...... 470.00 ...... 470.00 Brian Moran: Hungary ...... Forint ...... 262.00 ...... 262.00 Russia ...... Ruble ...... 483.00 ...... 207.00 ...... 690.00 Germany ...... Euro ...... 168.00 ...... 168.00 Norway ...... Krone ...... 470.00 ...... 470.00 Senator Judd Gregg: Hungary ...... Forint ...... 262.00 ...... 262.00 Russia ...... Ruble ...... 483.00 ...... 207.00 ...... 690.00 Germany ...... Euro ...... 168.00 ...... 168.00 Norway ...... Krone ...... 470.00 ...... 470.00 Paul Grove: Hungary ...... Forint ...... 262.00 ...... 262.00 Russia ...... Ruble ...... 483.00 ...... 207.00 ...... 690.00 Germany ...... Euro ...... 168.00 ...... 168.00 Norway ...... Krone ...... 470.00 ...... 470.00 Michele Wymer: Zimbabwe ...... Dollar ...... 317.00 ...... 317.00 South Africa ...... Rand ...... 1,415.00 ...... 1,415.00 Lesotho ...... Maloti ...... 179.00 ...... 179.00 United States ...... Dollar ...... 10,954.50 ...... 10,954.50 Janet Stormes: Zimbabwe ...... Dollar ...... 317.00 ...... 317.00 South Africa ...... Rand ...... 1,415.00 ...... 1,415.00 Lesotho ...... Maloti ...... 179.00 ...... 179.00 United States ...... Dollar ...... 10,954.50 ...... 35.00 ...... 10,989.50 Senator Mary Landrieu: Haiti ...... Dollar ...... 100.00 ...... 100.00 Tim Rieser: Haiti ...... Dollar ...... 257.21 ...... 794.80 ...... 45.00 ...... 1,097.01 Senator George Voinovich: Italy ...... Euro ...... 224.00 ...... 224.00 Cote d’lvoire ...... Franc ...... 161.00 ...... 161.00 Ethiopia ...... Birr ...... 153.00 ...... 153.00 Kuwait ...... Dinar ...... 159.00 ...... 159.00 Joseph Lai: Italy ...... Euro ...... 224.00 ...... 224.00 Cote d’lvoire ...... Franc ...... 161.00 ...... 161.00 Ethiopia ...... Birr ...... 153.00 ...... 153.00 Kuwait ...... Dinar ...... 159.00 ...... 159.00 Ellen Beares: Ireland ...... Euro ...... 866.00 ...... 866.00 Brussels ...... Euro ...... 700.00 ...... 700.00 Czech Republic ...... Koruna ...... 939.42 ...... 939.42 United States ...... Dollar ...... 8,201.10 ...... 8,201.10 Senator Judd Gregg: United Kingdom ...... Pound ...... 417.00 ...... 417.00 Kate Kaufer: Mexico ...... Peso ...... 190.00 ...... 190.00 Colombia ...... Peso ...... 1,080.00 ...... 1,080.00 United States ...... Dollar ...... 3,227.68 ...... 85.00 ...... 3,312.68 Total ...... 22,642.63 ...... 53,056.07 ...... 165.00 ...... 75,863.70 SENATOR DANIEL K. INOUYE, Chairman, Committee on Appropriations, July 23, 2010.

VerDate Mar 15 2010 03:35 Aug 04, 2010 Jkt 089060 PO 00000 Frm 00061 Fmt 4637 Sfmt 8634 E:\CR\FM\A03AU6.015 S03AUPT1 smartinez on DSKB9S0YB1PROD with SENATE S6658 CONGRESSIONAL RECORD — SENATE August 3, 2010 CONSOLIDATED REPORT OF EXPENDITURE OF FUNDS FOR FOREIGN TRAVEL BY MEMBERS AND EMPLOYEES OF THE U.S. SENATE, UNDER AUTHORITY OF SEC. 22, P.O. 95–384—22 U.S.C. 1756(b), COMMITTEE ON ARMED SERVICES FOR TRAVEL FROM APR. 1 TO JUNE 30, 2010

Daniel A. Lerner: United States ...... Dollar ...... 4,018.09 ...... 4,018.09 Israel ...... New Shekel ...... 1,443.00 ...... 1,443.00 Roosevelt Barfield: United States ...... Dollar ...... 7,253.30 ...... 7,253.30 Germany ...... Euro ...... 768.00 ...... 502.10 ...... 1,270.10 Djibouti ...... Franc ...... 174.00 ...... 393.00 ...... 567.00 Ethiopia ...... Birr ...... 153.00 ...... 278.18 ...... 431.18 Kenya ...... Shilling ...... 160.71 ...... 160.71 Nathan Davern: United States ...... Dollar ...... 7,253.30 ...... 7,253.30 Germany ...... Euro ...... 768.00 ...... 502.10 ...... 1,270.10 Djibouti ...... Franc ...... 174.00 ...... 393.00 ...... Ethiopia ...... Birr ...... 153.00 ...... 278.18 ...... 431.18 Kenya ...... Shilling ...... 160.71 ...... 160.71 Senator Jack Reed: United States ...... Dollar ...... 3,592.10 ...... 3,592.10 Pakistan ...... Dollar ...... 8.00 ...... 8.00 Afghanistan ...... Dollar ...... 13.00 ...... 13.00 Carolyn Chuhta: United States ...... Dollar ...... 3,592.10 ...... 3,592.10 Pakistan ...... Dollar ...... 8.00 ...... 8.00 Afghanistan ...... Dollar ...... 5.00 ...... 5.00 Senator Roland W. Burris: United States ...... Dollar ...... 7,253.30 ...... 7,253.30 Germany ...... Euro ...... 568.00 ...... 502.10 ...... 1,070.10 Djibouti ...... Franc ...... 174.00 ...... 393.00 ...... 567.00 Ethiopia ...... Birr ...... 78.00 ...... 278.18 ...... 356.18 Kenya ...... Shilling ...... 60.71 ...... 60.71 Adam J. Barker: United States ...... Dollar ...... 2,313.70 ...... 2,313.70 Honduras ...... Dollar ...... 176.00 ...... 176.00 Senator Kay R. Hagan United States ...... Dollar ...... 3,592.10 ...... 3,592.10 Pakistan ...... Dollar ...... 8.00 ...... 8.00 Afghanistan ...... Dollar ...... 8.00 ...... 8.00 Roger Pena: United States ...... Dollar ...... 3,592.10 ...... 3,592.10 Pakistan ...... Dollar ...... 8.00 ...... 8.00 Afghanistan ...... Dollar ...... 5.00 ...... 5.00 Senator Susan M. Collins: Qatar ...... Riyal ...... 328.00 ...... 328.00 Austria ...... Euro ...... 211.00 ...... 211.00 France ...... Euro ...... 228.00 ...... 228.00 United Kingdom ...... Pound ...... 194.00 ...... 194.00 Netherlands ...... Euro ...... 212.00 ...... 212.00 Robert L. Strayer II: Qatar ...... Riyal ...... 328.00 ...... 328.00 Austria ...... Euro ...... 211.00 ...... 211.00 France ...... Euro ...... 228.00 ...... 228.00 United Kingdom ...... Pound ...... 194.00 ...... 194.00 Netherlands ...... Euro ...... 212.00 ...... 212.00 Michael V. Kostiw: United States ...... Dollar ...... 4,817.69 ...... 4,817.69 Israel ...... New Shekel ...... 1,443.00 ...... 1,443.00 Germany ...... Euro ...... 2,242.00 ...... 2,242.00 Michael J. Kuiken: United States ...... Dollar ...... 2,208.00 ...... 2,208.00 Honduras ...... Limpira ...... 556.00 ...... 556.00 Senator Lindsey Graham: Qatar ...... Dollar ...... 328.00 ...... 328.00 Dana W. White: United States ...... Dollar ...... 6,705.80 ...... 6,705.80 Belgium ...... Euro ...... 468.87 ...... 468.87 Senator James M. Inhofe: Cote d’Ivoire ...... Franc ...... 25.00 ...... 25.00 Ethiopia ...... Birr ...... 94.28 ...... 94.28 Kuwait ...... Dinar ...... 7.75 ...... 7.75 Italy ...... Euro ...... 163.96 ...... 163.96 Anthony Lazarski: Cote d’Ivoire ...... Franc ...... 82.05 ...... 82.05 Ethiopia ...... Birr ...... 102.30 ...... 102.30 Kuwait ...... Dinar ...... 61.35 ...... 61.35 Italy ...... Euro ...... 123.01 ...... 100.68 ...... 223.69 Mark Powers: Cote d’Ivoire ...... Franc ...... 28.00 ...... 28.00 Ethiopia ...... Birr ...... 97.28 ...... 97.28 Kuwait ...... Dinar ...... 11.75 ...... 11.75 Italy ...... Euro ...... 162.28 ...... 162.28 Ryan Thompson: Cote d’Ivoire ...... Franc ...... 62.01 ...... 62.01 Ethiopia ...... Birr ...... 106.28 ...... 106.28 Kuwait ...... Dinar ...... 7.75 ...... 7.75 Italy ...... Euro ...... 147.28 ...... 147.28 William G.P. Monahan: Belgium ...... Euro ...... 260.00 ...... 260.00 United States ...... Dollar ...... 6,705.80 ...... 6,705.80 Senator Kay R. Hagan: China ...... Dollar ...... 509.00 ...... 509.00 Michael Harney: China ...... Dollar ...... 250.00 ...... 250.00 Senator Mark Udall: China ...... Dollar ...... 128.73 ...... 188.85 ...... 317.58 Michael Sozan: China ...... Dollar ...... 183.05 ...... 183.05 Christian D. Brose: Syria ...... Dollar ...... 723.00 ...... 723.00 Turkey ...... Dollar ...... 665.00 ...... 665.00 Total ...... 16,459.11 ...... 62,998.06 ...... 3,708.69 ...... 83,165.86 SENATOR CARL LEVIN, Chairman, Committee on Armed Services, July 15, 2010.

VerDate Mar 15 2010 03:35 Aug 04, 2010 Jkt 089060 PO 00000 Frm 00062 Fmt 4637 Sfmt 8634 E:\CR\FM\A03AU6.015 S03AUPT1 smartinez on DSKB9S0YB1PROD with SENATE August 3, 2010 CONGRESSIONAL RECORD — SENATE S6659 CONSOLIDATED REPORT OF EXPENDITURE OF FUNDS FOR FOREIGN TRAVEL BY MEMBERS AND EMPLOYEES OF THE U.S. SENATE, UNDER AUTHORITY OF SEC. 22, P.L. 95–384—22 U.S.C. 1754(b), COMMITTEE ON BANKING, HOUSING, AND URBAN AFFAIRS FOR TRAVEL FROM APR. 1 TO JUNE 30, 2010

Senator Christopher J.Dodd: Brazil ...... Real ...... 340.00 ...... 340.00 Argentina ...... Peso ...... 510.00 ...... 510.00 Chile ...... Peso ...... 174.00 ...... 174.00 United States ...... Dollar ...... 8,808.20 ...... 8,808.20 Ryan C. Drajewicz: Brazil ...... Real ...... 320.00 ...... 320.00 Argentina ...... Peso ...... 490.00 ...... 490.00 Chile ...... Peso ...... 154.00 ...... 154.00 United States ...... Dollar ...... 10,366.20 ...... 10,366.20 Joshua Blumenfeld: Brazil ...... Real ...... 290.00 ...... 290.00 Argentina ...... Peso ...... 510.00 ...... 510.00 Chile ...... Peso ...... 124.00 ...... 124.00 United States ...... Dollar ...... 9,498.51 ...... 9,498.51 Senator Christopher J. Dodd: Colombia ...... Peso ...... 362.00 ...... 362.00 Ecuador ...... Dollar ...... 179.00 ...... 179.00 Peru ...... Soles ...... 493.00 ...... 493.00 United States ...... Dollar ...... 511.70 ...... 511.70 Joshua Blumenfeld: Colombia ...... Peso ...... 292.00 ...... 292.00 Ecuador ...... Dollar ...... 179.00 ...... 179.00 Peru ...... Soles ...... 403.00 ...... 403.00 United States ...... Dollar ...... 511.70 ...... 511.70 Senator Mark Warner: Colombia ...... Peso ...... 362.00 ...... 362.00 Ecuador ...... Dollar ...... 179.00 ...... 179.00 Peru ...... Soles ...... 493.00 ...... 493.00 United States ...... Dollar ...... 511.70 ...... 511.70 Mark Brunner: Colombia ...... Peso ...... 362.00 ...... 362.00 Ecuador ...... Dollar ...... 179.00 ...... 179.00 Peru ...... Soles ...... 493.00 ...... 493.00 United States ...... Dollar ...... 511.70 ...... 511.70 Total ...... 6,888.00 ...... 30,719.71 ...... 37,607.71

SENATOR CHRISTOPHER J. DODD, Chairman, Committee on Banking, Housing, and Urban Affairs, July 14, 2010.

CONSOLIDATED REPORT OF EXPENDITURE OF FUNDS FOR FOREIGN TRAVEL BY MEMBERS AND EMPLOYEES OF THE U.S. SENATE, UNDER AUTHORITY OF SEC. 22, P.L. 95–384—22 U.S.C. 1754(b), COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION FOR TRAVEL FROM APR. 1 TO JUNE 30, 2010

Senator Tom Udall: United States ...... Dollar ...... 11,199.10 ...... 11,199.10 United Arab Emirates ...... Dirham ...... 536.00 ...... 536.00 Afghanistan ...... Afghani ...... 78.00 ...... 78.00 Pakistan ...... Rupee ...... 950.10 ...... 950.10 Michael Collins: United States ...... Dollar ...... 11,199.10 ...... 11,199.10 United Arab Emirates ...... Dirham ...... 536.00 ...... 536.00 Afghanistan ...... Afghani ...... 78.00 ...... 78.00 Pakistan ...... Rupee ...... 950.10 ...... 950.10 Bob King: United States ...... Dollar ...... 3,069.40 ...... 3,069.40 Morocco ...... Dirham ...... 1,210.00 ...... 1,210.00 Total ...... 4,338.20 ...... 25,467.60 ...... 29,805.80 SENATOR JOHN D. ROCKEFELLER IV, Chairman, Committee on Commerce, Science and Transportation, July 28, 2010.

CONSOLIDATED REPORT OF EXPENDITURE OF FUNDS FOR FOREIGN TRAVEL BY MEMBERS AND EMPLOYEES OF THE U.S. SENATE, UNDER AUTHORITY OF SEC. 22, P.L. 95–384—22 U.S.C. 1754(b), COMMITTEE ON ENERGY AND NATURAL RESOURCES FOR TRAVEL FROM APR. 1 TO JUNE 30, 2010

Senator Jeff Bingaman: United States ...... Dollar ...... 12,327.00 ...... 12,327.00 China ...... Yuan ...... 1,737.79 ...... 1,737.79 Robert M. Simon: United States ...... Dollar ...... 12,327.00 ...... 12,327.00 China ...... Yuan ...... 1,819.05 ...... 1,819.05 Tara Billingsley: United States ...... Dollar ...... 11,143.70 ...... 11,143.70 China ...... Yuan ...... 1,824.79 ...... 1,824.79 Derek Dorn: United States ...... Dollar ...... 11,257.00 ...... 11,257.00 China ...... Yuan ...... 1,840.79 ...... 1,840.79 Allen Stayman: United States ...... Dollar ...... 4,998.23 ...... 4,998.23 United States ...... Dollar ...... 223.66 ...... 223.66 Micronesia ...... Dollar ...... 579.84 ...... 579.84 Marshall Islands ...... Dollar ...... 2,187.24 ...... 2,187.24 Marshall Islands ...... Dollar ...... 517.84 ...... 517.84 Isaac Edwards: United States ...... Dollar ...... 4,998.23 ...... 4,998.23

VerDate Mar 15 2010 03:35 Aug 04, 2010 Jkt 089060 PO 00000 Frm 00063 Fmt 4637 Sfmt 8634 E:\CR\FM\A03AU6.015 S03AUPT1 smartinez on DSKB9S0YB1PROD with SENATE S6660 CONGRESSIONAL RECORD — SENATE August 3, 2010 CONSOLIDATED REPORT OF EXPENDITURE OF FUNDS FOR FOREIGN TRAVEL BY MEMBERS AND EMPLOYEES OF THE U.S. SENATE, UNDER AUTHORITY OF SEC. 22, P.L. 95–384—22 U.S.C. 1754(b), COMMITTEE ON ENERGY AND NATURAL RESOURCES FOR TRAVEL FROM APR. 1 TO JUNE 30, 2010—Continued

United States ...... Dollar ...... 223.66 ...... 223.66 Micronesia ...... Dollar ...... 10.00 ...... 10.00 Micronesia ...... Dollar ...... 544.18 ...... 544.18 Marshall Islands ...... Dollar ...... 2,198.24 ...... 2,198.24 Marshall Islands ...... Dollar ...... 458.96 ...... 458.96 Total ...... 9,770.56 ...... 61,446.64 ...... 0.00 ...... 71,217.20 SENATOR JEFF BINGAMAN, Chairman, Committee on Energy and Natural Resources, June 10, 2010.

CONSOLIDATED REPORT OF EXPENDITURE OF FUNDS FOR FOREIGN TRAVEL BY MEMBERS AND EMPLOYEES OF THE U.S. SENATE, UNDER AUTHORITY OF SEC. 22, P.L. 95–384—22 U.S.C. 1754(b), COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS FOR TRAVEL FROM APR. 1 TO JUNE 30, 2010

Lauri Hettinger: United States ...... Dollar ...... 8,236.10 ...... 8,236.10 Ireland ...... Euro ...... 766.00 ...... 766.00 Belgium ...... Euro ...... 513.50 ...... 13.85 ...... 527.35 Czech Republic ...... Crown ...... 1,223.80 ...... 325.42 ...... 1,549.22 Total ...... 2,503.30 ...... 8,575.37 ...... 11,078.67 SENATOR BARBARA BOXER, Chairman, Committee on Environment and Public Works, July 23, 2010.

Senator Max Baucus: United Arab Emirates ...... Dirham ...... 252.03 ...... 252.03 Pakistan ...... Rupee ...... 268.68 ...... 268.68 United States ...... Dollar ...... 9,637.10 ...... 9,637.10 Chelsea Thomas: United Arab Emirates ...... Dirham ...... 313.86 ...... 313.86 Pakistan ...... Rupee ...... 283.92 ...... 283.92 United States ...... Dollar ...... 9,637.10 ...... 9,637.10 Andrew Person: United Arab Emirates ...... Dirham ...... 279.03 ...... 279.03 Pakistan ...... Rupee ...... 275.06 ...... 275.06 United States ...... Dollar ...... 9,672.10 ...... 9,672.10 *Delegation Expenses: Pakistan ...... Rupee ...... 1,368.02 ...... 1,368.02 William Dauster: Israel ...... New Shekel ...... 1,758.20 ...... 1,758.20 United States ...... Dollar ...... 4,040.69 ...... 4,040.69 Rory Murphy: Israel ...... New Shekel ...... 1,501.58 ...... 1,501.58 United States ...... Dollar ...... 4,040.69 ...... 4,040.69 *Delegation Expenses: Israel ...... New Shekel ...... 288.40 ...... 288.40 Amber Cottle: Vietnam ...... Dong ...... 991.44 ...... 991.44 Singapore ...... Dollar ...... 776.07 ...... 776.07 United States ...... Dollar ...... 12,871.90 ...... 12,871.90 Michael Smart: Vietnam ...... Dong ...... 890.62 ...... 890.62 Singapore ...... Dollar ...... 772.08 ...... 772.08 United States ...... Dollar ...... 12,844.90 ...... 12,844.90 Chelsea Thomas: Vietnam ...... Dong ...... 996.17 ...... 996.17 Singapore ...... Dollar ...... 813.50 ...... 813.50 United States ...... Dollar ...... 12,156.90 ...... 12,156.90 Jeffrey Phan: Vietnam ...... Dong ...... 798.20 ...... 798.20 Singapore ...... Dollar ...... 718.77 ...... 718.77 United States ...... Dollar ...... 12,140.20 ...... 12,140.20 Nick Christiansen: Vietnam ...... Dong ...... 963.83 ...... 963.83 Singapore ...... Dollar ...... 790.47 ...... 790.47 United States ...... Dollar ...... 14,414.90 ...... 14,414.90 Jayme White: Vietnam ...... Dong ...... 870.80 ...... 870.80 Singapore ...... Dollar ...... 829.63 ...... 829.63 United States ...... Dollar ...... 12,871.90 ...... 12,871.90 Peter Kaldes: Vietnam ...... Dong ...... 862.67 ...... 862.67 Singapore ...... Dollar ...... 802.19 ...... 802.19 United States ...... Dollar ...... 6,292.90 ...... 6,292.90 Jack M. Campbell: Vietnam ...... Dong ...... 941.52 ...... 941.52 Singapore ...... Dollar ...... 887.39 ...... 887.39 United States ...... Dollar ...... 14,414.90 ...... 14,414.90 Amy Overton: Vietnam ...... Dong ...... 846.41 ...... 846.41 Singapore ...... Dollar ...... 770.92 ...... 770.92 United States ...... Dollar ...... 12,871.90 ...... 12,871.90 Christopher Campbell: Vietnam ...... Dong ...... 921.01 ...... 921.01

VerDate Mar 15 2010 03:35 Aug 04, 2010 Jkt 089060 PO 00000 Frm 00064 Fmt 4637 Sfmt 8634 E:\CR\FM\A03AU6.015 S03AUPT1 smartinez on DSKB9S0YB1PROD with SENATE August 3, 2010 CONGRESSIONAL RECORD — SENATE S6661 CONSOLIDATED REPORT OF EXPENDITURE OF FUNDS FOR FOREIGN TRAVEL BY MEMBERS AND EMPLOYEES OF THE U.S. SENATE, UNDER AUTHORITY OF SEC. 22, P.L. 95–384—22 U.S.C. 1754(b), COMMITTEE ON FINANCE FOR TRAVEL FROM APR. 1 TO JUNE 30, 2010—Continued

Singapore ...... Dollar ...... 902.42 ...... 902.42 United States ...... Dollar ...... 12,871.90 ...... 12,871.90 William Castle: Vietnam ...... Dong ...... 776.46 ...... 776.46 Singapore ...... Dollar ...... 741.80 ...... 741.80 United States ...... Dollar ...... 12,871.90 ...... 12,871.90 James Catella: Vietnam ...... Dong ...... 926.52 ...... 926.52 Singapore ...... Dollar ...... 713.71 ...... 713.71 United States ...... Dollar ...... 5,180.90 ...... 5,180.90 Staci Lancaster: Vietnam ...... Dong ...... 836.47 ...... 836.47 Singapore ...... Dollar ...... 717.53 ...... 717.53 United States ...... Dollar ...... 12,871.90 ...... 12,871.90 Michael Seyfert: Vietnam ...... Dong ...... 890.62 ...... 890.62 Singapore ...... Dollar ...... 493.25 ...... 493.25 United States ...... Dollar ...... 12,844.90 ...... 12,844.90 David Kavanaugh: Vietnam ...... Dong ...... 774.38 ...... 774.38 Singapore ...... Dollar ...... 1,060.58 ...... 1,060.58 United States ...... Dollar ...... 14,414.90 ...... 14,414.90 Travis Jordan: Vietnam ...... Dong ...... 970.00 ...... 970.00 United States ...... Dollar ...... 12,475.90 ...... 12,475.90 Andrew Siracuse: Vietnam ...... Dong ...... 913.85 ...... 913.85 Singapore ...... Dollar ...... 755.40 ...... 755.40 United States ...... Dollar ...... 14,414.90 ...... 14,414.90 Ayesha Khanna: Vietnam ...... Dong ...... 972.38 ...... 972.38 Japan ...... Yen ...... 655.89 ...... 655.89 United States ...... Dollar ...... 10,854.40 ...... 10,854.40 *Delegation Expenses: Vietnam ...... Dong ...... 2,164.57 ...... 2,164.57 *Delegation Expenses: Singapore ...... Dollar ...... 1,009.09 ...... 1,009.09 Deidra Henry-Spires: Belgium ...... Euro ...... 167.41 ...... 167.41 United States ...... Dollar ...... 1,040.70 ...... 1,040.70 Senator Debbie Stabenow: China ...... Renminbi ...... 54.83 ...... 54.83 United States ...... Dollar ...... 2,282.90 ...... 2,282.90 Peter Kaldes: China ...... Renminbi ...... 254.83 ...... 254.83 United States ...... Dollar ...... 2,282.90 ...... 2,282.90 Total ...... 34,754.38 ...... 265,489.84 ...... 1,656.42 ...... 301,900.64 SENATOR MAX BAUCUS, Chairman, Committee on Finance, July 29, 2010. * Delegation expenses include interpretation, transportation, security, embassy overtime and official functions, as well as other official expenses in accordance with the responsibilities of the host country.

CONSOLIDATED REPORT OF EXPENDITURE OF FUNDS FOR FOREIGN TRAVEL BY MEMBERS AND EMPLOYEES OF THE U.S. SENATE, UNDER AUTHORITY OF SEC. 22, P.L. 95–384—22 U.S.C. 1754(b), COMMITTEE ON FOREIGN RELATIONS FOR TRAVEL FROM APR. 1 TO JUNE 30, 2010

Senator Bob Corker: Lebanon ...... Pound ...... 10.00 ...... 10.00 Syria ...... Pound ...... 20.00 ...... 20.00 Greece ...... Euro ...... 10.00 ...... 10.00 United States ...... Dollar ...... 9,949.20 ...... 9,949.20 Senator John Kerry: Syria ...... Pound ...... 72.00 ...... 72.00 Italy ...... Euro ...... 211.00 ...... 211.00 Israel ...... Shekel ...... 249.98 ...... 249.98 United States ...... Dollar ...... 4,196.72 ...... 4,196.72 Senator Jim Webb: Korea ...... Won ...... 390.00 ...... 390.00 Thailand ...... Baht ...... 586.00 ...... 586.00 United States ...... Dollar ...... 16,774.00 ...... 16,774.00 Fulton Armstrong: Nicaragua ...... Cordoba ...... 214.00 ...... 214.00 Honduras ...... Lempira ...... 325.00 ...... 325.00 United States ...... Dollar ...... 2,356.70 ...... 2,356.70 Haiti ...... Dollar ...... 326.00 ...... 326.00 United States ...... Dollar ...... 794.80 ...... 794.80 Jason Bruder: Turkey ...... Lira ...... 1,489.00 ...... 1,489.00 Israel ...... Shekel ...... 362.00 ...... 362.00 United States ...... Dollar ...... 6,337.09 ...... 6,337.09 Perry Cammack: Israel ...... Shekel ...... 314.00 ...... 314.00 United States ...... Dollar ...... 4,196.72 ...... 4,196.72 Steve Feldstein: Haiti ...... Dollar ...... 280.00 ...... 280.00 United States ...... Dollar ...... 794.80 ...... 794.80 Pakistan ...... Rupee ...... 833.00 ...... 833.00 United States ...... Dollar ...... 10,339.60 ...... 10,339.60 Douglas Frantz: United Arab Emirates ...... Dirham ...... 535.00 ...... 535.00 Afghanistan ...... Afghani ...... 66.00 ...... 66.00 Pakistan ...... Rupee ...... 183.00 ...... 183.00 United States ...... Dollar ...... 9,740.40 ...... 9,740.40 Frank Jannuzi: Philippines ...... Peso ...... 1,722.00 ...... 1,722.00 Singapore ...... Dollar ...... 410.00 ...... 410.00 United States ...... Dollar ...... 10,981.90 ...... 10,981.90

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Garrett Johnson: Dominican Republic ...... Dollar ...... 600.00 ...... 600.00 United States ...... Dollar ...... 1,372.28 ...... 1,372.28 Andrew Keller: Uganda ...... Shilling ...... 1,838.27 ...... 1,838.27 United States ...... Dollar ...... 3,863.80 ...... 3,863.80 Robin Lerner: Burma ...... Kyat ...... 155.00 ...... 155.00 Bangladesh ...... Daka ...... 150.00 ...... 150.00 United States ...... Dollar ...... 13,035.50 ...... 13,035.50 Frank Lowenstein: Syria ...... Pound ...... 179.00 ...... 179.00 Italy ...... Euro ...... 183.00 ...... 183.00 Israel ...... Shekel ...... 314.00 ...... 314.00 United States ...... Dollar ...... 4,196.72 ...... 4,196.72 Michael Mattler: Uganda ...... Shilling ...... 1,914.36 ...... 1,914.36 United States ...... Dollar ...... 8,652.10 ...... 8,652.10 Marta McLellan-Ross: Korea ...... Won ...... 210.00 ...... 210.00 Thailand ...... Baht ...... 346.00 ...... 346.00 United States ...... Dollar ...... 16,774.00 ...... 16,774.00 Carl Meacham: Mexico ...... Peso ...... 1,050.00 ...... 1,050.00 United States ...... Dollar ...... 2,402.17 ...... 2,402.17 Dominican Republic ...... Peso ...... 600.00 ...... 600.00 United States ...... Dollar ...... 1,372.28 ...... 1,372.28 Stacie Oliver: Lebanon ...... Pound ...... 50.00 ...... 50.00 Syria ...... Pound ...... 150.00 ...... 150.00 Greece ...... Euro ...... 77.00 ...... 77.00 United States ...... Dollar ...... 10,397.80 ...... 10,397.80 Nilmini Rubin: Tanzania ...... Shilling ...... 1,125.00 ...... 1,125.00 United States ...... Dollar ...... 12,521.90 ...... 12,521.90 Dorothy Shea: Syria ...... Pound ...... 257.00 ...... 257.00 Saudi Arabia ...... Riyal ...... 308.00 ...... 308.00 United States ...... Dollar ...... 8,637.40 ...... 8,637.40 Shannon Smith: Tanzania ...... Shilling ...... 529.00 ...... 529.00 United States ...... Dollar ...... 13,065.60 ...... 13,065.60 Joel Starr: Coˆte d’lvoire ...... Franc ...... 44.01 ...... 44.01 Ethiopia ...... Birr ...... 94.28 ...... 94.28 Kuwait ...... Dinar ...... 7.75 ...... 7.75 Italy ...... Euro ...... 94.04 ...... 94.04 Fatema Sumar: Pakistan ...... Rupee ...... 833.00 ...... 833.00 United States ...... Dollar ...... 10,339.60 ...... 10,339.60 Atman Trivedi: Philippines ...... Peso ...... 1,722.00 ...... 1,722.00 Singapore ...... Dollar ...... 410.00 ...... 410.00 United States ...... Dollar ...... 11,658.90 ...... 11,658.90 Laura Winthrop: United Arab Emirates ...... Dirham ...... 572.00 ...... 572.00 Afghanistan ...... Afghani ...... 28.00 ...... 28.00 Pakistan ...... Rupee ...... 120.00 ...... 120.00 United States ...... Dollar ...... 11,674.40 ...... 11,674.40 Haiti ...... Dollar ...... 300.00 ...... 300.00 United States ...... Dollar ...... 794.80 ...... 794.80 Total ...... 22,868.69 ...... 207,221.18 ...... 230,089.87 SENATOR JOHN F. KERRY, Chairman, Committee on Foreign Relations, July 23, 2010.

CONSOLIDATED REPORT OF EXPENDITURE OF FUNDS FOR FOREIGN TRAVEL BY MEMBERS AND EMPLOYEES OF THE U.S. SENATE, UNDER AUTHORITY OF SEC. 22, P.L. 95–384—22 U.S.C. 1754(b), COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS FOR TRAVEL FROM JAN. 1 TO MAR. 31, 2010

Senator Tom Harkin: Republic of Haiti ...... Gourde ...... 12.57 ...... 12.57 Rosemary Gutierrez: Republic of Haiti ...... Gourde ...... 12.57 ...... 12.57 Total ...... 25.14 ...... 25.14 SENATOR TOM HARKIN, Chairman, Committee on Health, Education, Labor, and Pensions, June 3, 2010.

CONSOLIDATED REPORT OF EXPENDITURE OF FUNDS, AMENDED, FOR FOREIGN TRAVEL BY MEMBERS AND EMPLOYEES OF THE U.S. SENATE, UNDER AUTHORITY OF SEC. 22, P.L. 95– 384—22 U.S.C. 1754(b), COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS FOR TRAVEL FROM JAN. 1 TO MAR. 31, 2010

Wendy R. Anderson: United States ...... Dollar ...... 2,228.85 ...... 2,228.85 Netherlands ...... Euro ...... 629.34 ...... 629.34 Germany ...... Euro ...... 826.10 ...... 5,210.00 ...... 6,036.10

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Saudi Arabia ...... Riyal ...... 105.00 ...... 105.00 Yemen ...... Riyal ...... 650.00 ...... 650.00 Bradford D. Belzak: United States ...... Dollar ...... 4,047.40 ...... 4,047.40 Netherlands ...... Euro ...... 620.14 ...... 620.14 Germany ...... Euro ...... 821.50 ...... 5,210.00 ...... 6,031.50 Saudi Arabia ...... Riyal ...... 129.00 ...... 129.00 Yemen ...... Riyal ...... 648.00 ...... 648.00 Thomas A. Bishop: United States ...... Dollar ...... 3,992.80 ...... 3,992.80 Netherlands ...... Euro ...... 570.41 ...... 570.41 Germany ...... Euro ...... 708.50 ...... 5,210.00 ...... 5,918.50 Saudi Arabia ...... Riyal ...... 130.50 ...... 130.50 Yemen ...... Riyal ...... 213.00 ...... 213.00 Seamus A. Hughes: United States ...... Dollar ...... 2,228.85 ...... 2,228.85 Netherlands ...... Euro ...... 698.00 ...... 698.00 Germany ...... Euro ...... 938.00 ...... 5,210.00 ...... 6,148.00 Saudi Arabia ...... Riyal ...... 459.00 ...... 459.00 Yemen ...... Riyal ...... 726.00 ...... 726.00 Tara L. Shaw: United States ...... Dollar ...... 3,992.80 ...... 3,992.80 Netherlands ...... Euro ...... 575.53 ...... 575.53 Germany ...... Euro ...... 770.21 ...... 770.21 Saudi Arabia ...... Riyal ...... 129.79 ...... 129.79 Yemen ...... Riyal ...... 216.06 ...... 216.06 Margaret E. Daum: Afghanistan ...... Afghani ...... 28.00 ...... 28.00 Pakistan ...... Rupee ...... 222.10 ...... 222.10 India ...... Rupee ...... 144.40 ...... 3,043.90 ...... 3,188.30 Belgium ...... Euro ...... 103.97 ...... 103.97 Kuwait ...... Dinar ...... 413.41 ...... 413.41 Angela L. Youngen: United States ...... Dollar ...... 8,398.80 ...... 8,398.80 Slovenia ...... Euro ...... 190.00 ...... 190.00 Croatia ...... Kuna ...... 61.00 ...... 61.00 Bosnia-Herzegovina ...... Convertible Mark ...... 96.00 ...... 96.00 Serbia ...... Dinar ...... 216.00 ...... 216.00 Senator Susan M. Collins: United States ...... Dollar ...... 10,691.00 ...... 10,691.00 Switzerland ...... Franc ...... 334.00 ...... 334.00 Benjamin Billings:: United States ...... Dollar ...... 4,928.30 ...... 4,928.30 Japan ...... Yen ...... 1,628.00 ...... 140.73 ...... 1,768.73 *Delegation Expenses: Kuwait ...... Dinar ...... 2,113.02 ...... 2,113.02 Pakistan ...... Rupee ...... 2,015.84 ...... 2,015.84 Total ...... 14,000.96 ...... 64,533.43 ...... 4,128.86 ...... 82,663.25 SENATOR JOSEPH I. LIEBERMAN, Chairman, Committee on Homeland Security and Governmental Affairs, May 14, 2010. *Delegation expenses include payments and reimbursements to the Department of State and the Department of Defense under the authority of Sec. 502(b) of the Mutual Security Act of 1954, as amended by Sec. 22 of P.L. 95–384, and S. Res 179 agreed to May 25, 1977.

CONSOLIDATED REPORT OF EXPENDITURE OF FOREIGN CURRENCIES AND APPROPRIATED FUNDS FOR FOREIGN TRAVEL BY MEMBERS AND EMPLOYEES OF THE U.S. SENATE, UNDER AUTHORITY OF SEC. 22, P.L. 95–384—22 U.S.C. 1754(b), COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS FOR TRAVEL FROM APR. 1 TO JUNE 30, 2010

Lisa Powell: United States ...... Dollar ...... 4,573.25 ...... 4,573.25 New Zealand ...... Dollar ...... 33.96 ...... 33.96 Samoa ...... Tala ...... 663.48 ...... 663.48 Sean Stiff: United States ...... Dollar ...... 4,552.99 ...... 4,552.99 New Zealand ...... Dollar ...... 16.20 ...... 16.20 Samoa ...... Tala ...... 579.02 ...... 70.10 ...... 649.12 Jessica Nagasako: United States ...... Dollar ...... 4,573.25 ...... 4,573.25 New Zealand ...... Dollar ...... 34.17 ...... 34.17 Samoa ...... Tala ...... 622.71 ...... 622.71 Benjamin Billings: United States ...... Dollar ...... 4,573.25 ...... 4,573.25 Samoa ...... Tala ...... 688.00 ...... 688.00 David Andrew Olson: United States ...... Dollar ...... 4,538.15 ...... 4,538.15 Samoa ...... Tala ...... 898.00 ...... 898.00 Ryan Tully: United States ...... Dollar ...... 8,214.00 ...... 8,214.00 United Arab Emirates ...... Dirham ...... 56.37 ...... 56.37 Pakistan ...... Rupee ...... 37.31 ...... 2,498.67 ...... 2,535.98 Senator John Ensign: United States ...... Dollar ...... 8,214.10 ...... 8,214.10 United Arab Emirates ...... Dirham ...... 39.88 ...... 39.88 Pakistan ...... Rupee ...... 27.31 ...... 2,498.67 ...... 2,525.98 Senator Thomas R. Carper: United States ...... Dollar ...... 8,214.10 ...... 8,214.10 Afghanistan ...... Afghani ...... 7.00 ...... 7.00 Pakistan ...... Rupee ...... 2,498.67 ...... 2,498.67 Wendy R. Anderson: United States ...... Dollar ...... 8,214.10 ...... 8,214.10 United Arab Emirates ...... Dirham ...... 103.00 ...... 103.00 Afghanistan ...... Afghani ...... 7.00 ...... 7.00 Pakistan ...... Rupee ...... 120.00 ...... 2,498.67 ...... 2,618.67 Seamus Hughes: United States ...... Dollar ...... 4,463.59 ...... 4,463.59 Denmark ...... Kronin ...... 210.00 ...... 210.00

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Germany ...... Euro ...... 957.99 ...... 957.99 London ...... Pound ...... 922.00 ...... 922.00 Israel ...... Shekel ...... 361.99 ...... 361.99 Bradford D. Belzak: United States ...... Dollar ...... 4,463.59 ...... 4,463.59 Denmark ...... Kronin ...... 210.00 ...... 210.00 Germany ...... Euro ...... 958.00 ...... 958.00 United Kingdom ...... Pound ...... 922.00 ...... 922.00 Israel ...... Shekel ...... 300.00 ...... 300.00 Vance Serchuk: United States ...... Dollar ...... 5,987.40 ...... 5,987.40 Singapore ...... Dollar ...... 1,195.00 ...... 1,195.00 Total ...... 7,580.39 ...... 83,036.65 ...... 90,617.04 SENATOR JOSEPH I. LIEBERMAN, Chairman, Committee on Homeland Security and Governmental Affairs, July 28, 2010.

CONSOLIDATED REPORT OF EXPENDITURE OF FUNDS FOR FOREIGN TRAVEL BY MEMBERS AND EMPLOYEES OF THE U.S. SENATE, UNDER AUTHORITY OF SEC. 22, P.L. 95–384—22 U.S.C. 1754(b), COMMITTEE ON SMALL BUSINESSES AND ENTREPRENEURSHIP FOR TRAVEL FROM APR. 1 TO JUNE 30, 2010

Donald Cravins: United States ...... Dollar ...... 8,434.90 ...... 8,434.90 Switzerland ...... Euro ...... 820.03 ...... 820.03 France ...... Euro ...... 1,863.00 ...... 133.34 ...... 1,996.34 Brian van Hook: United States ...... Dollar ...... 8,335.90 ...... 8,335.90 Switzerland ...... Euro ...... 820.02 ...... 820.02 France ...... Euro ...... 1,863.00 ...... 133.33 ...... 1,996.33 John High: United States ...... Dollar ...... 8,434.90 ...... 8,434.90 Switzerland ...... Euro ...... 820.03 ...... 820.03 France ...... Euro ...... 1,863.00 ...... 133.33 ...... 1,996.33 Wallace Hsueh: United States ...... Dollar ...... 8,434.90 ...... 8,434.90 Switzerland ...... Euro ...... 820.02 ...... 820.02 France ...... Euro ...... 1,863.00 ...... 133.34 ...... 1,996.34 Matthew Walker: United States ...... Dollar ...... 8,434.90 ...... 8,434.90 Switzerland ...... Euro ...... 820.02 ...... 820.02 France ...... Euro ...... 1,863.00 ...... 133.33 ...... 1,996.33 Meredith West: United States ...... Dollar ...... 8,434.90 ...... 8,434.90 Switzerland ...... Euro ...... 820.02 ...... 820.02 France ...... Euro ...... 1,863.00 ...... 133.33 ...... 1,996.33 *Delegation Expenses: United States ...... Dollar ...... 657.00 ...... 657.00 Switzerland ...... Euro ...... 5,847.77 ...... 5,847.77 France ...... Euro ...... 3,000.00 ...... 3,000.00 Total ...... 16,098.14 ...... 51,310.40 ...... 9,504.77 ...... 76,913.31 SENATOR MARY L. LANDRIEU, Chairman, Committee on Small Business and Entrepreneurship, July 22, 2010. * Delegation expenses include payments and reimbursements to the Department of State and the Department of Defense under the authority of Sec. 502(b) of the Mutual Security Act of 1954, as amended by Sec. 22 of P.L. 95–384, S. Res. 179 agreed to May 25, 1977.

CONSOLIDATED REPORT OF EXPENDITURE OF FUNDS FOR FOREIGN TRAVEL BY MEMBERS AND EMPLOYEES OF THE U.S. SENATE, UNDER AUTHORITY OF SEC. 22, P.L. 95–384—22 U.S.C. 1754(b), COMMITTEE ON INTELLIGENCE FOR TRAVEL FROM APR. 1 TO JUNE 30, 2010

Louis Tucker ...... 2,238.00 ...... 2,238.00 Dollar ...... 11,533.40 ...... 11,533.40 David Koger ...... 2,238.00 ...... 2,238.00 Dollar ...... 11,452.40 ...... 11,452.40 Senator Christopher S. Bond ...... 1,116.00 ...... 1,116.00 Dollar ...... 12,022.00 ...... 433.37 ...... 12,455.37 Richard Girven ...... 1,086.00 ...... 1,086.00 Dollar ...... 7,776.50 ...... 7,776.50 Michael DuBois ...... 1,116.00 ...... 1,116.00 Dollar ...... 10,823.50 ...... 10,823.50 Andrew Grotto ...... 961.00 ...... 961.00 Dollar ...... 8,162.70 ...... 8,162.70 Eric Chapman ...... 957.00 ...... 957.00 Dollar ...... 8,162.70 ...... 8,162.70 John Maguire ...... 917.00 ...... 917.00 Dollar ...... 8,127.70 ...... 8,127.70 Andrew Kerr ...... 1,325.40 ...... 1,325.40 Dollar ...... 12,231.60 ...... 12,231.60 Michael Buchwald ...... 1,055.51 ...... 1,055.51 Dollar ...... 12,321.00 ...... 12,321.00 James Smythers ...... 1,332.40 ...... 1,332.40 Dollar ...... 12,231.60 ...... 12,231.60 Clete Johnson ...... 835.00 ...... 835.00 Dollar ...... 9,637.10 ...... 9,637.10 Randall Bookout ...... 2,121.00 ...... 2,121.00

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Dollar ...... 11,945.30 ...... 11,945.30 John Dickas ...... 1,435.00 ...... 1,435.00 Dollar ...... 11,945.30 ...... 11,945.30 Jacqueline Russell ...... 1,096.00 ...... 1,096.00 Dollar ...... 9,318.50 ...... 9,318.50 Jennifer Wagner ...... 1,096.00 ...... 1,096.00 Dollar ...... 9,318.50 ...... 9,318.50 Kathleen Rice ...... 1,096.00 ...... 1,096.00 Dollar ...... 9,318.50 ...... 9,318.50 James Smythers ...... 1,171.00 ...... 1,171.00 Dollar ...... 9,318.50 ...... 9,318.50 Senator Dianne Feinstein ...... 2,573.76 ...... 2,573.76 Dollar ...... 10,196.18 ...... 5,714.03 ...... 15,910.21 Michael Buchwald ...... 1,875.60 ...... 1,875.60 Dollar ...... 10,674.80 ...... 10,674.80 Matthew Nelson ...... 2,077.76 ...... 2,077.76 Dollar ...... 11,282.00 ...... 11,282.00 Total ...... 29,719.43 ...... 217,799.78 ...... 6,147.40 ...... 253,666.61 SENATOR DIANNE FEINSTEIN, Chairman, Committee on Intelligence, July 28, 2010.

CONSOLIDATED REPORT OF EXPENDITURE OF FUNDS FOR FOREIGN TRAVEL BY MEMBERS AND EMPLOYEES OF THE U.S. SENATE, UNDER AUTHORITY OF SEC. 22, P.L. 95–384—22 U.S.C. 1754(b), JOINT ECONOMIC COMMITTEE—AMENDED FIRST QUARTER REPORT FOR TRAVEL FROM JAN. 1 TO MAR. 31, 2010

Hon. Carolyn B. Maloney: United States ...... Dollar ...... 3,788.10 ...... 3,788.10 Total ...... 3,788.10 ...... 3,788.10 HON. CAROLYN B. MALONEY, Chairman, Joint Economic Committee, May 3, 2010.

CONSOLIDATED REPORT OF EXPENDITURE OF FUNDS FOR FOREIGN TRAVEL BY MEMBERS AND EMPLOYEES OF THE U.S. SENATE, UNDER AUTHORITY OF SEC. 22, P.L. 95–384—22 U.S.C. 1754(b), CONGRESSIONAL-EXECUTIVE COMMITTEE ON CHINA FOR TRAVEL FROM APR. 1 TO JUNE 30, 2010

Abigail Story: Hong Kong ...... Dollar ...... 1,160.00 ...... 2,300.00 ...... 3,460.00 United States ...... Dollar ...... 1,270.00 ...... 1,270.00 Anka Lee: Hong Kong ...... Dollar ...... 1,746.00 ...... 2,368.30 ...... 4,114.30 United States ...... Dollar ...... 1,268.20 ...... 1,268.20 Sharon Mann: Hong Kong ...... Dollar ...... 1,746.00 ...... 2,547.00 ...... 4,293.00 United States ...... Dollar ...... 1,268.20 ...... 1,268.20 Charlotte Old. Bowman: China ...... Yuan ...... 1,812.00 ...... 1,812.00 United States ...... Dollar ...... 2,707.30 ...... 2,707.30 Douglas Grob: China ...... Yuan ...... 3,094.00 ...... 3,094.00 United States ...... Dollar ...... 3,964.70 ...... 3,964.70 Kara Abramson: China ...... Yuan ...... 3,094.00 ...... 3,094.00 United States ...... Dollar ...... 3,964.70 ...... 3,964.70 Total ...... 12,652.00 ...... 14,443.10 ...... 7,215.00 ...... 34,310.10 SENATOR BYRON L. DORGAN, Chairman, Congressional-Executive Committee on China, July 27, 2010.

CONSOLIDATED REPORT OF EXPENDITURE OF FUNDS FOR FOREIGN TRAVEL BY MEMBERS AND EMPLOYEES OF THE U.S. SENATE, UNDER AUTHORITY OF SEC. 22, P.L. 95–384—22 U.S.C. 1754(b), COMMISSION ON SECURITY AND COOPERATION IN EUROPE FOR TRAVEL FROM APR. 1 TO JUNE 30, 2010

Winsome Packer: Austria ...... Euro ...... 31,299.99 ...... 31,299.99 United States ...... Dollar ...... 5,459.20 ...... 5,459.20 Erika Schlager: Spain ...... Euro ...... 657.00 ...... 657.00 Slovak Republic ...... Euro ...... 216.00 ...... 216.00 Hungary ...... Forint ...... 133.00 ...... 133.00 Czech Republic ...... Koruna ...... 680.00 ...... 680.00 United States ...... Dollar ...... 6,179.60 ...... 6,179.60 Austria ...... Euro ...... 892.00 ...... 892.00 United States ...... Dollar ...... 1,246.00 ...... 1,246.00 Shelly Han: Turkmenistan ...... Manat ...... 300.00 ...... 300.00 United States ...... Dollar ...... 8,945.30 ...... 8,945.30 Janice Helwig: Austria ...... Euro ...... 483.00 ...... 483.00

VerDate Mar 15 2010 03:35 Aug 04, 2010 Jkt 089060 PO 00000 Frm 00069 Fmt 4637 Sfmt 8634 E:\CR\FM\A03AU6.015 S03AUPT1 smartinez on DSKB9S0YB1PROD with SENATE S6666 CONGRESSIONAL RECORD — SENATE August 3, 2010 CONSOLIDATED REPORT OF EXPENDITURE OF FUNDS FOR FOREIGN TRAVEL BY MEMBERS AND EMPLOYEES OF THE U.S. SENATE, UNDER AUTHORITY OF SEC. 22, P.L. 95–384—22 U.S.C. 1754(b), COMMISSION ON SECURITY AND COOPERATION IN EUROPE FOR TRAVEL FROM APR. 1 TO JUNE 30, 2010—Continued

United States ...... Dollar ...... 5,459.60 ...... 5,459.60 Turkmenistan ...... Manat ...... 2,064.00 ...... 2,064.00 United States ...... Dollar ...... 8,887.90 ...... 8,887.90 Kyle Parker: Poland ...... Zloty ...... 798.97 ...... 798.97 United States ...... Dollar ...... 8,038.20 ...... 8,038.20 Josh Shapiro: Czech Republic ...... Koruna ...... 1,248.00 ...... 1,248.00 United States ...... Dollar ...... 3,034.70 ...... 3,034.70 Cynthia Efird: Sweden ...... Krona ...... 1,322.77 ...... 1,322.77 United States ...... Dollar ...... 1,118.80 ...... 1,118.80 Austria ...... Euro ...... 1,938.10 ...... 1,938.10 United States ...... Dollar ...... 1,246.00 ...... 1,246.00 Orest Deychakiwsky: Denmark ...... Krone ...... 647.00 ...... 647.00 United States ...... Dollar ...... 4,023.20 ...... 4,023.20 Fred Turner: Kazakhstan ...... Tenge ...... 459.00 ...... 459.00 United States ...... Dollar ...... 8,607.00 ...... 8,607.00 Alex Johnson: Kazakhstan ...... Tenge ...... 459.00 ...... 459.00 Republic of Korea ...... Won ...... 510.00 ...... 510.00 United States ...... Dollar ...... 9,509.40 ...... 9,509.40 Total ...... 44,107.83 ...... 71,754.90 ...... 115,862.72 SENATOR BENJAMIN L. CARDIN, Chairman, Commission on Security and Cooperation in Europe, July 22, 2010.

CONSOLIDATED REPORT OF EXPENDITURE OF FUNDS FOR FOREIGN TRAVEL BY MEMBERS AND EMPLOYEES OF THE U.S. SENATE, UNDER AUTHORITY OF SEC. 22, P.L. 95–384—22 U.S.C. 1754(b), FOR THE REPUBLICAN LEADER FOR TRAVEL FROM APR. 1 TO JUNE 30, 2010

Tom Hawkins: Turkey ...... Dollar ...... 546.00 ...... 546.00 Syria ...... Pound ...... 138.00 ...... 138.00 Total ...... 684.00 ...... 684.00

SENATOR MITCH MCCONNELL, h Republican Leader, June 30, 2010.

SECURE AND RESPONSIBLE DRUG (2) According to the Department of Jus- shelves and out of the reach of children and DISPOSAL ACT OF 2010 tice’s 2009 National Prescription Drug Threat teenagers. Assessment— (B) However, take-back programs often Mr. WHITEHOUSE. I ask unanimous (A) the number of deaths and treatment cannot dispose of the most dangerous phar- consent that the Senate proceed to the admissions for controlled prescription drugs maceutical drugs—controlled substance immediate consideration of Calendar (CPDs) has increased significantly in recent medications—because Federal law does not No. 495, S. 3397. years; permit take-back programs to accept con- The PRESIDING OFFICER. The (B) unintentional overdose deaths involv- trolled substances unless they get specific ing prescription opioids, for example, in- permission from the Drug Enforcement Ad- clerk will report the bill by title. creased 114 percent from 2001 to 2005, and the ministration and arrange for full-time law The assistant legislative clerk read number of treatment admissions for pre- enforcement officers to receive the con- as follows: scription opioids increased 74 percent from trolled substances directly from the member A bill (S. 3397) to amend the Controlled 2002 to 2006; and of the public who seeks to dispose of them. Substances Act to provide for take-back dis- (C) violent crime and property crime asso- (C) Individuals seeking to reduce the posal of controlled substances in certain in- ciated with abuse and diversion of CPDs has amount of unwanted controlled substances stances, and for other purposes. increased in all regions of the United States in their household consequently have few over the past 5 years. disposal options beyond discarding or flush- There being no objection, the Senate (3) According to the Office of National ing the substances, which may not be appro- proceeded to consider the bill, which Drug Control Policy’s 2008 Report ‘‘Prescrip- priate means of disposing of the substances. had been reported from the Committee tion for Danger’’, prescription drug abuse is (D) Long-term care facilities face a dis- on the Judiciary, with amendments, as especially on the rise for teens— tinct set of obstacles to the safe disposal of follows: (A) one-third of all new abusers of prescrip- controlled substances due to the increased [Omit the part in boldface brackets tion drugs in 2006 were 12- to 17-year-olds; volume of controlled substances they handle. (B) teens abuse prescription drugs more (5) This Act gives the Attorney General au- and insert the part printed in italic.] than any illicit drug except marijuana— thority to promulgate new regulations, with- S. 3397 more than cocaine, heroin, and methamphet- in the framework of the Controlled Sub- Be it enacted by the Senate and House of Rep- amine combined; and stances Act, that will allow patients to de- resentatives of the United States of America in (C) responsible adults are in a unique posi- liver unused pharmaceutical controlled sub- Congress assembled, tion to reduce teen access to prescription stances to appropriate entities for disposal drugs because the drugs often are found in in a safe and effective manner consistent SECTION 1. SHORT TITLE. the home. with effective controls against diversion. This Act may be cited as the ‘‘Secure and (4)(A) Many State and local law enforce- (6) The goal of this Act is to encourage the Responsible Drug Disposal Act of 2010’’. ment agencies have established drug disposal Attorney General to set controlled substance SEC. 2. FINDINGS. programs (often called ‘‘take-back’’ pro- diversion prevention parameters that will Congress finds the following: grams) to facilitate the collection and de- allow public and private entities to develop a (1) The nonmedical use of prescription struction of unused, unwanted, or expired variety of methods of collection and disposal drugs is a growing problem in the United medications. These programs help get out- of controlled substances in a secure and re- States, particularly among teenagers. dated or unused medications off household sponsible manner.

VerDate Mar 15 2010 03:35 Aug 04, 2010 Jkt 089060 PO 00000 Frm 00070 Fmt 4637 Sfmt 0634 E:\CR\FM\A03AU6.015 S03AUPT1 smartinez on DSKB9S0YB1PROD with SENATE August 3, 2010 CONGRESSIONAL RECORD — SENATE S6667 SEC. 3. DELIVERY OF CONTROLLED SUBSTANCES NATIONAL OVARIAN CANCER liance and its partner members holds a num- BY ULTIMATE USERS FOR DISPOSAL. AWARENESS MONTH ber of events to increase public awareness of (a) REGULATORY AUTHORITY.—Section 302 of ovarian cancer; and the Controlled Substances Act (21 U.S.C. 822) Mr. WHITEHOUSE. I ask unanimous Whereas September 2010 should be des- is amended by adding at the end the fol- consent the Health, Education, Labor ignated as ‘‘National Ovarian Cancer Aware- lowing: and Pensions Committee be discharged ness Month’’ to increase the awareness of the ‘‘(g)(1) An ultimate user who has lawfully from further consideration of S. Res. public regarding the cancer: Now, therefore, obtained a controlled substance in accord- 555, and the Senate proceed to its im- be it ance with this title may, without being reg- Resolved, That the Senate supports the istered, deliver the controlled substance to mediate consideration. goals and ideals of National Ovarian Cancer another person for the purpose of disposal of The PRESIDING OFFICER. Without Awareness Month. the controlled substance if— objection, it is so ordered. ‘‘(A) the person receiving the controlled The clerk will report the resolution f substance is authorized under this title to by title. engage in such activity; and The assistant legislative clerk read NATIONAL ESTUARIES DAY ‘‘(B) the disposal takes place in accordance as follows: Mr. WHITEHOUSE. Mr. President, I with regulations issued by the Attorney Gen- A resolution (S. Res. 555) supporting the eral to prevent diversion of controlled sub- ask unanimous consent that the Judi- goals and ideals of National Ovarian Cancer ciary Committee be discharged from stances. Awareness Month. ‘‘(2) In developing regulations under this sub- further consideration of S. Res 596, and section, the Attorney General shall take into There being no objection, the Senate the Senate proceed to its immediate proceeded to consider the resolution. consideration the public health and safety, as consideration. well as the ease and cost of program implemen- Mr. WHITEHOUSE. I ask unanimous consent that the resolution be agreed The PRESIDING OFFICER. Without tation and participation by various commu- objection, it is so ordered. nities. Such regulations may not require any en- to, the preamble be agreed to, the mo- tity to establish or operate a delivery or disposal tions to reconsider be laid upon the The clerk will report the resolution program. table, with no intervening action or de- by title. ‘‘ø(2)¿(3) The Attorney General may, by bate, and any statements related to the The assistant legislative clerk read regulation, authorize long-term care facili- resolution be printed in the RECORD. as follows: ties, as defined by the Attorney General by The PRESIDING OFFICER. Without A resolution (S. Res 596) to designate Sep- regulation, to dispose of controlled sub- tember 25, 2010, as ‘‘National Estuaries Day.’’ stances on behalf of ultimate users who re- objection, it is so ordered. side, or have resided, at such long-term care fa- The resolution (S. Res. 555) was There being no objection, the Senate cilities in a manner that the Attorney Gen- agreed to. proceeded to consider the resolution. eral determines will provide effective con- The preamble was agreed to. Mr. WHITEHOUSE. I ask unanimous trols against diversion and be consistent The resolution, with its preamble, consent that the resolution be agreed with the public health and safety. reads as follows: to, the preamble be agreed to, the mo- ‘‘(4) If a person dies while lawfully in posses- S. RES. 555 sion of a controlled substance for personal use, tions to reconsider be laid upon the any person lawfully entitled to dispose of the Whereas ovarian cancer is the deadliest of table, with no intervening action or de- all gynecologic cancers; decedent’s property may deliver the controlled bate, and any statements be printed in Whereas ovarian cancer is the 5th leading substance to another person for the purpose of the RECORD. cause of cancer deaths among women in the disposal under the same conditions as provided United States; The PRESIDING OFFICER. Without in paragraph (1) for an ultimate user.’’. Whereas more than 22,000 women will be di- objection, it is so ordered. (b) CONFORMING AMENDMENT.—Section 308(b) of the Controlled Substances Act (21 agnosed with ovarian cancer this year, and The resolution (S. Res. 596) was U.S.C. 828(b)) is amended— more than 15,000 will die from it; agreed to. (1) by striking the period at the end of Whereas these deaths are those of our The preamble was agreed to. paragraph (2) and inserting ‘‘; or’’; and mothers, sisters, daughters, family members, The resolution, with its preamble, (2) by adding at the end the following: and community leaders; reads as follows: Whereas the mortality rate for ovarian ‘‘(3) the delivery of such a substance for S. RES. 596 the purpose of disposal by an ultimate user cancer has not significantly decreased since or long-term care facility acting in accord- the ‘‘War on Cancer’’ was declared, nearly 40 Whereas the estuary regions of the United ance with section 302(g) of this title.’’. years ago; States comprise a significant share of the Whereas all women are at risk for ovarian national economy, with 43 percent of the SEC. 4. DIRECTIVE TO THE UNITED STATES SEN- TENCING COMMISSION. cancer, and 90 percent of women diagnosed population, 40 percent of the employment, Pursuant to its authority under section 994 of with ovarian cancer do not have a family and 49 percent of the economic output of the title 28, United States Code, the United States history that puts them at higher risk; United States located in the estuary regions Sentencing Commission shall review and, if ap- Whereas the Pap test is sensitive and spe- of the United States; propriate, amend the Federal sentencing guide- cific to the early detection of cervical can- Whereas coasts and estuaries contribute lines and policy statements to ensure that the cer, but not to ovarian cancer; more than $800,000,000,000 annually in trade guidelines and policy statements provide an ap- Whereas there is currently no reliable and commerce to the United States econ- propriate penalty increase of up to 2 offense lev- early detection test for ovarian cancer; omy; els above the sentence otherwise applicable in Whereas many people are unaware that the Whereas more than 43 percent of all adults Part D of the Guidelines Manual if a person is symptoms of ovarian cancer often include in the United States visit a sea coast or estu- convicted of a drug offense resulting from the bloating, pelvic or abdominal pain, difficulty ary at least once a year to participate in authorization of that person to receive sched- eating or feeling full quickly, urinary symp- some form of recreation, generating uled substances from an ultimate user or long- toms, and several other symptoms that are $8,000,000,000 to $12,000,000,000 in revenue an- term care facility as set forth in the amendments easily confused with other diseases; nually; made by section 3. Whereas in June 2007, the first national Whereas more than 28,000,000 jobs in the consensus statement on ovarian cancer United States are supported by commercial Mr. WHITEHOUSE. Mr. President, I symptoms was developed to provide consist- and recreational fishing, boating, tourism, ask unanimous consent that the com- ency in describing symptoms to make it and other coastal industries that rely on mittee-reported amendments be agreed easier for women to learn and remember healthy estuaries; to; the bill, as amended, be read a third them; Whereas estuaries provide vital habitat for time and passed; the motions to recon- Whereas, due to the lack of a reliable early countless species of fish and wildlife, includ- sider be laid upon the table, with no in- detection test, 75 percent of cases of ovarian ing many that are listed as threatened or en- tervening action or debate, and any cancer are detected at an advanced stage, dangered; statements related to the bill be print- making the overall 5-year survival rate only Whereas estuaries provide critical eco- 45 percent; system services that protect human health ed in the RECORD. The PRESIDING OFFICER. Without Whereas there are factors that are known and public safety, including water filtration, to reduce the risk for ovarian cancer and flood control, shoreline stabilization and objection, it is so ordered. that play an important role in the preven- erosion prevention, and the protection of The Committee amendments were tion of the disease; coastal communities during extreme weath- agreed to. Whereas awareness of the symptoms of er events; The bill (S. 3397), as amended, was or- ovarian cancer by women and health care Whereas 55,000,000 acres of estuarine habi- dered to be engrossed for a third read- providers can lead to a quicker diagnosis; tat have been destroyed during the 100 years ing, was read the third time, and Whereas, each year during the month of preceding the date of agreement to this reso- passed. September, the Ovarian Cancer National Al- lution;

VerDate Mar 15 2010 03:35 Aug 04, 2010 Jkt 089060 PO 00000 Frm 00071 Fmt 4637 Sfmt 0634 E:\CR\FM\A03AU6.017 S03AUPT1 smartinez on DSKB9S0YB1PROD with SENATE S6668 CONGRESSIONAL RECORD — SENATE August 3, 2010 Whereas bays once filled with fish and oys- table, with no intervening action or de- Awareness Day with appropriate ceremonies ters have become dead zones filled with ex- bate, and any statements related to the and activities; and cess nutrients, chemical wastes, harmful resolution be printed in the RECORD. (4) respectfully requests the Secretary of algae, and marine debris; The PRESIDING OFFICER. Without the Senate to transmit a copy of this resolu- Whereas sea level rise is accelerating the objection, it is so ordered. tion to the Celiac Sprue Association, the degradation of estuaries by— The resolution (S. Res. 605) was American Celiac Society, and the Celiac Dis- (1) submerging low-lying land; ease Foundation. (2) eroding beaches; agreed to. f (3) converting wetland to open water; The preamble was agreed to. (4) exacerbating coastal flooding; and The resolution, with its preamble, MEASURE READ THE FIRST (5) increasing the salinity of estuaries and reads as follows: TIME—H.R. 3534 freshwater aquifers; S. RES. 605 Mr. WHITEHOUSE. I understand that Whereas the Coastal Zone Management Whereas celiac disease affects approxi- Act of 1972 (16 U.S.C. 1451 et seq.) declares mately 1 in every 130 people in the United H.R. 3534 has been received from the that it is the national policy to preserve, States, for a total of 3,000,000 people; House and is at the desk. protect, develop, and if possible, to restore or Whereas the majority of people with celiac The PRESIDING OFFICER. The enhance, the resources of the coastal zone of disease have yet to be diagnosed; clerk will report the bill by title. the United States, including estuaries, for Whereas celiac disease is a chronic inflam- The assistant legislative clerk read current and future generations; matory disorder that is classified as both an as follows: Whereas scientific study leads to better autoimmune condition and a genetic condi- understanding of the benefits of estuaries to tion; A bill (H.R. 3534) to provide greater effi- human and ecological communities; Whereas celiac disease causes damage to ciencies, transparency, returns, and account- Whereas Federal, State, local, and tribal the lining of the small intestine, which re- ability in the administration of Federal min- governments, national and community orga- sults in overall malnutrition; eral and energy resources by consolidating nizations, and individuals work together to Whereas when a person with celiac disease administration of various Federal energy effectively manage the estuaries of the consumes foods that contain certain protein minerals management and leasing programs United States; fractions, that person suffers a cell-mediated into one entity to be known as the Office of Whereas estuary restoration efforts restore immune response that damages the villi of Federal Energy and Minerals Leasing of the natural infrastructure in local communities the small intestine, interfering with the ab- Department of the Interior, and for other in a cost effective manner, helping to create sorption of nutrients in food and the effec- purposes. jobs and reestablish the natural functions of tiveness of medications; Mr. WHITEHOUSE. I ask now for its estuaries that yield countless benefits; and Whereas such problematic protein frac- second reading, and I object to my own Whereas September 25, 2010, has been des- tions are found in wheat, barley, rye, and request. ignated as ‘‘National Estuaries Day’’ to in- oats, which are used to produce many foods, The PRESIDING OFFICER. Objec- crease awareness among all people of the medications, and vitamins; United States, including Federal, State and Whereas because celiac disease is a genetic tion is heard. The bill will be read for local government officials, about the impor- disease, there is an increased incidence of ce- the second time on the next legislative tance of healthy estuaries and the need to liac disease in families with a known history day. protect and restore estuaries: Now, thereof celiac disease; f fore, be it Whereas celiac disease is underdiagnosed Resolved, That the Senate— because the symptoms can be attributed to ORDERS FOR WEDNESDAY, (1) designates September 25, 2010, as ‘‘Na- other conditions and are easily overlooked AUGUST 4, 2010 tional Estuaries Day’’; by doctors and patients; (2) supports the goals and ideals of Na- Whereas as recently as 2000, the average Mr. WHITEHOUSE. Mr. President, I tional Estuaries Day; person with celiacdisease waited 11 years for ask unanimous consent that when the (3) acknowledges the importance of estu- a correct diagnosis; Senate completes its business today, it aries to the economic well-being and produc- Whereas 1/2 of all people with celiac dis- adjourn until 9:30 a.m. on Wednesday, tivity of the United States; ease do not show symptoms of the disease; August 4; that following the prayer and (4) recognizes that persistent threats un- Whereas celiac disease is diagnosed by pledge, the Journal of proceedings be dermine the health of the estuaries of the tests that measure the blood for abnormally approved to date, the morning hour be high levels of the antibodies of immun- United States; deemed expired, the time for the two (5) applauds the work of national and com- oglobulin A, anti-tissue transglutaminase, munity organizations and public partners and IgA anti-endomysium antibodies; leaders be reserved for their use later that promote public awareness, under- Whereas celiac disease can be treated only in the day; that following any leader standing, protection, and restoration of estu- by implementing a diet free of wheat, barley, remarks, the Senate resume consider- aries; rye, and oats, often called a ‘‘gluten-free ation of the House message to accom- (6) reaffirms the support of the Senate for diet’’; pany H.R. 1586, as provided under the estuaries, including the scientific study, Whereas a delay in the diagnosis of celiac previous order. preservation, protection, and restoration of disease can result in damage to the small intestine, which leads to an increased risk for The PRESIDING OFFICER. Without estuaries; and objection, it is so ordered. (7) expresses the intent of the Senate to malnutrition, anemia, lymphoma, adenocar- continue working to understand, protect, cinoma, osteoporosis, miscarriage, con- f genital malformation, short stature, and dis- and restore the estuaries of the United PROGRAM States. orders of skin and other organs; Whereas celiac disease is linked to many f Mr. WHITEHOUSE. Tomorrow, there autoimmune disorders, including thyroid will be 1 hour for debate prior to a clo- disease, systemic lupus erythematosus, type NATIONAL CELIAC DISEASE ture vote on the motion to concur with AWARENESS DAY 1 diabetes, liver disease, collagen vascular disease, rheumatoid arthritis, and Sjogren’s an amendment with respect to H.R. Mr. WHITEHOUSE. I ask unanimous syndrome; 1586. The amendment to the motion re- consent that the Senate proceed to the Whereas the connection between celiac dis- lates to FMAP and teacher funding. immediate consideration of S. Res. 605 ease and diet was first established by Dr. Senators should expect the vote to submitted earlier today. Samuel Gee, who wrote, ‘‘if the patient can occur around 10:40 a.m. be cured at all, it must be by means of diet’’; The PRESIDING OFFICER. The f clerk will report the resolution by Whereas Dr. Samuel Gee was born on Sep- tember 13, 1839; and ORDER FOR ADJOURNMENT title. Whereas the Senate is an institution that The legislative clerk read as follows: can raise awareness in the general public and Mr. WHITEHOUSE. Finally, I ask A resolution (S. Res. 605) designating Sep- the medical community of celiac disease: unanimous consent that following the tember 13, 2010, as ‘‘National Celiac Disease Now, therefore, be it remarks of Senators GRASSLEY and Awareness Day.’’ Resolved, That the Senate— LEMIEUX, the Senate adjourn under the There being no objection, the Senate (1) designates September 13, 2010, as ‘‘Na- previous order. I thank the distin- proceeded to consider the resolution. tional Celiac Disease Awareness Day’’; guished Senator from Iowa for his (2) recognizes that all people of the United Mr. WHITEHOUSE. I ask unanimous States should become more informed and courtesy in allowing us to go through consent that the resolution be agreed aware of celiac disease; the closing script in this fashion. to, the preamble be agreed to, the mo- (3) calls upon the people of the United The PRESIDING OFFICER. Without tions to reconsider be laid upon the States to observe National Celiac Disease objection, it is so ordered.

VerDate Mar 15 2010 03:35 Aug 04, 2010 Jkt 089060 PO 00000 Frm 00072 Fmt 4637 Sfmt 0634 E:\CR\FM\A03AU6.018 S03AUPT1 smartinez on DSKB9S0YB1PROD with SENATE August 3, 2010 CONGRESSIONAL RECORD — SENATE S6669 EXECUTIVE SESSION lieved she met his ‘‘empathy’’ stand- ficult. We do not have any clear sub- ard. stantive evidence to demonstrate So- This empathy standard is a radical licitor General Kagan’s ability to tran- NOMINATION OF ELENA KAGAN TO departure from our American tradition sition from a legal academic and polit- BE AN ASSOCIATE JUSTICE OF of blind, impartial justice. That is be- ical operative to a fair and impartial THE SUPREME COURT OF THE cause empathy necessarily connotes a jurist. UNITED STATES—Continued standard of partiality. A judge’s impar- Solicitor General Kagan’s record and The PRESIDING OFFICER. Under tiality is absolutely critical to his or her Judiciary Committee testimony the previous order, the Senate will re- her duty as an officer of an inde- failed to persuade me that she would be sume executive session to hear the pendent judiciary, so much so that it is capable of making this crucial trans- Kagan nomination. actually mentioned three times in the formation. Her experience has pri- The Senator from Iowa. oath of office that judges take. marily been in politics and academia. Mr. GRASSLEY. I thank the Senator Empathetic judges who choose to em- As has been pointed out, working in from Rhode Island. He is always very brace their personal biases cannot up- politics does not disqualify an indi- courteous to me. hold their sworn oath under our Con- vidual from being a Justice. However, Mr. President, I rise to take a few stitution. Rather, judges must reject what does disqualify an individual is an minutes to discuss the reasons why I that standard and decide cases before inability to put politics aside in order am voting against Elena Kagan to be them as the Constitution and the law to rule based upon the Constitution Associate Justice. An appointment to requires, even if it compels a result and the law. In my opinion, General the Supreme Court is one of the most that is at odds with their own political Kagan did not demonstrate that she important positions an individual can or ideological beliefs. could do that during her committee hold under our Constitution. It is a Justice is not an automatic or a me- testimony. Moreover, throughout her lifetime position on the highest Court chanical process. Yet it should not be a hearings, she refused to provide us with of the land. I take very seriously my process that permits inconsistent out- details on her views on constitutional constitutional role of advice and con- comes determined by a judge’s personal issues. sent. The Senate’s job is not only to predilections rather than from the Con- It was very unfortunate we were un- provide advice and consent by constitution and the law. An empathy able to elicit forthcoming answers to firming nominees who are intelligent standard set by the President that en- many of our questions in an attempt to and accomplished. Our job is to con- courages a judge to pick winners and assess her ability to wear the judicial firm nominees who will be fair and im- losers based on that judge’s personal or robe. She was not forthright in dis- partial judges, individuals who truly political beliefs is contrary to the cussing her views on basic principles of understand the proper role of a Justice American tradition of justice. constitutional law, her opinions of im- in our system of government. Our job, That is why we should be very cau- portant Supreme Court cases or per- then, is to confirm nominees who will tious in deferring to President Obama’s sonal beliefs on a number of legal faithfully interpret the law and the choices for the judicial branch. He set issues. This was extremely dis- Constitution without personal bias or that standard; we did not. We should appointing. prejudice. carefully evaluate these nominees’ Candid answers to our questions were When the Senate makes its deter- ability to be faithful to the Constitu- essential for us as Senators to be able mination, we must carefully assess the tion. Nominees should not pledge alle- to ascertain whether she possesses the nominee’s legal experiences, record of giance to the goals of a particular po- proper judicial philosophy for the Su- impartiality, and commitment to the litical party or outside interest groups preme Court. In fact, her unwillingness Constitution and rule of law. We need that hope to implement their political to directly answer questions about her to assess whether the nominee will be and social agendas from the bench judicial philosophy indicated a polit- able to exercise what we call judicial rather than getting it done through the ical approach throughout the hearing. I restraint. We have to determine if the legislative branch. was left with no evidence that General nominee can resist the siren call to When she was nominated to the Su- Kagan would not advance her own po- overstep his or her bounds and en- preme Court, meaning Ms. Elena litical ideas if she is confirmed to the croach upon the duties of the legisla- Kagan, Vice President BIDEN’s Chief of Federal bench. tive and executive branches. Funda- Staff, Ron Klain, assured the leftwing General Kagan’s refusal to engage in mental to the U.S. Constitution are the groups that they had nothing to worry meaningful discussion with us was par- concepts of these checks and balances about in Elena Kagan because she is, in ticularly disappointing because of her and the principle of separation of pow- his words, ‘‘clearly a legal progres- position in a 1995 Law Review Article ers. The preservation of our individual sive.’’ So it is pretty safe to say that entitled ‘‘Confirmation Messes, Old and freedoms actually depends on restrict- President Obama was true to his prom- New.’’ In that article she wrote—and ing the role of policymaking to legisla- ise to pick an individual who likely she was then Chicago Law Professor tures rather than allowing unelected would rule in accordance with these Kagan—that it was imperative that the judges with lifetime appointments to groups’ wishes. A Justice should not be Senate ask about, and the Supreme craft law and social policy from the ju- a member of someone’s team working Court nominees discuss, their judicial dicial bench. The Constitution con- to achieve a preferred policy result on philosophy and substantive views on strains the judiciary as much as it con- the Supreme Court. The only team a issues of constitutional law. Specifi- strains the legislative branch and the Justice of the Supreme Court should be cally, then-Professor Kagan wrote: executive branch under the President. on is the team of the Constitution and When the Senate ceases to engage nomi- When President Obama spoke about nees in meaningful discussion of legal issues, the law. the confirmation process takes on an air of the criteria by which he would select I have said on prior occasions that I vacuity and farce, and the Senate becomes his judicial nominees, he placed a very do not believe judicial experience is an incapable of either properly evaluating high premium on a judge’s ability to absolute prerequisite for serving as a nominees or appropriately educating the have, in his words, ‘‘empathy when de- judge. There have been dozens of peo- public. ciding the hard cases.’’ This empathy ple, maybe close to 40, who have been That is in Professor Kagan’s own standard glorifies the use of a judge’s appointed to the Supreme Court who words. heart and broader vision of what Amer- have not had that experience. Solicitor Bottom line, General Kagan did not ica should be in the judicial process. He General Kagan, however, has no judi- live up to her own standard. She was said that individuals he would nomi- cial experience and has very limited nonresponsive to many of our ques- nate to the Federal judiciary would experience as a practicing attorney. tions. She backed away from prior po- have ‘‘a keen understanding of how the Unlike with a judge or even a prac- sitions and statements. She refused to law affects the daily lives of American ticing lawyer, we do not have any con- discuss the judicial philosophy of sit- people.’’ So when President Obama crete examples of her judicial method ting judges. nominated Elena Kagan to the Su- in action. Thus, the Senate’s job of ad- When asked about her opinions on preme Court, we have to assume he be- vice and consent is much more dif- constitutional issues or Supreme Court

VerDate Mar 15 2010 03:35 Aug 04, 2010 Jkt 089060 PO 00000 Frm 00073 Fmt 4637 Sfmt 0634 E:\CR\FM\G03AU6.080 S03AUPT1 smartinez on DSKB9S0YB1PROD with SENATE S6670 CONGRESSIONAL RECORD — SENATE August 3, 2010 decisions, she either declined to answer on a number of highly controversial undermine second amendment rights. or engaged in an overview of the status issues, such as abortion, gun rights, She was front and center of the Clinton of the law rather than a discussion of campaign finance reform, and the administration’s anti-second amend- her own personal views. Because of her Whitewater and Paula Jones scandals. ment agenda. She collaborated closely shallow record on the issues, this ap- She herself described her work for with Jose Cerda on the administra- proach to the hearing was extremely President Clinton as being primarily tion’s plan to ban guns by ‘‘taking the troubling. political in nature. law and bending it as far as we can to At her confirmation hearing, General In a 2007 speech, she said: capture a whole new class of guns.’’ Kagan told us to ‘‘look to [her] whole During most of the time I spent at the After the Supreme Court in Printz v. life for indications of what kind of White House, I did not serve as an attorney, U.S. found parts of the Brady antigun judge or Justice [she] would be.’’ Well, I was instead a policy adviser. . . . It was law to be unconstitutional, she endeav- General Kagan’s record has not been a part of my job not to give legal advice, but to choose when and how to ask for it. ored to find legislative and executive model of impartiality, as we looked at branch responses to deny citizens’ sec- Her documents from the Clinton Li- her record and her life just as she ond amendment rights. asked us to. There is no question that brary prove just that. She forcefully promoted far-left positions and offered Even in academia, Solicitor General throughout her career she has shown a Kagan took steps and positions that strong commitment to far-left ideolog- analyses and recommendations that were far more political than legal in were based on her strongly held per- ical beliefs. Solicitor General Kagan’s nature. For example, during the Clin- sonal beliefs rather than an even- upbringing steeped her in deeply held ton administration, General Kagan was handed reading of the law. As dean of liberal principles that at one point she instrumental in leading the fight to Harvard Law School, she actively de- stated she had ‘‘retained . . . fairly in- keep partial-birth abortion on the fied Federal law by banning military tact to this date.’’ Her jobs have gen- books. Documents show that she boldly recruiters from campus while the Na- erally never required her to put aside inserted her own political beliefs in the tion was at war. Prior to her appoint- her political beliefs, and she has never place of science. Specifically, she re- ment as dean, the Department of De- seen fit to do so. Her first instinct and drafted language for a nonpartisan fense had made clear to Harvard that the instincts she has relied upon medical group to override scientific the school’s previous recruitment pol- throughout her career are her liberal, findings against partial-birth abortion icy was not in compliance with the Sol- progressive political instincts put to in favor of her own extreme views. De- omon Amendment, so Harvard did what work for liberal, progressive political spite the lack of scientific studies Harvard should have done: changed its goals. I have no evidence that if Solic- showing that partial-birth abortion policy to abide by the Federal law. But itor General Kagan were confirmed to was never necessary and her own when the Third Circuit, which does not the Supreme Court she would change knowledge that ‘‘there aren’t many include Massachusetts, ruled on the her political ways or check her polit- [cases] where use of the partial-birth issue, then-Dean Kagan immediately ical instincts or goals at the court- abortion is the least risky, let alone reinstituted the policy barring the house door. the ‘necessary,’ approach,’’ Solicitor military from the Harvard campus. She In fact, General Kagan gained her General Kagan had no problem inter- took this position because she person- legal expertise by working in politics. vening with the American College of ally believed the military’s long- She started out by working on Con- Obstetricians and Gynecologists to standing policy of don’t ask, don’t tell, gresswoman Liz Holtzman’s Senate change their own policy statement. in her words, was ‘‘a profound wrong— campaign, hoping for, in her words, a After her intervention, this doctor a moral injustice of the first order.’’ ‘‘more leftist left.’’ She also worked as group’s statement no longer accurately She claimed her policy was equal treat- a volunteer in Michael Dukakis’s Pres- reflected the medically supported posi- ment. However, the Air Force believed idential run. The Dukakis campaign tion of the obstetricians and gyne- the policy was playing games with its wisely put her to work at a task that is cologists. Rather, the group’s state- ability to recruit. The Army believed political to the core—opposition re- ment now said that partial-birth abor- the policy resulted in it being search. There she found a place where tions should be available if the proce- stonewalled. Then-Dean Kagan was en- she was encouraged to use her political dure might affect the mother’s phys- titled to her opinion, but—no different savvy and make decisions based upon ical, emotional or psychological well- than anybody else in this country—she her liberal, progressive ideology. being. The reality is that General was not free to ignore the law. The Sol- Moreover, while clerking for Justice Kagan’s change was not a mere clari- omon Amendment required that mili- Marshall, General Kagan’s liberal per- fication. It was, in fact, a complete retary recruiters be allowed equal access sonal convictions—rather than the versal of the medical community’s to the university as any other re- Constitution and the law—seemed to be original statement. cruiter. her ultimate guide when analyzing Other documents show that Solicitor The bottom line is that then-Dean cases. General Kagan consistently re- General Kagan also lobbied the Amer- lied on her political instincts when ad- Kagan refused to follow the law and in- ican Medical Association to change a stead interpreted that law in accord- vising Justice Marshall, channeling statement it had issued on partial- and ultimately completely embracing ance with her personal beliefs. The Su- birth abortion. These documents dem- preme Court unanimously rejected her his philosophy of ‘‘do[ing] what you onstrated her ‘‘willingness to manipu- legal position on the Solomon Amend- think is right and let[ting] the law late medical science to fit the Demo- ment and upheld our military. catch up.’’ Her Marshall memos clearly cratic Party’s political agenda on a hot indicate a liberal and outcome-based button issue of abortion.’’ I am concerned that Solicitor Gen- approach to her legal analysis. During her hearing, General Kagan eral Kagan will continue to use her In several of her memos, it is appar- refused to admit she participated in personal politics and ideology to drive ent she had a difficult time separating the decisionmaking process of what her legal philosophy if she is confirmed her deeply held liberal views and polit- language the gynecologists would use to the Supreme Court, particularly ical beliefs from the law. For example, in their statement on partial-birth since her record shows she has worked in one case she advised Justice Mar- abortion. The documents present a to bend the law to fit her political shall to deny certiorari because the very different picture. Although she wishes. Court might make ‘‘some very bad law stated that there was ‘‘no way she Further, I am concerned with the on abortion.’’ In another case, she was could have intervened with the ACOG,’’ praise Solicitor General Kagan has lav- ‘‘not sympathetic’’ that an individual’s she did exactly that. Instead of re- ished on liberal jurors who promote ac- constitutional right to keep and bear sponding to a legitimate inquiry in an tivist philosophies such as those of arms had been violated. In essence, her open and honest manner, she deflected Israeli Judge Aharon Barak. Judge judicial philosophy was a very political the question and gave, at best, non- Barak is a major proponent of judicial one. responsive answers. activism who believes judges should During her tenure at the White In addition, Solicitor General Kagan ‘‘bridge the gap between law and soci- House, Solicitor General Kagan worked worked on a number of initiatives to ety.’’ He also went on to say that we

VerDate Mar 15 2010 05:38 Aug 04, 2010 Jkt 089060 PO 00000 Frm 00074 Fmt 4637 Sfmt 0634 E:\CR\FM\G03AU6.081 S03AUPT1 smartinez on DSKB9S0YB1PROD with SENATE August 3, 2010 CONGRESSIONAL RECORD — SENATE S6671 ought to use international law to ad- rights. . . . Fundamental rights exist by na- fundamental rights and the second vance a social and political agenda on ture, prior to government and conventional amendment of the Constitution. This the bench. laws. It is because these individual rights are was a case that everyone knew would At a Harvard law event attended by left unsecured that governments are insti- have far-reaching effects. It is apparent tuted among men. then-Dean Kagan, Judge Barak noted that political calculations and personal with approval cases in which ‘‘a judge So I am concerned that Elena Kagan beliefs played a role in Solicitor Gen- carries out his role properly by ignor- refused to agree with my comments eral Kagan’s decision not to file a brief ing the prevalent social consensus and about the Declaration of Independ- in this landmark case to ensure that becoming a flag bearer of new social ence—that there are such things as in- constitutional rights of American citi- consensus.’’ When I asked General alienable rights and if government does zens were protected before the Supreme Kagan if she endorsed such an activist not give, government cannot take Court. judicial philosophy, she replied that away. With respect to the Constitution’s Judge Barak’s philosophy was some- Similarly, Senator COBURN asked commerce clause, Solicitor General thing ‘‘so different from any that we General Kagan if she agreed with Wil- Kagan was asked whether she believed would use or want to use in the United liam Blackstone’s assessment about there are any limits to the power of the States.’’ But that contradicts her pre- the right to bear arms and use those vious statement about Judge Barak arms in self-defense. She replied: Federal Government over the indi- that he is a ‘‘great, great judge’’ who I don’t have a view on what are natural vidual rights of American citizens. ‘‘presided over the development of one rights, independent of the Constitution. Unfortunately, her response didn’t of the most principled legal systems in If you don’t have a view about rights assure me that, if confirmed, she would the world.’’ I am not able to ascertain that existed before the Constitution ensure that any law Congress creates if Solicitor General Kagan agrees with was ever written, do you have the does not infringe on the constitutional Judge Barak or if she rebukes his posi- knowledge to be a Supreme Court Jus- rights of our citizens. Specifically, tions, so I am left to believe she en- tice? Senator COBURN asked her whether she dorses the judicial method of what she So this is concerning to me because, believed a law requiring individuals to calls her ‘‘judicial hero’’ and his views as one commentator stated: eat three vegetables and three fruits a on judicial restraint or lack thereof. I A legal scholar with no take on such a fun- day violated the commerce clause. cannot support a Supreme Court nomi- damental constitutional topic [of which indi- Though pressed on this and other lines nee whose judicial philosophy endorses vidual rights qualify as natural or inalien in of questioning on the commerce clause, judicial activism as opposed to judicial character] seems at best disingenuous and at she was unwilling to comment on what restraint. worst, frightening. How can one effectively would represent appropriate limits on With respect to the second amend- analyze and apply the Constitution without Federal power under the Constitution— ment, General Kagan testified that the a firm grip on what basic freedoms underlie our founding documents and national social and probably the commerce clause has Heller and McDonald cases were bind- compact? How can one effectively under- been used more than any specific power ing precedent for the lower courts and stand the original intent of the Framers of Congress for greater control of the due all the respect of precedent. How- without any opinion on the essential place of Federal Government over State and ever, I worry that, if confirmed, her certain liberties within the American legal local governments or over the economy deeply engrained personal belief will framework? and probably depriving individual cause her to overturn this precedent Bottom line: The fact that General rights in the process. because she does not personally agree Kagan refused to answer our questions I am not sure Solicitor General with those decisions or the constitu- about her personal opinions on the Kagan understands that ours—meaning tional right to bear arms. At the hear- right to bear arms leads me to con- our government—is a limited governing, Solicitor General Kagan was un- clude that she does not believe people willing to discuss her personal views on ment and that the restraints on the have a natural right of self-preserva- Federal Government’s power are pro- the second amendment or whether she tion, unrelated to the Constitution. believes the right to bear arms is what vided by the Constitution and the con- I am concerned about Solicitor Gen- cept of federalism upon which our Na- it is today—a fundamental right. When eral Kagan’s views on our constitu- I asked her about her thoughts on the tion is founded. The powers of the Fed- tional right to bear arms not only be- eral Government are explicitly enu- issue, she simply replied that she ‘‘had cause of her anti-second amendment never thought about it before.’’ I also merated in article I, section 8 of the work during the Clinton administra- Constitution. Further, the 10th amend- asked her whether she believed self-de- tion but also in light of her memo in fense was at the core of the second ment provides that the powers not ex- the Sandidge case when she clerked for pressly given to the Federal Govern- amendment. She could only respond: ‘‘I Justice Marshall. In her memo, she have never had the occasion to look ment in the Constitution are reserved summarily dismissed the petitioner’s to the States. into the history of the matter.’’ As a contention that the District of Colum- former constitutional law professor bia’s firearm statute violated his sec- The Founding Fathers envisioned both at Chicago and Harvard, Solicitor ond amendment right to keep and bear that our government would be con- General Kagan’s response ought to be arms. Instead of providing a serious stitutionally limited in protecting the troubling to anybody who heard it. basis for her recommendation to deny fundamental rights of life, liberty, and A key theme in the U.S. Constitution the certiorari, her entire legal analysis property and that the laws and policies reflects the important mandate of the of this fundamental right consisted of created by the government would be Declaration of Independence. It is the one sentence: ‘‘I am not sympathetic.’’ subject to the limits established by the recognition that the ultimate author- A further basis for my concerns Constitution. As James Madison wrote ity of a legitimate government depends about whether she will protect or un- in Federalist No. 45, ‘‘The powers dele- on the consent of a free people, the dermine the second amendment if she gated by the proposed Constitution to ‘‘consent of the governed.’’ As Thomas is confirmed is the decision of the Of- the federal government are few and de- Jefferson wrote: fice of Solicitor General under her fined. Those which are to remain in the We hold these truths to be self-evident, leadership not to even submit a brief in State government are numerous and that all men are created equal, that they are the second amendment McDonald case. indefinite.’’ endowed by their Creator with certain unalienable Rights, that among these are Solicitor General Kagan’s record clear- I am not convinced the Solicitor Gen- Life, Liberty, and the pursuit of Happiness. ly shows she is a supporter of restric- eral appreciates that there are express That to secure these rights, Governments tive gun laws and has worked on nu- limits the Constitution places on the are instituted among Men deriving their just merous initiatives to undercut second ability of Congress to pass laws. I am powers from the consent of the governed. amendment fundamental rights. So, not persuaded by her nonanswers to As former Attorney General Edwin not surprisingly, as Solicitor General, our commerce clause questions that Meese explains: she could not find a compelling Federal she won’t be a rubberstamp for uncon- That all men are created equal means that interest for the United States to sub- stitutional laws that threaten an indi- they are equally endowed with unalienable mit a brief in a case that dealt with vidual’s personal freedoms.

VerDate Mar 15 2010 03:35 Aug 04, 2010 Jkt 089060 PO 00000 Frm 00075 Fmt 4637 Sfmt 0634 E:\CR\FM\G03AU6.082 S03AUPT1 smartinez on DSKB9S0YB1PROD with SENATE S6672 CONGRESSIONAL RECORD — SENATE August 3, 2010 With respect to the institution of order to find those ‘‘good ideas,’’ she Her answers and evasions to our marriage, I am concerned with Solic- refused to answer. questions at the Judiciary Committee itor General Kagan’s ability to dis- I am unaware of how international hearing also raise serious concern regard her own personal beliefs in order law can help us better understand our about her ability to set aside her per- to defend the Defense of Marriage Act. great Constitution. That is because sonal political goals when interpreting Under her supervision, the United international law should not be used to the Constitution. I am convinced that States filed a brief stating that ‘‘the interpret our Constitution. When we once confirmed to the Court, her ‘‘fine- Administration does not support begin to look to international law to ly tuned political antenna’’ and her DOMA as a matter of policy, believes interpret our own Constitution, we are ‘‘political heart’’ will drive her judicial that it is discriminatory, and supports at a point then where the meaning of method, rather than judicial restraint. its repeal.’’ At the hearing, she refused the U.S. Constitution is no longer de- At the hearing, General Kagan tried to say whether this was an appropriate termined by the consent of the gov- to distance herself from her Oxford the- statement to make considering that it erned. sis, where she embraced judicial activ- is the duty of the Solicitor General to The importance Solicitor General ism. In that thesis, she wrote that ‘‘it vigorously defend the laws of the Kagan places on international law is is not necessarily wrong or invalid’’ for United States. How are we to believe made abundantly clear by her actions judges to try to ‘‘mold and steer the she will uphold a law as a Supreme as dean of Harvard, when she imple- law in order to promote certain ethical Court Justice when she disagrees with mented a curriculum mandating that values and achieve certain social that law? When she was tasked as the all first-year law students take inter- ends.’’ Our great American tradition government’s lawyer to vigorously de- national law. She said that the first and the U.S. Constitution soundly re- fend the law, clearly she put her per- year of law school is the ‘‘foundation of ject the notion of judges overstepping sonal politics and beliefs first. It is ob- legal education,’’ forming lawyers’ their constitutional role by imple- vious that supporting the repeal of a ‘‘sense of what the law is, its scopes, its menting their personal, political, and law is not vigorously defending that limits, and its possibilities.’’ Yet, U.S. social goals from the bench. I am not law. constitutional law, the class that convinced that, if confirmed, General There are other occasions where Gen- teaches the founding document of our Kagan will actually be able to resist eral Kagan’s personal beliefs rather legal system—a class that almost every the temptation to do that. That is be- than the law appear to have guided her other law school in the country because I believe her judicial philosophy decisions as Solicitor General. For ex- lieves first-year students should have— is really nothing more than a political ample, with respect to her handling of is not a mandatory first-year course at philosophy. This being the case, I am the lawsuits attempting to overturn Harvard Law. not at all convinced she will be able to the don’t ask, don’t tell policy, she I don’t disagree that it is helpful for apply the law impartially and not be a didn’t file an appeal in the Witt v. De- students to understand international rubberstamp for the President or the partment of the Air Force case to up- law, but I question why it should be a leftwing interest groups’ political and hold the constitutionality of the law, first-year requirement and thus man- social agenda. even though there was a split in the datory to graduate—especially when Solicitor General Kagan acknowl- circuit courts on this issue. I have al- U.S. constitutional law is not required edged that it is ‘‘difficult to take off ready discussed Solicitor General to graduate from Harvard Law School the advocate’s hat and put on the Kagan’s actions at Harvard Law and at all—yes, hard to believe; a student judge’s hat.’’ Yet she could not show us how she thwarted our military’s re- can graduate from Harvard Law with- that she had the ability to make the cruitment efforts because of her deeply out having to take a single constitu- transition from an academic and polit- held views against the don’t ask, don’t tional law class. ical operative to what we believe ought tell policy. I cannot imagine that her When General Kagan was asked to be a fair and impartial jurist. Her personal opinions on this matter did about this, she answered: testimony did not disprove her far-left record or demonstrate she would not not play a role in decisionmaking at Constitutional law should primarily be the Solicitor General’s Office with re- kept in the upper years, where students can let her political views dominate her ap- spect to the Witt case. deal with it in a much more sophisticated proach to the law. I am not persuaded I am also concerned about Solicitor and in-depth way. Solicitor General Kagan will be able to General Kagan’s views on property This may seem reasonable, but it overcome that difficulty and transition rights. The fifth amendment states does not address why a student is never into an unbiased judge, so I will vote that the government ‘‘shall not take required to take a constitutional law no on her confirmation. I yield the floor. private property rights for public use class to graduate. Because, as dean, she The PRESIDING OFFICER. The Sen- without just compensation.’’ In 2004, never saw the need to make constitu- ator from Florida is recognized. the Supreme Court took an expansive tional law a requirement to graduate, MEASURE READ THE FIRST TIME—S.J. RES. 38 view of the words ‘‘public use’’ in Kelo then I am led to believe Solicitor Gen- Mr. LEMIEUX. Mr. President, as in v. City of New London, allowing the eral Kagan believes international law legislative session, I understand there government to take private property so is more important than U.S. constitu- is a joint resolution at the desk. I ask that it could be transferred to another tional law. This is remarkable—or for its first reading. person promoting economic develop- maybe I should say it is shocking—con- The PRESIDING OFFICER. Without ment. At the hearing, Solicitor General sidering that the Constitution of the objection, the clerk will state the title Kagan refused to comment on whether United States is our most fundamental of the joint resolution for the first she believed the Court had correctly in- law. time. terpreted the text of the Constitution I am deeply concerned then that if The assistant legislative clerk read in the Kelo case. She also did not confirmed to the Supreme Court, Gen- as follows: elaborate on any limits to the govern- eral Kagan will put her own strongly A joint resolution (S.J. Res. 38) proposing ment’s ability to take private prop- held personal views above that of the a balanced budget amendment to the Con- erty. I am concerned that she does not Constitution and the law. stitution of the United States. agree that the ruling in Kelo under- Throughout her life, Solicitor Gen- Mr. LEMIEUX. Mr. President, I ask mines citizens’ property rights con- eral Kagan’s background has allowed for a second reading, and in order to tained in the Constitution. her to work without having to check place the bill on the calendar under the Solicitor General Kagan’s view of the her political and ideological views. Her provisions of rule XIV, I object to my role of international law is disturbing. experiences throughout her life have own request. At the hearing, she stated that a Jus- allowed her to indulge, reinforce, and The PRESIDING OFFICER. Objec- tice could look to international law to ultimately submit her deeply ingrained tion is heard. The bill will receive its find ‘‘good ideas’’ when interpreting liberal beliefs. In my opinion, her second reading on the next legislative the U.S. Constitution and our laws. record strongly suggests she will not be day. However, when I pressed her on which able to act in an unbiased manner as a Mr. LEMIEUX. Mr. President, I rise countries a Justice should look to in Justice. to speak on the President’s nomination

VerDate Mar 15 2010 05:38 Aug 04, 2010 Jkt 089060 PO 00000 Frm 00076 Fmt 4637 Sfmt 0634 E:\CR\FM\G03AU6.083 S03AUPT1 smartinez on DSKB9S0YB1PROD with SENATE August 3, 2010 CONGRESSIONAL RECORD — SENATE S6673 of Elena Kagan to serve as an Asso- the head of one of the branches of our There is no other portion of govern- ciate Justice on the U.S. Supreme coequal government, we have a solemn ment where this is true, to be head of Court. responsibility to do our job and under- a coequal branch for life—Justice Ste- First, I congratulate my colleague stand what our job is. vens serving 35 years on the U.S. Su- from Iowa for his tremendous remarks In preparing for this responsibility of preme Court. this evening, as he went through the providing advice and consent and in What criteria should we use? I pro- reasons he will not be supporting Elena being a lawyer who wanted to do a pose the following: One, a nominee Kagan. I congratulate him on such a good job and be lawyerly about this should present a robust body of work. reasoned and persuasive oration this work, I took the opportunity to try to Why? Because there needs to be some- evening. study up on what our opportunity and thing for us to evaluate. We need to Ms. Kagan has been nominated to fill responsibility is in this confirmation of have the ability, in providing our con- the seat of Justice Stevens. I had the a Supreme Court Justice. sent function, to look at a body of opportunity, in 2004, to appear before What do these terms ‘‘advice and work so we can properly execute our the Court in the position as deputy at- consent’’ mean and what is our respon- responsibility. torney general of Florida. During that sibility and how do we undergo that re- This does not mean, nor do I believe, time, because Chief Justice Rehnquist sponsibility to fulfill our constitu- that it is required for a nominee to the was ill, Justice Stevens presided. tional obligation? Certainly, in order U.S. Supreme Court that they have I think before I go into an evaluation to fulfill it, we must understand it. been a judge. In fact, our Constitution of Solicitor General Kagan, it is impor- What does advice and consent mean? provides no requirements for a judge to tant to note what a historic figure Jus- Advice certainly means to provide in- serve on the U.S. Supreme Court. This tice Stevens is to the American bench formation, counseling, and to give is unlike what we see in the Congress. and the bar. some feedback to the President of the There are specific requirements of how Even before he began his 35 years of United States as to a nominee. It old you have to be to be in the House, service on the Supreme Court, he built seems to be more of the role of a coun- to be in the Senate, how many years a stellar reputation as a member of the selor than anything else. But of the you must be a resident of this country. bar as a lawyer and a careful jurist. He two words, it is not the most weighty. The same requirements apply to the graduated from Northwestern School of The most weighty of the two is con- President. There are no requirements Law. He served as a clerk to Supreme sent. In fact, the advice-and-consent for a judge as it is stated in the Con- Court Justice Wiley Rutledge. Then he function is not found within the enu- stitution, for a Justice of the Supreme spent nearly 20 years, from 1949 to 1969, merated legislative powers. Article I of Court. as a practitioner of law and one of the the Constitution holds those respon- In evaluating that there are no re- country’s foremost experts on anti- sibilities. Advice and consent is found quirements, we certainly need to know trust law. He taught courses at the in article II, which enumerates the what the Justice stands for and how University of Chicago, he served on a powers of the executive branch, of the the Justice will fulfill his or her obli- Department of Justice commission, President. Advice and consent is shown gations on the Court. Without a body and he authored various papers on as a limitation on the President’s of work, that is very difficult to evalu- antitrust issues. power. The President cannot just put ate. While there is no requirement that It was in 1970 that President Nixon whomever he or she wishes on a court. one be even, in fact, a lawyer, although appointed Justice Stevens to the U.S. He can only do so with the advice and every person who has been confirmed Court of Appeals for the Seventh Cir- consent of this body. In fact, our has been a lawyer, and there is no re- cuit. After 5 years of service there, he Founders did not place this responsi- quirement that you be a judge, if you was elevated to the Supreme Court. bility in both the House and the Sen- are not a judge, you do not have a ro- His service to this country should be ate. They solely put that responsibility bust body of work for us to evaluate. remembered, and he gets our thanks. among the Members of this body. ‘‘Con- That makes it more difficult on our On behalf of a grateful nation, I send sent’’ being the operative and, in my part to make a decision of whether we my gratitude to him for his unique and mind, meaningful term because with- should give our consent and, I suggest, important service to this country. out our consent, the nominee is not it provides an additional burden to the In evaluating a nominee to the U.S. confirmed. nominee to be forthcoming when an- Supreme Court, we in the Senate exer- Our responsibility is not trivial, and swering questions. Since we do not cise a solemn obligation. It is a rare we are certainly not here to be a mere have a body of work to evaluate, since time in our constitutional democracy rubberstamp on the President’s nomi- we cannot look at prior decisions that when the three branches come together nation. It is our obligation to thor- a judge has handed down, to know how in one proceeding. One of those is the oughly evaluate and provide that con- a judge ruled in the past and, therefore, unfortunate proceeding of impeach- sent because, but for our consent, the glean how the judge will rule in the fu- ment. Thankfully, that is not why we nominee will not be seated. ture, that nominee must be forth- are here. But the other is this pro- How do we execute that responsi- coming so we can hear how he or she ceeding—a proceeding when the Presi- bility? What does it mean to provide will do his or her job as a Justice. dent submits for consideration a judi- consent and how should we do it? Second, the nominee must dem- cial nominee who is then evaluated by Certainly, we have to look at the onstrate an unfailing fidelity to the this body under the advice and consent nominee and the applicant. We have to text of the Constitution and proper re- clause of article II, section 2, clause 2 see that the person will be a person of straint against the temptation to ex- of the U.S. Constitution. integrity, that they are thoughtful, pand judicial power. Why do we find That clause reads, in part: that they have experience, and that this important? I will talk about this [The President] shall have Power, by and they will uphold the obligations of a more in a minute. It is because we have with Advice and Consent of the Senate, shall Supreme Court Justice. a separation of powers and checks and appoint Ambassadors, other public Ministers Last May, when I started my work of balances that were imbued in our Con- and Consuls, Judges of the supreme Court, trying to evaluate how I would fulfill stitution by our Founders. They in- and all other Officers of the United States. my constitutional obligation and start- tended for our government to be ... ed to do some reading of prior con- counterbalanced by each branch—the While we do have that advice-and- firmation proceedings, the writings of legislative, the judicial, and the execu- consent role on a normal occasion for Senators who have come before me, I tive. those other officers, for judges of the came upon what I believe is a four-part It is the beauty of the Constitution lower courts, for ministers and the criteria to evaluate a nominee to the that no branch will exert too much au- like, it is a rare occurrence when this Nation’s highest Court. thority because it will be checked by body has the honor and opportunity to It should be stressed how important a the other, each branch having checks evaluate a Supreme Court nominee. position this is. There are only nine on the other. Furthermore, sometimes Because it is a rare occurrence and be- Justices who sit atop the judicial forgotten, is that the Federal Govern- cause this is a lifetime appointment to branch, and they are appointed for life. ment is part of a federalist society. We

VerDate Mar 15 2010 03:35 Aug 04, 2010 Jkt 089060 PO 00000 Frm 00077 Fmt 4637 Sfmt 0634 E:\CR\FM\G03AU6.084 S03AUPT1 smartinez on DSKB9S0YB1PROD with SENATE S6674 CONGRESSIONAL RECORD — SENATE August 3, 2010 are a Republic, and the Federal Gov- lieve Solicitor General Kagan served is not informed. Yet Solicitor General ernment is only one piece of the gov- when she was the dean of Harvard Law Kagan, without a judicial record and a ernmental structure. The rest are the School. failure to directly and clearly answer governments of the States and the In this foreward, I think that Pro- questions, as Professor Tribe writes, powers and rights which are left to the fessor Tribe provides a very cogent and fails to give us the information to people under our Constitution. Our focused analysis of the problem we ex- allow us to give consent in an informed Founders sought checks and balances perience in the modern confirmation way. between the Federal Government and setting where nominees fail to provide We need to look no further than her the State governments and the people sufficient answers to questions. own words when she wrote, in a spring as well. Why this is so troubling with Solic- 1995 Law Review article. It was a com- A nominee must understand that the itor General Kagan is because we do ment on a book that was talking about judiciary cannot expand its role beyond not have the body of work to evaluate. the confirmation mess, and then-Pro- the confines our Founders intended. In It has been the course, in the past 20 fessor Kagan, also bemoaning the state fact, we know our Founders intended years, that it seems all the nominees of confirmation hearings, said: for the judiciary not to serve as a legis- to the Supreme Court give these sort of When the Senate ceases to engage nomi- lative branch because in article II, the vapid answers. That is not my phrase. nees in meaningful discussion of legal issues, the confirmation process takes on an air of legislative power is vested solely in the That is, in fact, her phrase. We will vacuity and farce, and the Senate becomes Congress. talk about that in a moment—vapid incapable of either properly evaluating For a judge or Justice to take on a answers that come from questions from nominees or appropriately educating the legislative role, to not have a firm ad- the Senators on the Judiciary Com- public. herence to the law as written, violates mittee, failing to articulate what your She described the process before the the separation of powers, violates the position is on a particular point of law, Judiciary Committee as becoming rights and responsibilities of the Con- all the more concerned when we have vapid, and, unfortunately, even though gress. no record to evaluate. she should know more than anyone Third, the nominee must make deter- Here is what Professor Tribe said: else—because those were her words, the minations about the meaning of Fed- The Court and the Nation cannot afford charade that she condemned in her ar- eral law and the Constitution and any more ‘‘stealth’’ nominees who stead- ticle in the 1990s—she engaged in the apply the law as written, again, be- fastly decline to answer substantive ques- same charade when she appeared before cause of that separation of powers. tions the Senate might pose on the oft-in- the Judiciary Committee. Fourth, the nominee must under- voked ground that the matter might come ‘‘A nominee whose record is too pale stand the Court’s role in stopping un- before the Court during their possible ten- to read with the naked eye or whose constitutional intrusions by the elect- ure. This easy refrain does not provide a views are too shrouded in fog . . . is valid excuse for stonewalling, no matter how ed branches. Our Founders knew each probably ill-suited for a lifetime ap- frequently it is repeated . . . pointment,’’ said Professor Tribe. branch of government would seek to On the contrary, the adversary system expand the scope of its power. That is works best when all concerned, and not just Ms. Kagan also has very little prac- the beauty of the checks and balances those who nominated the judge, know what tical experience. Unlike Justice Ste- system—to keep each body in check. there is to be known about the judge’s start- vens, who practiced law for 20 years, They did not want a strong executive. ing predispositions on a pending issue. And Ms. Kagan practiced law for 2. Never They worried about the tyranny of the let’s stop pretending that such predisposi- having served before as a judge, we executive. But they also worried about tions do not exist. It hardly fosters fairness don’t know her record. She said that to claim that a mind is completely neutral the tyranny of the legislative. Nor did the confirmation proceedings in the when in fact a lifetime of experiences has un- past had an ‘‘air of vacuity and farce,’’ they hope the judiciary would become avoidably inclined it one way or another and too strong. a ‘‘vapid and hollow charade.’’ Instead to other, and to equate an open mind with a of following her own admonishment, Alexander Hamilton wrote in Fed- blank one insults the intelligence of all con- eralist No. 78 that ‘‘it is the courts that cerned. she participated in that charade. She will serve as the bulwarks of limiting engaged in the same vapid exercise He goes on to say: that she condemned. Constitution against legislative en- A nominee whose record is too pale to read The burden was on Ms. Kagan to croachment.’’ with the naked eye or whose views are demonstrate how she would rule as a Our Founders designed this intricate shrouded in fog too dense for anything but judge. With no record for us to evalu- system of checks and balances to keep the klieg lights of national television to ate, she could not engage in the same all the governmental bodies and insti- pierce is probably ill-suited for a lifetime seat on the Supreme Court in any event. charade that she had previously con- tutions in check, to not expand to the demned and leave us with nothing to detriment of another body, to not ex- Let me repeat: know as to how she would act in a life- pand to the detriments of our rights A nominee whose record is too pale to read time appointment—an appointment, if and the rights of the States. with the naked eye or whose views are Justice Stevens’ record is any sort of In evaluating Solicitor General shrouded in fog too dense . . . is probably ill- indication of how long a ‘‘Justice Kagan—and I note also in comparing suited for a lifetime seat on the Supreme Court. Kagan’’ might serve, for 35 years. her to Justice Stevens—I find she does I have an obligation, Mr. President, not have the experience that gives us Mr. President, unfortunately, that under article 2, section 2 to provide ad- the opportunity to evaluate her work, describes Solicitor General Kagan. She vice and consent, and I cannot do so to determine what kind of judge or is an extremely bright and articulate where the nominee cannot or does not Justice she would be. woman. She has a tremendous aca- provide a record that my colleagues In preparing for this decision, I went demic background. I commend her for and I can evaluate. We are left without back and I read a book that was writ- her public service—of serving in a Pres- a solid basis upon which to judge how ten by one of our predecessors, Senator idential administration. I commend she would judge. Paul Simon. It was a book he published her for serving as dean of a law school. During the Judiciary Committee pro- in 1992. The book is called ‘‘Advice and That too is public service. But our job ceedings, she said she would give bind- Consent.’’ The book concerns the con- is to evaluate these nominees, and we ing precedent all the respect of binding firmation hearings of Justice Bork and cannot evaluate them if they have no precedent. That is meaningless. It Justice Thomas. record of how they would rule or how gives us no indication of how she might Interestingly, in this book—and it is they have ruled, and they provide no make her decisions, how she might a very fine book and I commend any- sufficient information when they come rule. one who is interested in this topic to before the Judiciary Committee of this So I am left with these serious con- read it—there is a foreward in the book body. Without that information, how cerns. I am left with the serious con- by Laurence Tribe, the famous con- can we faithfully provide our consent? cerns about her commitment to uphold stitutional scholar, at the time the There is a notion in the law of con- the constitutional principle of a lim- Tyler Scholar of Constitutional Law at sent needing to be informed. In fact, it ited government, the fundamental pro- Harvard University, with whom I be- can’t really be consent in the law if it tections of the second amendment, and

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It was not set up to allow law warned us that our written constitu- clause that this Congress and Con- students to interview with the mili- tion can help secure liberty only if it is gresses in the past have sought to tary. not made a blank paper by construc- enter and to invade every portion of Some have called this the same as tion.’’ life in this country—things in which ‘‘separate but equal.’’ It was not even Ms. Kagan testified that her whole our Founders never intended the Fed- equal. It is outrageous. It is outrageous life provided indications of what kind eral Government to be involved. beyond the fact that Harvard received of judge or Justice she would be. And It appears Ms. Kagan has this same Federal dollars. It is outrageous that a in that statement I agree. view of an expansive Federal Govern- premier institution such as Harvard As mentioned earlier, before law ment—a Federal Government that University, one of our first institutions school, when she was writing a thesis makes States its dependents and of higher learning, known throughout at Oxford, she stated that ‘‘new times apparatuses thereto, a Federal Govern- the world as being an exceptional and circumstances demand a different ment that has no limits, a Federal school, would not allow the military interpretation of the Constitution,’’ Government that can invade every por- the benefit of its students to serve by and that judges may ‘‘mold and steer tion of our lives, a Federal Government being interviewed on campus, in a reg- the law in order to promote certain that is too vast, too expensive and be- ular on-campus process in which every ethical values and achieve certain so- yond what our Founders intended. law firm or other agency of govern- cial ends.’’ That is not what the Found- I am also concerned about Solicitor ment is allowed to participate. And ers intended for a Justice of the Su- General Kagan’s views on the right to that is a decision that she presided preme Court. bear arms enumerated in the second over. That is an error of judgment. In that same thesis, she wrote: amendment. I think she has too little But I also believe that it was an error The judge’s own experience and values be- regard for some of our Constitution’s of law. In 1996, Congress passed the Sol- come the most important element in the decision. If that is too results oriented, so be most fundamental protections. As a omon Amendment allowing the Sec- it. law clerk, she was dismissive of the retary of Defense to deny Federal Mr. President, that is a violation of second amendment, saying she was not grants to institutions of higher edu- the constitutional requirement that all sympathetic to the amendment. cation if they prohibited ROTC or mili- power legislative be vested in this Con- During the Clinton administration, tary recruitment on campus. Under the gress. she developed numerous anti-second Harvard Law School antidiscrimina- I was concerned about the colloquy amendment initiatives. In her con- tion policy, the military was banned that she had with Senator COBURN. In firmation process for Solicitor General, from utilizing its services, and it was fact, it was something I discussed with she declined to comment on second concluded that, therefore, those Fed- her in person prior to her testimony amendment rights. eral funds would be suspended. before the Judiciary Committee. This There was a discussion earlier of my Ms. Kagan refused to abide by that colloquy was about the commerce friend and colleague from Iowa talking Solomon Amendment when she was the clause and whether or not it was lim- about natural rights. I think it is im- dean. In 2002, Harvard was informed by ited. Remember that our Founders in- portant for us to remember the setting the Department of Defense its practice tended for the Federal Government to upon which our Framers brought this of letting military recruiters contact be limited in its powers. That is why constitution to bear. There were the students through the Harvard Law there are enumerated powers in article Articles of Confederation—a loose ar- School Veterans Association, but not 1. They are not plenary; they are lim- rangement between the States where the Office of Career Services, violated ited by their number. there was no central government. The the Federal law. In response, Dean Senator COBURN asked her about Founders took it upon themselves to Kagan filed a brief challenging the con- sponsoring a bill, about requiring seek to enact a stronger Federal sys- stitutionality of the Solomon Amend- Americans to eat their fruits and vege- tem but a system that, as the 9th ment, which is her right—not a good tables, and it got a response from So- amendment, the 10th amendment and decision but her right. licitor General Kagan that it ‘‘sounds other provisions of the Constitution The Court of Appeals for the Third like a dumb law.’’ But Senator COBURN show, leaves rights to the States and to Circuit enjoined the law. And Ms. asked whether or not it would be con- people; that enumerates specific pow- Kagan reinstated Harvard’s, in my stitutional and she failed to provide an ers of the Federal Government. view, discriminatory policy. answer. Remember, initially, there were not Now, you might say: Well, the court Senator COBURN then put the meat even the first 10 amendments. Remem- ruled; therefore, it was appropriate for on the bones and asked: ber, there was a confirmation battle as her, if she so chose, to go back to the What if I said that eating three fruits and to whether the States individually previous policy because that had been three vegetables would cut health care costs would ratify the Constitution. There enjoined. However, Massachusetts is by 20 percent? Now we’re into commerce. were anti-Federalists who thought the not in the Third Circuit, it is in the And since the government says that 65 per- constitution had gone too far and given First. An appellate decision in the cent of all the health care costs [are because too much authority to the Federal Third Circuit is not binding on the of health care], why isn’t that constitutional? Government, and our Founders Ham- First Circuit. If Dean Kagan wanted to No real meaningful answer to give ilton, Madison and Jay, in writing the go to court again and seek to have it clarity of how Solicitor General Kagan Federalist Papers, had to make the applied, that would have been one as Justice Kagan would rule. case of some form of central govern- thing. What she did instead is unilater- Mr. President, the Federal Govern- ment. But they gave the assurances ally follow a decision that had no effect ment has expanded its powers beyond that most of the obligations to govern upon her and, in my view, violates the what our Framers intended—far be- would be left to the people and the law. yond what our Framers intended. States. Ms. Kagan doesn’t have that Again, I think Solicitor General James Madison, in Federalist 45, said: view, it appears. Kagan is an extremely intelligent per- The powers delegated by the proposed Con- Finally, I am concerned about the son, an articulate person. I think that stitution to the federal government are few way that then-Dean Kagan treated the she has a commendable career of public and defined. Those which are to remain in military as the dean of Harvard Law service. But she has failed to meet the the State governments are numerous and in- School. I think it is outrageous that burden that is required of someone definite. the U.S. military was not allowed to with no judicial record. She has failed But that is not how our constitution recruit on campus while she was the to inform us of how she would judge as is modernly interpreted. We are away dean of the law school. And this idea a member of the U.S. Supreme Court.

VerDate Mar 15 2010 03:35 Aug 04, 2010 Jkt 089060 PO 00000 Frm 00079 Fmt 4637 Sfmt 0634 E:\CR\FM\G03AU6.086 S03AUPT1 smartinez on DSKB9S0YB1PROD with SENATE S6676 CONGRESSIONAL RECORD — SENATE August 3, 2010 To be brigadier general THE FOLLOWING NAMED INDIVIDUAL FOR REGULAR With no record to read, there is height- APPOINTMENT TO THE GRADE INDICATED IN THE ened scrutiny on the nominee, and we COLONEL DANIEL R. AMMERMAN UNITED STATES ARMY MEDICAL SPECIALIST CORPS COLONEL EDWARD G. BURLEY UNDER TITLE 10, U.S.C., SECTIONS 531 AND 3064: did not have the opportunity to have COLONEL JODY J. DANIELS COLONEL WILLIAM F. DUFFY To be major full and forthcoming answers from Ms. COLONEL PATRICK J. REINERT Kagan. Instead, what we had was the COLONEL DOUGLAS R. SATTERFIELD JOHN W. PAUL COLONEL JOHN H. TURNER III same vapid and vacuous answers that COLONEL HUGH C. VANROOSEN II THE FOLLOWING NAMED OFFICERS FOR APPOINTMENT COLONEL RICKY L. WADDELL TO THE GRADE INDICATED IN THE RESERVE OF THE she condemned in her law review arti- ARMY UNDER TITLE 10, U.S.C., SECTION 12203: IN THE MARINE CORPS cle in the mid-1990s, the same type of To be colonel THE FOLLOWING NAMED OFFICER FOR APPOINTMENT charade Lawrence Tribe said makes AS ASSISTANT COMMANDANT OF THE MARINE CORPS, ERIC S. ALFORD AND APPOINTMENT TO THE GRADE INDICATED WHILE PAUL J. CISAR somebody ill-suited for a lifetime ap- ASSIGNED TO A POSITION OF IMPORTANCE AND RESPON- MICHAEL K. HANIFAN SIBILITY UNDER TITLE 10, U.S.C., SECTIONS 5044 AND 601: pointment, with such a thin record. THE FOLLOWING NAMED OFFICERS FOR APPOINTMENT If perhaps she would have been more To be general TO THE GRADE INDICATED IN THE RESERVE OF THE ARMY UNDER TITLE 10, U.S.C., SECTION 12203: forthcoming, I would have been able to LT. GEN. JOSEPH F. DUNFORD, JR. To be colonel come to a different conclusion. But THE FOLLOWING NAMED OFFICER FOR APPOINTMENT TO THE GRADE OF LIEUTENANT GENERAL IN THE GEORGE W. MELELEU when you take the lack of her record, UNITED STATES MARINE CORPS WHILE ASSIGNED TO A AARON L. POLSTON her inability to provide clear responses POSITION OF IMPORTANCE AND RESPONSIBILITY UNDER TITLE 10, U.S.C., SECTION 601: THE FOLLOWING NAMED INDIVIDUALS FOR REGULAR to questions to give us indication of APPOINTMENT TO THE GRADES INDICATED IN THE To be lieutenant general UNITED STATES ARMY DENTAL CORPS UNDER TITLE 10, how she would rule, and the concerns U.S.C., SECTIONS 531 AND 3064: LT. GEN. THOMAS D. WALDHAUSER about the second amendment, about To be lieutenant colonel THE FOLLOWING NAMED OFFICER FOR APPOINTMENT how she treated the military at Har- TO THE GRADE OF LIEUTENANT GENERAL IN THE DEAN P. SUANICO vard, and her views about the activism UNITED STATES MARINE CORPS WHILE ASSIGNED TO A DAVID A. THOMPSON POSITION OF IMPORTANCE AND RESPONSIBILITY UNDER of the Court—in light of all those rea- TITLE 10, U.S.C., SECTION 601: To be major sons, I will be voting no on Ms. Kagan’s To be lieutenant general ELIZABETH R. OATES confirmation. MAJ. GEN. ROBERT B. NELLER THE FOLLOWING NAMED INDIVIDUALS FOR REGULAR APPOINTMENT TO THE GRADES INDICATED IN THE I yield the floor. IN THE ARMY UNITED STATES ARMY MEDICAL CORPS UNDER TITLE 10, U.S.C., SECTIONS 531 AND 3064: f THE FOLLOWING NAMED OFFICER FOR APPOINTMENT AS PERMANENT PROFESSOR AT THE UNITED STATES To be lieutenant colonel MILITARY ACADEMY IN THE GRADE INDICATED UNDER ADJOURNMENT UNTIL 9:30 TITLE 10, U.S.C., SECTIONS 4333(B) AND 4336(A): BRIAN F. LANE TOMORROW To be lieutenant colonel To be major The PRESIDING OFFICER. Under ROBERT H. KEWLEY, JR. PATRICK J. CONTINO KIMBERLY D. KUMER the previous order, the Senate stands THE FOLLOWING NAMED OFFICER FOR APPOINTMENT AS PERMANENT PROFESSOR AT THE UNITED STATES THE FOLLOWING NAMED INDIVIDUALS FOR REGULAR adjourned until 9:30 a.m. tomorrow. MILITARY ACADEMY IN THE GRADE INDICATED UNDER APPOINTMENT TO THE GRADES INDICATED IN THE TITLE 10, U.S.C., SECTIONS 4333(B) AND 4336(A): UNITED STATES ARMY MEDICAL CORPS UNDER TITLE 10, Thereupon, the Senate, at 8:42 p.m., U.S.C., SECTIONS 531 AND 3064: adjourned until Wednesday, August 4, To be lieutenant colonel To be lieutenant colonel 2010, at 9:30 a.m. WILEY C. THOMPSON DUSTIN C. FRAZIER f THE FOLLOWING NAMED OFFICER FOR APPOINTMENT AS PERMANENT PROFESSOR AT THE UNITED STATES To be major NOMINATIONS MILITARY ACADEMY IN THE GRADE INDICATED UNDER TITLE 10, U.S.C., SECTIONS 4333(B) AND 4336(A): ROGER E. JONES Executive nominations received by COURTNEY T. TRIPP To be colonel the Senate: THE FOLLOWING NAMED INDIVIDUALS FOR REGULAR RAYMOND C. NELSON APPOINTMENT TO THE GRADES INDICATED IN THE DEPARTMENT OF THE TREASURY UNITED STATES ARMY DENTAL CORPS UNDER TITLE 10, U.S.C., SECTIONS 531 AND 3064: TIMOTHY CHARLES SCHEVE, OF PENNSYLVANIA, TO BE THE FOLLOWING NAMED OFFICER FOR APPOINTMENT A MEMBER OF THE INTERNAL REVENUE SERVICE OVER- AS PERMANENT PROFESSOR AT THE UNITED STATES SIGHT BOARD FOR A TERM EXPIRING SEPTEMBER 14, MILITARY ACADEMY IN THE GRADE INDICATED UNDER To be lieutenant colonel TITLE 10, U.S.C., SECTIONS 4333(B) AND 4336(A): 2010, VICE NANCY KILLEFER, TERM EXPIRED. DONALD P. BANDY TIMOTHY CHARLES SCHEVE, OF PENNSYLVANIA, TO BE To be colonel A MEMBER OF THE INTERNAL REVENUE SERVICE OVER- To be major SIGHT BOARD FOR A TERM EXPIRING SEPTEMBER 14, BERNARD B. BANKS 2015. (REAPPOINTMENT) KEITH J. WILSON THE FOLLOWING NAMED OFFICER FOR APPOINTMENT IN THE AIR FORCE AS PERMANENT PROFESSOR AT THE UNITED STATES THE FOLLOWING NAMED OFFICERS FOR REGULAR AP- MILITARY ACADEMY IN THE GRADE INDICATED UNDER POINTMENT IN THE GRADES INDICATED IN THE UNITED THE FOLLOWING NAMED OFFICER FOR APPOINTMENT TITLE 10, U.S.C., SECTIONS 4333(B) AND 4336(A): IN THE UNITED STATES AIR FORCE TO THE GRADE INDI- STATES ARMY UNDER TITLE 10, U.S.C., SECTION 531: CATED UNDER TITLE 10, U.S.C., SECTION 624: To be colonel To be lieutenant colonel To be brigadier general DAVID A. WALLACE STANLEY GREEN DAVID K. HOWE COL. CHRISTOPHER J. BENCE THE FOLLOWING NAMED INDIVIDUALS FOR REGULAR APPOINTMENT IN THE GRADE INDICATED IN THE UNITED THE FOLLOWING NAMED OFFICER FOR APPOINTMENT STATES ARMY JUDGE ADVOCATE GENERAL’S CORPS To be major IN THE UNITED STATES AIR FORCE TO THE GRADE INDI- UNDER TITLE 10, U.S.C., SECTIONS 531 AND 3064: CATED WHILE ASSIGNED TO A POSITION OF IMPORTANCE CHRISTOPHER T. BIAIS AND RESPONSIBILITY UNDER TITLE 10, U.S.C., SECTION To be major JEFFREY P. CHAMBERLAIN 601: LEVIE J. CONWAY MELISSA R. COVOLESKY LAURA JEFFERIES To be lieutenant general TIMOTHY D. LITKA STEPHEN A. MARSH JOHN H. STEPHENSON II CRAIG F. MITCHELL MAJ. GEN. JAMES M. KOWALSKI AMANDA K. PARKHURST THE FOLLOWING NAMED OFFICER FOR APPOINTMENT JON B. TIPTON IN THE ARMY TO THE GRADE INDICATED IN THE RESERVE OF THE ARMY UNDER TITLE 10, U.S.C., SECTION 12203: IN THE NAVY THE FOLLOWING ARMY NATIONAL GUARD OF THE UNITED STATES OFFICER FOR APPOINTMENT IN THE RE- To be colonel THE FOLLOWING NAMED OFFICER FOR APPOINTMENT SERVE OF THE ARMY TO THE GRADE INDICATED UNDER TO THE GRADE INDICATED IN THE UNITED STATES NAVY TITLE 10, U.S.C., SECTIONS 12203 AND 12211: JONATHAN J. MCCOLUMN UNDER TITLE 10, U.S.C., SECTION 624: To be brigadier general THE FOLLOWING NAMED INDIVIDUAL FOR REGULAR To be lieutenant commander APPOINTMENT IN THE GRADE INDICATED IN THE UNITED COL. ARTHUR W. HINAMAN STATES ARMY MEDICAL CORPS UNDER TITLE 10, U.S.C., TIMOTHY J. RINGO SECTIONS 531 AND 3064: THE FOLLOWING NAMED INDIVIDUALS FOR APPOINT- THE FOLLOWING ARMY NATIONAL GUARD OF THE MENT TO THE GRADE INDICATED IN THE REGULAR NAVY UNITED STATES OFFICER FOR APPOINTMENT IN THE RE- To be lieutenant colonel UNDER TITLE 10, U.S.C., SECTION 531: SERVE OF THE ARMY TO THE GRADE INDICATED UNDER TITLE 10, U.S.C., SECTIONS 12203 AND 12211: DANIEL E. BANKS To be lieutenant commander To be brigadier general THE FOLLOWING NAMED INDIVIDUAL FOR REGULAR WILLIAM A. BROWN, JR. APPOINTMENT TO THE GRADE INDICATED IN THE LESLIE H. TRIPPE COL. BENJAMIN F. ADAMS III UNITED STATES ARMY MEDICAL SERVICE CORPS UNDER PAUL J. WISNIEWSKI TITLE 10, U.S.C., SECTIONS 531 AND 3064: THE FOLLOWING NAMED OFFICERS FOR APPOINTMENT THE FOLLOWING NAMED INDIVIDUALS FOR APPOINT- IN THE RESERVE OF THE ARMY TO THE GRADES INDI- To be major MENT TO THE GRADES INDICATED IN THE REGULAR CATED UNDER TITLE 10, U.S.C., SECTIONS 12203 AND 12211: NAVY UNDER TITLE 10, U.S.C., SECTION 531: LATANYA A. POPE To be major general To be commander THE FOLLOWING NAMED OFFICER FOR REGULAR AP- BRIGADIER GENERAL DOUGLAS P. ANSON POINTMENT IN THE GRADE INDICATED IN THE UNITED JAIME E. RODRIGUEZ BRIGADIER GENERAL ROBERT G. CATALANOTTI STATES ARMY JUDGE ADVOCATE GENERAL’S CORPS BRIGADIER GENERAL GREGORY E. COUCH UNDER TITLE 10, U.S.C., SECTIONS 531 AND 3064: To be lieutenant commander BRIGADIER GENERAL DAVID S. ELMO BRIGADIER GENERAL JEFFERY E. PHILLIPS To be major KIM P. EUBANKS BRIGADIER GENERAL ROBERT P. STALL ROY FOO BRIGADIER GENERAL WILLIAM D. WAFF NED W. ROBERTS, JR. VINCENT M. PERONTI

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