A bill to eliminate certain provisions relating to Texas and the Education Jobs Fund.

Mr. President, I come to the floor today to discuss an amendment that Senator Johanns, from Nebraska, will be offering to the Small Business Jobs and Credit Act. The amendment to be offered by the Senator from Nebraska--a good friend of mine and a former Secretary of Agriculture--however, would effectively kill the prevention and public health fund that is in the Health Care Act. That would be a grave mistake.

The prevention and public health fund was created by the Affordable Care Act that we passed earlier this year. On March 23, when President Obama signed that historic bill into law, our Nation made two giant strides forward. We ensured that all Americans, regardless of means, will have access to quality and affordable health care. We committed ourselves to transforming America's current ``sick care'' system into a true health care system. I have been saying for years that what we have in America is not a health care system, we have a ``sick care'' system. Once you get sick, you get care one way or the other--emergency room, Medicare, Medicaid, health insurance, whatever. But that is always the most expensive--waiting until someone gets sick, and then you help them. So I have often said that we have a sick care system. A true health care system would put emphasis on keeping someone healthy and out of the hospital in the first place.

One of the most important elements of this transformational bill we passed this year--the health care reform bill--was the creation of the prevention and public health fund. For the first time in history, we have decided not just to pay lip service to wellness and prevention but to invest in prevention and wellness in a very robust way.

We cannot wait any longer to make these investments. By dedicating resources to preventing obesity, diabetes, heart disease, and other very costly conditions and diseases, we have a tremendous opportunity to both improve the health of the American people and to restrain health care spending.

As we can see from the chart I have here, prior to this prevention fund, for every dollar spent on health care, 75 cents went to treating patients with chronic diseases. During 2005, the United States spent almost $2 trillion on health care. For every $1 spent, 75 cents went toward ``sick care,'' treating people with chronic diseases. Only 4 pennies went for prevention.

This underinvestment in prevention has had devastating consequences. Chronic diseases are one of the main reasons health care costs have increased so dramatically over the past several decades.

This chart shows what has happened since 1987. From 1987 to today, U.S. health spending has gone up to $628 billion. But of that increase, two-thirds of the increase, $211 billion, is due to chronic diseases-- two-thirds of the increase. That is an increase of $211 billion since 1987 because of chronic diseases, most of which are preventable. Our investment in wellness and prevention can save millions of Americans needless suffering and early death. It can save countless billions of dollars in health care costs. Again, let's have a couple of examples here that I have on these charts.

What is our return on investment? For every dollar spent on childhood immunizations, we save $16.50. For every dollar we spend on smoking cessation for pregnant women, we save $6. Overall, the return on chronic disease prevention, on community-based prevention interventions is basically about 5.6 to 1 to 6.2 to 1. These are community-based interventions.

I will say it once and I will keep saying it: Not every preventive and wellness measure takes place in a doctor's office. Sometimes they take place in other places--where we work, where we go to school, where we live. We know now, based on the Trust for America's Health, that the return on total savings we would get after 5 years would be $16.5 billion and 10 to 20 years, $18.5 billion, or a return on investment of 5.6 dollars for every dollar we put in or 6.2 dollars over 10 to 20 years.

That is why funding these types of programs is crucial if we hope to slow the growth of health care costs in our country. We will not be able to accomplish this if we do not increase our investment in the programs that prevent the development of these costly chronic diseases. To this end, the new health reform law makes significant new investments in wellness, prevention, and public health. For example, it requires insurance companies to cover recommended preventive services with no copayments or deductibles. Think about that. You now go in, get recommended preventive services, no copayments, no deductibles. It also ensures seniors have access to free annual wellness visits and a free personalized prevention plan under Medicare.

A critical feature of the new law we passed that I think is essential to a sustainable push for wellness is the new Prevention and Public Health Fund. As I said earlier, bear in mind that maintaining good health is much more than just visits to the doctor's office. Where Americans live, go to work, and go to school also has a profound impact on our health. That is why, among other things, the fund provides for community transformation grants to enable localities to tailor wellness and prevention programs to their specific needs and environment. In addition, it invests heavily in strengthening the primary care infrastructure, including training for physician assistants and nurse practitioners, who typically practice in small clinics. That is why for fiscal year 2010 the prevention fund dedicated $64 million to State public health departments to implement evidence-based prevention services.

This is what we did. There is $64 million just for community and State prevention. We can see the others: primary care and public health workforce, $273 million; infrastructure, $70 million; obesity prevention, $16 million; tobacco prevention, and on and on. That is what we did in 2010. It also allocated, as I mentioned, $16 million for obesity prevention activities and $15 million for tobacco control programs. We also invested $70 million in our public health infrastructure.

For fiscal year 2011, let's see where we go. For fiscal year 2011, here is where the public health fund has gone under the Senate Appropriations Committee: for community prevention, $270 million; chronic disease State grants, $140 million; tobacco prevention and

cessation, $100 million; public health infrastructure for disease surveillance, $84 million; prevention research, $50 million; community health worker demonstration project, $30 million. That is just to name a few of the investments.

Given all the evidence we have--and we have a ton of evidence-- prevention saves us money in the long run, not to mention saving us from needless suffering and chronic diseases. Why now would we want to gut all of this? Why would we want to take all that away when we are trying to save money and keep people healthy? Why would we want to take all of that out? But that is exactly what the Johanns amendment does. The Johanns amendment would wipe all of that out--wipe it all out. It would deny any funding at all for prevention and wellness until 2018. For example, it takes away funding that keeps teens from starting smoking and all of the obesity avoidance and reduction programs we have. We know one of the biggest chronic illnesses facing us is the increasing rate of obesity among our young people. We know how to get a handle on that. We have good programs and evidence-based interventions to keep kids from getting obese or by getting them on track to reduce obesity. To gut all these programs is the same old penny wise, pound foolish, sick care system we have been laboring under for so many years. I thought we were going to move away from that. In fact, the prevention and wellness provisions of the health care bill we passed were some of the provisions that got strong support on both sides of the aisle.

I know a lot of my Republican friends did not support the final bill. I understand that. But as we developed the bill in the HELP Committee and on the floor, the Prevention and Public Health Fund was widely supported. No one came after it. There were no amendments to gut it at that time. I think people on both sides of the aisle saw the wisdom, regardless of how one may have felt about other aspects of the health reform bill--I think every one agreed we have to do more in prevention and wellness and public health. For this reason, I say to my colleagues: Do not turn around now after we have done all this and gut the money to prevent chronic illnesses and diseases and keep people healthy. Do not gut that to put the money in the Johanns amendment.

I am not alone in understanding the importance of this fund. Mr. President, I ask unanimous consent to have printed in the Record letters from a number of groups--everything from the American Association of People with Disabilities to the American Cancer Society, the American Heart Association, the Campaign for Tobacco-Free Kids, the National Association of Local Boards of Health, and the YMCA. More than 200 organizations signed a letter to us stating that the 241 undersigned organizations ``strongly urge you to oppose the use of the Prevention and Public Health Fund from the Affordable Care Act as an offset for an amendment offered by Senator Johanns. Such an action would virtually eliminate the Fund, and mark a severe blow to this monumental commitment to prevention and public health under the Act. . . .The Fund is a unique opportunity to truly bend the cost curve on health care spending. . . .We must ensure that we capitalize on the unprecedented opportunity to transform our public health system by investing in prevention and public health. We urge you to vote no on the prevention fund offset within the Johanns amendment, or any other such legislative vehicles.''

I ask unanimous consent to have these letters printed in the Record.

Mr. President, I am sympathetic, I must admit, to the broader aims of the Johanns amendment. On a bipartisan basis, Senators want to change the information reporting rules for small businesses under the health reform law. But the $19.2 billion cost of the Johanns amendment is excessive. Moreover, to pay for it by slashing funds from wellness and prevention, by gutting this whole program until 2018, is deeply misguided. It perpetuates the disastrous notion that we can neglect and defund prevention efforts without paying huge long-term costs in terms of unnecessary chronic disease and disability and skyrocketing health insurance premiums.

The purpose of the reporting requirement Senator Johanns is going after is to prevent fraud where many businesses may lie about the income they receive, thereby not paying their taxes. What does that mean? It just shifts taxes to the people who are honest and the businesses that are honest. Where the IRS has complete information on incomes such as salaries, which are covered by W-2 reports, compliance is 99 percent. But where there is no reporting, we see the reporting of income fall in half in some of the business categories.

I support the alternative amendment offered by Senator Bill Nelson. It provides a balance regarding the reporting requirement. His amendment completely eliminates any reporting burden on the great majority of small businesses--those with fewer than 25 employees at any given point in a year. But the most important point is that the Nelson amendment does not take money away from the Prevention and Public Health Fund.

While I appreciate the need to keep paperwork down, I also appreciate the need to prevent tax fraud which results in everyone else paying for the lost tax dollars. The Nelson amendment does preserve the reporting requirement for transactions over $5,000 for larger companies. I think very sensibly, the Nelson amendment pays for this lost revenue from less rigorous reporting requirements by repealing completely unnecessary tax breaks for the largest five oil companies--much better there than taking the money out of the Prevention and Public Health Fund.

A long time ago, Ben Franklin taught us that an ounce of prevention is worth a pound of cure. The Johanns amendment is an attack on that principle, an attack to turn the clock back to say we are going to continue a sick care system in America rather than truly transforming our system to a health care system.

I ask my colleagues to vote down the Johanns amendment and to vote for the Nelson amendment which accomplishes basically the same thing in a more balanced way. But the Nelson amendment does not do anything to gut the Prevention and Public Health Fund which we labored so hard to put in the health reform bill and which, as I said before, has been so supported on both sides of the aisle.

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

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

Mr. President, I ask unanimous consent that any time used on the Senate floor during quorum calls be divided equally between both sides.

Mr. President, I suggest the absence of a quorum.

Mr. President, I have sought recognition to introduce the Stem Cell Research Advancement Act of 2010 on behalf of Senator Boxer, Senator Feinstein, and myself.

Some 21 days ago, in the United States District Court for the District of Columbia, in an opinion by Chief Judge Lamberth, the expenditures made by the National Institutes of Health for embryonic stem cell research under an Executive order issued by President Obama on March 9, 2009, was overturned under a declaration that the Executive order violated the Dickey-Wicker amendment enacted by Congress.

Even though on its face it is pretty clear-cut that the embryonic stem cell research was not precluded by that amendment, that has had the effect of tying up very important ongoing research. For example, some $546 million has already been spent on human embryonic stem cell research and some very noteworthy progress has been made. For example, the Food and Drug Administration has approved a clinical trial for patients with spinal cord injury, and human embryonic stem cell research has been successfully used to develop new therapeutic drugs for a number of diseases including amyotrophic lateral sclerosis and muscular dystrophy, and those are just a couple of the illustrations.

The Court of Appeals for the District of Columbia has stayed the lower court's order until September 20, but there is very substantial doubt as what the future will be. Meanwhile, although the district court order has been stayed, there is great uncertainty in the research community as to what will happen. This research is vital for moving against the maladies of our society.

The background on this issue is that in November of 1998, the disclosure was made about the potential for embryonic stem cell research. At the time I chaired the appropriations subcommittee which funded Health and Human Services. It seemed to me that was a tremendous opportunity and I scheduled a hearing within a few days, held on December 2 of 1998. Since that time, there have been some 20 hearings.

As we all know, the funding for the National Institutes of Health has had a tremendous increase. When I joined the committee after my election in 1980, the funding was $3.6 billion. When I became chairman of the committee in the mid-1990s, the funding was $12 billion. With the concurrence of the then-ranking member, Senator Harkin, we took the lead in increasing funding from some $12 billion to $30 billion. Regrettably, with budget constraints, the funding did not keep pace, starting in the year 2003. But in the stimulus package there was an additional $10 billion added which has reawakened a whole generation of research scientists, with that $10 billion providing funding for some 15,000 grants.

The results for health have been really overwhelming. Here are a few illustrations. In the 1950s, cardiovascular disease caused half of the United States deaths. Today, the rate for coronary heart disease is more than 60 percent lower. Over the past 25 years, the 5-year survival rate for prostate cancer has increased from 69 percent to almost 99 percent for diagnosed patients. For childhood cancers, the 5-year survival rate has improved markedly over the past 3 decades, from less than 50 percent before the 1970s to 80 percent today. Those are only illustrative statistics. The opportunities for embryonic stem cell research are overwhelming.

The Specter-Harkin bill was passed by the Senate in 2006 by a vote of 63 to 37, a very healthy margin for an issue which has raised some controversy. The House of Representatives passed the legislation but regrettably President Bush vetoed it in 2006, and the effort to override the veto in the House failed. There was a vote of 235 to 193, short of the two-thirds necessary to override the veto. But that shows enormous Congressional support.

Then President Obama issued the Executive order that Federal funds could be used on embryonic stem cell research on lines where the embryo had been donated. This is in line with the policy adopted by President Bush in August of 2001, when he allowed the use of quite a number of stem cell lines where the embryos had been donated. Later it was found there were only 21 lines, and those were insufficient, which has led to the effort for legislation and then led to President Obama's Executive order. The fact is, there are some 400,000 of these embryos which are frozen and which will ultimately be discarded. So it is use them for medical research to save lives or throw them away. Some have contended that we are destroying lives but the reality is they will not be utilized.

In response to the issue as to whether there might be adoption of these embryos, the subcommittee took the lead in appropriating substantial funds, which is more than $4 million a year, actually $4.2 million, but relatively few people have come forward for its use on adopting the embryos to turn them into life. If these embryos could be turned into human life I would not under any circumstance advocate scientific research on these embryos--if they could produce life. But they cannot. The facts are plain. The adoption line has been in effect now since 2002. Only a few hundred have been adopted. President Bush invited the ``snowflake'' children to the White House during his tenure, about 150 of them.

Now we have a situation where the court has intervened, even though more than a year and a half had elapsed since President Obama issued the Executive order, a clear indication of congressional intent not to deal with it or not to overturn it. I think it is a fair legal analysis that the order issued by the district court is not a sound order. Some indication of that is found in the fact that the circuit court stayed the order--not conclusive, but when they stay an order it looks as though they are not favorably inclined toward it. But who knows what the circuit court will do? Who knows what the Supreme Court of the United States, with their ideological bent, would do? This has become a theological issue in part, very emotional, with people arguing that it is akin to abortion. Of course it is nowhere near that kind.

It seems to me Congress ought to act. That is why on the first order of business after we convened here this afternoon, our first day back and our first hour in the Senate session, I am introducing this legislation. I have discussed it with sponsors on the House side and I think we are in a position to move rapidly. Certainly the previous vote of 63 to 37 in 2006 shows substantial support in this body, and the 235-to-193 vote to override President Bush's veto shows the same in the House of Representatives. I hope my colleagues will join me in this effort so this important scientific research may be continued.

I ask unanimous consent that the full text of my printed statement be printed in the Record.

Mr. President, I rise to talk about a bill I introduced today with Senator Cornyn as a cosponsor. It is S. 3768. When Congress passed and the President signed the education jobs fund bill in August, every State in America had the same requirements and every State in America was treated fairly--or equally, anyway--except for one and that State is Texas. That is why Senator Cornyn and I are introducing a bill that would only allow Texas to be equal with every other State in the Federal funding opportunity in this education bill.

The House of Representatives--not the Senate but the House--put in an amendment that singled out Texas in two ways. It said that Texas, unlike every other State in the bill, would have to guarantee 3 years of a commitment for education funding to be level in order to get the funds for 1 year that were allocated in the bill. Every other State in America is required to make such a commitment for 1 year.

Our constitution in Texas, similar to many State constitutions, does not allow one legislature to pass legislation that will require acts of another legislature, so appropriations cannot go over a 3-year period. Our legislature can only appropriate and spend Texas money for itself. It cannot obligate future legislatures. So the House provision would require Texas to violate its Constitution in order to receive the Federal money that every other State has as an allocation.

The second thing that only Texas is required to do under this bill is to distribute the funds under the title I distribution formula. Every other State gives its Governor and its State Department of Education the discretion for the money to be used where it is most needed within its State. After all, education is generally a State and local issue. In this case, you do have Federal funding, and it is provided for every State by giving it to the Governor for the distribution within the State. Only in Texas, however, under the legislation that was passed, would the requirement be that title I provides the formula, not the State of Texas and its appropriations, Governor and Lieutenant Governor.

It is puzzling, to say the least, that Texas was singled out in this way. But I am going to do everything I can to assure that does not continue. The Commissioner of Education asked for the Texas allocation of $830 million in the normal way, met all the Federal requirements and the time guidelines for submitting the grant request for an estimated $830 million. The request was turned down because, of course, the Governor could not certify 3 years of level spending because the legislature cannot obligate future legislatures in our Constitution. So Texas has just been turned down.

If we can pass the legislation Senator Cornyn and I are introducing today or if we can amend the bill that is before us, which we are going to try to do--we perfected the process today by offering this as an amendment on the bill that is before this body, and I am going to try to get this as an amendment on every bill that is going through--that will just create a level playing field.

We are certainly not asking for special favors, but again we are also asking that we not be penalized just because a House Member decided Texas should have a different standard.

We all understand politics in the usual sense. But having an argument between a Member of the House and the Governor is not a reason to penalize every schoolchild in Texas, every school district in Texas, every teacher in Texas, every administrator in Texas. It is not right. I think any person who puts the politics aside would agree that reasonableness would dictate that every State should be treated the same. In the bill that was passed, we are spending Texas tax dollars just like we are spending the tax dollars of every taxpayer in America. Texas would be putting the dollars into the Federal coffers but being penalized from receiving its fair share, as we certainly described happens in the bill.

The Hutchison-Cornyn bill is now going through the processes, and we are going to ask for support from all our colleagues to have that level playing field. Senator Cornyn and I have been working, along with Congressman Michael Burgess on the House side and the Texas delegation in the House. Many in the House delegation are certainly going to want to see this corrected, I hope. I do hope we can get prompt action. We need to do it before the end of this fiscal year in order to qualify in our rightful way.

We are not asking for special favors, most certainly. We expect to meet all the tests any State would meet. We expect to have our grant application looked at and scrutinized and determined if it is eligible in every way. But we do not expect to have a different standard from every other State in America.

Senator Cornyn and I are very hopeful we can get prompt action from the Senate to send this to the House. I hope the House will also see that was not meant to be--at least I am sure every Member voting on this bill did not know Texas was being treated differently. I do not think this is a time for any State to start a war with another State. That is not the way we ought to do business. I do not wish to be starting that kind of precedent even--I wouldn't do it to any other State, and I certainly do not expect it to be done to mine.

Senator Cornyn and I have introduced the Hutchison-Cornyn legislation. We hope we can level the playing field. All we ask is that we be judged like every State, that we have the requirement of 1 year of level funding, just as every other State is required to do and which I know our Texas Education Agency will certainly agree to do; then, second, that we be able to distribute according to the State requirements and the State priorities rather than a Federal funding formula done when no one has come to Texas to look at our formula and our needs for this particular bill. If we can correct those two things and put Texas on a level playing field with any other State, then I think it will be the right thing to do.

Sometimes we have little tiffs here, politically, but I don't think anyone can argue that a retribution against one person in Texas by one Member of Congress is a good reason to make a public policy decision that is disastrous for our State--that is hurting, just like every State, in not having enough dollars. We have a deficit right now of about $20 billion facing the next legislature in Texas.

If we can have what has passed, what is going through this Congress and what has been signed by the President, it would help alleviate some of the concerns our educators and education leaders in Texas are now saddled with; that is, a lot more expenses than revenue coming in. I hope we can right this wrong.

Mr. President, I rise to talk about a bill I introduced today with Senator Cornyn as a cosponsor. It is S. 3768. When Congress passed and the President signed the education jobs fund bill in August, every State in America had the same requirements and every State in America was treated fairly--or equally, anyway--except for one and that State is Texas. That is why Senator Cornyn and I are introducing a bill that would only allow Texas to be equal with every other State in the Federal funding opportunity in this education bill.

The House of Representatives--not the Senate but the House--put in an amendment that singled out Texas in two ways. It said that Texas, unlike every other State in the bill, would have to guarantee 3 years of a commitment for education funding to be level in order to get the funds for 1 year that were allocated in the bill. Every other State in America is required to make such a commitment for 1 year.

Our constitution in Texas, similar to many State constitutions, does not allow one legislature to pass legislation that will require acts of another legislature, so appropriations cannot go over a 3-year period. Our legislature can only appropriate and spend Texas money for itself. It cannot obligate future legislatures. So the House provision would require Texas to violate its Constitution in order to receive the Federal money that every other State has as an allocation.

The second thing that only Texas is required to do under this bill is to distribute the funds under the title I distribution formula. Every other State gives its Governor and its State Department of Education the discretion for the money to be used where it is most needed within its State. After all, education is generally a State and local issue. In this case, you do have Federal funding, and it is provided for every State by giving it to the Governor for the distribution within the State. Only in Texas, however, under the legislation that was passed, would the requirement be that title I provides the formula, not the State of Texas and its appropriations, Governor and Lieutenant Governor.

It is puzzling, to say the least, that Texas was singled out in this way. But I am going to do everything I can to assure that does not continue. The Commissioner of Education asked for the Texas allocation of $830 million in the normal way, met all the Federal requirements and the time guidelines for submitting the grant request for an estimated $830 million. The request was turned down because, of course, the Governor could not certify 3 years of level spending because the legislature cannot obligate future legislatures in our Constitution. So Texas has just been turned down.

If we can pass the legislation Senator Cornyn and I are introducing today or if we can amend the bill that is before us, which we are going to try to do--we perfected the process today by offering this as an amendment on the bill that is before this body, and I am going to try to get this as an amendment on every bill that is going through--that will just create a level playing field.

We are certainly not asking for special favors, but again we are also asking that we not be penalized just because a House Member decided Texas should have a different standard.

We all understand politics in the usual sense. But having an argument between a Member of the House and the Governor is not a reason to penalize every schoolchild in Texas, every school district in Texas, every teacher in Texas, every administrator in Texas. It is not right. I think any person who puts the politics aside would agree that reasonableness would dictate that every State should be treated the same. In the bill that was passed, we are spending Texas tax dollars just like we are spending the tax dollars of every taxpayer in America. Texas would be putting the dollars into the Federal coffers but being penalized from receiving its fair share, as we certainly described happens in the bill.

The Hutchison-Cornyn bill is now going through the processes, and we are going to ask for support from all our colleagues to have that level playing field. Senator Cornyn and I have been working, along with Congressman Michael Burgess on the House side and the Texas delegation in the House. Many in the House delegation are certainly going to want to see this corrected, I hope. I do hope we can get prompt action. We need to do it before the end of this fiscal year in order to qualify in our rightful way.

We are not asking for special favors, most certainly. We expect to meet all the tests any State would meet. We expect to have our grant application looked at and scrutinized and determined if it is eligible in every way. But we do not expect to have a different standard from every other State in America.

Senator Cornyn and I are very hopeful we can get prompt action from the Senate to send this to the House. I hope the House will also see that was not meant to be--at least I am sure every Member voting on this bill did not know Texas was being treated differently. I do not think this is a time for any State to start a war with another State. That is not the way we ought to do business. I do not wish to be starting that kind of precedent even--I wouldn't do it to any other State, and I certainly do not expect it to be done to mine.

Senator Cornyn and I have introduced the Hutchison-Cornyn legislation. We hope we can level the playing field. All we ask is that we be judged like every State, that we have the requirement of 1 year of level funding, just as every other State is required to do and which I know our Texas Education Agency will certainly agree to do; then, second, that we be able to distribute according to the State requirements and the State priorities rather than a Federal funding formula done when no one has come to Texas to look at our formula and our needs for this particular bill. If we can correct those two things and put Texas on a level playing field with any other State, then I think it will be the right thing to do.

Sometimes we have little tiffs here, politically, but I don't think anyone can argue that a retribution against one person in Texas by one Member of Congress is a good reason to make a public policy decision that is disastrous for our State--that is hurting, just like every State, in not having enough dollars. We have a deficit right now of about $20 billion facing the next legislature in Texas.

If we can have what has passed, what is going through this Congress and what has been signed by the President, it would help alleviate some of the concerns our educators and education leaders in Texas are now saddled with; that is, a lot more expenses than revenue coming in. I hope we can right this wrong.

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

Mr. President, I want to speak on the nomination of Jane Stranch--a vote we will be taking here in about 45 minutes--nominated to the Sixth Circuit Court of Appeals.

It is always with a great deal of reluctance that I oppose a nominee for the bench. Most of the people who are nominated are nominally qualified, in that they have records as attorneys or sometimes as judges in lower courts, have recommendations from bar associations and the like. But occasionally it is necessary to oppose a nominee. And while I certainly acknowledge that Jane Stranch has the qualifications one would expect of a nominee for a court of this significance, I oppose her nomination because of a very troubling development that I see in several nominations.

At some point I think it is important to draw the line and say that the President has got to be very careful not to nominate people who have--and in this case who have not--taken, in my view, a strong enough position against applying foreign law to interpret the American Constitution or to interpret American laws that apply to cases before them. We have seen this before in nominees, in then-Judge Sonia Sotomayor. When she had her Supreme Court hearing, several of us on this side of the aisle raised the question with respect to her position on foreign law. In many respects she said: Don't worry, I won't apply foreign law. Then in one of the cases in her first term as a Supreme Court Justice she did exactly that.

We have raised the same question with regard to people such as Harold Koh and others. I want to quote one statement Ms. Stranch made to illustrate the point I am trying to make. At some point, unless Members vote against nominees who appear to take these positions, I suspect the President will keep on nominating people with these views and then wonder why we oppose them. So I am going to be clear about why I oppose this nominee, even though I am sure many of her other qualifications are fine. She said this regarding cases where foreign law was used:

In these few cases, references to foreign law were made for

such purposes as extrapolating on societal norms and

standards of decency, refuting contrary assertions, or

confirming American views. Roper [a Supreme Court case]

specifically noted that the foreign law references were ``not

controlling'' and were presented for the purpose of

confirmation of the Court's conclusions.

The problem with that statement--and while I appreciate the fact that she says foreign law is not controlling--is that the reality is foreign law has no place in the interpretation of the American Constitution and yet the Court continues to do that, with Justices continually saying it isn't controlling. If it is not controlling, why do it? Courts are supposed to look at precedent. What is precedent? Precedent is law that controls the case. There is no point in going outside of that and bringing in extraneous material. If it is not controlling, it is extraneous. If it is extraneous, it is redundant. Why bring it in?

I appreciate her recognition that foreign law is not controlling, but interpreting the Constitution doesn't require the application of foreign law to develop material on societal norms or standards of decency or to refute contrary assertions, and it doesn't have any relevance in even confirming American views, as she said in her statement. If the American view of the Constitution is X, let's say, then it is X. That is the American view. And if it is agreed to by other countries, that is fine. If it is not, it is not the judge's business to inquire into it and wonder why it does agree or does not agree with the American view.

I think that until enough of us register the view that we are not going to vote for judges who subscribe to the

views Jane Stranch has articulated, as I said, I suspect the President will simply continue to nominate those individuals, and that is something I think the majority of us--certainly the majority of Americans--would object to.

Again, I regret having to express my opposition to this nominee, but in order to render my objection to the kind of jurisprudence they mentioned, the only way I can do that, I gather, is to vote no, which is what I intend to do.

Mr. President, I suggest the absence of a quorum.

The following Senators are necessarily absent: the Senator from Kansas (Mr. Brownback), the Senator from Wyoming (Mr. Enzi), the Senator from New Hampshire (Mr. Gregg), and the Senator from Alaska (Ms. Murkowski).