Guantanamo Bay Detention Facility Safe Closure Act of 2009

Mr. President, I call up the substitute amendment to H.R. 3183, which is at the desk.

Mr. President, I ask unanimous consent to dispense with the reading of the substitute amendment.

Mr. President, this is the Energy and Water Development Appropriations Subcommittee bill that I bring to the floor this week with my colleague, Senator Bennett, from Utah. I am chairman of the subcommittee, Senator Bennett is the ranking member, and we have worked on the bill for some long while.

On July 9, 2009, by a vote of 30 to 0, the committee recommended the bill,

as amended, be reported to the Senate. That is, the full Appropriations Committee has recommended this bill, on a bipartisan basis, without objection, 30 to 0.

I want to thank both Chairman Inouye and Vice Chairman Cochran for their support of this bill, and I want to especially thank Senator Bennett for his work with me in developing the legislation.

Let me, perhaps as I begin rather than end, thank the staff of the subcommittee: Scott O'Malia, on the minority side; Doug Clapp, Roger Cockrell, Barry Gaffney, Franz Wuerfmannsdobler, and Molly Barackman.

There are many staff on both sides who have worked very hard. Putting legislation of this type together is not easy. We are working with limited resources, at a time when we have relatively difficult circumstances, to try to deal with Federal budget deficits and other issues, but we have put a bill together that has garnered bipartisan support.

The allocation for this bill is just under $34.3 billion. With score keeping adjustments, it comes down to about $33.75 billion. The total funding for our bill is 1.8 percent less than the President's budget request and just 1.4 percent over the regular energy and water bill of 2009. That means there is a very modest increase for the programs in this legislation.

Let me say generally this legislation deals with the energy and the water programs across the country. Energy and water are very important to this country's long-term future. What we are working to support is jobs and the economic health of our country as well as an adequate energy supply dealing. These energy challenges we face from being overly dependent on foreign oil doing something about climate change require action. We are dealing with energy accounts in this bill that are very important for the country.

We have tried to make funding determinations about them that we think move this country in the right direction and help make us less dependent on foreign sources of oil. That means that we have, in related authorizing legislation, actually expanded drilling and the determination to try to find additional supply in this country. Fossil energy from coal, oil and natural gas is going to continue to be used in the future. But we need to use them differently.

This legislation includes opportunities to do a range of activities that I believe will be in the country's best interests. Working with Senator Bennett, we know the legislation dealing with energy and water require substantially greater resources. We have far more water projects underway in this country than we can possibly fund in the short term. I believe we have something close to $60 billion of unfunded water projects. The Corps of Engineers, and particularly the Bureau of Reclamation, especially for western America, are charged with funding these projects.

Then, on the energy side, the accounts dealing with efficiency and reliability and a wide range of energy accounts--all of those accounts understand and recognize that we do not have unlimited amounts of money. Our country has very substantial and growing budget deficits because we are in a deep recession.

My colleague from Oklahoma was speaking as I came to the Chamber. I agree with most of what he described with respect to hydraulic fracturing. He is describing something that affects our ability to continue to produce a domestic supply of oil and natural gas. My colleague should know we have had now from both the previous Presidents that we zero out the research and development in oil and gas development. The current President's budget seeks to cut the oil program. My colleague and I have restored the funding for that. One of the reasons we have done it is our country leads the world, for example, in unconventional and ultra deep water drilling. We need to retain program funding to keep that advantage.

We need to produce more here at home, and we have added the funding back. As I indicated, both the previous administration and this administration decided not to support the research and development funding for oil research and development.

The description of the shale formations that Senator Inhofe talked about earlier remind me that 5 to 10 years ago we could not drill in these formations. They are now delivering substantially new resources. That energy was not accessible to this country because we didn't have the technology and the capability. My colleague described the Bakken shale in North Dakota, which I want to describe in a moment. I think it is so important for us to have the research and development funding which current technology benefitted from in the past. With sustained investments, we might have future technology options available as well.

To go to the previous point, the Bakken shale is a formation 100 feet thick, and it is 10,000 feet underground. To drill through that 100- foot-thick seam, they have divided it into thirds--top third, middle third, and bottom third. They go down two miles with one drilling rig, 10,000 feet down, searching for the middle third of a seam of shale that is 100 feet thick. They do a big curve when they get down two miles, then they go out two miles. The same drilling rig, goes down two miles then makes a large curve and goes out two miles, following the middle third of a seam a hundred feet thick called the Bakken shale.

A few years ago I asked the U.S. Geological Survey to do an assessment of what is recoverable in the Bakken shale. They came back with their estimate after a 2-year study, saying there are 4.3 billion barrels of recoverable oil using today's technology. It is the largest assessment of recoverable oil in the lower 48 States ever made in the history of our country.

None of that was available to us a decade ago. It was there, but it was not available to us. How do we get that oil? When they drill down with a drilling rig, it takes about 35 days to drill that hole, then fracture it under high pressure--hydraulic fracture, they call it. After that, they tear down that rig and move it away a ways and drill another hole--every 35 days. The hydraulic fracture allows that rock formation to be fractured so that the oil drips and then is extracted from the well. They are pulling up oil out of those wells, in some cases 2,000 barrels a day. The key to that is, No. 1, have they carried out the research and development so that we lead the world in the ability to do that kind of very sophisticated exploration. We continue to put that funding in this bill and have always had it in this legislation. That is what has opened up this unbelievable opportunity.

The second half of it, as my colleague described, is not something we are doing in this bill, but the ability to continue hydraulic fracturing, decade after decade, I think for nearly 50 years, I am not aware of any evidence that there is any contamination of groundwater with hydraulic fracturing when companies have followed the appropriate guidelines and regulations.

I have been describing one small part of what Senator Bennett and I have done with respect to increasing our domestic energy needs in this bill.

We also want to encourage the development of renewable energy. We have done a lot of things in this legislation to do that. We want to encourage the ability to use our most abundant resources, such as coal, but we must use them differently. That means, if you are going to have a lower carbon future you have to decarbonize the use of coal. So we need to make substantial investments to be able to decarbonize the use of coal.

I think we can do that. Some say let's give up on it. I say let's find a way to use our most abundant resource by decarbonizing it so that we can move to a low carbon future to protect our planet.

We are doing a lot of things in this legislation that I think move this country in the right direction for a better and a more secure energy future. When I talk about energy and say that nearly 70 percent of our oil now comes from outside of our country, I think most people would look at that and say that makes us vulnerable. That is an energy security issue. It is also a national security issue. If, God forbid, somehow, some way, someday, someone shuts off the supply of foreign oil to our country, this economy of ours would be flat on its back. So I think everyone--the previous administration, this administration-- believes we must be less dependent on foreign energy.

The other thing that is important to understand is, although about 70 percent of our oil comes from outside our country, nearly 70 percent of the oil is used in our transportation fleet. We are doing things in this appropriations bill that moves us toward a different kind of transportation fleet, an electric-drive fleet, for example. If we are using 70 percent of our oil for transportation in this country, how do we make us less dependent on foreign oil? Convert; move to something else.

We have funding in this legislation and we had funding in the Economic Recovery Program for battery technology and for a whole series of things that help accelerate the movement toward an electronic transportation system.

All of these things are things we can do. It is only a matter of establishing public policy that encourages it, public policy that is supportive of the direction we want to go.

I am going to be describing in some detail some of the accounts. I have talked about the energy piece of this a bit. We have programs in here for electricity, fossil energy, energy efficiency and renewable energy--small little things that people don't think much about.

Energy efficiency: Almost everything we use these days--a refrigerator, a dishwasher, an air conditioner--all of the appliances are much more efficient than they have ever been. I recall some years ago when I was supporting and pushing something called a SEER 13 standard for air conditioners--a SEER 13 standard. You would have thought we were trying to bankrupt the country by insisting on a much higher standard of energy efficiency for air conditioners. We have gotten to SEER 13 and are looking beyond that now, but we have pushed standards so that when you put a new refrigerator in your kitchen these days it uses so much less electricity because it is so much more efficient.

I recognize--someone told me this a while back--yes, we are putting these unbelievably efficient refrigerators in kitchens, and then they take the old refrigerator and put it in the garage to store beer and soda. I recognize we need to get rid of those old refrigerators, perhaps, but it is people's right to move them into the garage.

My point is, these smaller issues we are funding, energy efficiency standards for appliances are very important. When we get up in the morning we flick a switch and a light goes on. We turn on an electric razor and never think much about what makes it go. We plug it into a wall. We go down and put something in the toaster and the bread toasts because there is electricity. We put a key in the automobile, and we drive off to work.

As Dr. Chu says, 2,000 years ago, normally when you would go look for food someplace, 2000 years ago you would get on one horse and go look for something to eat. Now, of course, we get in modern conveniences and we take 240 horses to go to the 7-Eleven or grocery store. That is the way our engines work and use energy.

But we are required now to be smarter and use energy in a different way. For a wide range of accounts, my colleague Senator Bennett and I will begin describing some of these accounts in more detail in between other presentations. With the funding in this legislation, we are trying to change the way we use energy: Develop a more abundant supply of energy, including changing the way our vehicle fleet is powered. One issue with respect to the transportation fleet is moving toward a hydrogen and fuel cell future, I think a future beyond electric drive. Still, hydrogen is everywhere; it is ubiquitous. I believe a hydrogen fuel cell future is something our children and grandchildren will likely see realized and will be very important to this country.

The administration, in its budget request for this fiscal year to the Congress decided it would zero out 189 existing contracts in hydrogen and fuel cell program. We included the money again because we don't think that is wise to cut ongoing work.

I agree in the short term we are going to move toward an electric drive transportation system, but, in the longer term, we need to continue the research toward hydrogen and fuel cells, and we included that money in this bill.

Let me turn for a moment--I am going to come back to some energy issues a little later, after Senator Bennett talks about this bill as well. I want to talk about water, because this bill, after all, is also about water. As all of us who have studied history know, water is the subject of great controversy. Water is very important. So many things related to development and jobs in this country relates to accessible water.

We have issues in this bill dealing with the Corps of Engineers and the Interior Department's Bureau of Reclamation with respect to water. These address storing water, moving water, dredging water in ports and channels so that commerce can occur, and much more. In some cases, we must address not having enough water or too much water. We have a lot of issues.

As I indicated earlier, we have far more water projects than we can possibly fund. Senator Bennett and I decided we simply could not fund what are called new starts in construction and investigations this year. We hope to do that next year, but we could not do it this year. We didn't have the money. We think it is far better to continue funding for existing projects and try to complete some of the projects underway and then proceed with new starts next year. We had 92 requests for new projects starts. We have a $60 billion backlog and 92 requests, some of which came from the President. We believed we could not do it. I wish we could, but we could not do it.

I also want to make a point that there are, in this legislation especially, legislatively-directed proposals, that is the Congress itself directs certain funding. The President sent us proposals, particularly on water projects--energy projects as well, but especially water projects. He requested earmarked funding. In other words, the President says, all right, here is what I want you to have for water. These are my Presidential earmarks and how I believe you should spend the water money.

Some of them made a lot of sense. Some of them did not. Senator Bennett and I also included, in this legislation perhaps more than other legislation, legislative-directed funding on the amount of funding we believed should go to projects.

Because, frankly, I think perhaps Members of Congress have a much better idea of what are the water needs more than the Corps of Engineers, the Bureau of Reclamation, Office of Management and Budget, or the White House. They know which projects will benefit their State's commerce.

So this subcommittee, going back many decades, has had a tradition of legislatively-directed funding toward the highest priorities, particularly in water projects. That makes a lot of sense to me. I assume we may well have some folks come and decide that some of them do not have merit.

It is important to discuss the individual programs for individual legislatively-directed amounts, and we will do that when necessary. But I did wish to say once again that we received a lot of recommendations from the President for earmarking the funding for various projects, and we have included many of these. We have also included projects that were recommended by the Members of Congress that were well underway.

I have other things to discuss, but let me yield the floor because I know my colleague, Senator Bennett, will want to describe some of this bill as well.

Let me close as I opened by saying it is a pleasure to work with Senator Bennett on these issues. These do represent investments in our country. Some things are spent and you never get it back, it is just spending. But when you build water projects or invest in the energy further such as through this bill, then it represents investments in the country's future that will provide very substantial dividends for the country for a long time to come.

I yield the floor.

Madam President, a couple of additional points:

No. 1, the administration's budget to the Congress for this year did recommend an increase in Corps of Engineers funding for water issues. They should be complimented for that. That is a step forward. We have seen relatively flat and underfunded budgets for the Corps of Engineers in recent years. It is encouraging. We added to it, of course, but the investment needed in major water projects to be completed is very important. I appreciate the administration's decision to increase, at long last, the recommendations there.

No. 2, my colleague, Senator Bennett, mentioned Yucca Mountain. I expect that will be mentioned more than once during this discussion in the next day or so. We are going to see the building of some additional nuclear power plants in this country. The reason is pretty obvious: Once built, nuclear power plants do not emit CO2 and therefore do not contribute to the warming of the planet. We are beginning to see additional activity. Companies are preparing license applications now.

Senator Bennett described the issue of Yucca Mountain. I do want to make a point about that because it is important. I didn't come to the Congress with a strong feeling about building additional nuclear power plants. I have, with my colleague, increased some funding for loan guarantees for nuclear power plants in a previous appropriations bill because I come down on the side of doing everything, and doing it as best we can, to address this country's energy challenges. They are significant and require building some additional nuclear power capacity.

This President campaigned last year against opening Yucca Mountain. It was not a surprise to the American people that he would at this juncture take the position that Yucca is not the place for a permanent repository for high level waste materials. The Secretary of Energy and the administration have recognized that, not proceeding with opening Yucca Mountain, does not mean we don't need an intellectual framework for nuclear waste. They have indicated and committed themselves to that, the development of an alternative framework for how we address the issue of waste. We have to do that because, in order to build plants, we have to establish waste confidence. I am convinced the administration is doing the right thing in the sense that they have said we don't want to open Yucca, but they are saying there has to be an alternative. We are committed to trying to find a solution and explore the alternatives with a blue ribbon commission.

I wish to mention the National Laboratories. This bill funds our national science, energy, and weapons laboratories. These laboratories are the crown jewels of our country's research capability. We used to have the Bell Labs, and we had laboratories that were world renowned, world class, that didn't have anything comparable in the world. The Bell Labs largely don't exist at this point. Much of our capability in science for research and technology exists in these science labs we fund in this bill. I am determined to find ways to make certain those best and brightest scientists and engineers working on the future of tomorrow and the new technologies for tomorrow at the national science laboratories have some feeling of security about their future. The last thing we should want is to see the roller-coaster approach to jobs at our National Laboratories and our science labs.

We had a hearing some while ago in our subcommittee on the issue of how to continue to use coal in the future. That leads to the question of carbon capture and sequestration. I held a hearing in our subcommittee on carbon capture and beneficial use. One of the witnesses from one of our laboratories, Margie Tatro from Sandia National Laboratory, talked about what they are working on. It was breathtaking. We have this giant problem related to using coal, but it is not an insurmountable problem. She talked about the work they are doing with respect to concentrated solar power to be used in a heat engine to take CO2 in on one side of the engine and water in on the other side. They fracture the molecules and, through thermal chemical dynamics, they create methane gas from the air. I don't know exactly where all this goes.

Deep in our laboratories are some of the brightest people working on these issues. We will solve some very vexing and challenging energy issues through research and development programs. I look at what we are doing in those areas for energy efficiency and renewable energy such as for hydrogen, biomass and biorefineries, solar energy, wind energy, geothermal energy, vehicle technologies, building technologies, industrial technology, weatherization, State energy programs, advanced battery manufacturing, and more.

All of these issues are investments in the country's future and will, no doubt in my mind, unlock the mysteries of science to give us the capability to do things we did not dream possible. That opens up the opportunity to find new sources of energy, to move us way from this unbelievable dependence on foreign oil, to move toward different constructs in building efficiency, appliances, and new vehicles. That solves a number of things, allowing us to produce more energy, more renewable energy, more fossil energy, but it also allows us to conserve much more because we are prodigious wasters of energy.

I didn't mention one other area of electricity--and it goes with conservation--incorporating smart grid technologies. We will in the future see substantial amounts of smart metering in homes that allows people to change very substantially the way they use electricity in their homes. They have not had, up until this point, that capability, but the capability, because of the research going on and the demonstration programs, some of which we are funding, can increase all across the country in the future. That, too, will invest in making us less dependent on foreign oil.

All of these things play a role in what we are trying to do.

In the electric delivery and energy reliability portion of our bill, we have programs for clean energy transmission and reliability, smart grid, cyber-security for energy delivery systems. They are examples of a wide range of investments in all of these areas that will make this a better country and advance our energy and water interests.

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

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

Madam President, I rise to make a statement in honor and in memory of William Proctor Jones. He died three weeks ago on July 7, the day before we actually wrote and marked up this bill in subcommittee.

Proctor Jones was a longtime staff director of this subcommittee. His death is a great sorrow for our members and staff who worked with him. His life was a great blessing for this country.

He first came to work in the Senate in April of 1961. He went to work for his home State senator, Richard Russell of Georgia. Proctor moved to the Appropriations Committee in 1970 and worked there 27 years until 1997. Since 1973 and beyond and for the majority of his time on the committee, Proctor served as staff director of the Energy and Water Subcommittee.

For decades, as this bill was brought to the floor of the Senate, Proctor Jones was sitting on the floor knowing that he played a very significant role in putting together the investments this country was making in the critical areas of energy and water. Proctor became a very close adviser and close personal friend of Senator Bennett Johnston, the Energy and Water Subcommittee's longtime chairman.

For those of us who knew Proctor and relied upon him, he defined the very best of the term ``public servant.'' He was tireless in his work. He was a master of the budget and the appropriations process and an expert in many policy fields this subcommittee has dealt with over the years. His service made this country a much better place.

This country moves forward because a lot of people do a lot of good things in common cause to make judgments about what will strengthen America. It is often the case that those of us who are elected and serve have our names on a piece of legislation or our names on a report of a subcommittee such as this, but it is also often the case that some very key people who have devoted their lives to good public service played a major role in making good legislation happen. William Proctor Jones is one of those.

Today, as we take up the piece of legislation from a subcommittee he spent decades working on, I honor his memory and thank him and his family in this time of sorrow and thank Proctor Jones for all of the work he did for his country.

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

Madam President, the Senator from Utah and I would ask of Senators who have amendments to this legislation that if they wish to come now, we would very much like to have amendments offered. Certainly the majority leader has wanted to bring appropriations bills to the floor of the Senate. The chairman of the Appropriations Committee described appropriately, a few minutes ago, the importance of trying to get these appropriations bills completed. So working through the full committee we are winding our way through.

Now Senator Reid is bringing them to the floor, and I deeply appreciate his determination to do that. It is a marked departure from what we were able to do previously. We would like to get individual appropriations bills done, get them to conference, have a conference with the House, and get them to the President for his signature. That is the way the Congress is supposed to work. It is the way appropriations bills are supposed to be done.

We will have amendments, I am sure. We were told someone has prepared nearly 20 amendments. But, look, they ought to have that opportunity. In the past couple years they did not have that opportunity. That is what Senator Reid is doing now, to say: Bring these to the floor. Give people an opportunity to take a look at what the Appropriations Committee has done. If they disagree, come to the floor with amendments, have a discussion, and vote on the amendments. It is exactly what we should do.

It is a problem, however, that we do not have unlimited time. My hope is--and I think Senator Bennett's hope is--we could have people come over, offer amendments, and we could finish this bill in the next couple of days. It would be great to finish it late tomorrow night or perhaps Wednesday at the latest. But in order to do that, we would need some cooperation. We would very much ask people to tell us what their amendments are, come over and file amendments, and come and debate the amendments. The point is, we are here and ready, and we very much want to get this piece of legislation completed.

I have described in some respects the urgency of our energy policies in this country. Well, the fact is, passing this legislation, and doing so now, will give us the opportunity early in the fiscal year to have the Department of Energy and the administration develop energy strategy based on these investments. For the first time in a long time, we will know where we are headed.

I have always felt we ought to be saying: Look, here is where America is headed on energy. Here is what we are going to do on renewable energy. Here is what we are going to do on carbon capture and storage. Here is where we are headed. You can invest in it. You can count on it, believe in it, because this is America's policy. Part of that policy is developed through the authorization committees, and no small part is developed in what we fund in the Department of Energy. Exactly the same is true with respect to water policy.

Let me make this point as well. This country had an economy that fell off a cliff in the first part of October of last year, and we still are in a deep recession. In the middle of a very deep recession, a piece of legislation that is going to provide the funding, hopefully by October 1, to proceed ahead building and creating water projects and other things puts people to work. It invests in the country's economy in a way that puts people to work and provides jobs. That is very important.

For a lot of reasons, again, I commend the majority leader for bringing this to the floor. We will hope for some cooperation. We want amendments, if they want to bring amendments to the floor. We want them today or beginning in the morning. Senator Bennett and I wish to work with our colleagues to try to review amendments. We wish to work with them. Perhaps they have some ideas we did not think of. We could add to this bill by consent, or others perhaps we can debate and have a vote on.

We want to make that known to our colleagues. We are looking forward to completing this bill in the early part or at least no later than midweek.

Madam President, I yield the floor.

I suggest the absence of a quorum.

Madam President, reserving the right to object, and I will object, the Senator from Oklahoma knows that such a unanimous consent cannot be entertained at this point. He

has not consulted with the majority leader who is in charge of scheduling legislative matters to come to the floor of the Senate. So on behalf of the majority leader, I object.

Madam President, the Senator from Oklahoma had asked to speak in morning business. Senator Bennett and I have no objection to that. We are waiting for amendments to be offered. If someone were to come and offer an amendment, we would hope the Senator would relinquish the floor.

Madam President, I rise to speak on the supplemental. Did the chairman wish to speak?

I am happy to yield to the chairman if he wishes.

Madam President, first off, this is a very important piece of legislation. I congratulate the chairman and the ranking member, Senator Cochran and Senator Inouye, for bringing it forward. It is critical that we adequately fund our troops in the field. This is our first responsibility as a government when we have troops in the field in harm's way--to give them the resources they need in order to protect themselves and defend our liberties. So this is a very important piece of legislation, and it must pass. It simply must pass.

However, ironically, as occasionally occurs around here--but in a piece of legislation that is this important to our troops shouldn't occur--this legislation had air dropped into it by the House of Representatives something that has nothing to do with our troops fighting in the field, and that is a bill called the cash for clunker bill.

I have no personal or philosophical disagreement with the concept of purchasing automobiles that are high-mileage vehicles, and they use a lot less gas, and exchanging them for lower mileage vehicles as an attempt to revive the economy and the auto industry and at the same time, hopefully, accomplish some environmental protections. I would simply note, however, that this bill that was air dropped into this legislation doesn't accomplish that.

Basically, this is a bill that was drafted in the House without the input of the Senate. There was a much better bill in the Senate-- Senator Feinstein and Senator Collins had it--which would have actually meant some mileage differential would have occurred, but it was not allowed to be put in because the bill, as it was put into the conference report, was unamendable.

So the bill itself is flawed because it basically only allows--it allows you to exchange your car and get money for your car, but the increased mileage on the new car you buy only has to be a mile or two a gallon, which is virtually nothing. It has virtually no impact.

So the philosophy of the bill itself is flawed. But the real problem with this bill, besides the fact it is in a piece of legislation it shouldn't be in, is the

fact that it is totally unpaid for. It is $1 billion of new costs put on our children's shoulders. It is $1 billion of new spending put on the Federal debt. We already know the Federal debt isn't sustainable. Almost every day we are hearing international purchasers of our debt-- whether it be China or whether it be Russia or whether it be international economists or economists in the United States--saying the American debt situation has gotten out of control, and that we are at risk as a nation of having a situation where the cost of our debt will go up dramatically because we are putting so much debt on the books.

Under the President's budget, the deficit of the government will be a trillion dollars a year, on average, for the next 10 years. We will be running deficits of 4 to 5 percent of gross national product. The deficits will equal 80 percent, and we will have a debt that will equal 80 percent of the GDP. Just within the next 3 years, it will be 60 percent of the GDP. At the end of 10 years, it will be 80 percent.

What does that mean? It means we will have a debt and a deficit situation that will lead us down the road to having a government we cannot afford and our children cannot afford. Ironically, as I said before, our debt is getting so out of control and our deficits are getting so high and out of control that if we as a nation tried to enter the European Union, which is a group of industrialized countries that has rules as to what a country can do in the area of debt and deficit for solvency reasons, we could not get in because their rules say you cannot have a debt or deficit of more than 3 percent, and your debt-to-GDP ratio cannot exceed 60 percent. Latvia or Lithuania or some other nation might be able to get into the European Union, but we could not.

Our debt is an incredibly serious problem for us as a nation and for our children. The irony is, the bill that was airdropped into the defense bill, designed to pay for the troops in the field, came on the exact same day that the President of the United States and the Democratic leadership of the Congress met down at the White House to announce they were going to reinstitute the pay-go rules. What are the pay-go rules? The pay-go rules require that when you spend a dollar, you pay for it; when you create a new program, you pay for it. The President, with great fanfare, said the Democratic leadership of this government--the President and leadership of the Congress are going to put into place the pay-go rules. All future spending will be subject to pay-go rules, with a few exceptions he listed, which were pretty big exceptions.

He didn't list this bill, which spends a billion dollars and is not paid for.

After that press conference, which occurred around 12:30 in the afternoon, the House of Representatives passed the cash for clunkers bill, which spent $4 billion dollars, and it wasn't paid for. That bill added $4 billion of new debt to our national debt--debt which will be paid by these young people up here, who are pages today, when they get jobs. What excuse do we have as a government for passing a bill to purchase cars today and sending that bill to our children and grandchildren as part of the debt we are passing onto them? It is inexcusable. It would be easy enough to pay for this bill. There are innumerable places in the government, which is spending trillions of dollars a year, to find a billion dollars to pay for this bill if it was a priority.

Clearly, if the President and the Democratic leadership are going to call on us to follow pay-go rules, we should follow them--at least for a day. They couldn't even get through a day without violating the rules they said they were going to follow--a billion dollars of new spending, which is unpaid for. Whether you agree with the policy of the bill or not--this cash for clunkers bill--the issue is it spends a billion dollars and doesn't pay for it and adds it to the national debt, which is out of control. The American people know it is out of control, and it is inexcusable that this Congress cannot discipline itself.

I have made a point of order that doesn't bring down the bill and doesn't harm our ability to fund the troops in the field. I made a point of order under a new point of order that was put into place at the beginning of this Congress by the Democratic leadership of this Congress in the Democratic body. This was a good rule. It was put into place by a bill entitled the ``Honest Leadership and Open Government Act.'' Again, it is the Honest Leadership and Open Government Act. Its primary sponsor was Senator Reid, and its second sponsor was Senator Durbin, along with Senator Schumer and Senator Stabenow.

The bill was structured for the purpose of not allowing what happened with this defense bill, which is that people airdropped it into special interest legislation--unpaid for in this case. It is called rule XLIV, and I believe it is section 8. It says, essentially, that in a conference you cannot put in new language that was not part of that conference and which is targeting direct spending for the purpose of benefitting some defined group--in this case, for the purpose of passing the cash for clunkers bill. You cannot put it in. The rule says that. Why was it created? Because too often around here, this type of mismanagement of our finances occurs. People go into a conference and they know they have a train that is going to leave the station and, in this case, everybody wants to support the troops in the field and we are going to fund them. So they put in the conference all sorts of extraneous things that are inappropriate to that bill. It has become a pandemic. The Democratic leadership, much to their credit, passed the Honest Leadership and Open Government Act. They put in rule XLIV, section 8, which says that exactly what happened with this language should not happen.

I congratulate the chairman of the committee, Senator Inouye, because he has resisted, aggressively, allowing this type of action to occur. But in this case, the House of Representatives gave him no option. They put the language in over, I presume, some debate.

So this motion will knock out this language. It doesn't defeat the bill. The bill can be sent back to the House and it can pass. It would take another couple hours, at the most, to pass it. If people want to bring back the cash for clunkers bill, they can do it as a freestanding bill and, hopefully, they can do it by paying for it. That is the way it should be done. It violates another rule, which is the pay-go rule.

So this motion to waive is going to be the first test of this Congress on three critical issues. First, are we going to do something about the debt of this Nation? Are we going to start paying for new programs that we know are politically attractive? Every auto dealer in America wants this language included in the bill. Are we going to pay for it? Second, are we going to live by the rules that were put into place by the Democratic leadership in the Honest Leadership and Open Government Act? Third, are we going to live by the statement made by the President, surrounded by the Democratic leadership of the Congress, that pay-go would be the new way we will enforce fiscal discipline? Those are three major issues that will be addressed by this vote.

Members who vote to waive this rule will be voting to pass a billion dollars of debt on to our children, on top of the trillions we are already putting on their backs. They will be voting to waive a rule that was put in by the Democratic leadership for the purpose of avoiding this type of action--this exact type of action. They will be voting to override the pay-go rules, which many Members have so wrapped themselves in as the way they are going to fiscally discipline this place.

I hope people will not vote to waive this point of order, sustain this point of order, move forward on the supplemental, fund the troops; and let's not add a billion dollars of unnecessary debt on an extraneous program to the troop funding.

I yield the floor, and at the appropriate time, I will yield to Senator Grassley such time as he may desire.

Mr. President, first off, I appreciate the assistant majority leader clarifying the situation unalterably; that this waiver issue is solely about the issue of cash for clunkers--a piece of legislation which has absolutely nothing to do--nothing to do--with funding our troops in the field and was airdropped into a conference without being paid for, adding $1 billion of new debt to our children's backs. That is what this waiver is about.

The majority leader has said this waiver will, in some way, harm the ability to fund the troops. I believe that to be totally inaccurate. This motion comes out of a piece of legislation which the majority leader and the assistant majority leader authored. They wrote the bill called the Honest Leadership and Open Government Act. That bill created this point of order specifically to address this type of situation, where in a conference one or the other of the two bodies sticks into a bill that is a must-pass bill language which has nothing to do with that bill and which is not paid for.

In this case, it is $1 billion of spending not paid for which has nothing to do with the troops in the field. The reason they structured the rule this way was so it would not harm the underlying bill, so that if this point of order is successful, this bill goes back to the House and they can vote for it and send it to the President and fund the troops.

Is it the position of the assistant leader that this cash for clunkers bill is so important that the House of Representatives would not fund the troops if the language was not in the bill? Is he saying the Democratic leadership of the House is holding the funding of the troops hostage to spending $1 billion on an extraneous program, which creates virtually no environmental improvement in our fleet and which is simply part of the economic effort to revive the auto industry-- which we have already spent $83 billion on, by the way. Is that what he is saying?

That seemed to be the implication of his language: that the House will not pass the funding for the troops if we take it out of it--under a rule created for the purpose of disciplining ourselves this way, a rule created by the majority leader and by the assistant majority leader; authored by them and designed specifically to address this type of situation, where a conference is truly abused relative to funding and spending money which we do not have.

I do not believe that is realistic. I do not believe the Democratic membership of the House is going to vote against this bill if the cash for clunkers language is taken out on a surgical strike under a procedural right which was created by the Democratic leader and the Democratic assistant leader.

In addition, of course, there is the fact that pay-go is being violated. There is the great irony that the President of the United States, surrounded by the Democratic leadership of the Senate and the House, held a very dramatic press conference at the White House, at 12:30 in the afternoon, saying they were going to reestablish the pay- go rules for future spending, that new programs would have to be paid for. And then that House leadership went back up to Capitol Hill, and on the same day, passed this cash for clunkers bill, which was not paid for and violated the pay-go rules. The hypocrisy of it is so extraordinary that it cannot even be described. But that is what happened.

And then, in order to protect this bill, which was an unpaid-for violation of the pay-go rules, they stuck it into the conference report to fund the troops. How outrageous is that? So a pay-go point of order, which might take down this whole bill, is not appropriate to make. But it is appropriate to make this very targeted point of order, which will only eliminate the cash for clunkers language.

The policy of cash for clunkers is debatable. Maybe it makes sense; maybe it does not make sense. But it certainly should not have been put into this Defense bill, which is necessary for funding our troops. If it is a strong idea, let it stand on its own two feet on the floor of the Senate. Let it be debated. Let it, hopefully, be paid for. But at least let it be amended so those of us who think it should be paid for can propose ideas for paying for it.

Under the bill as it is being handled now, there are no amendments allowed. We have to take this $1 billion of new debt, like it or not, whether we support the program or not. We have to pass a bill which is going to add this $1 billion of additional debt on our children's backs. It is a totally inappropriate way to legislate.

My effort is not to slow down or to stop or to marginalize in any way the funding for our troops--I voted for every troop funding bill that has come through this Congress, and I intend to continue to vote for them--but it is to take out this language, which is inappropriate, to live by the rules the majority leader passed, the assistant majority leader put in place--rule XLIV--to live by the pay-go rules, to not, in the name of addressing a special interest group, spend $1 billion for which we will pass the bill on to our kids and our grandchildren.

Why should our grandchildren have to pay for cars we are going to buy today? Does that make any sense, that for the next 20 years we are going to end up paying these bills? Of course, it does not make sense.

So we should take this language out. It is not going to slow this bill down, not at all. This bill will go back to the House. It will be passed, and it will be sent to the President. It will be an act of fiscal responsibility, and we will be limiting the amount of debt we will be putting on our children's backs, which is the way we should be approaching legislation.

Mr. President, I reserve the remainder of my time.

How much time is there available?

Mr. President, how much time does the Senator from Oklahoma wish to have?

Well, Mr. President, I will reserve the remainder of my time. I see the Senator from Michigan on the floor.

Mr. President, how much time remains?

And on the other side?

Mr. President, I am going to yield to the Senator from Oklahoma, but before I do, I wish to take just 30 seconds to respond quickly to the Senator from Michigan.

The idea that we haven't done anything for the automobile industry is really hard to accept, $83 billion having been spent on the automobile industry. The idea that $1 billion is just a small amount of money is also very hard to accept; $1 billion of new debt is $1 billion that our children are going to have to pay, and it is not a small amount of money, and it compounds. We fly in the face of the procedures which the Democratic leader set up around here to have pay-go and to have the Open and Honest Leadership Act, we fly in the face of that by putting in this bill this special interest piece of legislation, unpaid for, and it is totally inexcusable.

This has nothing to do with funding the troops--nothing. The fact that $1 billion is being spent and not paid for is totally irresponsible. It is debt our children do not need to receive.

At this point, I yield 10 minutes to the Senator from Oklahoma.

Mr. President, I understand the chairman wishes to close, so I will just speak and then yield back the remainder of our time, and so the chairman can make his closing comments.

I just have to reemphasize how much of an afront it is to the process which we set up at the beginning of this Congress to try to have fiscal discipline if we do not support this point of order. This point of order was specifically put in to address this type of situation, where there is an extraneous piece of legislation airdropped into a conference report by one House or the other House, and in this case, it is $1 billion of spending which will go directly to the debt of this country.

We have heard from the Chinese that they are getting worried about buying our debt. They are the ones who are financing us. We have heard from our own experts and economists that the American debt rating, which is AAA-plus, may be at risk. We know we are running up debt at such an extraordinary rate right now--$2 trillion this year, over $1 trillion next year, $1 trillion a year on average for the next 10 years--that our debt is going to double in 5 years and triple in 10 years.

Where do we start to discipline ourselves? Well, one would hope we would start to discipline ourselves with something that so obviously violates the rules we set up here for fiscal discipline. It violates pay-go. It is not paid for, even though the President calls for pay-go.

This is a new program, unpaid for, and it violates the new rule put in under the Openness in Government and Honesty in Leadership Act, authored by Senators Reid and Durbin, and Senator Stabenow was a cosponsor. It said don't put into a conference report things that are extraneous and aren't paid for. Yet this does exactly that. Will it affect the troops in the field? No. This bill will pass now. If this point

of order is sustained, this bill will pass this House and fully fund the troops. Then it will go back to the House of Representatives.

I cannot believe, under any scenario, that the House of Representatives is not going to vote to fund the troops, that they are going to hold the funding of the troops in the field hostage to spending $1 billion and adding new debt on an extraneous program that has to do with buying old cars. Nobody is going to do that. That doesn't even pass the smell test as being credible.

The bill will pass the House and be sent to the President probably before the day is out. That is the way it should be. That is why this point of order was put into place. That is why the Senator from Illinois, working with the Senator from Nevada, the leaders on the other side of the aisle, created this very good and appropriate rule, so things like this could be addressed in a surgical way, so they would not lead to adding $1 billion--in this case--which is a lot of money.

A couple of Members have said it is just a little bit. In New Hampshire, $1 billion will run our State government for a considerable period of time. That is a lot of money. I have never seen it. It is a lot of money.

There is no reason to pass on to these young pages that debt. If we think the cash for clunkers idea is a good one, let's pay for it. There are a lot of places we can find $1 billion in a $2 trillion-plus budget. So let's pay for this. Let's budget effectively. Remember the words of the chairman of the Budget Committee because they are prophetic: The debt is a threat. It is a threat to this Nation.

We have a chance to do a little bit--$1 billion worth, which is a significant amount--to try to address the debt problem by supporting this point of order.

Mr. President, I ask for the yeas and nays.

Madam President, tomorrow the Senate Judiciary Committee will vote on the nomination of Judge Sonia Sotomayor to serve as Associate Justice of the U.S. Supreme Court.

I thank the nominee and the members of the committee, including our Democratic colleagues, and Chairman Leahy, for their efforts throughout the process. I appreciate Judge Sotomayor's kind words to us about how well the hearings went and her expression of gratitude for the kindness and respect she was shown. She is a good person with experience, the kind of experience one desires in a nominee, and her personal story is certainly inspiring.

However, based on her record as a judge and her judicial philosophy, I have concluded that she should not be confirmed to our Nation's highest Court. While differences in style and background are to be welcomed on the Court, no one should sit on the Supreme Court, or any court, who is not committed to setting aside their personal opinions and biases when they render opinions and who is not committed faithfully to following the law, whether they like the law or not. Impartiality is the ideal of American law. Judges take an oath to pursue it, and the American people rightly expect it.

Judge Sotomayor's speeches and extrajudicial writings represent dramatic expressions of an activist view of judging that is contrary to that ideal. Judge Sotomayor made speech after speech, year after year, setting forth a fully formed judicial philosophy that conflicts with the great American tradition of blind justice and fidelity to the law as written.

These speeches also contradict the oath that judges take to ``do equal right to the poor and the rich'' and to do so ``impartially'' ``without respect to persons.'' Under the law, under the Constitution and laws of the United States, judges are subordinate to our Constitution and laws. This ideal is a high one indeed, and it requires a firm personal commitment to objective truth and a belief in the meaning of words.

It has been suggested repeatedly that Judge Sotomayor's words and speeches are being taken out of context. I have read her speeches in their entirety. Her words are not taken out of context. In fact, when one reads the entire speeches, the context makes them worse, not better.

My criticism also should not be considered as a personal attack on her as a person because there are a number of intellectuals, judges, and legal writers who believe in just such a new way of judging. It is quite fashionable among some--those who think they are more realistic than naive American citizens, judges, and lawyers who, they believe, delude themselves when they think a judge will or can find true facts and apply them fairly to the law as written.

Most Americans and most Senators have heard about Judge Sotomayor's speeches, which are clearly outside the mainstream. She has repeatedly said, among other things, that judges must judge when ``opinions, sympathies and prejudices are appropriate.''

She accepts that who she is will ``affect the facts I choose to see as a judge.''

It is her belief that ``a Wise Latina woman, with the richness of her experiences, would more often than not reach a better conclusion than a white male.''

That there is ``no neutrality'' in judging, just a ``series of perspectives.'' She has also said the appellate courts are where policy is made.

These matters have been discussed in some detail by my colleagues and at the hearing. Her testimony at the hearing was that these speeches do not reflect her philosophy of judging. It is hard for me to accept that her words, expressed over a decade in these speeches, do not reflect what she actually believes. Indeed, it is an odd position in which to find oneself to be at a hearing and say you don't believe what you have been saying over the years.

But Judge Sotomayor has asked, and her supporters have asked, that we look at her judicial record which proves, she and her supporters say, she is unbiased, and shows that she does not allow personal politics and views to influence her decisions. They cite over 3,000 cases she has decided, most without controversy.

They have gone to some length to discuss and defend the process by which she decides cases. Indeed, in her opening statement, Judge Sotomayor explained: ``[t]he process of judging is enhanced when the arguments and concerns of the parties to the litigation are understood and acknowledged.''

She did follow this style in many of the cases that came before her, going into detail and even being criticized by some in a Washington Post article for ``uncommon detail'' that risked ``overstepping'' the bounds of an appellate judge.

But there is more to the story. Most cases before the courts of appeals are fact based and routine and do not raise the kind of serious constitutional issues that the Supreme Court hears and decides on a regular basis.

I have reviewed carefully three cases--two decided in the last year, and one 3 years ago--that are the kinds of cases the Supreme Court deals with regularly. Unfortunately, Judge Sotomayor's handling of these cases was not good. They show, first of all, an apparent lack of recognition of the importance of the issues raised in these three cases.

In each case, the decisions were extremely short and lacking any real legal analysis. These three cases also

reached erroneous conclusions. They ignore the plain words of the Constitution, and they provide a direct look at how the nominee will decide many important cases that will come before the Court, if she is confirmed, in the decades to come.

The case of Ricci v. DeStefano came to her three-judge panel of the U.S. Court of Appeals for the Second Circuit as an appeal by 18 firefighters. They had passed a promotion exam, but the exam had been thrown out by the city of New Haven because the city thought not enough of one group passed. The test was thrown out not because it was an unfair test. Indeed, the Supreme Court, when the case got there, found that ``there is no genuine dispute that the examinations were job- related and consistent with business necessity.'' Instead, the city threw out the test because the city did not like the racial results. Thus, the city discriminated against the firefighters who passed the exam because of their race.

This case is a sensitive case, it is an important case, and we need to analyze it carefully. It is noteworthy because the court failed to adhere to the simple but plain words of the Constitution.

In Ricci, Judge Sotomayor's opinion violated the plain constitutional command that no one shall be denied ``the equal protection of the laws'' because of their race.

Additionally, the case is subject to criticism because of the manner in which it was handled. I want to talk about that a minute. Judge Sotomayor did not deal with this important constitutional issue--a very important constitutional issue--in a thorough, open, and honest way. Without justification and in violation of the rules of the Second Circuit, Judge Sotomayor and the panel initially dismissed the case by summary order; that is, without any published opinion, without even adopting the trial court's opinion. No opinion, no explanation.

The effect of this summary order was to deal with the case in a way that would not require the opinion to be published or even circulated among the other judges on the circuit. This was not justifiable. The circuit court rule states that summary orders are only appropriate where a ``decision is unanimous and each judge of the panel believes that no jurisprudential purpose would be served by an opinion. . . .''

This is a huge constitutional question in this matter. If it were not, the Supreme Court would never have taken it up, and it almost slipped by. But by chance, other judges on the Second Circuit apparently found out about it through news accounts, apparently, and began to ask about this case that seemed to be of significant import. This resulted in a request by one of the judges--quite unusual when you are dealing with a simple summary order--to rehear the case before all of the circuit judges. It created a notable dustup. The result was a split court with half of the judges asking for a rehearing of the case, half against rehearing it, with the deciding vote not to hear the case, not to reconsider any of the precedent that may have existed, being cast by Judge Sotomayor herself.

In effect, this was a vote to avoid the full and complete analysis this case cried out for from the beginning. It was only during this challenge that Judge Sotomayor's panel agreed to decide the case then by a per curium opinion, an unsigned opinion, which at least then adopted for the first time the lower court's opinion which, frankly, I don't think was a very fine opinion for this kind of important case. But that became the opinion she adopted.

Still, the firefighters didn't give up hope. They then sought a review by the Supreme Court. Against long odds, the Supreme Court agreed to hear their plea. The Court found the ruling erroneous. They reversed the Sotomayor court's opinion and rendered a judgment in favor of the firefighters. They held that what the city of New Haven did, which Judge Sotomayor had approved, was simply wrong.

At the Judiciary Committee hearing, firefighters Frank Ricci and Ben Vargas beautifully described what it meant for them to go from a summary dismissal in the Sotomayor court, to a summary judgment victory in the Supreme Court. Five years of personal cost, stress, and strain suffered by the firefighters were vindicated by an important victory for equal justice in the Supreme Court.

But nothing can erase either the flawed result of Judge Sotomayor's panel decision or her panel's apparent attempt to sweep the case under the rug.

Secondly, Judge Sotomayor's treatment of critically important second amendment issues that have come before her is equally troubling, for the same reasons. She simply got the text of the Constitution wrong and did so in such a cursory way that her actions seemed designed to hide the significance of the case and the significance of her ruling.

Last year, in a case of great importance, the Supreme Court held in the Heller case that the second amendment, which protects the right of ``the people to keep and bear Arms,'' provides an individual right-- which I think it clearly does--and that, therefore, the Federal city of Washington, DC could not ban its residents from having a handgun in their homes for protection. In a footnote, the Supreme Court left open the question, not raised in the case, of whether the second amendment would bind the States. The question is simple and of fundamental importance to the second amendment: Does the Constitution bar States and cities from denying their residents the right of gun ownership? Pretty big question. Huge question.

On January 28 of this year, in Maloney v. Cuomo, Judge Sotomayor issued an opinion on this very issue. And in this opinion, Judge Sotomayor again failed to follow the text of the Constitution. The Constitution is plain and simple on this issue: ``. . . the right of the people to keep and bear Arms, shall not be infringed.'' And when you are talking about the people, you are talking about the right not just as it is applied to the Federal Government, I would submit, but also to the States and cities. So the Sotomayor panel looked at this text and decided that a State or local government may infringe, even deny your right.

Some argue that Judge Sotomayor was bound by precedent in her decision and there was old case law that her decision followed. But we have looked at this closely and tried to think it through. I would note that the situation the court found itself in shortly after the well- known, tremendously important Heller case had changed, and the Ninth Circuit panel, facing the very same issue, disagreed with Judge Sotomayor. It found that the second amendment does apply to the States. The Seventh Circuit, in a very thorough and carefully written opinion, and at its final conclusion, agreed with Judge Sotomayor's panel's decision, but it did so in such a way that it demonstrated its recognition of the importance of this right and the new situation created by the Supreme Court in Heller. This recognition was utterly lacking in Judge Sotomayor's very brief opinion.

While it is argued that Judge Sotomayor relied on precedent, the precedent she cited was from the 1800s and does not use the modern test for incorporation that the Supreme Court employs in deciding whether rights apply to States, something that has been going on for nearly 100 years. Not only that, but even after the watershed decision by the Supreme Court in Heller, she held that it was ``settled law'' that the second amendment did not apply to the States and that the right to keep and bear arms is not a ``fundamental right.''

When these points were brought to the Judge's attention during the confirmation hearings, she declined to explain herself, claiming that she had not recently read the cases on which she so recently relied. This is not the level of analysis that the Judiciary Committee has the right to expect from a nominee to the U.S. Supreme Court.

Make no mistake, the effect of this ruling, if not reversed, if it stands, will be to eviscerate the second amendment by allowing States and cities to ban all guns, as the District of Columbia had basically done before the Supreme Court reversed that in Heller. In simple terms, in a case of great constitutional importance, Judge Sotomayor, once again in an unjustifiably brief opinion, measured in mere paragraphs of analysis, gave short shrift to the plain words of the Constitution.

I will say also that after the Supreme Court rendered its ruling in Heller, it had a footnote that said since this is a Federal cities case, we don't decide the

application of the second amendment to the States. But in that footnote, the Court made it quite clear that the prior old cases were decided before it had adopted a different approach to incorporating constitutional rights against the States. It is pretty clear from that they have left this matter open. The judge on the Ninth Circuit found that the question was an open question after Heller.

To say it is ``settled law'' that the second amendment does not apply to the States is not good, in my view. It is not settled law. I would certainly hope, and millions of Americans will be hoping, that the Supreme Court will not rewrite the Constitution; rather, they hope they will declare that the second amendment does apply to the States.

Further, she said it was not a fundamental right. That was not a phrase used by the other two courts which considered this question, and it is gratuitous, in my opinion. The combination of saying it is not a fundamental right, which is important to the ultimate analysis, and her statement that it is ``settled law'' that the second amendment does not apply to the States indicates a lack of appreciation for the importance of the second amendment right and a hostility toward the second amendment.

And similarly troubling were the judge's equivocations as to whether she would appropriately recuse herself from considering this issue that will surely come before her on the Supreme Court. She declined to commit to recusing herself if the Seventh or Ninth Circuit cases came to the Court, even though those cases raise exactly the same issue as the one she decided against gun rights. I would note also that even the Heller case--breathtaking to me--decided by a narrow vote of 5-4 that a right to keep and bear arms provided in the Constitution explicitly applies to bar the city of Washington, DC, from banning all firearms, basically.

In addition to the firefighters case and the second amendment case, both of which involve important issues of constitutional law, Judge Sotomayor handled, in a similarly cursory manner, a very important private property rights case which some have called the most egregious property rights decision in this area since the Supreme Court's infamous decision in the Kelo case a few years ago.

Just 3 years ago, after Kelo was decided, which caused quite a storm of controversy and a great deal of academic writing, Judge Sotomayor's court issued an opinion in which a private property owner found his property, on which he planned to build a CVS pharmacy, taken by condemnation by the city so that another private developer could build a Walgreen's on the same property. The way this condemnation came about should send chills down the spines of ordinary Americans, because the Walgreen developer, who was pursuing a redevelopment plan supported by the city, told the landowner that he could keep his land and build a CVS and they wouldn't condemn it. All he had to do was fork over $800,000 or half ownership in his business. I look at that and I can understand why the landowner thought he was being blackmailed. Judge Sotomayor looked at that and called it business as usual--a simple negotiation. But it is no negotiation when one party possesses the power through the city to take your property, whether you agree or not.

In another curiously short 2-page opinion, Judge Sotomayor's court rejected the landowner's claims, holding that the courtroom doors were closed to the landowner because he had brought his claim too late. The logic was that the landowner had to bring his claim to court months before the extortion occurred. The effect was to violate the Constitution. The Constitution plainly states that property ``shall not be taken for public use without just compensation.'' The Supreme Court has been quite clear that means you can't take private property except for public use.

At Judge Sotomayor's hearing, Professor Ilya Somin, who has written extensively on property matters, said this case was the most anti- property rights case since the infamous Kelo decision decided by a split Court a few years ago. Again, plain constitutional protections were ignored to the detriment of an individual American citizen who was standing up for his constitutional rights.

So in three cases, contrary to the plain text of the Constitution, Judge Sotomayor has ruled against the individual and in favor of the State in the face of seemingly clear provisions of the Constitution, furthering what can be fairly said to be, in each case, a more liberal agenda in America. A liberal or a conservative political belief, a Republican or Democratic political belief does not disqualify someone from serving on the Supreme Court. What does disqualify is when a judge allows such beliefs or ideology or opinions to impact decisions that they make in cases.

Anyone with more than a casual acquaintance with the law would instantly know that each of these three cases presented issues of great legal importance, and each deserved to be treated with great thoughtfulness. Judge Sotomayor surely understood that fact. Yet in each instance her decisions were unacceptably short. It seemed to me the only consistency in them was that the result favored a more liberal approach to government.

So I have come to announce, regretfully, that I cannot support Judge Sotomayor's elevation to our highest Court. She also now sits in a lifetime appointment on the Nation's second highest court, the Court of Appeals. Her experience, however well rounded, and background, however inspirational, are not enough. What matters is her record on the bench and her stated judicial philosophy.

I hope I am wrong, but my best judgment, my decision is that a Sotomayor vote on the Court--the Supreme Court--will be another vote for the new kind of ideological judging, not the kind of objectivity and restraint that have served our legal system in our Nation so well. Thus, I am unable to give my consent to this nomination.

Madam President, I thank the Chair, and I yield the floor.

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

Madam President, I want to spend a little time on a bill that has to do with one of the three major interests we are going to have during the recess. One of the issues is one I feel very strongly about; that is, what is happening right now at Guantanamo Bay. Some refer to it as Gitmo. I have some very strong feelings about that.

I do not know why our President has this obsession that he is going to turn loose or bring these detainees, these terrorist detainees, back to the United States. If you do that, either to try them or to bring them back here, they become magnets for terrorist activity.

We have detained about 800 al-Qaida and Taliban combatants at Gitmo. We have to understand that a terrorist combatant is someone different than you would normally--we are not talking about criminals here. We are not talking about even people who represent countries. We are talking about terrorist combatants. To date, over 540 have been transferred or released, leaving approximately 230 at Gitmo.

Here is the problem we have. If I were making this talk, as I was, about a month ago, I would say we had about 280 detainees at Gitmo. The problem is, you cannot get rid of them by asking some country to take them because the countries will not do it. You do not want to bring them back to the United States because, as I said, that becomes a magnet.

So our President has been, one by one, trying to bring these back, putting them in our system for trial here in the United States. It is important to understand the rules of evidence are different. If you are in a military tribunal, you can dispose of these people. But you cannot do it--for example, hearsay evidence is not admissible in the courts in the United States. So it would not fit in our Federal system.

President Obama has ordered the Guantanamo facility be closed. He has recently given an extension to that.

In 2007, the Senate voted 94 to 3 on a nonbinding resolution to block detainees from being transferred to the United States. It said: Detainees housed at Guantanamo Bay should not be released into the American society nor should they be transferred stateside into facilities in American communities and neighborhoods.

Well, that is very specific. In fact, I had the amendment to do that on the Defense authorization bill only last week. Quite frankly, it was blocked by the Democratic majority.

On May 20, 2009, the Senate voted 90 to 6--that was my and Senator Inouye's language; it was a bipartisan amendment--to prohibit funding for the transfer of Gitmo detainees to the United States. We are hitting them two different ways. One is, we are saying you cannot bring them over here. Second, you cannot try them over here. And now, thirdly, we are not going to pay for any relocation of these people.

Unfortunately, the supplemental appropriations conference deleted that provision. That was a provision that passed 90 to 6, authored by me, Inhofe, and Senator Inouye, the senior Senator from Hawaii. But they took it out. So that means it is not there right now for trials. But the law does block funding for permanently transferred detainees from Gitmo to the United States for the 2009 budget year, which ends on September 30.

The House Appropriations Committee will vote this week on language contained in a manager's amendment proposed by Representative Jerry Lewis of California prohibiting the administration from spending any money to move prisoners to U.S. soil. Last Thursday, the Senate Democrats again blocked an attempt to consider an amendment that would have permanently prevented the detainees from being transferred from Gitmo. That was my amendment. It was part of the Defense authorization bill. When President Barack Obama took office, there was one free bed at the supermax prison in Colorado, with a typically long waiting list to move high-security prisoners into supermax.

To understand what this is, the supermax prison is one with the very highest level of security, a place where they might argue that you could put a terrorist there and that terrorist, regardless of how serious he was, is one who would be secure. The problem they are overlooking is, if they are located in the United States, they become a magnet for terrorism.

I know President Obama, at one time, was proposing some 17 sites in America where we could put these Gitmo detainees. One of those happened to be in Fort Sill, in my State of Oklahoma. I went down to Fort Sill to look at our prison facility down there. There is a master sergeant-- no, I am sorry, Sergeant Major Carter was her name. She was in charge of the prison. That prison was set up as a normal military prison but certainly not suitable for detainees, not suitable for terrorists. It happens that Sergeant Major Carter--you can call her and ask her about this. She had two tours at Gitmo, and she said: Why in the world are you guys in Washington and this President trying to close Gitmo? It is an asset we need. It is a place where they can be secure. It is a place where they have treated them humanely over the years. Well, anyway, so when you look at what we have here, there are no places that are appropriate.

Assistant Attorney General David Kris testified at the same hearing of the House Armed Services Committee that both civilian and federal jails and military prisons are being considered for potential future incarceration for prisoners facing criminal prosecution, military tribunals or long-term detention without trial, more than 50 have been cleared for release, and an administration task force is sorting through the remaining 229 prisoners to determine their fate. What we are saying is we have already picked the low-hanging fruit. We have already taken care of the problem of those individuals who either a country won't take back or you can find someplace to put them. But the remainder are the real tough guys, the bad guys whom we don't want in our society. Government lawyers in both the Obama and the Bush administrations have said that an unspecified number of detainees should continue to be held without trial, stating that some of the evidence against them will be classified or thin, and the government fears these most dangerous detainees could be released should they be given their day in court; that is, their day in court in the United States.

If you look at the facility they have down there, it is made for this type of detainee. It is one that will allow the security of evidence so it doesn't threaten other people, and it is something that cannot take place in this country.

Johnson also said the Obama administration has not yet determined where it will hold newly captured al-Qaida and Taliban prisoners for extended detention after the Guantanamo Bay prison closes, if it should close. Of course, my effort is to keep it open. So far the only Guantanamo Bay detainee brought to face trial in a U.S. criminal court is Ahmed Ghailani. He is the Tanzanian whom we sent to New York and faces charges in conjunction with the two bombings. We remember the two bombings in Tanzania and Kenya. Federal prosecutors said last Friday they no longer plan to hold Mohammed Jawad, who threw a grenade at a U.S. convoy in 2002, as a wartime prisoner, a signal that the Obama administration intends to bring him to the United States before a criminal court.

Last week, Democratic Members in the House and the Senate said Michigan prisons set to close because of the State budget crunch could take the high-profile prisoners from Gitmo, creating jobs lost in the auto industry.

Let's stop and think that one through. These are elected representatives from the State of Michigan, the two Senators and Representative Stupak, who are suggesting that we could put those prisoners, these high-level, high-security terrorist detainees in prisons in Michigan and that would cause them to have to go through there and provide jobs to update the prisons. Let's stop and think that one through. Why not just go ahead and do something with the individuals who are there, leaving them where they are right now, and get into a public works program where at least they could be spending that money on roads and highways.

Let me do this. I have almost given up--in fact, I did give up-- trying to put the language in the Senate Armed Services Committee's Defense authorization bill to preclude the President from putting these individuals into the United States. There is only one vehicle left. That is my Senate bill 370, S. 370. It is a one-page bill. I have 22 cosponsors. It merely says we cannot pay to transfer any of these detainees to the United States, and we are not going to be able to try them here. So it is the final answer to this matter.

Madam President, at this time, I ask unanimous consent that S. 370 be brought up for immediate consideration.

Madam President, I would only respond to my very good friend from North Dakota--in fact, we were recently talking about how in agreement we were on some of these things, the potential we have to explore in the United States. I have talked to the leadership to try to bring this up and have not been able to do it. I guess you get to the point where you are frustrated and you know that two-thirds of the American people want to set something in place to keep these terrorists from coming into the United States. All I ask is to get my bill up. I will be trying to do that in the future.

I wish to ask the manager of the current bill on the floor, the minority manager, if he desires to have the floor for the purpose of the consideration of the bill.

I thank the Senator from North Dakota and I assure him that if someone comes down with an amendment, I will cease and yield to them.

Cap and Trade

In the meantime, there is another subject I wish to speak about. I have been doing this now for 10 years every week.

It is safe to say that at 3:09 a.m., on June 26, most of America was asleep. While they slept, Democratic leaders in the House were creating a nightmare. In the early morning hours, Speaker Pelosi and her deputies were pushing the largest tax increase in American history.

In the dead of night, with no one watching, they engaged in full- scale arm twisting, back-room dealing, and outright pork-barreling to garner support for a massive bill few, if any, had actually read or understood. You have to keep in mind there are about 400 pages of this bill that weren't printed until 3 o'clock in the morning of the morning the bill was voted on.

When America awoke, they found Democrats talking about green jobs and the new clean green energy economy. They spoke of free markets and innovation and energy independence. All of it sounded so appealing. Yet none of it was true. That is because Waxman-Markey is full of regulations, mandates, bureaucracy, and big government programs. Waxman-Markey is, to quote John Dingell, ``a tax, and a great big one'' on small businesses, families, and consumers.

I don't blame the Democrats for selling cap and trade as something it is not. This is a political imperative for them because the American people now know what cap and trade is and they don't like it.

According to independent political analyst Charlie Cook:

Many Democrats getting back to Washington from Independence

Day recess reported getting an earful from their constituents

over the `energy tax hike' . . .

Further, Cook noted--and I am quoting Charlie Cook right now:

The perception is that this is a huge tax increase at a

time when people can ill afford one. Hence, Democrats,

whether they supported the bill or not, are getting battered,

increasing their blood pressure.

Let me say this. This is an issue we are going to be talking about. I have been on the Environment and Public Works Committee since I came to the Senate in 1994. I was the chairman of that committee back when the Kyoto treaty was considered. At that time, as everyone else, I assumed manmade gases, anthropogenic gases, CO2, methane, were causing global warming. Now people are careful to say climate change and not global warming since we are in about the ninth year of a cooling period. But at that time I assumed it was true. That is all everybody talked about. Until the Wharton School did a study and the question was posed: If the United States were to pass and ratify the Kyoto treaty and live by its emissions requirements, how much would it cost? The range was between $300 billion and $330 billion a year. It was at that point that I decided it would be a good time to look at the science behind that and see if, in fact, the science was there.

We are talking about 10 years ago. After looking at it and studying it, we found scientist after scientist who was coming out of the closet and saying this thing was started by the United Nations, the Intergovernmental Panel on Climate Change, and the reports they give are not reports from scientists; they are reports that are from policymakers. Consequently, on my Web site, the Web site inhofe.senate.gov, I have listed over 700 scientists who were on the other side of this issue and now are on the side saying: Wait a minute. This is something that is not real, and it certainly is not worth the largest tax increase in history.

I remember when Vice President Al Gore was in office, the Clinton- Gore administration, and at that time they decided they wanted to come out with a report, in order to sell the idea of ratifying the Kyoto treaty, that they would come up with a report to say how much good could be done, how much the temperature could be lowered over a 50-year period of time if all developed countries, all developed nations ratified and lived by the emissions requirements, how much would it reduce the temperature. The results--and the man's name was Tom Quigley. Tom Quigley was the foremost scientist at that time. He said it would reduce the temperature over a 50-year period by .07 of 1 degree Celsius in 50 years. That is not even measurable.

I wish to inquire if the Senator from Florida wishes to speak as in morning business or on this bill?

Morning business. Well, I am going to be awhile.

Anyway, what I would suggest doing is going back and looking at what has happened since the Kyoto treaty was considered. In 2005, we had the McCain-Lieberman bill. The McCain-Lieberman bill was very similar to the Kyoto treaty. It was cap and trade. It was very similar to the Warner-Lieberman bill and very similar to what we are looking at today, the cap-and-trade bill, which is the Waxman-Markey bill. They are essentially the same thing; that is, cap and trade, a very sophisticated way to try to regulate greenhouse gases or primarily

Madam President, I wish to speak off the bill. I know my colleagues are talking about the supplemental appropriations bill. But I wish to take a few minutes, if I could, with the permission of the managers of the legislation, to talk about the credit card legislation that passed this morning. I did not have the opportunity, given the time constraints, to express some brief thoughts about the passage of that legislation.

So I rise to thank my colleagues. By an overwhelming vote of 90 to 5, this body voted earlier today to adopt the credit card reform legislation. I am very grateful to my colleagues. I am grateful to Senator Shelby, my cochair, if you will, the former chairman of the Banking Committee, for his work.

Obviously, this was a bipartisan effort, with a vote of 90 to 5. The final conclusion was one that was embraced by an overwhelming majority of our colleagues. I thank them for that.

Twenty years ago, many of my colleagues who are still in this Chamber will recall how we stood to try to get the credit card industry to respond to some of the activities that began then. In those days, they were not quite as pernicious as they have become. But, nonetheless, you could see the handwriting on the wall as to where these issuers were headed. We did not engage as effectively then as we probably should have. We said then that too many of these companies were starting to cross a line, starting to engage in abusive, deceptive, and misleading practices that were trapping their customers into far more debt than certainly they, the customers, ever agreed to.

But that was more than two decades ago, and since that time, we have all seen what has happened across our Nation: penalty fees that are increasingly common, for infractions that are increasingly ridiculous-- for paying by phone or by e-mail or by check, which are ways you get penalized today; anytime, any reason under contracts, where interest rates could be raised that can turn a few hundred dollars of obligation into a lifetime of debt; disclosures that you need a microscope to read and a lawyer's degree to understand.

For too long, credit card companies have resorted to tactics that drive families deeper and deeper and deeper into debt.

Well, today the Senate let them know that those days are coming to an end. I am grateful to my colleagues for their votes.

I wish to take a few minutes to thank fellow Senators and staff who have worked diligently to help me improve this legislation.

As I mentioned earlier, Senator Shelby of Alabama played an important role, and I am grateful to him for agreeing to work on this bill. It came out of the committee on an 11-to-12 vote--the narrowest of margins. It was after that time that we worked to develop a bipartisan bill.

In all, I believe this was an inclusive process--striking a very good balance that ensures we provide tough protections for consumers while making sure to maintain the flow of credit into our economy that is so essential to our long-term economic recovery.

I wish to thank Senators Carl Levin of Michigan and Claire McCaskill of Missouri, who led the charge to restrict overlimit fees and deceptive marketing of free credit reports.

Senator Bob Menendez of New Jersey has been a champion from the very beginning on issues impacting young people--requiring credit card companies to consider consumers' ability to pay when issuing credit cards, increasing protections for students against aggressive credit card marketing, and more transparency in affinity arrangements between credit card companies and universities.

With respect to affinity cards and protection of students, I also wish to thank Senator Casey of Pennsylvania, Senator Feinstein of California, Senator Corker of Tennessee, and Senator Grassley of Iowa for their leadership as well.

Let me also thank several of our colleagues with whom we worked to include protections regarding small business--Senator Ben Cardin of Maryland, Senator Johanns of Nebraska, and Senator Mary Landrieu of Louisiana. They strove mightily to include a study and report on the use of credit cards by small businesses.

Senator Olympia Snowe of Maine worked with our Senate colleague from Louisiana to include the establishment of a Small Business Information Security Task Force in this legislation.

Several additional measures were included at the behest of my colleagues that I think strengthen the legislation.

Senator Charles Schumer of New York authored the provision to scale back abuses on prepaid gift cards, and that provision is now included in the bill that passed. Senator Dan Akaka of Hawaii wisely suggested we seek a clarification of the certification process for credit counselors--something I believe will prove extremely valuable given the clear need for greater financial literacy among consumers.

Senator Susan Collins of Maine, with my colleague, Senator Lieberman of Connecticut, asked that we include provisions to prevent money laundering through the use of what they call stored value cards which are being increasingly used by drug cartels to smuggle money across our borders. I am happy we were able to include those provisions in the bill as well.

My colleagues from California and New Hampshire, Senator Feinstein and Senator Gregg, worked with us to include a study and report on emergency PIN technology that would allow banking customers to signal for help when forced to withdraw cash from ATMs.

Another study and report on which we worked with Senator Kohl of Wisconsin to include is on the marketing of products such as debt cancellation agreements, which some have long argued are of questionable benefit to consumers.

Finally, I wish to thank the President of the United States, President Obama, for stepping up and stepping in, and for using the bully pulpit of his Presidency to help us gain public awareness of these issues as well.

As we cross the finish line today and the House considers what we have sent them, I believe the victory will not be, of course, for our President or for the Congress or for the authors of this legislation or even for the Members I have mentioned in these remarks. Truly the victory will be for people such as Don and Samantha Moore of Guilford, CT, and their three daughters; or Kristina Jorgenson of Southbury CT; and Phil Sherwood, a member of the city council, of New Britain, CT. All of these constituents of mine came to me with stories about how they had seen abuses by the credit card industry.

In the case of Don and Samantha Moore: 40 years of credit card allegiance, one 3-day-late payment resulted in an increase from 12 to 27 percent in interest rates and reducing their credit limit from $32,000 to $4,000. They run a small business. It probably put them out of business--just for being 3 days late for the first time in 40 years.

In the case of Kristina Jorgenson in Southbury: She watched her rates go from 5 percent to 24 percent for being 3 days late--the first time ever--in a credit card payment. One of those days was a Sunday, by the way. She had taken out the credit card debt to pay off her student loans. They charged her because of the retroactive fees, the 24 percent, making it almost impossible for her to ever meet those obligations. To meet that criteria, she dipped into her individual retirement account which she had saved. She was in retirement and she has now cut that retirement down to 45 percent of its value in order to pay off the credit card debt. Three days late, one time, 5 percent to 24 percent. Phil Sherwood didn't do anything at all. He paid his bills every month, never a day late, and watched his rates skyrocket, he and his wife.

These stories I tell could be repeated over and over all across the country. More than 70 million accounts in one 11-month period, affecting one out of four families, saw interest rates skyrocket. For the life of me, I don't quite understand what the industry was thinking of, having just overreached time and time again. But as a result of the bill we passed today by the vote I mentioned, we have made significant inroads into the kind of practices the people I mentioned here were afflicted with.

Unfortunately, it doesn't happen overnight. The bill has a period of time before the new restrictions go into effect. I would have liked to have had a much shorter period, but these bills require compromise, and they don't become the fulfillment of the wishes of any one Member of this body. It requires working with each other and, as a result of that effort, we ended up with a longer period of time than I liked but, nonetheless, less than the official period of the Federal Reserve Board's regulations, which would be a year and a half from now.

So American consumers have a responsibility. That needs to be said over and over. But they also have rights, and those rights ought to be that they can count on a contract they enter into. I know of no other contractual relationship, whether it is purchasing a home, buying an automobile or an appliance, where the one party can virtually unilaterally change the terms of the contract. Yet that goes on every day with credit card issuers.

Madam President, 20 to 25 percent of students now have over $7,000 in credit card debt--25 percent of our student body at the university and collegiate level. The average college graduate owes over $4,000, a major factor of some students dropping out of school.

The average family in our country, with credit cards, now has what they call revolving debt--the bulk of which is credit card debt--well in excess of $10,000 per family. So, clearly, with those kinds of obligations and debts, something needed to be done. That is what we have done with this legislation.

So the industry has obligations. Consumers have the right not to be taken to the cleaners, and they have a right to expect that they will be treated fairly when they enter into a contractual agreement; that they won't be the only ones required to uphold their end of the bargain. Certainly, consumers have a right not to live in fear that a clause buried in the fine print of their credit card contracts might someday be their financial undoing, and they should have a right to trust that their child won't be saddled with debt before they have turned 21.

Standing up for those families and their children and forcing those rights is what this legislation was designed to do, and we accomplished that goal.

So I wish to thank my colleagues again for their efforts, their diligence, their commitment to ensuring that we pass a strong bill that will benefit consumers across the country.

I wish to thank majority leader Harry Reid, and I wish to thank the minority leader, the Republican leader. Harry Reid provided the time and space for the consideration of this bill which would not have happened if the leadership didn't decide to make that time available for something as complicated as this, with many different ideas that were brought to the table. I wish to thank the floor staff that is here for their work, both the majority and minority side as well. They were very patient. It has been over 2 weeks now.

We dealt with the housing bill last week, and now the credit card bill this

week, and they had to put up with me for 2 straight weeks on the floor of this Chamber. I am very grateful to them. I wish to thank my staff as well.

Linsey Graham, who is on the Banking Committee staff, has done a magnificent job over the years and in working on this legislation. Amy Friend, Charles Yi, Colin McGinnis, along with other members of the staff, but they were the principal ones who spent long hours and nights over the weekends over the past several weeks to pull this legislation together.

Bill Duhnke and Mark Oesterle of Senator Shelby's staff as well worked very hard, and I am very grateful to them.

I wish to thank the staff here as well. Certainly, the majority leader's staff, Gary Myrick and Randy Devalk, who did a great job, and I thank them. I can't say enough about Lula Davis and about Tim Mitchell. Trish Engle and Jacques Purvis did a wonderful job. I thank them. I thank David, as well, on the minority staff. They were just wonderful.

I tried their patience, I know, on more occasions than I care to remember, but without their involvement over these past several days we would not have been able to achieve this accomplishment today. That also includes Joe Lapia and Brandon Durflinger, Meredith Mellody and Esteban Galvan as well from the cloakroom staff who worked so hard.

I am sure I have left some people out, and I apologize if I have done so in thanking them for their work. But all of these people in their own way contribute to what happens here. They don't often get mentioned. Those of us who have the right to speak in this Chamber are the ones who are seen and heard, but I want my constituents and people in this country to know there are people every day whose names you will never know, whose faces you will never see, who contribute mightily to the products that get produced in this body. It takes cooperation on the part of all of us, regardless of where we come from, what party affiliation we are, what ideological leanings we may have. They are wonderful, remarkable people who give their time and their professional careers to this institution and who make these kinds of events and these kinds of results achievable.

So I thank them all, and I thank all of my colleagues again.

I look forward to a day in the hopefully not too distant future when President Obama will sign this legislation into law.

I yield the floor.