DREAM Act of 2009

Mr. President, today, I am proud to introduce the Civil Access to Justice Act of 2009, which will expand and improve vital civil legal services to our most vulnerable Americans.

This is an issue that is very personal with me. Before I was elected to Congress, I practiced law with Polk County legal aid. I know first- hand how crucial legal assistance is to struggling families who have no place else to turn

when they have lost a job and are facing a foreclosure. I know the invaluable assistance that legal aid provides to battered women trying to leave abusive marriages while fearing for their safety and the safety of their children. I know that, without access to an attorney, the poor are often powerless against the injustices they suffer. I can honestly say that the work I did with legal aid is some of the most rewarding work of my career.

The type of assistance I was able to provide needy clients in Iowa occurs throughout the country every day. Much of that assistance is the direct result of a commitment the federal government first made over forty years ago. In 1965, the Office of Economic Opportunity created 269 local legal services programs around the country. Ten years later, in 1974, Congress--with bipartisan support, including that of President Nixon--established the Legal Service Corporation, LSC, to be a major source of funding for civil legal aid in this country. LSC is a private, non-profit corporation, funded by Congress, with the mission to ensure equal access to justice under the law for all Americans by providing civil legal assistance to those who otherwise would be unable to afford it. LSC distributes 95 percent of its annual Federal appropriations to 137 local legal aid programs, with more than 900 offices serving all 50 states and every congressional district.

These LSC funding programs make a crucial difference to millions of Americans. Recipients help clients secure basic human needs, such as access to wrongly denied benefits including social security, pensions and needed health care. Just in the past decade, families of 9-11 victims, flood victims, and hurricane evacuees have received crucial legal assistance in obtaining permanent housing, unemployment compensation and government benefits. Further, members of our Armed Forces and their families receive help with estate planning, consumer and landlord/tenant problems and family law.

It is LSC-funded attorneys who help parents obtain and keep custody of their children, help family members obtain guardianship for children without parents, assist parents in enforcing child support payments and help women who are victims of domestic violence. In fact, three out of four legal aid clients are women, and legal aid programs identify domestic violence as one of their top priorities. Recent studies confirm, moreover, that the only public service that reduces domestic abuse in the long term is a woman's access to legal assistance.

Unfortunately, as the economy continues to wane, those needing legal assistance increase. Yet, the Federal commitment to legal services and LSC is not as effective as it needs to be. LSC has not been authorized since 1981, and since 1995 Congress has slashed funding for legal services for the poor, from $415 million to $350 million in fiscal year 2008, with only a recent increase to $390 million for fiscal year 2009. Further, severe restrictions on LSC funded attorneys impede the ability of legal aid attorneys to provide the most meaningful legal representation to low-income Americans. The result is that access to justice and quality representation has become far from a reality for too many of our citizens.

In many parts of the country, more than 80 percent of those who need legal representation are unable to obtain it. Nationally, 50 percent of eligible applicants who request legal assistance from LSC funded programs are turned away largely because such programs lack adequate funding. That translates into over one million eligible cases per year.

Bear in mind, to be eligible for Federal legal assistance, one must live at or below 125 percent Federal poverty level--an income of about $25,000 a year for a family of four. This means that we are turning away half of the families in America who need and seek civil legal help who make less than $25,000 a year. That is wrong and it makes a mockery of the principle of equal justice under the law.

Unfortunately, a combination of limited federal funding, state budget cuts and an increased demand for services due to the recession has exacerbated the problem. As the Chief Justice of the Texas Supreme Court recently noted, legal aid programs have reached a ``crisis of epic proportions.'' This year, requests for services have risen by 30 percent or more across the country while cutbacks in staffing are expected to reach 20 percent or more over the coming months. Connecticut Legal Services expects to lose as many as 150 legal positions. Boston's legal aid expects to lay off one-fifth of its lawyers. Two whole offices in New Jersey recently had to shut their doors. When legal aid lawyers lose their jobs and when offices close, unfortunately it is our most vulnerable citizens who suffer as their legal needs go unmet.

The housing crisis highlights this problem. Today, millions of Americans are struggling to meet their housing needs, including making their mortgage payments, in many cases traceable to predatory lending practices. Foreclosures are at a historic high and continue to soar. As more and more people face the devastating prospect of losing their home--their most prized possession--legal assistance is necessary to help renegotiate terms of loans or enforce truth-in-lending protections in court. The result is that many legal aid offices have seen a drastic increase in those seeking help. Between 2007 and 2008, for example, Iowa Legal Aid saw a 300 percent increase in foreclosure related cases. The Legal Aid Society of San Diego saw a 250 percent increase. Yet, legal aid is too often unavailable. A recent study, for example, revealed that in New Jersey, 99 percent of defendants in housing eviction cases go to court without an attorney.

Given these needs, the Civil Access to Justice Act of 2009, which I am proud to introduce today with Senators Kennedy, Leahy, Mikulski, Cardin, Kerry, Durbin, Lautenberg, McCaskill and Merkley, renews our commitment to equal justice for all Americans and will improve both the quantity and quality of legal assistance in this country.

The bill is supported by, among others, the American Bar Association, Brennan Center for Justice, National Legal Aid & Defender Association, National Organization of Legal Service Workers and United Auto Workers.

First, this bill authorizes funding for LSC at $750 million, which is approximately the amount appropriated in 1981, adjusted for inflation, the high water mark for LSC funding. That year, Congress allocated $321.3 million to LSC. At the time, that was seen as the level sufficient to provide a minimum level of access to legal aid in every county. Adjusted for inflation, this ``minimum access'' level of funding would need to be about $750 million in 2009 dollars.

Second, this bill lifts many of the restrictions Congress imposed in 1996 on federally funded attorneys. That year, Congress significantly limited whom federally funded attorneys could represent and the types of legal tools these attorneys could use in representing their clients. Proponents of these restrictions argued that LSC funded lawyers had overreached and were using federal funds to pursue what some considered an ideological political agenda through the courts, while neglecting basic legal work for poor Americans.

I vigorously disagreed with this characterization of legal aid attorneys and opposed the restrictions at the time; and I continue to do so. The restrictions have harmed our neediest Americans and in many instances prevent legal counsel from doing what attorneys are ethically bound to do--provide zealous representation for their clients. Further, the restrictions, by limiting the range of tools that legal aid attorneys can employ compared to other members of the bar, have created a system of second-class legal representation. That is why this legislation lifts limits on the legal tools that LSC-funded attorneys can use to represent their clients--for example, prohibitions on attorneys seeking court-ordered attorneys' fees, lobbying with nonfederal funds or representing clients in class action law suits.

With respect to attorney fees, Congress and state legislatures have recognized that such fees are an important remedy, and are critical in ensuring that civil rights and consumer protection suits are brought. As Congress stated in enacting the Civil Rights Attorneys' Fees Awards Act of 1976, ``fee awards have proved an essential remedy if private citizens are to have a

meaningful opportunity to vindicate the important Congressional policies which these laws contain.'' That is why Congress has enacted nearly 200 statutes, and states have enacted approximately 4,000 statutes, that provide for attorney fees. The current restriction preventing LSC-funded attorneys from receiving attorney fees has the effect of weakening the effectiveness of these statutes.

Lifting the restriction on attorney fees makes sense for additional reasons. First, because of the restriction, defendants who otherwise would pay attorney fees are unjustly enriched because they happen to face LSC-funded attorneys as opposed to a private counsel. Second, the potential for attorney fees is important leverage for attorneys as they negotiate settlements, leverage now not available to LSC-funded attorneys. Finally, by prohibiting collecting attorney fees, Congress has needlessly limited potential resources that can be used to provide legal aid to other clients.

The bill also lifts the restriction on LSC-funded attorneys' ability to lobby with non-federal funds for changes in the law that would benefit disadvantaged clients. Legal service attorneys are immersed in the day-to-day legal issues faced by low-income communities and, as a result, are often most knowledgeable about the true impact of state and Federal laws on low income Americans. Yet, LSC-funded attorneys may not participate legislative and administrative efforts unless they are responding to a written request from a legislator or other official.

When legal aid attorneys' input is requested, the results are telling. For example, Maryland Legal Aid Bureau was recently invited by the legislature to testify on an overhaul of state foreclosure and lending laws. Although the lending, mortgage and banking industries were well represented, the legal aid attorney was the only person there representing borrowers' views. While the attorney's voice was critical in ensuring appropriate consumer protections, it is significant that that voice was only heard because legislators chose to seek input from legal aid. Because of the current restrictions, absent an invitation, the experiences and knowledge of that attorney would be silenced, leaving a one-sided debate.

Let me be clear, I disagree with those who advocated for and enacted the 1996 restrictions. However, in the spirit of compromise and bipartisanship, and with the intent to avoid a repeat of the contentious debates of the 1990s, this legislation does not lift all of the restrictions. Illustrative is the present restriction on LSC-funded attorneys pursuing class action suits. Such cases are often the most efficient and cost-effective lawsuits, not only for clients but for the judicial system. As Congress found in enacting the Class Action Fairness Act in 2005, ``class action lawsuits are an important and valuable part of the legal system when they permit the fair and efficient resolution of legitimate claims of numerous parties by allowing the claims to be aggregated into a single action against a defendant that has allegedly caused harm.''

When the procedural requirements of State or Federal law are met, LSC-funded attorneys and their clients, like all others, should be able to utilize this essential litigation tool. That is why the bill lifts the restriction on the ability of legal aid programs to bring such suits. At the same time, again while I disagree, I acknowledge the concern that led to the restriction--that prior to the restriction some felt that LSC-funded attorneys were using class action suits to ``push the envelope'' and have courts establish ``new law.'' To allay this concern, the bill permits only class action suits that are grounded in ``established'' law. This will enable, for example, LSC-funded attorneys to represent as a class multiple families who are victims of predatory lending, but will not permit LSC-funded attorneys to attempt to achieve a novel interpretation of the law that lacks statutory support or judicial precedent.

Moreover, again in the spirit of compromise, the bill maintains many of the limits on who LSC-funded programs can represent, including the current exclusion of illegal immigrants, with limited exceptions, such as victims of domestic violence, prisoners challenging prison conditions, and people charged with illegal drug possession in public housing eviction proceedings. Also, consistent with current law, the legislation prohibits LSC-funded programs from participating in abortion-related cases.

Third, this legislation lifts all the restrictions, except those related to abortion litigation, on the use of state and local funds and private donations to Federal funded legal services programs that Congress also imposed in 1996. That year, Congress determined that for programs that receive federal funds, the same restrictions applicable to federal funds apply to non-federal funds a program receives.

The result is that millions of dollars in non-federal funds are encumbered by the same restrictions that drastically limit the tools available to legal aid attorneys, to the detriment of their clients. Through direct state and local funding, money from state Interest on Lawyers' Trust Accounts, IOLTA, and private sources, over $450 million in non-federal funds currently is provided for civil legal assistance. The restrictions place unnecessary and costly hurdles on the use of these non-federal funds. The only way a program and its donors can free themselves from federal restrictions is by diverting non-federal funds into a separate program--with separate staff members, offices and equipment. This is burdensome and wasteful.

Whatever one thinks of placing conditions on the receipt of federal funds, states, cities and private donors should have the ability to determine for themselves how best to spend their money to ensure access to justice for their citizens. It is one thing to attach conditions on the use of the federal funds, but to impose conditions on the use of non-federal funds is wrong.

Fourth, in addition to providing further tools and support for LSC grantees, better corporate governance--something that is critically needed--is a central feature of this legislation. Last year, the Government Accountability Office, GAO, reported on troubling management practices and lack of oversight by LSC. The reports found that there had been questionable expenditures by LSC management and that LSC lacked a ``properly implemented governance and accountability structure'' needed to prevent problems. GAO included in its report a series of recommendations as to how LSC should address these shortcomings and prevent similar problems in the future.

No one was more upset about the GAO reports than I. That is why I personally made it clear to LSC management, in no uncertain terms, that they needed to act immediately to address the GAO recommendations, and why a central feature of this bill is provisions to ensure better corporate governance. LSC acted quickly to address the issues GAO raised, and both LSC management and its Board of Directors have publicly accepted all of GAO's recommendations and have worked diligently to implement them. Nevertheless, I believe it is important to lock the recommendations into statute.

Finally, the bill authorizes a grant program from the Department of Education to expand law school clinics. A recent study found that students in law school clinics serve approximately 90,000 civil clients every school year, excluding summer semesters, and provide over 1.8 million hours of legal service. These legal clinics are a significant resource for legal services. But they are much more. For many students, these programs are stepping stones towards careers in legal service and public interest law following graduation. Recent studies demonstrate that law students who participate in law school clinics are more likely to work in public service jobs and do more pro bono than their peers who do not.

We need to do all we can to encourage young lawyers to make legal aid a career. One important way of doing this is by exposing them to the challenges, and more importantly the rewards, of representing people who otherwise would not have the legal assistance they deserve.

Our promise of ``equal justice under law'' rings hollow if those who are most vulnerable are denied access to representation. As former Justice Lewis Powell said, ``[e]qual justice under law is not merely a caption on the facade of the Supreme Court building. It is perhaps the most inspiring ideal of our society . . . it is fundamental that justice should be the same,

in substance and availability, without regard to economic status.'' Legal aid attorneys across the country protect the safety, security, and health of low-income citizens. When a senior citizen is the victim of a financial scam, when a family faces the loss of their home, or, all too often, when a woman seeks protection from abuse, legal aid can help--but only if it has the funds and the tools needed to do so.

As our former colleague Senator Domenici once declared: ``I do not know what is wrong with the United States of America saying to the needy people of this country that the judicial system is not only for the rich. What is wrong with that? . . . That is what America is all about.''

That is the aim of this bill. After years of grossly underfunding this essential program, denying legal representation to millions of low-income citizens, and denying legal aid lawyers the full panoply of tools they need to represent their clients effectively, this bill will fulfill the promise of our Constitution. ``Equal Justice Under Law'' will be more than an ideal chiseled on a marble facade, it will be a concrete reality for millions of our citizens, who, today, are denied it. I urge my colleagues to support this important bill.

I am proud to join Senator Harkin, along with Senator Kennedy, Senator Kerry, Senator Mikulski, Senator Durbin, Senator Lautenberg, Senator McCaskill, and Senator Merkley on this important legislation to reauthorize the Legal Services Corporation, LSC. I thank Senator Harkin for his hard work and dedication to this issue. Along with reauthorizing the funding for the LSC, the bill also removes several restrictions that have encumbered the efforts of legal services providers around the country.

The funding authorization in this legislation will help ensure that in future years, the Legal Services Corporation, and all of the state legal aid organizations it assists, will continue the critical work they do to help lower-income American citizens who need legal assistance. Similar to the Sixth Amendment's requirement that an indigent criminal defendant be provided counsel, the voice that legal aid attorneys give to the less fortunate among us is an indispensable component of a fair justice system. What Justice Hugo Black called the ``noble ideal'' of a fair and impartial trial is extended through the work of those around the country who serve their fellow citizens in our courts. This reauthorization will continue the policy of the Federal Government to provide assistance to those who seek access to the courts in civil matters.

As part of this reauthorization, and in an effort to support the integrity of the LSC, the bill codifies recommendations made by the Government Accountability Office, GAO, related to the LSC's corporate governance. The Senate Judiciary Committee held a hearing in May 2008 in part to shed light on these recommendations, and to give the LSC an opportunity to respond about plans to address the problems identified by the GAO. The LSC's leadership has been open and responsive to making improvements, and including these recommendations in the bill will assist the LSC in strengthening its governance practices for the future.

This legislation also takes the long-overdue step of removing several of the restrictions that have hindered legal aid organizations for too long. But I wish to make clear that the restrictions on both state and Federal funds prohibiting litigation involving reproductive rights remain in place. Several restrictions on Federal funds remain: the use of Federal funds for litigation concerning unlawful immigrants, prison conditions, and certain eviction cases involving the sale of illegal drugs in public housing, will remain prohibited. But many of the restrictions this bill finally lifts are the product of an ideology long since rejected by the American people. It is time for Congress to reconsider the usefulness of these restrictions in providing the services that so many Americans desperately need.

All Americans should understand the effects of these restrictions on the provision of legal services for lower-income citizens. Chief among them is the overarching requirement prohibiting the use of non-Federal funds for enumerated purposes when legal aid organizations accept Federal funding from the LSC. Currently, non-federal funds received by legal aid providers that also accept LSC funding are subject to the same restrictions that Federal funds are. This has resulted in a waste of resources that providers can ill afford. For example, a legal aid provider that wishes to use state, foundation, or other private funding as it sees fit must physically segregate its operations so that funds from the two sources are administered separately through duplicated processes. In this era of economic difficulty, the impact of every Federal and state dollar provided to help Americans must be maximized. This requirement has resulted in little more than wasted resources. Legal aid providers are capable of honoring Federal restrictions without the necessity of such an onerous approach.

The legislation also removes restrictions that currently prohibit legal aid attorneys from receiving attorney's fees, as authorized by law, in cases in which they prevail. Contrary to arguments that claim such a practice would cause legal aid attorneys to act unethically or out of an interest divergent from the legitimate needs of their clients, allowing these fees to be retained would help shift the cost of wrongdoing from the Federal Government to the wrongdoer. Moreover, allowing legal aid attorneys to retain these fees when merited would provide increased assistance to the organizations for which they work. In an effort to monitor the effect of removing this restriction, the legislation requires all fees received to be reported to the LSC.

The bill removes restrictions on class action suits by legal aid providers. Contrary to the popular rhetoric, in some cases class action suits can maximize the benefits provided by legal aid organizations by allowing similarly situated plaintiffs to pursue their rights in a single case. The legislation does restrict class action suits to actions based on established law, and thus is intended to discourage truly frivolous suits. Additionally, the legislation removes the restriction prohibiting legal aid providers from lobbying their elected officials. Allowing legal aid providers to advocate on behalf of those they serve will advance civil justice issues and raise the awareness of lawmakers in matters affecting many Americans. And I would remind those who would disparage this practice on the part of legal aid providers that many of the financial institutions that the American taxpayers have recently bailed out continue to lobby extensively in Washington. If banks that have been bailed out with taxpayer money can freely access their elected officials, so too should those who represent the least politically powerful among us.

I hope all Senators will give serious consideration to reauthorizing the Legal Services Corporation and ending many of the restrictions that have burdened the provision of legal services to so many American citizens. Lawyers across the U.S. have dedicated their lives to helping the least fortunate among us gain access to the courts that serve us all. These lawyers play a critical role in ensuring that justice is carried out in a manner consistent with the Constitution's promise, and when justice is served fairly, it benefits us all. I hope all Senators will join us in support of this legislation.

Mr. President, I thank the Senator from Idaho for his comments. He is one of the most capable lawyers in the Senate. He is a practicing lawyer, clerked on the court of appeals, and is scholarly and careful in what he says. I believe he has raised some very troubling points about this nomination that should be considered.

I say to Senator Crapo, I notice today that a single sitting Federal judge in California has just wiped out proposition 8 that was passed by a majority of the people in California. I guess there were millions voting on that, which simply said a marriage should be defined as being between a man and a woman.

This judge struck down proposition 8 and, obviously, at some point, this will get to the Supreme Court of the United States, as the Senator well knows. It will go first to the Ninth Circuit, on which the Senator clerked, and then it will go to the Supreme Court probably. We will have the nominee who is before us today who has already demonstrated at Harvard that her views about don't ask, don't tell and similar social and marriage issues involve such strong feelings on her part that she has not been able to follow the law. I am worried about that. I think the American people are worried about that, and I think they have a right to be.

Let me talk a little bit about today's decision by a Federal judge in California that was replete, in my view, with results-oriented liberal judicial activism. I think that is what it is, as the court explained in substituting its judgment, the judge's judgment and opinion, for the judgment of the people of California expressed in a full statewide referendum. Now this is a powerful thing.

Was there some clear statement in the Constitution or law that would invalidate the people's expression of what a marriage should be in the State of California? I submit not. This is what the judge said.

[W]hat remains of proponents' case is an inference, amply

supported by evidence in the record, that Proposition [8] was

premised on the belief that same-sex couples simply are not

as good as opposite-sex couples. Whether that belief is based

on moral disapproval of homosexuality, animus towards gays

and lesbians or simply a belief that a relationship between a

man and a woman is inherently better than a relationship

between two men or two women, this belief is not a proper

basis on which to legislate.

So the judge just declared that laws that are on the books in virtually every State in America--and certainly by referendum in California--are improper. States cannot legislate in this area. It is not ``a proper basis'' on which to legislate.

That is what activism is. It is a judge replacing the people's views with his views.

President Obama has made similar statements. He said that judges should decide cases based on ``one's deepest values, one's core concerns, one's broader perspectives on how the world works, and the depth and breadth of one's empathy.''

This was in a floor speech in the Senate delivered from right over there from his desk in which he opposed Chief Justice John Robert's confirmation to the Supreme Court--one of the finest nominees ever to be brought before this body.

This is the kind of rationale, the kind of empowerment that many judges feel. Well, they can just use their broader perspective on how the world works or the depth and breadth of their empathy or their deepest values or core concerns. Whose core concerns? The judge's core concerns. What does this have to do with law, I ask?

Indeed, I would suggest that this whole litany of matters raised by President Obama is not law. These are invitations for judges to allow their bias to influence how they decide cases, an encouragement for judges to use their power of defining the words of our laws and Constitution to promote their agenda. This is an unacceptable view. It is contrary to the great heritage of law this country is based on and should not be tolerated by the judiciary.

When Justice Stevens announced his retirement, whom Ms. Kagan would replace--he served 38 years; he served until age 88--if Ms. Kagan were to serve till that age, she would serve 38 years on the Supreme Court without ever having to answer once to the American people. She has never tried a case. We have no judicial history. She has never really practiced law in any serious way. She has been a political lawyer most of her life. She has been an advocate for a lot of leftwing views and that is all right.

You can have a view that the military's don't ask, don't tell policy--law passed by Congress; it is a law not a policy--you can oppose that. That is fine. That should not disqualify you from serving on the bench. You can be against the death penalty and serve as a good judge if you understand that if the law requires the death penalty, you should have to apply it. You cannot obstruct the law because you do not agree with it. This is basic to the understanding of the American jurisprudence system.

When Justice Stevens announced his retirement, President Obama rephrased his empathy standard that took a lot of criticism and, indeed, was renounced by Justice Sotomayor in her confirmation hearings last year. He said he wanted a nominee with a ``keen understanding of how the law affects the daily lives of the American people.''

Well, I think that is what Congress is supposed to do. We are supposed to be monitoring how the laws affect the daily lives of the American people. If we do not think, as a matter of policy, it is doing it correctly, we should fix the law, change it, eliminate it, and do whatever is appropriate. That is not the judge's responsibility. The judge's responsibility is to enforce the law, to follow the law, or else he is a lawmaker instead of a judge.

When the President announced Elena Kagan's nomination, he said: ``She has often referred to . . . Justice Thurgood Marshall, for whom she clerked, as her hero'' and ``credits him with reminding her that, as she put it, `behind law there are stories--stories of people's lives.' ''

Well, there are stories, and a judge should certainly be very aware of the facts in a case. Judges should not deny relevant evidence. But in the end, the judge must find the true facts, and then apply that truly to the law as it is whether they like it or not. Activism arises when a judge allows their personal values, even deepest values, core concerns, broader perspectives on how the world works, and the depth and breadth of their empathy to influence decisions. Isn't that bias? Who knows what these judges believe--they have a lifetime appointment and they get to impose their core concerns on us? No. This is a serious matter.

I think the American people understand it because when you empower a judge to do these kinds of things, you have given him control over you. You have given him the power to redefine marriage when the people of the State don't want to. And you have no recourse. They have a lifetime appointment. Some people say nine judges can do that. Only five, really. It only takes five. They meet and have tea and they go to the great salons of Europe, and they get these ideas about how to make America a better place, and they want to come back and get itching to write it into some opinion somewhere.

I would say that no drafter of the Constitution or any of the provisions in it at any point that those amendments were adopted would ever have imagined a Federal judge in California would declare that the people of California's decision to define marriage as it has been since the founding of the Republic as between a man and a woman is unconstitutional. Make no mistake. When a judge says something is unconstitutional, this is not a little bitty matter. The American people have no recourse, except to pass a constitutional amendment. It takes two-thirds of both the House and the Senate and three-fourths of the State. They make it so because they say it is so. There is nothing in the Constitution that defines marriage. If it is defined--the most logical argument is that when it was written, if they had wanted to change the definition of marriage, they would have put it in there, because every State in America at the time the Constitution was drafted and every amendment to it defined marriage as between a man and a woman.

That is what we get. Right now we have had battles over those kinds of

issues. They are the cause celebre of the day, but they become further issues in the future. Do we think maybe in the future it comes down to whether a judge can require the State to raise taxes? Will it require a State to provide insurance to everyone or the Federal Government to do so because the Constitution somewhere said that everybody should have equal protection of the law? Does that mean everybody should have health insurance?

We have one nominee President Obama has submitted, Mr. Liu, who says everybody in America is entitled to constitutional welfare rights. Presumably, if you file a lawsuit in front of him, he would order the State to provide welfare to everybody, whether we can afford it or whether the legislature decided that is the right thing. This is what activism is. It is a serious matter.

I wanted to speak of a few additional points for discussion that relate to matters that have been raised in the last day or so about this nomination. I am trying to be correct in what I say. I want to be correct and fair. This nominee deserves fair treatment and accuracy, and we should try to achieve that in the Senate. If I have said anything before or say anything now that is in error, I hope my colleagues will call that to my attention and I will be pleased to admit that I made an error, if I have, and correct it. Likewise, I am beginning to wonder--I have said this before--since nobody has corrected any significant matter I have stated, they must be agreeing to it.

One of our Senators defended Ms. Kagan by insisting that any arguments she made as Solicitor General were made on behalf of her client, the United States, and should not be held against her. They suggest that her actions as Solicitor General should, therefore, be immune from criticism. In other words, she didn't necessarily do what she thought ought to be done, but she had a duty to defend the law.

It misses the point about the Witt case, the important case I talked about in which I criticized her decisions as Solicitor General. The problem with Ms. Kagan's actions in the Witt case is she did not make all appropriate arguments in defense of her client, the United States. She declined to effectively represent her client, the United States. I went into some length about that today. We are not saying that she must agree with every argument she made as Solicitor General in terms of policy. Solicitors General are required by their duty to defend the laws Congress passes. They don't have to agree with the law, but they have a duty to defend it if it is challenged as being unconstitutional or in some other fashion improper.

What is most important about this is that in the Witt case, it dealt with the military's don't ask, don't tell policy. People can disagree on that, as I indicated, but it was the law passed by Congress and signed by President Clinton. She spent 5 years in the Clinton White House. She never complained to him about the law, to my knowledge. She didn't protest or quit working for him. She goes to Harvard, however, and bars the military from being able to enter the Career Services Office and recruit students because she didn't like the law Congress passed and her former boss signed. She punished the military officers who were there on campus to recruit Harvard students to be JAG officers in the military. Maybe those officers just got back from Iraq and Afghanistan--we were in two wars at the time--yet they were treated as second-class citizens, not allowed to enter the career services office.

Oh, they could call the little veterans group on campus and they could ask them and they could help them. One officer wrote in a memo that was produced by the Defense Department: We were relegated to wandering the halls hoping somebody would stop and speak to us. They weren't able to recruit properly on the Harvard campus. Her suggestion that this was nothing she was doing and unimportant is not accurate. It was a misrepresentation of the grave circumstances that occurred at Harvard when she was dean. She led this effort. She personally led the effort to reverse Harvard's policy and deny the military the right to enter the Career Services Office. They said, Well, it is OK, they can call the veterans groups. They were offended by it. They sent out an e- mail and said we are not able to arrange for these kinds of meetings. We are law students here who happen to be veterans. We can't do what the career services can do to provide assistance to the military. It was plainly against the Solomon amendment which was in effect at all times when she reversed Harvard's policy and began to bar the military from coming on campus.

When she came up for confirmation last year to be Solicitor General of the United States and there were cases filed around the country challenging the constitutionality of don't ask, don't tell, it was clear it might fall to her duty to defend that law, and she was asked in committee about it. She was asked: Will you defend the law? She said: Absolutely, she would. She committed to it. Generally she would commit to defending all laws of the United States and, specifically, in answer to a written question, she committed to defending don't ask, don't tell.

What I wish to say is that my colleagues were in error in their statements about this because it wasn't that she made arguments to the Court that she didn't believe in and that somehow we are unfairly criticizing her for doing that. What I am saying is there were arguments she did not make that she was duty bound to make to defend the law and actions that she was duty bound to take.

It has been said by one of our colleagues that it is ``Lawyer 101'' that an attorney will take positions on behalf of the client even when the lawyer disagrees with it. Well, that is exactly right. An attorney does have an obligation to vigorously defend his or her client, but Ms. Kagan refused to do that. Her client was the United States of America. When the Solicitor General of the United States stands before the U.S. Supreme Court or any lawyer--as I had the privilege to do for 15 years--in the Department of Justice stands up in a Federal court, do you know what they say? The first thing they are asked is, Counsel, the judge will say, is the government ready? And the lawyer says, The United States is ready, Your Honor. The United States is ready. That is who the lawyer's client is: the United States of America. It is not her personal view of don't ask, don't tell. It is not President Obama's interests or idea of what should be don't ask, don't tell; not his views. It is the United States of America. And what is the position she was defending? The lawfully passed statutes of this Congress signed by her former boss, President Clinton, passing the law don't ask, don't tell that was being challenged.

I am of the view that in failing to properly defend that case, as I said earlier, she violated a direct, specific commitment she made to the Congress and violated her duty even if she hadn't made that commitment as Solicitor General to defend the laws of the United States.

One of my colleagues made reference to Justice Souter, saying:

Justice Souter pointed out in a recent commencement address

recently [that] different aspects of the Constitution point

in different directions toward different results, and they

need to be reconciled.

Judges do have to do that.

Acknowledging these inherent tensions is not only Main

Street, it is as old as the Constitution.

Well, there is some truth to that, but Justice Souter's speech and others in his philosophical mold are very troubling. In fact, Justice Souter's speech intellectually followed on to Justice Brennan's 1985 Georgetown speech which is clearly the playbook for judicial activism. In it, Justice Brennan, former Justice of the U.S. Supreme Court, stated:

For the genius of the Constitution rests not in any static

meaning it might have had in a world now dead and gone, but

in the adaptability of its great principles to cope with

current problems and current needs. What the constitutional

fundamentals meant to the wisdom of other times cannot be

their measure to the vision of our time.

So if the Constitution's drafters decided that every American from time immemorial, unless the Constitution was specifically amended, had a right to keep and bear arms, Justice Brennan would say, Well, we can look at that. We need to see what the vision for our time is. Maybe we need to consult the Europeans as they did in this recent case, the dissenters in a 5-to-4 vote that narrowly upheld the right to keep and bear arms.

Allowing judges to determine the vision of our time is a recipe for legislating by unelected judges. What is the vision of our time is decidedly in the eye of the beholder. It is the job of the elected branches of government to make these calls in our constitutional system, not the unelected judiciary. The job of the judiciary is to interpret the law, not make the law. That is so basic. Don't we all know that?

As Professor John Baker of LSU put it:

The choice is between two distinct modes of decision-

making.

Legislators make laws; they do not write opinions.

Legislators can legitimately make laws to govern future

conduct only. . . . Legitimate judging, on the other hand,

concerns the existing law. Interpretation of the existing

law, contrary to lawmaking, focuses on the past. Legitimate

interpretation of existing law explains the result in a well-

reasoned opinion.

I think that was nicely said. Judges are not empowered to amend laws, to promote their vision. They are not empowered to alter the meaning of the words of laws or the Constitution to promote their core values.

What is Ms. Kagan's view about that? She wrote a law review article entitled ``Confirmation Messes, Old and New.'' It is kind of interesting. She has said nominees should be far more forthcoming when they testify. Most people think she failed to meet the standard in her own law review article. She also quoted Stephen Carter's book, with approval, saying:

In every exercise of interpretive judgment, there comes a

crucial moment when the [judge's] own experience and values

become the most important data.

The judge's own experience and values become the most important data? That is not law. I don't know what that is, but it is not law.

In a 2004 interview in Metropolitan Corporate Counsel, she said:

The attitudes and views that a person brings to the bench

make a difference in how they reach those decisions.

Is that not biased? Is that not an affirmation that a judge can bring to the bench their attitudes and views, instead of being a neutral umpire, putting on that black robe to symbolize impartiality? I think it is. This is a philosophy of law that is afoot in many of our law schools. There is no doubt about it. It is out there. People advocate it. She wrote about and advocated it. Many judges are adhering to this, and it is wrong. They are not empowered to do these kinds of things.

In one interview in a magazine, in 2004, she said:

There should be a range of opinions on the [Supreme] Court;

it should not just be about lawyerly qualifications.

The opinions we need on the Court are that a judge should identify the law and then follow it. That is what the view should be.

Mr. President, people are still asserting things about the Harvard issue that I don't think are quite accurate. I do not believe she handled the Harvard military question in any way that is defensible. I have looked at it very carefully. I have laid it out in some detail. And now I wish to respond to some of the statements that have been made.

One their efforts has been to point out and to assert that Elena Kagan treated veterans at Harvard Law School with great respect, hosting them for private dinners in her home, publicly recognizing them and thanking them for their service to our country. She has been praised by several law school veterans who have said Ms. Kagan is not antimilitary. Those things have some truth to them, and Senator Leahy has introduced some letters.

But, for the most part, Dean Kagan's outreach to Harvard Law veterans began after all this brouhaha and the resistance to military recruiting occurred on campus and things got tense.

It was not such a pleasant time. The military veterans were not comfortable. She talked about other students being uncomfortable with the military on campus. She said that herself. So the annual veterans dinner I referred to began in 2006, after the university president, Larry Summers, had instructed the law school to restore equal access to military recruiters and after the Supreme Court had rejected her argument that the Solomon Amendment, which Congress passed to make sure these law schools either admitted the military or ceased getting Federal money--her argument that the Solomon amendment did not require Harvard to give the military access to the career services office was rejected by the U.S. Supreme Court 8 to 0.

According to the military veterans who attended Harvard Law School during this period, 2004 to 2006, the dinners were actually initiated at the suggestion of the school--the university's dean of students, Ellen Cosgrove, to whom the military veterans had expressed their concerns about the hostile campus environment toward the military. In other words, they had gone to Dean Cosgrove and complained about the hostile environment on campus toward the military, and she started some of these dinners. It was only later that Dean Kagan--who was speaking at one time to a protest rally while the military recruiter was in the next building trying to recruit students--she was out there speaking to a protest rally about the military being on campus, saying how wrong she thought the military was.

Most law school veterans who have praised Dean Kagan were either not present at the law school during the height of the controversy or were not then even in the military. Almost all of them were more recent graduates or current students at Harvard, people who liked her outreach efforts at that time. But that was after she was forced to let the recruiters back on campus by the President of the school and by the Supreme Court. None of the individuals who have written and said positive things were members of the student veterans association that she tried to conscript to take care of the needs of the military recruiters. None of them wrote any such letter.

I wished to share a few of those thoughts and again challenge my colleagues to be as accurate as they can in what they say, either for or against this nominee. She is entitled to fair treatment, but these matters are very serious. The American people want judges who are committed to their oath, and their oath says they are to be impartial, that they are to do equal justice to the poor and the rich, and that they are to serve under the Constitution and laws of the United States, not above it. That is the commitment they must have.

We, the Senate, should never vote to confirm any judge--liberal activist or conservative activist--who, once they put on that robe, will not be impartial or provide equal justice but will allow personal biases, core beliefs, prejudices or politics to influence how they decide cases. That is a disqualifying factor.

We must know that any nominee is committed to the ideal of impartial justice. I don't believe this nominee has ever demonstrated that she would be unbiased in these situations, and, indeed, the record indicates she has consistently allowed her personal feelings to override the law and her duties. Therefore, I will oppose the nomination.

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

Today I am pleased to be introducing a piece of legislation designed to establish a national criminal justice commission. I do so with, at the moment, 12 cosponsors, including our majority leader, the chairman and the ranking Republican on the Senate Judiciary Committee, the chairman and the ranking member of the Judiciary Subcommittee on Crime and Drugs, and other members of our leadership. I introduce this bill after more than 2 years of effort here in the Senate that I will explain shortly; also with the prior conferral with Supreme Court Justice Kennedy and having discussed this matter with the President and the Attorney General, both of whom I think are strongly supportive of this concept.

Our design, our goal in this legislation, is to create a national commission with an 18-month timeline, not to simply talk about the problems that we have in our criminal justice system but actually to look at all of the elements in this system, how they are interrelated in terms of the difficulties that we have in remedying issues of criminal justice in this country, and to deliver us from a situation that has evolved over time where we are putting far too many of the wrong people into prison and we are still not feeling safer in our neighborhoods; we are still not putting in prison or bringing to justice those people who are perpetrating violence and criminality as a way of life.

I would like to say that, although I am not on the Judiciary Committee, I come to this issue as someone who first became interested in criminal justice issues while I was serving as a U.S. marine, serving on a number of courts-martial and thinking about the interrelationship between discipline and fairness; then after that, from having spent time as an attorney at one point representing, pro bono, a young former marine who had been convicted of murder in Vietnam. I represented him for 6 years pro bono. He took his life halfway through this process. I cleared his name 3 years later, but I became painfully aware of how sometimes inequities infect our process.

Prior to joining the Senate, I spent time as a journalist, including a stint 25 years ago as the first American journalist to have been inside the Japanese prison system, where I became aware of the systemic difficulties and challenges

we have. At that time, 25 years ago, Japan was half our population, and had only 40,000 sentenced prisoners in jail. We had 480,000. Today, we have 2.38 million prisoners in our criminal justice system and another 5 million involved in the process, either due to probation or parole situations.

This is a system that is very much in need of the right sort of overarching examination. I do note the senior Senator from Pennsylvania has joined me on the Senate floor. I am very gratified he has also joined me as the lead Republican on this measure. I look forward to hearing from him as soon as I am finished with my remarks.

The third thing I would like to say at the outset is, I believe very strongly, even though we are a Federal body, that there is a compelling national interest for us to examine this issue and reshape and reform our criminal justice system at the Federal, State, and local levels. I believe the commission I am going to present would provide us with that opportunity.

I start with a premise I do think not a lot of Americans are aware of. We have 5 percent of the world's population. We have 25 percent of the world's known prison population. We have an incarceration rate in the United States, the world's greatest democracy, that is five times as high as the incarceration rate in the rest of the world.

There are only two possibilities. Either we have the most evil people on Earth living in the United States or we are doing something dramatically wrong in terms of how we approach the issue of criminal justice. And I would ask my fellow Senators and my fellow citizens to think about the challenges that attend these kind of numbers when we are looking at people who have been released from prison and are reentering American society.

We have hundreds and thousands of American people who are reentering American society without the sort of transition that would allow a great percentage of them to again become productive citizens.

I think we need to look at this in terms of our own history, our own recent history. This is a chart that shows our incarceration rate from 1925 until today. Beginning in about 1980, our incarceration rate started to skyrocket. What has happened since 1980 is not reflective of where our own history has been on this issue. That is another need, why we need to examine it fuller. We also, for a complex set of reasons, are warehousing the mentally ill in our prisons. We now have four times as many mentally ill people in our prisons than we do in mental institutions. There are a complex set of reasons for that, but the main point for all of us to consider is, these people who are in prison are not receiving the kind of treatment they would need in order to remedy the disabilities that have brought them to that situation.

Drug incarceration has sharply increased over the past three decades. In 1980, we had 41,000 drug offenders in prison. Today we have more than 500,000. That is an increase of 112 percent.

Those blue disks represent the numbers in 1980. The red disks represent the numbers in 2007. A significant percent of these individuals are incarcerated for possession or nonviolent drug offenses, and in many cases, criminal offenses that stem from drug addiction and those sorts of related behavioral issues.

African Americans are about 12 percent of our population. Contrary to a lot of thought and rhetoric, their drug use, in terms of frequent drug use rate, is about the same as all other elements of our society, about 14 percent. But they end up being 37 percent of those arrested on drug charges, 59 percent of those convicted, and 74 percent of those sentenced to prison, by the numbers that have been provided to us and to the Joint Economic Committee. This is a disturbing statistic for us. I emphasize to my colleagues and to others that the issues we face with respect to criminal justice are not overall racial issues. They involve issues, in many cases, of how people are treated based on their ability to have proper counsel and other issues like that. But this is a statistic with respect to drugs that we all must come to terms with.

At the same time, I say we are putting too many of the wrong people in prison, and we are not solving the problems that will bring safety to our communities. Gangs are a hot issue today. I am on the Armed Services Committee. I am on the Foreign Relations Committee. There has been a lot of back and forth in recent months about the transnational gangs that are emanating across the Mexican border. Approximately 1 million gang members are currently in our country today. And I emphasis this is not an issue that is simply existent along the Mexican border. This is an issue that affects every community in the United States, and it is not simply an issue with respect to the Mexican drug cartels, although theirs are the most violent and the most visible today.

The Mexican drug cartels are operating in more than 230 American cities, not simply along the border. The incidents along on the border illuminate the largeness of this problem and of this challenge. Gangs in many areas of the United States commit 80 percent of the crimes. They are heavily involved in drug distribution, but they are involved in other violent activities as well.

There has been some talk over the past few days about how our position toward drugs and our gun policies feed this problem. I would ask my colleagues to think very hard about that. Drugs are a demand- pull problem in the United States, there is no question about that. There are a lot of weapons that are going back and forth across the border. But we should remember the Mexican drug cartels are capable of very sophisticated levels of quasi-military violence.

Many of the members who are brought into the gangs by the drug cartels are former Mexican military. Some of them have been trained by our own special forces, and the weapons they use are not the kind of weapons you are going to buy at a gun show. You do not get automatic weapons, RPGs, and grenades at a gun show.

We have to realize these cartels have a lot of money. By some indications they make profit levels of about $25 billion a year. They can buy the weapons they want. We have to get on top of this as a national priority. Again, it is not simply the transnational gangs that come out of Mexico. Many of them are Central American.

In Northern Virginia, right across the Potomac River, we have thousands of members who belong to the MS-13 gangs emanating out of Central America, who are very active up the I-95 corridor. There are Asian gangs. We have to get our arms around this problem as we address the other problem of mass incarceration in the United States.

Another piece of this issue I hope we will be able to address with this national criminal justice commission is what happens inside our prisons. When I was looking at the Japanese system many years ago, their model in terms of prison administration was basically designed after a traditional military model. You could not be a warden in a Japanese jail unless you started as a turnkey. They had national examinations. They had a year of preparation, training in psychology, in counseling techniques, before an individual was allowed to be a turnkey in a jail. The promotion systems were internal, like the U.S. military. It provided a quality career path, and it brought highly trained people in at the very beginning.

We do not have that in America. Prisons vary warden to warden; they vary locality to locality. We need to examine a better way to do that in our country.

We also have a situation in this country with respect to prison violence and sexual victimization that is off the charts. We must get our arms around this problem.

We also have many people in our prisons who are among what are called the criminally ill, people who are suffering from hepatitis and HIV who are not getting the sorts of treatment they deserve.

I started, once I arrived in the Senate, working on this issue. I was pleased to be working with Senator Schumer on the Joint Economic Committee. He allowed me to chair hearings to try to get our arms around this problem and see what sort of legislative approach might help. I chaired a hearing on mass incarceration in October of 2007. I chaired another hearing last year on the overall impact of illegal drugs from point of origin through the criminal justice system. How does this work in terms of the underground

business environment? How does it work in terms of the disparity in treatment of people who end up incarcerated? How does it affect people's long-term lives? What are the costs associated with it?

I was able to work with the George Mason University Law Center to put together a forum bringing people in from across the country to talk about our overall drug policy. Once we started talking about this, particularly over the last year, we started being contacted by people all across the country, people from every different aspect of the political and the philosophical areas that come into play when we talk about incarceration. It is a very emotional issue.

As I said, I heard from Justice Kennedy at the Supreme Court. I have heard from prosecutors, judges, defense lawyers, former offenders, people in prison, police on the street. All of them are saying we have a mess; we have a mess. We have to get a holistic view of how to solve it. There are many good pieces of legislation that have been introduced in the Congress to deal with different pieces of this issue. But after going through this process over the past year, I have come to the conclusion that the way we should address this is with a national commission that will examine all of these pieces together and make specific findings so we can turn it around.

These are examples of some of the editorial support that we have received. I have written a piece for Parade magazine which will be out this weekend to summarize the challenges we have; I hope our fellow citizens will take a look at it.

As to the design of this legislation, we are looking for two things. One is to shape a commission with bipartisan balance: the President nominating the chairman; the majority and minority leaders in the Senate, in consultation with the Judiciary Committee, each nominating two members; the Speaker of the House and the House Minority Leader, in concert with the Judiciary Committee, each nominating two members; and the National Governors Association, Republican and Democrat, each getting one member. The idea is not to have a group of people who are going to sit around and simply remonstrate about the problem. It is to get a group of people with credibility and wide expertise to examine specific findings and to come up with policy recommendations on an 18- month time period.

This commission will be asked to investigate the reasons in our own history that we have seen this incredible increase in incarceration. What do other countries do, particularly countries that have the same basic governmental systems we do? How do they handle comparable types of crime? What should we do about prison administration policies, prison management? How can we bring more quality, stability, and predictability in terms of the prison environment itself? What are the costs of our current incarceration policies, not only in terms of the billions of dollars we spend on building prisons or the billions we spend on housing people in prisons but also in terms of lost opportunities with our post-prison systems, and how we can better manage that area. What is the impact of gang activities, including these transnational gangs, and how should we approach that issue, not simply in terms of incarceration but as a nation that is under duress from not being able to respond properly? Importantly, what are we going to do about drug policy, the whole area of drug policy, and how does that affect sentencing procedures and other alternatives we might look at? We need to examine the policies as they relate to the mentally ill. We should look at the historical role of the military when it comes to how we are approaching these cross-border situations, particularly on the Mexican border. Finally, importantly, any other area the Commission deems relevant.

This is our best effort, after 2 years of coming up with the universe of issues that need to be examined. There are many people, including the senior Senator from Pennsylvania, who have worked on these areas for a number of years. If they have specific findings they believe the Commission should review, we are very happy to accommodate that.

The first step for the commission would be to give us findings, factual findings. From those findings, then give us recommendations for policy changes. The same areas I addressed in terms of findings apply in terms of the policy recommendations: How we can refocus our incarceration policies, work toward properly reducing the incarceration rate in fair, cost-effective ways that still protect communities; how we should address the issue of prison violence in all forms; how we can improve prison administration; how we can establish meaningful reentry programs. I believe with the high volume of people coming out of prisons, we must, on a national level, assist local and State communities in figuring out a way to transition these people so those former offenders who are not going to become recidivists will have a true pathway to get away from the stigma of incarceration and move into a productive future.

Again, importantly, the last category, any other aspect of the system the Commission or the people participating in it determine necessary.

This is our approach. I am gratified to have had as initial cosponsors six members of the Senate Judiciary Committee, including the chairman, Senator Leahy; the ranking Republican, Senator Specter; the chairman of the Subcommittee on Crime and Drugs, Senator Durbin; the ranking Republican on that subcommittee, Senator Graham; and a number of others, including key Democratic leadership--most importantly, our leader.

I hope we can get this legislation done this year. This is an issue that does not percolate up in the same way. It doesn't have a programmatic element to it in many cases, but it is an issue that threatens every community and begs for the notion of fairness.

I see the senior Senator from Pennsylvania is on the floor. I greatly admire the work he has done in this area over many years, and I appreciate his support on this endeavor.

I wish to express my appreciation to the senior Senator from Pennsylvania for joining me on this legislation and in this endeavor because it will be an endeavor, as the Senator knows, well beyond the legislative approval of the commission. I think this is going to take years. But I wish to express my appreciation for that, for his comments today, and for all the work he has done in this field.

I wish to emphasize a couple of things, in reaction to what the Senator mentioned. I agree. I do believe we can

meaningfully address this problem. And ``solution'' is perhaps a more illusive word. But we can certainly meaningfully address this problem. I think it is very important to say that it is in the interest of every American we do so.

There are a lot of people who will look at this and talk about specific elements of who has committed a crime and whether you should do the time and these sorts of things, but we do need to sort it out. When we have 5 percent of the world's population and 25 percent of the world's prison population, there are better ways. When we still have public safety issues in every community because of gang violence, and particularly transnational gang violence at this moment, there are better ways.

That is the purpose of having a commission: getting the greatest minds in this area in the country together, with a specific timeline, to bring us specific findings and recommendations for the entire gamut of criminal justice in the country--not simply incarceration, not simply gang violence, not simply reentry--but all of those and other issues together, so we can have a much needed and long overdue restructuring of how we address the issue of crime in this country.

I ask unanimous consent that Senator Kennedy be added as an original cosponsor on this bill.

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

Mr. President, I ask unanimous consent to speak as in morning business.

Mr. President, I rise to speak about S. 729, known as the DREAM Act. This is bipartisan immigration legislation that I have introduced with Republican Senator Dick Lugar of Indiana.

Immigration is a controversial issue, but I hope there is one aspect of this debate that does not divide us: Innocent children should not be victims of our broken immigration system.

That is why I introduced the DREAM Act almost 10 years ago. The DREAM Act would give a select group of immigrant students the chance to earn legal status if they grew up in the United States, have good moral character, and attend college or enlist in the military of our country.

The DREAM Act has broad, bipartisan support. The last time the Senate considered the DREAM Act, it received 52 votes, including 11 Republicans, but

we needed 60 votes under the Senate rules. It is clear, though, that a bipartisan majority in the Senate supports the DREAM Act.

Since then, support for the DREAM Act has only grown, and the bill now has 40 cosponsors. The DREAM Act also is the only immigration bill that the Obama administration has officially and publicly endorsed. Just this month, President Obama said:

We should stop punishing innocent young people for the

actions of their parents by denying them the chance to stay

here and earn an education and contribute their talents to

build the country where they have grown up. The DREAM Act

would do this, and that is why I supported this bill as a

State legislator, as a U.S. Senator, and I continue to

support it as President.

The DREAM Act is also supported by a broad coalition of education, labor, business, civil rights, and religious leaders, including the AFL-CIO, the American Jewish Committee, the Leadership Conference on Civil Rights, the National PTA, and the U.S. Conference of Catholic Bishops.

It also has the support of the CEOs of Fortune 500 companies, such as Microsoft and Pfizer, and dozens of colleges and universities.

The DREAM Act also has broad support from the American people. According to a recent poll by Opinion Research Corporation, 70 percent of likely voters favored the DREAM Act, including 60 percent of the likely Republican voters.

Here is how it works. A student would have the chance to qualify only if he or she meets the following requirements: came to the United States as a child; has lived here for more than 5 years; has good moral character; has not engaged in criminal activity; does not pose any threat to national security; passes a thorough background check; and graduates from an American high school. If a student fulfills all of these requirements, he or she would receive temporary legal status. Next, they would be required to serve in the military or attend a college for at least 2 years. After 6 years, if this requirement is completed, the student could apply for permanent legal status. If this requirement is not completed, that student would lose their legal status and be subject to deportation.

Students who obtain conditional legal status under the DREAM Act would not be eligible for Pell grants. They also would be subject to tough criminal penalties for fraud. The DREAM Act would not allow what is known as chain migration. In fact, DREAM Act students would have very limited ability to sponsor family members for legal status.

Let me tell you why I first introduced the DREAM Act almost a decade ago. I was contacted in my office by a Korean woman living in Chicago. She told me she had several children. Her oldest daughter turned out to be an accomplished classical pianist. Her daughter finished high school and was accepted to the Juilliard music school in New York. It is amazing because so few are accepted there--several hundred each year. She was so proud of her daughter.

She said when they were completing the form for Juilliard, there was a question about her daughter's nationality or citizenship. Her daughter turned to her mother and said: American, right?

Her mom said: We brought you here at the age of 2, but we never filed any papers.

The girl said: What should we do?

The mother said: Let's call Durbin.

They called my office. It is the first time I can ever recall ever facing something quite like this. My staff said: Let's look into it and find out what the legal situation is.

After telling the facts to the immigration agency of our government, we were informed that the girl's choice was obvious. She had to return to Korea, a place she had never been for 16 years, with a language she did not speak. The rest of her family--her mother, all of her siblings--were American citizens. She was not. Her parents failed to file the paperwork.

She had made a choice about her career and knew that she was ineligible for a lot of the student assistance available to those who are legal residents of the United States.

I thought to myself: That is fundamentally unfair. I reflected on my own story. My mother was brought to this country at the age of 2 as an immigrant. Her mother came from Lithuania. She came in her mother's arms and arrived in 1911 with a brother and a sister. They made it to East St. Louis, IL, where other Lithuanians were waiting, as well as my grandfather. My mother did not have any vote in that family decision to get on the boat and come to America. I am glad she did because her son now gets to serve as a Senator from the State of Illinois, where they emigrated.

I thought of this poor little girl, 2 years of age, brought to this country from Korea, now being told at age 18: Go back to Korea.

That is what the laws of America say, and that is why I introduced the DREAM Act.

When I first introduced the DREAM Act, I started telling the story about the Korean girl, and I noticed something interesting was happening as I told the story: there would be young people waiting after the speech asking if they could speak to me privately. Many of them were Hispanic, some were Polish. They were from all over. They would take me aside, look around to make sure no one was there, and say: I was one of those kids. I was brought here illegally by my parents who were legal at the time, and I am illegal today. But this is the only country I have ever known, gone to school here, this is where my friends are, this is where my future is. Help me. That is what the DREAM Act is all about.

Over the years, these people who used to wait nervously in the shadows have started coming out of the shadows and telling their stories. They are student council presidents, they are valedictorians, they are junior ROTC leaders, star athletes. They are tomorrow's scientists, soldiers, and teachers in America. They were brought to the United States when they were so young that they did not understand what was going on. They grew up here. It is the only home they ever knew.

The fundamental premise of the DREAM Act is that we should not punish the children for the parents' actions. That is not what America is about. Instead, the DREAM Act says to these students: America will give you a chance with strict requirements, but we will give you a chance.

Nine years after I introduced this legislation, I have noticed the DREAM Act students are not whispering in the shadows anymore. Recently, I met with four young people who would qualify for the DREAM Act: Felipe Matos, Carlos Roa, Gaby Pacheco, and Carlos Rodriguez. These four students walked from Miami, FL, to Washington, DC--1,500 miles--in order to build support for the DREAM Act. Along the way, they were joined by hundreds of supporters, young students and young people in the same situation they were in but other young people who understood the injustice that is being perpetrated on these people. They called this trip, this long 1,500-mile hike, ``the trail of dreams.''

I also would like to update the Senate on two DREAM Act students about whom I have spoken in the past.

This is Tam Tran. Tam was born in Germany and was brought to the United States by her parents when she was 6 years old. Tam's parents are refugees who fled Vietnam as boat people at the end of the Vietnam war. They moved to Germany, and then they came to the United States to join relatives. An immigration court ruled that Tam and her family could not be deported to Vietnam because they would be persecuted by the Communist government. The German Government refused to accept them. Tam literally had nowhere else to go, so she grew up in America. She graduated with honors from UCLA with a degree in American literature and culture. She was studying for a Ph.D. in American civilization at Brown University. But 2 months ago, Tam was tragically killed in an automobile accident.

Three years ago, Tam was one of the first ``dreamers''--that is what I call these students--to speak out when she testified before a House Judiciary Committee. This is what she said:

I was born in Germany, my parents are Vietnamese, but I

have been American raised and educated for the past 18 years.

. . .Without the DREAM Act, I have no prospect of overcoming

my state of immigration limbo; I'll forever be a perpetual

foreigner in a country where I've always considered myself an

American.

Tam was sitting right up here in the gallery when the DREAM Act received

52 votes on the Senate floor. After the vote, I met with Tam and several other DREAM Act students. Tam was hopeful, even though we lost the vote. She knew we had 52 and realized we needed 60, but she would not give up hope. She talked about the need to pass the DREAM Act so she would have a chance to contribute more fully to this country--the country she loved so much.

I wish to use this moment to offer my condolences to Tam Tran's family and friends and assure them I will do everything I can to honor her memory by working to pass the DREAM Act.

Let me tell you about another DREAM Act student. This is Oscar Vasquez. Oscar was brought to Phoenix, AZ, by his parents when he was a small child. He spent his high school years in Junior ROTC and dreamed of enlisting in the military. But at the end of his junior year, a recruiting officer told Oscar he was ineligible for military service because he was undocumented.

Oscar found another outlet. He entered a robot competition sponsored by NASA. Oscar and three other DREAM Act students worked for months in a storage room in their high school. They were competing against students from MIT and other top universities, but Oscar's team won first place.

The story does not end there. Last year, Oscar graduated from Arizona State University with a degree in mechanical engineering. Oscar was one of only three Arizona State University students who were honored during President Obama's commencement address at that university.

Following his graduation, Oscar did an extraordinary thing: he voluntarily returned to Mexico, a country he had not lived in since he was a child. He has now applied to reenter the United States. Oscar said:

I decided to take a gamble and try to do the right thing.

But there is a problem. Unless Oscar is granted a waiver, he will not be able to enter the United States for at least 10 years, if not longer. In the meantime, he is going to be separated from his wife Karla, who is here in the United States, and their 2-year-old daughter Samantha, who are both American citizens.

This extraordinary young man--a mechanical engineer who won a national competition, a person who can add something to America, who has a wife and family here, who is doing the right thing by going back to the country of his origin even though he has little connection with it anymore--is being told: America doesn't need you. Wait for 10 years, separated from your family.

It is not fair.

There are so many other stories of young people who would be eligible for the DREAM Act. Every week--every single week--I receive calls, e- mails, and letters from these dreamers. Let me tell you about two others.

This is Benita Veliz. Benita Veliz was brought to the United States by her parents in 1993. She was 8 years old. Benita graduated valedictorian of her high school class at the age of 16. She received a full scholarship to St. Mary's University. She graduated from the honors program with a double major in biology and sociology. Benita's honors thesis was written about the DREAM Act.

Benita sent me a letter recently, and I am going to read into the Record what she said. Benita said:

I can't wait to be able to give back to the community that

has given me so much. I was recently asked to sing the

national anthems for both the U.S. and Mexico at Cinco de

Mayo community assembly. Without missing a beat, I quickly

belted out the Star Spangled Banner. I then realized that I

had no idea how to sing the Mexican national anthem. I am

American. My dream is American. It's time to make our dreams

a reality. It's time to pass the DREAM Act.

Let me show one other. This is Minchul Suk. Minchul was brought to the United States from South Korea by his parents in 1991 when he was 9 years old. Minchul graduated from high school with a 4.2 GPA. He graduated from UCLA with a degree in microbiology, immunology, and molecular genetics. With support from the Korean American community, Minchul was able to graduate from dental school. He has passed the national boards and licensing exam to become a dentist, but he cannot obtain a license because he does not have legal status.

Minchul sent me a letter recently. Here is what he wrote:

After spending the majority of my life here, with all my

friends and family here, I could not simply pack my things

and go to a country I barely remember. I am willing to accept

whatever punishment is deemed fitting for that crime; let me

just stay and pay for it . . . I am begging for a chance to

prove to everyone that I am not a waste of a human being,

that I am not a criminal set on leeching off taxpayers'

money. Please give me a chance to serve my community as a

dentist.

The DREAM Act is not just the right thing to do, it is the right thing for America. Wouldn't America be a better place if someone such as Minchul Suk would be able to serve his community as a dentist? Couldn't our military use someone such as Oscar Vazquez, a mechanical engineer who has overcome so many obstacles in his young life? Wouldn't we all be better off if these talented young immigrants were able to contribute more fully to the country they love?

Michael Bloomberg, the mayor of New York City, knows something about economic development. He sent me a letter supporting the DREAM Act. Here is what he said:

Why shouldn't our economy benefit from the skills these

young people have obtained here? It is senseless for us to

chase out the home-grown talent that has the potential to

contribute so significantly to our society. They're the ones

who are going to start companies, invest in new technologies,

pioneer medical advances.

Michael Bloomberg is right.

Our country would also benefit from thousands of highly qualified, well-educated young people who are eager to serve the United States of America in our armed services. I know. I have spoken with those who work at the Pentagon. Diversity is important in our military. There are not enough, primarily from Hispanic populations, currently enlisting. This is a good way to change that, to make sure the next generation of leadership in the military truly reflects the United States of America.

Immigrants have an outstanding tradition of military service. More than 65,000 immigrants are currently on Active Duty. The Center for Naval Analysis has concluded that ``noncitizens have high rates of success while serving--they are far more likely, for example, to fulfill their enlistment obligations. . . .''

Many DREAM Act students come from a demographic group that is already predisposed toward military service. The RAND Corporation found that ``Hispanic youth are more likely than any other groups to express a positive attitude toward the military'' and ``Hispanics consistently have higher retention and faster promotion speeds than their white counterparts.''

The Army says high school graduation is ``the best single predictor'' of success in the military. However, in recent years, the Army has accepted more applicants who are high school dropouts, have low scores on the military aptitude test, and even some with criminal backgrounds. In contrast, under the DREAM Act, which I have introduced, all recruits would be well qualified as high school graduates with good moral character and no criminal record.

Since the Bush administration, we have worked closely with the Defense Department on the DREAM Act. Defense Department officials have said to me publicly and privately that it is a very appealing law. It would apply to the cream of the crop of students and be great for military readiness.

Military experts also support the DREAM Act. LTC Margaret Stock, a professor at West Point, wrote an article supporting the DREAM Act. She concluded:

Passage of the DREAM Act would be highly beneficial to the

United States military. The DREAM Act promises to enlarge

dramatically the pool of highly qualified recruits for the

U.S. Armed Forces.

Mr. President, I am sorry I waited until late in the evening and held the staff here for this, but this means a lot to me and it means a lot to literally hundreds of thousands of young people across America. I have introduced a lot of bills in my career. Some of them have become law. Most of them haven't. Most of them aren't even noticed. This one is noticed by hundreds of thousands of young people who, when they hear the name Durbin, ask the next question: When is he going to

pass the DREAM Act? Our lives depend on it. I feel a special, personal obligation to these young people.

I want to take this story to my colleagues because I think they believe that America is a just and caring country, that these young people can bring talent and service to our great Nation and they deserve a chance. They should not be punished for any wrongdoing by their parents. They deserve a chance to prove themselves and to make this a better nation.

Mr. President, I yield the floor.

Mr. President, I also rise to discuss President Obama's nomination of Elena Kagan, Solicitor General, to serve on the U.S. Supreme Court. I agree very strongly with the remarks made by my colleague who has just indicated there is a strong concern about the continuation of a pattern of increasing judicial activism in our country, which we definitely do not need to perpetuate on the highest Court of our land.

I appreciate the work that has been done by my colleagues on the Senate Judiciary Committee to examine this nomination and to hold thorough hearings. There is no doubt that Ms. Kagan's educational resume is impressive, with a degree from Princeton and from Harvard Law School. It is unfortunate that the Senate confirmation process has reached the point, though, where nominees are no longer comfortable candidly discussing their judicial philosophy and views on key issues, especially when the nominee herself decries this development prior to being nominated.

To date, I have received more than 1,500 letters and e-mails and phone calls from my Idaho constituents, overwhelmingly in opposition to Elena Kagan's nomination. Many of the concerns raised in the correspondence I have received mirror concerns I also have about her nomination. It was my hope, through the committee hearings and questionnaires and in my own personal meeting with Ms. Kagan, that my concerns and those of my constituents could be resolved. As Ms. Kagan stated in her committee testimony, because she has not had prior experience as a judge, my Senate colleagues and I must assess her nomination based on her other career experiences. Therefore, we must evaluate a career that has been focused largely in her role as a policy advocate and political adviser and whether she would carry this political advocacy with her to the Court. I would like to discuss, in that context, some of my areas of concern--first of all, the broad area of judicial activism.

I am concerned about Ms. Kagan's background in political advocacy and activism and how her previous statements suggest her willingness to bring that activism to the bench. Rather than pursuing a path of judicial restraint, carrying out a limited role in interpreting the Constitution, Ms. Kagan's writings and testimony suggest that she sees the Supreme Court as a body that must lead the Nation and have the freedom to change the law in response to ``new conditions and new circumstances.''

As dean of the Harvard Law School, Ms. Kagan used her position to lead the school in a direction not based on the law but based on her own personal policy preferences when she denied military recruiters equal access to the students at Harvard Law School, complying with the law only when forced to do so by the Court.

It seems that Ms. Kagan has an extremely broad view of the powers of all branches of the Federal Government and does not seem to respect the traditional limits the Constitution places on each of those branches. If the Constitution requires that a certain outcome can only be achieved through the actions of the legislative branch and if the legislative branch fails to take those actions, it does not mean the executive or judicial branch can then have the opportunity to independently take those actions or achieve those policy objectives. I am not convinced Ms. Kagan respects that constitutional separation of power.

She has gone so far as to cite Israeli Chief Justice Aharon Barak as her ``judicial hero,'' even though Judge Barak is widely regarded as one of the most activist judges in the world.

The Framers of the Constitution wisely, clearly, and intentionally set

limits on the powers of the Federal Government. The Framers also set forth a method with an appropriately high threshold for expanding or curtailing those powers. That method for expanding or curtailing the powers of the government is the constitutional amendment process. Judges must respect the limits placed on the government by our Constitution and must not try to circumvent the constitutional amendment process by seeking other opportunities to expand the powers of the Federal Government to meet their own personal policy preferences. I am not convinced Ms. Kagan respects that limit in our Constitution and the responsibility to have limited judicial activism and interpret our Constitution as it was intended.

I also have a very specific concern on a specific issue. In fact, this is the same concern I had when we were presented with the President's nomination of the last nominee, Sonia Sotomayor, to our Court; that is, the second amendment right to bear arms--a specific provision in the U.S. Constitution which has been a very controversial and debated provision in recent years in the United States.

On June 26, 2008, the Supreme Court of the United States affirmed, in the District of Columbia v. Heller, that the second amendment to the Constitution guaranteed an individual's right to keep and bear arms for self-defense purposes. This landmark ruling finally established that the right to bear arms in the second amendment is an individual right but left open the question of whether this right in the second amendment applies to the States rather than just to Federal enclaves such as the District of Columbia.

For those of us who believe in the right to law-abiding citizens to protect themselves, the Court's ruling in Heller marked a new beginning, especially for those who believe the second amendment to our Constitution gives Americans an individual right to bear arms. For too long, many law-abiding Americans were told by their elected representatives and by some courts that the Constitution did not necessarily guarantee an individual's right to own a firearm, denying citizens the right to protect themselves, their property, and their families.

Soon thereafter, though, a case entitled McDonald v. Chicago made its way through the court system, in which a Federal district court and a circuit court of appeals ruled that the very severe restrictions on second amendment rights in two Illinois municipalities were constitutional because Heller only applied to the rights of those living in Federal enclaves such as Washington, DC.

On June 28, 2010, the Supreme Court also overturned that decision, affirming that the 2nd amendment, like most of the provisions of the Bill of Rights, is applicable to the States via incorporation principles derived from the 14th amendment. The Court affirmed that individual rights established in Heller did not just apply to those living in Federal enclaves such as Washington, DC; they ruled they also apply to all law-abiding Americans who wish to keep and bear arms for self-defense. It is now firmly established by these two rulings from our highest Court that our Constitution guarantees an individual right to keep and bear arms for self-defense purposes no matter where you live.

All of this brings us to our nominee, Ms. Kagan, and the question before the Senate with regard to her nomination. Those of us who believe in an individual's right to keep and bear arms have a responsibility to ensure that hostility to the second amendment does not find home in the hands of the Supreme Court.

With no judicial record to review, Ms. Kagan invited Senators to glean what we can from the body of her work, her statements, her academic life, and the policies for which she has actively advocated during her career, including her Supreme Court clerkship and her later career in political activism.

We took her at her invitation to see how her past reflected her views on the issue of second amendment rights. After discussing this issue with her personally, fully reviewing her past actions in relation to the second amendment, and evaluating her statements before the Judiciary Committee, I am convinced she does not believe the second amendment reserves to all Americans a strong and broad right to bear arms.

To cite some well-known examples, as a Supreme Court law clerk, Ms. Kagan wrote that she was ``not sympathetic'' to a challenge to Washington, DC's, ban on firearms. After the Supreme Court struck down certain provisions of the Brady law in Printz v. United States, Ms. Kagan, who was then serving on President Clinton's staff, worked to reimpose those unconstitutional provisions by Executive order, without the approval of Congress and contrary to the ruling of the Court. When the McDonald case came before the Supreme Court, Ms. Kagan, who was then the Solicitor General of the United States, did not even see it necessary to file a brief in support of the second amendment.

When asked about her position, Ms. Kagan has stated that she accepts the Heller and McDonald cases as settled law. But she has also made it clear that in her opinion these two cases leave much of the detail as to what this right entails to future court interpretation. This is very similar to what now Justice Sotomayor said when she was before the U.S. Senate for confirmation.

As a judge on the Second Circuit Court of Appeals, then-Judge Sotomayor ruled on a case that was very similar to and, in fact, was later incorporated into the Chicago case, Maloney v. Cuomo. In that ruling, then-Judge Sotomayor ruled that Heller only guaranteed an individual right to keep and bear arms for residents of Federal enclaves. Her explanation was that Heller answered ``a different question'' than Maloney and relied on a precedent from 1886 to do so.

Pressed about Heller at her Senate hearings, Judge Sotomayor stated that she accepted that Heller was now ``settled law.'' Yet when the McDonald case came before the Supreme Court, Justice Sotomayor voted against it, joining with the dissenting opinion, stating that ``in sum, the framers did not write the Second Amendment in order to protect a private right of self defense.''

The Supreme Court's decisions in Heller and McDonald were important milestones for establishing the second amendment right to bear arms, but they were long overdue. Countless law-abiding Americans were denied their constitutional rights to keep and bear arms for way too long. It is imperative that the next Supreme Court Justice fully understand and accept and support these rights. I am not convinced that Ms. Kagan does, and that causes me great concern.

Similar to now Justice Sotomayor, Ms. Kagan has stated that she accepts Heller and McDonald as settled law. But that does not mean she would not vote to overrule them if an opportunity presented itself. As she herself has said, that also does not define the scope and breadth of this right, which will fall to future Court decisions. A Supreme Court hostile to the Heller and McDonald decisions or a Supreme Court with a narrow view of the right to bear arms protected by the second amendment could severely limit or restrict that right. As I have said, I do not believe Ms. Kagan believes in the strong and broad right to bear arms that I do or that the majority of Idahoans do.

These concerns have also been expressed by our ranking member on the Senate Judiciary Committee, Senator Sessions, who noted:

Ms. Kagan's record regarding the Second Amendment leaves

little doubt that she will be hostile to the rights of law-

abiding citizens to own and possess firearms.

For these reasons--her activist philosophy and her position that I expect we will see on the second amendment right to bear arms--I cannot vote to confirm her to the highest Court of our land.

Mr. President, I take the responsibility of confirming Supreme Court Justices very seriously, and my decision was not reached lightly. Judges take an oath to ``administer justice without respect to persons, and do equal right to the poor and to the rich.''

My review of Ms. Kagan's record gives me reason to question whether she will abide by that standard. Her statements, actions, and writings throughout her public life suggest a vision for the Court that is not restrained by the Constitution but that has a responsibility in being activist in

reaching policy goals. As such, I must vote against her nomination to sit on the highest Court in our country.

Thank you, Mr. President.