Coordination of Wind and Flood Perils Act of 2010

Mr. President, I have been in the Senate a long time. This is my 25th year of service. This is one of the most exciting moments I have seen here. Today we have an opportunity to fulfill a great responsibility and an honor, to be able to stand in this Chamber to declare our support for the President's selection of an outstanding nominee: Solicitor General Elena Kagan to be a Justice of the Supreme Court of the United States.

Everyone is aware that she brings an intellect, experience, and knowledge of the law that places her among the few in this country so perfectly qualified to serve on this most important body of jurisprudence in the entire world.

Upon the entrance to the Federal courthouse in Newark, NJ, there is an inscription that reads: ``The true measure of a democracy is its dispensation of justice.'' I was the author of that statement and I labored over it, short as it is, to reflect my view that reflects a fundamental principle of our democracy and the values on which the U.S. Constitution was founded. These values pervade throughout our government and legal system, and especially in the decisions of our Nation's highest Court.

I met with Solicitor General Kagan to hear her views and her personal history, and I watched the testimony before the Senate Judiciary Committee. I have no doubt that, if approved, Solicitor General Kagan will be an outstanding defender of our Constitution in the dispensation of justice entrusted to a Supreme Court member. That is why I hope that with this historic opportunity, the Senate will stand up for what is right, to confirm Ms. Kagan's appointment to become a member of the highest Court in our country because of her outstanding qualifications.

When I met with her, I told her the people of New Jersey were excited about her nomination not only because of her outstanding educational achievements--by the way, graduating from Princeton, NJ, summa cum laude, and contributing so much in her life through her commitment to public service. The excitement is generated because Ms. Kagan is a trailblazer who has paved the way to the top of the legal profession that has helped open doors to women as well as men. She was the first woman chosen to be dean of Harvard Law School. She is the first woman ever to have served as Solicitor General of the United States, a post many call the ``tenth Justice'' of the Supreme Court. We must remember what that job is, what that task is, and that is to appear on behalf of the United States as an advocate, having tested abilities to bring the case to the Court, defending our country, and experience second to none in that courtroom.

Let us not forget that in the last year she has amassed an impressive record as Solicitor General. She has filed more than 3,500 pages of merit briefs before the Court, and she has argued cases on a broad range of issues from protecting children from pedophiles to protecting Americans from terrorists. If she is confirmed, of nine members of the Court, the proportion of women will be at its highest level in history, with women holding three seats.

She is the granddaughter of immigrants, and that experience shaped the world in which she grew up. Similarly, I came from parents brought to America by my grandparents, who had the common experience of so many of the struggle to learn a new language, adopt new skills to get by, mustering the determination to help their children rise above their circumstances in this new world. Though my parents worked very hard, they were never able to accumulate valuables. Instead, the heritage they left my sister and me was a set of values and a love for America with its freedom and opportunities and appreciation for what this country gives us all. They often reminded us that there were those far worse off than we and we had an obligation to contribute if we could to give something back to our community.

These same values are inherent in Ms. Kagan's views as she expressed them to me. Her father was a housing lawyer. Her mother was a public schoolteacher for 20 years, and she carries the heritage of their public service dedication. Solicitor General Kagan's career has confirmed her own commitment to public service, protecting rights and individual freedoms.

She served as a clerk to Justice Thurgood Marshall whom she, as many other Americans, greatly admired. Frankly, it is sad to see that some on this floor during her confirmation hearings attempted to discredit Solicitor General Kagan's reputation because of her association with Justice Thurgood Marshall. Justice Marshall was an icon who expanded respect and tolerance in America as few others have in our history. He argued Brown v. The Board of Education. He was the first African American to serve as Solicitor General of the United States, at which he excelled, amassing a remarkable record of Court victories. He was the first African-American Supreme Court Justice and distinguished himself as one of America's greatest jurists.

Some on the other side, in order to keep this appointment from being confirmed, have gone so far in their desperation to denigrate Ms. Kagan that they have labeled Justice Marshall as some radical on the bench and attempted to tear apart the years of brilliant contributions of this great man.

I want to be clear. The fight to end racial discrimination may have been radical to some, but it was the right fight and the right cause, and there will never be anything shameful about a person whose great mind and ferocious eloquence made him a giant in the civil rights movement. Shame on those who would denigrate those achievements.

Ms. Kagan's lifelong dedication has been to break down barriers and work for what is right, not simply popular. At Harvard Law School, one of her accomplishments as dean was to welcome different views among faculty members. She believed--and exercised that belief--that her students would not get the legal education they deserved if it was limited by one ideological perspective. She made it a point to add faculty members who came from different points along the political spectrum. No wonder Solicitor General Kagan's nomination has not only been endorsed by liberals but also by conservatives, including Ken Starr, Ted Olson, and Miguel Estrada.

Considering a Supreme Court nominee is one of the most important responsibilities we have. The Supreme Court makes decisions that determine the very underpinnings of our country's character. It has a direct say on the rights--or lack thereof--our children and grandchildren will have. The Court can decide whether big corporations and the rich and famous should have a stronger claim to justice than the average person. The Court sets the table for government power-- whether it goes unchecked or is responsible to the people. The rulings of the Court affect everyday New Jerseyans and everyday Americans. There is no doubt in my mind that Ms. Kagan understands that.

After careful consideration, I am going to proudly vote yes to confirm a person who I believe will be one of the great Justices of the Supreme Court of the United States of America.

Mr. President, I hope there isn't this continuing attempt and process we have seen here where it is the objective of individuals in this room--typically on the other side of the aisle--to stop things from happening, to be obstructionists. There is no point in exercising that kind of foolishness. This is a time to step up and say we want the best we can get for our Supreme Court. President Obama has chosen carefully and wisely, and we want to see Ms. Kagan seated on the Supreme Court. I hope my colleagues will vote affirmatively to make sure that happens.

I yield the floor, and I suggest the absence of a quorum.

Mr. President, during this brief pause in the debate on the Supreme Court nominee, I rise to call to the attention of Senate Members my introduction of S. 3672, the Coordination of Wind and Flood Perils Act of 2010.

This month is, of course, the fifth anniversary of Hurricane Katrina. We are still rebuilding on the coast, and we are still rebuilding in many areas of the gulf, in the South, as depicted on this map.

Two weeks ago, I attended the opening of a municipal complex and library in the historic town of Pass Christian. The fact that we are just getting the money and just getting this library and city all rebuilt after 5 years is testimony to the extent of the destruction and the difficulty of funding projects like that. This is true in the public sector, and it is also true in the private sector.

But one of the greatest impediments to rebuilding, and one of the main reasons Katrina is still not over for the people of Mississippi and other areas of the gulf is the lack of affordable insurance. This is true in Mississippi, and it is also true from Texas all the way through the gulf, south, down to the tip of Florida, and on up through the New England coastal States. Anywhere there is coastal exposure there is a problem with affordability and availability of insurance.

I have had quite a number of visits to the coast in recent weeks, particularly in the last 100 days because of the oilspill. The recovery there is going to be a challenge.

There will be speeches later on this month commemorating the anniversary and discussing the heroism and the resilience and the determination of the people of the coast. All of this will be appreciated and necessary, but the truth is one of the best things that could be done for the gulf coast area--not just my State of Mississippi but in the entire area--is to resolve the issue of wind insurance versus flood insurance, and that is what S. 3672 is all about: coordinating the coverage between wind and flood perils coverage.

Of course, for people in this area, for people in my State of Mississippi, you need hazard insurance, you need fire insurance, as does everyone, you need wind insurance, and you need flood insurance. Back in 1968, that was the year of Hurricane Camille. It also was the year it became apparent to this Congress that something needed to be done at the Federal level to cover water damage. Hence, the National Flood Insurance Program was established in 1968. Since that time, Americans have been able to get flood insurance through the NFIP. Actually, in 1973, this Congress in its wisdom made such coverage mandatory for people mortgaging property in flood zones.

Let's fast forward to 2005, the year of Hurricane Katrina. Many victims who needed it didn't have flood insurance. One of the reasons they didn't have flood insurance is that the flood zone maps were wrong. I hope to a large extent this has been corrected. It is supposed to have been corrected now, and people in flood zones who have mortgages are required to have it. Oftentimes they cancel those policies, and that is something we need to attend to also, but that insurance is available.

The problem is wind insurance. The private insurance coverage for wind damage has pretty much left the coastal areas of many of our States in the eastern part of the United States. So we have this situation now where a homeowner needs flood insurance through the National Flood Insurance Program. They need their own hazard insurance that they get through their local broker. Then, they probably have to resort to the State wind pool, a State program, because private wind insurance is not available to them.

Another problem we had in 2005 after Katrina is that many homeowners found themselves caught in the middle between the issue of whether it was water damage in connection with the hurricane that caused their property loss or whether it was flood damage in connection with the hurricane that caused the loss. After hurricanes such as Katrina, if a homeowner has wind and flood insurance, the homeowner often has to prove in court whether it was wind or water that caused the damage. This is unacceptable. Let me emphasize this: Individuals who had all the appropriate insurance--wind and water--were, in many instances, caught in the middle and forced to go to court to watch the insurance carriers fight among themselves. My legislation would remove the burden of determining flood or wind loss allocation from the property owner and put it where it belongs--a decision to be made between the insurers.

If my bill becomes law, insurance companies, including State-run wind pools and the National Flood Insurance Program, would have to pay a claim as soon as possible after the hurricane. If there is a dispute, each would pay 50 percent. The homeowner would be paid for the loss while the parties responsible for paying the claim would work out the details.

My legislation--and again, it is S. 3672, the Coordination of Wind and Flood Perils Act of 2010--would prevent homeowners from having to go to court to determine what portion of the damages were caused by wind and what portion by water. This should not be part of the duties of the homeowner. Under my legislation, if there is a dispute between the parties responsible for paying the claim, the insured would be compensated immediately and the dispute between the insurers would be resolved by arbitration.

This is only a small step. It doesn't answer the whole problem. I still support the concept of putting wind coverage under the National Flood Insurance Program on a voluntary basis, as

my amendment would have done in 2008. It is an amendment that has passed the House of Representatives and it is known as the multi-peril concept. That did not get majority support in the Senate and is, frankly, unlikely to get that support in short order. They are having trouble with that concept in the House of Representatives, but I wish to emphasize that I still support the multi-peril concept. This is a step. It puts us on the right track and it removes the wind and water debate.

I would suggest that my friends in the Senate look at this bill. I invite them to become cosponsors, and I hope we will be able to add this simple amendment to the law in short order.

I thank the Presiding Officer and I yield the floor.

Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.