New Frontier Congressional Gold Medal Act

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 President, I ask unanimous consent that the order for the quorum call be rescinded.

The PRESIDING OFFICDER (Mr. Warner). Without objection, it is so ordered.

Mr. President, I am very concerned about legislation that has been added to the Defense bill, the

so-called Hate Crimes Act. Certainly, none of us has any sympathy whatsoever for people who commit crimes of any kind, particularly those who would attack somebody because of their race, ethnicity, sexual orientation, or any other reason. I wish to take a few moments to explain why this is important and why this legislation is not good and it ought not to be passed. Some of my remarks may appear to be technical, but they are very important, in my view, as a former Federal prosecutor for almost 15 years.

I don't think it was ever appropriate that we bring this legislation to the floor and stick it on this Defense bill without having a markup in the committee without the ability to discuss it and improve it.

For years legal commentators and jurists have expressed concern at the tendency of Congress, for the political cause of the moment, to persist in adding more and more offenses to the U.S. Criminal Code that were never Federal U.S. crimes before. This is being done at the same time that crime rates over the past decade or so have dropped and State and local police forces have dramatically improved their skills and technology. There are really fine police forces all over the country today. An extraordinary number of police officers have college degrees and many advanced degrees.

I think two questions should be asked initially. First, is this a crime that uniquely affects a Federal interest, and can it be addressed by an effective and enforceable statute? Second, have local police and sheriffs' offices failed to protect and prosecute this vital interest?

Most people do not understand that a majority of crimes--theft, rape, robbery, and assault--are not Federal crimes and are not subject to investigation by the FBI or any other Federal agency. They could not do so if they wanted to because they have no jurisdiction. They can only investigate Federal crimes. It has been this way since the founding of our country, and it fixes responsibility for law enforcement on local authorities where it should be.

Americans have always feared a massive Federal Government police force. It is something that we have not ever favored. This is not paranoia but a wise approach, and I do not think it should be changed.

Instead of administering justice without fear or favor, this legislation that has been placed on this bill creates a new system of justice for individuals because of their sexual orientation or gender identity, providing them with a special protection, while excluding vulnerable individuals, such as the elderly or police officers or soldiers, from such special protections. I don't think we can justify that.

The purpose of the DOD reauthorization bill is to make sure the men and women who protect our freedoms have the necessary resources to continue to do the fabulous job they have been doing. We should not deviate from this path by addressing matters wholly unrelated to the defense of our Nation.

A bill of such breadth and lack of clarity as this should be carefully reviewed with the opportunity for discussion and amendment in committee. Yet this legislation had no markup in any committee. In fact, no version of the bill has been marked up since 2001, and this version is quite different and more expansive than the 2001 bill.

The committee did hold a quickly thrown-together hearing on June 25 in which Attorney General Holder himself appeared. The Attorney General, however, failed to point to one single serious incident in the past 5 years, when I asked him that question, where the types of crimes that are referred to in the bill, to give special Federal protection to select individuals, were not being prosecuted by State and local governments.

Additionally, the Attorney General refused to say attacks on U.S. soldiers predicated on their membership in the military by, for example, a Muslim fundamentalist, could be considered a hate crime.

It is baffling to me, given previous opposition and serious concerns which have been raised about this legislation, that the act, instead of being constrained, is actually expanded in a vague and awkward way. It focuses on the perception of what someone might have been thinking when they committed the crime and includes categories which are undefined and exceedingly broad, such as gender-related characteristics and gender identity. From questions that have been raised, these categories do not have clear meaning. During the course of debate on hate crimes legislation--a debate that started in 2001--amendments have been offered to also protect our military men and women, where it is unquestioned they have been targeted. Those amendments were rejected.

Mr. President, I will briefly outline my opposition to the legislation in the following ways:

The hate crimes amendment is unwarranted, possibly unconstitutional-- certainly, I believe it is unconstitutional in certain parts--and it violates the basic principle of equal justice under the law. The hate crimes amendment to this bill has been said to cheapen the civil rights movement.

When Congress passed the original civil rights statute in 1968, it criminalized violent and discriminatory actions directed at individuals because of race, color, religion, or national origin. There was, sadly, quite a substantial body of evidence that crimes were being committed against minorities and they were not being prosecuted. Section 245 that was then passed was never envisioned by Congress to be a hate crimes statute but one, rather, that would ensure access by minorities to specific activities legitimate to their freedom, such as enrolling in public schools, enjoying the benefit of programs administered by the State, or attending court as a juror.

In 1968, care was taken to ensure that the underlying statute was carefully crafted and narrowly tailored to address the problem of access to ensure that criminal activity fell within the confines of the constitutional requirement that there be a Federal nexus with interstate commerce. The statute enumerates six instances in which a crime could be charged. That statute says this:

Whoever, whether or not acting under the color of law, by

force or threat of force willfully injures, intimidates or

interferes with, or attempts to injure, intimidate or

interfere with any person because of his race, color,

religion or national origin and because he is or has been. .

. .

And then it lists specific areas that would encompass a criminal offense.

(a) enrolling in or attending any public school or public

college.

So if anyone who was attempting to attend a public school or college was interfered with or intimidated because of their race, color, religion or national origin, that would be the offense.

(b) participating in or enjoying any benefit, service,

privilege, program, facility or activity provided or

administered by any State or subdivision thereof.

In other words, you can go to the city hall, you can go to the health department, and you cannot be discriminated against because of your race or background.

Unfortunately, I have to say there were areas of the country-- particularly in my area of the South--where that was not so. People were being unfairly treated. In fact, in some other areas of the country also. I believe great care was taken with that act because, as I said, there was strong evidence to suggest that a Federal expansion of criminal law would be appropriate to deal with it.

So the history of civil rights violations caused and fully justified Congress's passage of this statute. There was direct evidence, for example, that African Americans were being denied the right to vote or intimidated at voting precincts without State and local law enforcement protecting them. There was much evidence, sadly, that other rights of African Americans were not being protected.

But that is not the case with this amendment, and I will talk about that in a minute. Gays and lesbians have not been denied basic access to things such as health or schooling or to the ballot box. They openly are able to advocate their positions today, which I think is certainly healthy, and have no difficulty in approaching government officials at whatever level.

When Eric Holder testified a few weeks ago before the Judiciary Committee, I asked him point-blank for direct evidence that hate crimes against individuals over the past 5 years, because of their sexual orientation or

otherwise, were not being prosecuted by local authorities. Instead of answering the question, he referred me to four cases in his written testimony which he had delivered to the committee. Let me make the number clear as strong evidence that these cases are being prosecuted.

The Attorney General could not come up with 4,000 cases or 400 or 40 cases. He only named four cases in 5 years. So we took a look at those four cases he cited in his testimony, and this is what we found.

In one case, Joseph and Georgia Silva assaulted an Indian-American couple on the beach. Although there was evidence that racial and ethnic slurs were used during the altercation, a California El Dorado County judge ruled that prosecutors failed to produce sufficient evidence that the alleged assault was motivated by racial prejudice. The prosecutor had pursued a hate crimes conviction, including charging Silva with a felony assault, punishable by up to 3 years in prison. The evidence, according to the judge, was that racial slurs were used in the heat of anger. There was no evidence the attack was initiated because of ethnicity.

Both Joseph and Georgia Silva were convicted of assault, the basic crime that they committed, and Joseph Silva was sentenced to 6 months in prison and 3 months probation, while Georgia was sentenced to 1 year in prison.

So the question is, was there an important Federal right left unaddressed that needed to be vindicated by charging this couple again for the crime arising from that assault? In other words, that is what this bill does. It says if we are unhappy with the result in State court under a select group of crimes, the Federal Government can try the case again.

You might say, well, there is a double jeopardy clause in the Constitution; you can't be tried twice for the same crime. Good; if you asked that question, you get an A in constitutional law. However, there is an answer. It has long been established that the States are sovereign and the Federal Government is sovereign. So an individual can be tried by two separate sovereigns without implicating the double jeopardy clause of the Constitution. However, we have always understood that ought not to be done lightly. It ought not be done without a real justification because it violates the spirit of the double jeopardy clause of the Constitution.

Attorney General Holder also cited a 2003 case in Holtsville, NY. In that case, three White men, while using racial slurs, assaulted a group of Latino teenagers as they entered a Chili's restaurant. One of the three defendants entered a guilty plea for his involvement in the assault and was sentenced to 15 months in prison. The other two defendants proceeded to trial and were acquitted because the jury apparently concluded there was insufficient evidence to prove beyond a reasonable doubt that the offense that occurred was to deny the victims access to the restaurant. So they had a trial, and one was convicted and two were not.

The Attorney General cited a South Carolina case where a gay man was assaulted after leaving a bar. During the altercation, he fell and he suffered a fatal strike to the head from the concrete. Stephen Miller was convicted of involuntary manslaughter and sentenced to 5 years in prison.

Finally, the Attorney General cited a case from here in the District of Columbia where a transgender prostitute was murdered. Apparently, after Derrick Lewis discovered that the prostitute he had picked up in his automobile was not female, and the prostitute refused to get out of his car, an altercation of some kind occurred--an argument--and he had a gun and shot and killed this transgender individual. He eventually pled guilty, gave a full statement of what happened, and was sentenced to 10 years in prison. The evidence showed they had begun fighting and that is when he pulled the gun and shot him. He said the individual would not get out of the car.

Well, those are not insignificant crimes, but I can just advise my colleagues, if we just pause one moment and think, we know that at this very moment thousands, maybe 10,000 or more trials are ongoing in State and local courts all over America, and they do not always end as people would like them to end. What this bill does basically is it provides an opportunity for the Federal Government to pick and choose certain crimes they want to prosecute again to get the kind of justice they think might be likely. That is a broad power that we give to the Attorney General and a broad statute I don't believe is compelled by the facts that are happening in America today.

When my staff followed up with the Office of the Attorney General to see why they listed just these cases, the response wasn't that State and local law enforcement were not doing their jobs but that the Attorney General believed the cases were under prosecuted. Citing four cases over 5 years as being underprosecuted is not the kind of evidence needed to justify the passage of such an expansive new piece of legislation that injects Federal prosecutors in areas of crime not heretofore occurring.

After the Judiciary hearing, both Senator Coburn and I sent followup questions to the Attorney General to provide him an additional opportunity to demonstrate that the bill was necessary because of under prosecution, as he had testified. Senator Coburn asked this question:

Precisely how many hate crimes is the Justice Department

aware of that have gone unprosecuted at the State and local

level?

This is the answer we got from the U.S. Attorney General:

The Department believes that our partners at all levels of

law enforcement share our commitment to effective hate crimes

enforcement. The Department does not have access to precise

statistics of hate crimes that have gone unprosecuted at the

State and local level, and we are unaware of any source for

such comprehensive information of unprosecuted offenses

generally. Federal jurisdiction over the violent bias-

motivated offenses covered under S. 909 is needed as a

backstop for State and local law enforcement, to ensure that

justice is done in every case.

So he is suggesting that, in a select group of cases that are on the front burner today, the Attorney General needs this legislation--S. 909, which has now been attached to the Defense bill--as a backstop for State and local law enforcement to ensure that justice is done in every case.

Well, there are many prosecutorial and jury decisions that are made in State courts every day with which one could disagree. The question is whether the Federal Government will be empowered to ensure justice is done in every case.

I just want to share the reality of the world with my friends here, that anyone, I guess, can conclude that a case didn't end justly for them. One distinguished jurist is famously quoted as saying, ``To speak of justice is the equivalent of pounding the table. It just adds an element of emotion to the discussion.'' But whatever we mean by that word, it basically means the Attorney General gets to decide whatever he wants to do. I am not sure this is good legislation. I think legislation ought to be crisp and clear and set forth criteria by which a prosecution occurs or does not occur, leaving not so much broad discretion among the prosecutorial authorities.

I submitted, after Senator Coburn--or at the same time, really--a similar question because I believed he had not been responsive to my question, and I asked this about our colleague, referring to Senator Hatch--of course a former chairman of the Judiciary Committee and who has worked on this issue for a number of years--and my question is this:

Senator Hatch in the past has offered a complete substitute

to similar legislation, which would require that a study be

conducted to prove that there is an actual problem with hate

crimes not being prosecuted. Do not give me a general

response that there are some problems out there. I would like

you to provide the Committee with an exact and precise number

of hate crimes the Justice Department is aware of which have

gone unprosecuted at the State and local level. Please detail

every example you or anyone in the Department of Justice is

aware of where no prosecutorial effort took place.

This was the answer we got:

The Department is unable to provide an exact number of

cases in which State, local or tribal jurisdictions have

failed to prosecute hate crimes because we are not aware of

any such compilation of data.

Senator Hatch has been offering this amendment for a study for a decade.

The Attorney General goes on to say:

When the Department receives complaints it clearly lacks

jurisdiction to prosecute, these matters generally are never

opened as investigations. . . .

Let me just say, if this legislation is passed it will have one dramatic, undiscussed impact. Federal law enforcement agents--and there are not many. You may have a city with 300 police officers in it and 10 FBI agents, another hundred sheriffs' deputies, another number of State officers. Now huge numbers of crimes will be coming across the desk of the FBI, which has terrorism, white-collar crime, bank fraud which they need to be working on today, violent crimes and drug smuggling. Now they are going to have to review hundreds of complaints about cases they had not heretofore had jurisdiction of and did not have to review. I just raise that point as an aside.

Based on the Attorney General's response, I conclude that the bottom line is there is nowhere near the real evidence needed to justify this legislation. No one in this body has produced the evidence, and the Attorney General of the United States, who is promoting the bill, has not produced any. Attorney General Holder's response, instead of demonstrating the need for hate crimes legislation as written, provides verification that it is not necessary, and it raises a question of whether this is driven by political interests at this time. It is easy to complain that anybody who opposes a hate crimes bill favors hate. That is not a fair charge. I think most of our colleagues fully understand that. But politically that is the suggestion some have made when this legislation has been objected to by people with very valid concerns.

As a matter of fact, one of the studies heavily relied on by the Attorney General in support of this bill is a 2008 report published by the National Coalition of Anti-Violence Programs, which is composed primarily of lesbian, gay, bisexual, and transgender groups. They have every right to do those studies and present them, but it is a coalition clearly with a vested interest in the legislation, and it should be examined carefully. The Attorney General had to rely on these types of reports because crime statistics do not support the notion that the incidence of hate crimes has increased. Even though we are doing a better job of reporting those today, still over the past 10 years the number is down, down slightly, even though population is up in our country.

Furthermore, in a rushed attempt to provide answers to the committee prior to this amendment being filed, the Department seemed to put little thought into their responses to our questions. As a matter of fact, it appears the Attorney General didn't think the issue important enough to answer them himself. He let his staff people answer, when he was the one who appeared before the committee and we were following up on his personal testimony.

A number of arguments and statements have been made, including those by the Attorney General, that there are quite a few of these incidents, tens of thousands of these incidents over the last number of years. But overwhelmingly these despicable incidents are of vandalism, many by juveniles. Let me make clear that even those incidents are significant and deserve prosecution and investigation and, where appropriate, stiff punishment. But let's look at the views of the members of the U.S. Commission on Civil Rights, our own U.S. Civil Rights Commission, who have examined this legislation carefully. Six of its eight members signed a strong letter to the President and to the Judiciary Committee to oppose hate crimes legislation. Did I mean to say the Civil Rights Commission wrote in favor it? No. But to oppose it. Their letter, dated June 16--just last month--addressed to the Members of the Senate and the President, said this:

We believe that the MSHCPA [Matthew Shepard Hate Crimes

Prevention Act] will do little good and a great deal of harm.

Its most important effect will be to allow Federal

authorities to reprosecute a broad category of defendants who

have already been acquitted by State juries, as in the Rodney

King and Crown Heights cases more than a decade ago. Due to

the exception for prosecution by ``dual sovereigns,'' [that

is the two sovereign entities] such double prosecutions

technically are not violations of the double jeopardy clause

of the U.S. Constitution. But they are very much a violation

of the spirit that drove the Framers of the Bill of Rights,

who never dreamed that Federal criminal jurisdiction would be

expanded to the point where an astonishing portion of crimes

are now both State and Federal offenses. We regard the broad

federalization of crime as a menace to civil liberties. There

is no better place to draw the line on that process than with

a bill that purports to protect civil rights.

They go on to say:

While the title of MSHCPA suggests that it will apply only

to ``hate crimes,'' the actual criminal prohibitions

contained in it do not require that the defendant be inspired

by hatred or ill will in order to convict. It is sufficient

if he acts ``because of'' someone's actual or perceived race,

color, religion, national origin, gender, sexual orientation,

gender identity or disability.

I am quoting from the Civil Rights Commission letter.

Rapists are seldom indifferent to the gender of their

victims. They are virtually always chosen ``because of''

their gender. A robber might well steal only from women or

the disabled because, in general, they are less able to

defend themselves. Literally they [these victims] are chosen

because of their gender or disability.

The letter goes on to state their belief that every rape in America would now be declared a crime under this bill because it is an action taken against someone because of their gender.

Professor Gail Heriot, a member of the U.S. Commission on Civil Rights, testified at our June 25 hearing. She made clear that all rapes would be covered under the bill and that, indeed, this was intentional. She said:

This wasn't just sloppy draftsmanship. The language was

chosen deliberately. Officials understandably wanted

something susceptible to broad construction, in part because

it makes prosecutions easier. As a staff member of the Senate

Judiciary Committee back in 1998, I had conversations with

the Department of Justice representatives. They repeatedly

refused to disclaim the view that all rape would be covered,

and resisted efforts to correct any ambiguity by redrafting

the language. They wanted a bill with broad sweep. The last

thing they wanted was to limit the scope of the statute's

reach by requiring that the defendant be motivated by ill

will toward the victim's group.

I think that is a serious charge made by a member of the Civil Rights Commission about the purpose of the Department of Justice in supporting this act.

I would note, it is an inevitable delight of prosecutors to have more and more power and more and more ability to prosecute criminals. That is what they do. They are wonderful people. I never enjoyed anything more than being a prosecutor, wearing a white hat every day to work and trying to vindicate decent people from criminal acts. But that is just a tendency of the prosecutorial mindset that we ought not to forget.

The truth is, during the recent hate crimes hearing, no one who testified in favor of the bill could point to a single incident where, I think, a valid hate crime was not pursued or prosecuted by State and local law enforcement officers.

In the latest statistics that are available, of the 2006 hate crimes reported in 2007, only nine were classified as murder or nonnegligent manslaughter. That is certainly nine too many. I think every one should be prosecuted. But no complaints have been raised that any of these were not vigorously or fairly prosecuted. Indeed, two-thirds of the offenses involved property defacement, such as graffiti and name- calling. Missing from the analysis is any evidence that the crimes are not being prosecuted at the State and local level. Indeed, 45 of the 50 States and the District of Columbia already have and enforce hate crimes laws. Although the language is broad and some could criticize it, these States have passed these bills, and they are able to enforce them.

Statistics show that these hate crimes, even with better reporting, have decreased slightly over the years. Forty-four States have stiffer penalties for violence related to race, religion, or ethnicity, and 31 States have tougher penalties on violence related to sexual orientation.

The question arises, do we have a basis for this massive and historic change in Federal enforcement of what have been State crimes?

Perhaps Mr. Andrew Sullivan--an openly gay man who has pioneered the effort to have gays in the military and is a well known and an able writer, provides the answer. Mr. Sullivan had this to say about the legislation.

The real reason for hate crime laws is not the defense of

human beings from crimes. There are already laws against

that--and Matthew Shepard's murderers were successfully

prosecuted to the fullest extent of the law in a State that

had no hate crime law at the time.

The real reason for the invention of hate crimes was a hard

left critique of conventional liberal justice and the

emergence of special interest groups which need boutique

legislation to raise funds for their large staffs and

luxurious buildings. Just imagine how many direct mail pieces

have gone out explaining that without more money, more gay

human beings will be crucified on fences. It is very, very

powerful as a money-making tool, which may explain why the

largely symbolic Federal bill still has not passed (if it

passes, however, I'll keep a close eye on whether it is ever

used.)

This is a gay man expressing his opinion. No doubt he takes these issues very seriously, and symbolism is important in our political world, but we need to be careful that statutes that become a permanent part of our criminal code are supported by evidence and principle.

I do not think our focus here is to deal with symbolic legislation that is broad and can expand Federal criminal jurisdiction beyond its historic role and where the facts do not support the need. In other words, more narrowly tailored legislation consistent with a constitutional right could very well be something this Congress would want to pass. To pass legislation so extremely broad again could give Federal jurisdiction for the first time in history to every rape that occurs in America. It ought to be looked at with great care and ought not to be stuck onto a defense bill and moved forward, in my opinion.

The Constitution endows Congress with limited and enumerated powers. There is no general police power in the Federal Government. So at this point, I wish to raise issues with the constitutionality of the hate crimes provision.

Congress's power is limited to what it can regulate under

the Commerce Clause. The proposed legislation is based upon

the idea that a discrete crime in a local community may have

an impact on interstate commerce. This is the same theory

that was rejected in both U.S. vs. Lopez and U.S. vs.

Morrison, where the Supreme Court essentially ruled that

intrastate violent conduct does not impact commerce normally.

Nat Hentoff, a well-respected noted civil rights and civil libertarian attorney and writer recently wrote about some constitutional concerns he has with the legislation. This is what he said:

In the definitive constitutional analysis of James B.

Jacobs and researcher Kimberly Potter, it is documented in

``Hate Crimes: Criminal Law and Identity Politics'' that in

``Grimm v. Churchill the arresting officer was permitted to

testify that the defendant had a history of making racial

remarks. Similarly, in People v. Lampkin, the prosecution

presented as evidence racist statements the defendant had

uttered six years before the crime for which he was on

trial,'' as specifically relating to the offense.

As for the 14th Amendment's essential requirement that no

person be denied ``the equal protection of the laws,'' there

is carved above the entrance to the Supreme Court the words

``Equal Justice Under Law.''

This legislation, certain to be passed by the Senate, now

it seems will come to the Supreme Court.

And I am quoting Mr. Nat Hentoff, the well-known and respected civil libertarian civil rights attorney. He says this:

When it comes before the Supreme Court, I hope the Justices

will look up at the carving as they go into the building.

They should also remember that the Fifth Amendment makes

clear: ``nor shall any person be subject for the same offence

to be twice put in jeopardy.''

But the House hate crime bill allows defendants found

innocent of that offense in a state court to be tried again

in federal court because of insufficiently diligent

prosecutors; or, as Attorney General Holder says, when state

prosecutors claim lack of evidence. It must be tried again in

federal court. Imagine Holder as the state prosecutor in the

long early stages of a Duke University lacrosse rape case.

What also appalls me, as the new federal bill races toward

a presidential signature, is that for many years, and now,

the American Civil Liberties Union approves ``hate crimes''

prosecutions. I have long depended on the ACLU's staff of

constitutional warriors to act persistently against

government abuses of our founding documents. And these

attorneys and analysts have been especially valuable in

opposing the results of executive branch lunges against the

separation of powers in the Bush-Cheney years, and still

under Obama.

Then he says this:

Is there no non-politically correct ACLU lawyer or other

staff worker or anyone in the ACLU affiliates around the

country or any dues-paying member outraged enough to demand

of the ACLU's ruling circle to at last disavow this

corruption of the Constitution?

That is Mr. Hentoff's view of it.

So this hate crimes amendment is a substantial overreach by Congress, I do believe. It is not carefully crafted or narrowly tailored. Unlike the historic civil rights statute, it seeks to federalize the violent, noneconomic conduct that is local in nature and has little or no Federal nexus.

The Supreme Court has held that violent conduct that does not target economic activity is among the types of crimes that have the least connection to Congress's commerce power. However, this is precisely the sort of violent, noneconomic conduct that this amendment would federalize.

If this approach were permissible, it would put Congress on a path to rely on the Commerce Clause and legislate any criminal law it wants. When it comes to criminal law, Congress would no longer be a body of limited and enumerated powers but would have plenary power to criminalize any and all conduct that is already criminalized by the States, a clear violation of our historical policy of not taking over State and local law enforcement.

There are still a lot of complaints over the drug laws aggressively prosecuted when I was a Federal prosecutor, and many think that was an overreach. When drugs come in, the vast majority from outside the country, they move as interstate commerce, and the courts have held that up.

But there is still intellectual criticism and concern about it. But in this case, you do not have the kind of dramatic nexus, and you also lack the evidence to suggest those cases are not being effectively prosecuted. So the sponsors have also tried to ease constitutional concerns by citing the 13th, 14th and 15th amendments.

The 13th amendment provides Congress with the limited authority to abolish ``all badges and incidents of slavery in the United States.'' I hope my colleagues are not seriously attempting to argue that assaulting someone because of their religious views or gender is tantamount to slavery.

The 14th and 15th amendments apply only to State actions, and since we have already established that States are vigorously prosecuting these actions and not ignoring them, I do not think this is a valid approach.

Finally, I would note that the legislation raises questions concerning the constitutional imperative that there be ``equal justice under law.'' Is there a legitimate, justifiable reason to punish one rape differently than another rape simply because someone decides the first rape was committed out of hate or actually because of the gender of the victim? I think the victims would say the same thing, the criminal should be punished to the fullest extent of the law.

This legislation would add a different element to certain crimes, and I know, as a former prosecutor, make it more difficult and more expensive to obtain a conviction, especially when you have to prove an individual's thought process as an underlying element to the offense.

This bill at bottom tries to distinguish between assaults by declaring if someone assaults and kills his girlfriend because she broke up with him it is not a Federal offense, but if he kills her because she claims she wanted to explore her sexual orientation and he became upset and killed her, that would be a Federal offense.

Senator Hatch offered a complete substitute on Thursday night. It was rejected. His proposal would require that a study be conducted so actual evidence can be obtained to see if there is a real serious problem with States not prosecuting these matters.

For some reason, even though Senator Hatch has been trying to get it passed for quite a number of years, the study has never been conducted, and all proposals for such a study have been rejected. I fear it is because perhaps Mr. Sullivan got it right. It is not so much about the failure of States to prosecute these crimes but about an underlying idea to pass a symbolic piece of legislation.

There is no good reason to pass such a broad piece of legislation. To pass it would be unwise. No one believes that individuals should be assaulted because of their beliefs, their gender or their sexual orientation. That type of behavior is unacceptable and should be prosecuted.

It has been prosecuted. I am sure State and local law enforcement officers will continue to do so. I believe

that if my colleagues would study the legislation and think about what they are doing, they would see that this is more unwise and the objections they have heard have far more weight than they had thought initially.

It seems like a good idea. Who would want to be against a crime that says it wants to punish hate? But there are serious matters and constitutional issues, as I noted from the Civil Rights Commission, from the civil rights attorneys such as Mr. Nat Hentoff.

I think, in truth, the Attorney General should have been more balanced in his testimony before the Judiciary Committee. He came pushing this legislation without listening or expressing any concern. But I do think he should have pointed out that it represents one of the largest expansions of Federal law enforcement in history. He should be the first to point out and express that concern. He should not allow politics to drive law in America.

I know most of my colleagues think this is the right thing to do. I wish I had been able to participate more in the debate before it was a done deal the other night. I was involved at the same time, of course, with the confirmation process.

Hopefully, we can watch this legislation come with some ideas that curtail its potential for abuse and make it better. But, in reality, I want my colleagues to know it is time for us in Congress to step back and question carefully any proposal to create new or further expand federal criminal jurisdiction that would encroach upon the historic powers of our State and local law enforcement to enforce the law in their jurisdiction.

I yield the floor.

Did we get an agreement on the time before we vote?

Madam President, I thank Senator Levin. It is always a pleasure to work with him and others who work with us to make sure that when we prosecute a hate crime that results in death, that it is possible to have the death penalty in Federal court. I think that is appropriate in those instances where it may be appropriate for the Federal Government to proceed with such a death penalty prosecution. It would be odd that it would not be possible and a crime could have resulted--easily in multiple murders--by one of the most vicious criminals one can imagine.

The next amendment I call the soldiers amendment. It is distinct from the hate crimes legislation we have been discussing. It expands the protections that the United States of America provides to its soldiers. Remember, we provide protections now to Federal officers, postmen--any Federal officer of the United States is protected, and so are soldiers in certain circumstances.

This amendment would create a new Federal crime which puts members of the U.S. military on equal footing with other protected classes. It makes it a crime to knowingly assault, batter a serviceman or immediate family member or knowingly destroy or injure

their property ``on account of the military service or status of that individual as a United States serviceman . . . ''

It is not a total expansion of Federal law, but it says if you are attacked or assaulted, battered, or your family members are simply because you are a member of the U.S. military serving your country, then the Federal Government would obviously have the ability to prosecute because it is a high duty, and no higher responsibility, for the U.S. Government to protect its soldiers from assaults arising from their service to our country.

Madam President, we have had problems with these assaults on our military officers. This will be a good step in correcting that situation.

I thank the Chair for the opportunity to speak. I hope my colleagues will support the amendment.

Madam President, I just want to say how much I appreciate the Senator's efforts. It is consistent with the retired law enforcement officers bill we passed, as I recall, not long ago that allowed them to carry their weapons in other States under certain circumstances. When people are traveling, they many times feel more vulnerable and they feel a greater need to protect themselves.

I think it is a sound and reasonable approach--limited but important--and I thank Senator Thune for offering that amendment.

Madam President, we have been busy in the Judiciary Committee with the Sotomayor hearing. I have not been able to participate in the debate over the hate crimes legislation. I want to follow up a little bit more on what I said earlier today. I have an obligation to assert a principle that I think is important in Federal criminal law.

I was a Federal prosecutor for 15 years and was very familiar with the jurisdiction issues that are involved in Federal criminal law. We need to do this right. I do not think we have done that right.

The bill has basically been made a part of this Defense bill already, so in one sense I guess the die is cast, but I will share a few thoughts.

To repeat briefly, I will quote from the letter from six, I believe, of the eight members of the U.S. Commission on Civil Rights that was received June 16, was sent to the President and members of the Judiciary Committee. They said:

We believe the MSHCPA--

That is the so-called hate crimes legislation, this is their opinion, six of the eight members--

will do little good and a great deal of harm. Provisions in

the bill ``are very much a violation of the spirit that drove

the framers of the Bill of Rights, who never dreamed that

federal criminal jurisdiction would be expanded to the point

where an astonishing proportion of crimes are now both state

and federal offenses. We regard the broad federalization of

crime as a menace to civil liberties. There is no better

place to draw the line on that process than with a bill that

purports to protect civil rights.

In other words, this is an official commission of the U.S. Government, appointed by Presidents, and that is what they sent to us.

Gail Heriot, who is a member of the commission, testified at our judiciary hearing a couple of weeks ago. She testified that:

The proposed hate crimes legislation, which is being touted

as a response to murders, should not have been treated as a

mere photo opportunity. It is real legislation with real

world consequences--and not all of them are good. A close

examination of its consequences, especially its consequences

for federalism and double jeopardy protections, is therefore

in order.

Given the many civil liberties issues that would raise,

including the routine potential for double jeopardy

prosecutions, this is a step that members of the Senate

should think twice before they take.

Bob Knight, a senior fellow--I guess I am going to show some members, liberal lawyers and conservative advocates, also sharing concern over this legislation. I hope my colleagues have not treated these concerns too lightly.

It is hard to vote against legislation that purports to fight hate. You do not want to be somebody defending hate crimes. I certainly do not. Neither do these good people who have expressed their concern.

Bob Knight, a senior fellow at the American Civil Rights Union, said this:

The proposed law, whatever its sponsors' good intentions,

is a grave threat to the constitutional guarantee of equal

protection under the law. America's legal heritage of judging

actions rather than thoughts or beliefs, and it will

politicize law enforcement by making some crime victims'

cases more important than others.

Beyond the obvious unfairness of excluding some groups from

enhanced protections, such as the elderly, homeless, veterans

and children--

They are not given enhanced protections of the hate crimes bill--

the proposed law advances an underlying ambitious agenda to

punish individuals and groups that hold traditional values.

This law:

. . . lays the groundwork for the concept of ``thought

crime,'' in which someone's views or beliefs are

criminalized. Violent acts are already illegal and punished

under criminal law. This law adds penalties based on thought.

In order to prove that the defendant holds particular beliefs

that motivated a criminal act, his or her speech, writing,

reading materials and organizational memberships would become

key evidence.

Brian Walsh, a senior fellow at the conservative Heritage Foundation, says this:

The criminal justice system is in great need of principled

reform . . . this reform should not be driven by some

partisan politics. Unfortunately, the HCPA fails to measure

up to this standard and would substantially undermine

constitutional federalism and the high regard in which the

American public should hold Federal criminal law.

The three main problems with this amendment are that:

. . . the Act's new ``hate crimes'' offenses are far broader

and more amorphous than any properly defined criminal offense

should be--

I agree with that, parenthetically. He goes on to say:

--and they thus invite prosecutorial abuse, politically

motivated prosecutions, and related injustices. The Act's

``hate crimes'' offenses violate constitutional federalism by

asserting Federal law-enforcement power to police truly local

conduct over which the Constitution has reserved sole

authority to the 50 states. The Act's ``hate crimes''

offenses would be counterproductive, for nearly all States

have--tough ``hate crimes'' laws

and the violent conduct underlying the Act's ``hate crimes''

offenses has always been criminalized in all 50 states.

Nat Hentoff is a famous civil rights and libertarian attorney, a writer well known in the country as being a passionate advocate for civil liberties from an objective, I would say, point of view. He has respect from both conservatives and liberals, but I guess his background has mostly been on a more liberal approach to law.

He starts off saying:

Why is the press remaining mostly silent about the so-

called ``hate crimes law'' that passed the House on April 29?

The Local Law Enforcement Hate Crime Prevention Act passed in

a 249-175 vote--17 Republicans joined with 231 Democrats.

These Democrats should have been tested on their knowledge of

the First Amendment, equal protection of the laws . . . and

the prohibition of double jeopardy. . . . No American can be

prosecuted twice for the same crime or offense. If they had

been, they would have known that this proposal, now headed

for a Senate vote-- violates all these constitutional

provisions.

This bill would make it a federal crime to willfully cause

bodily injury--or try to--because of the victim's actual or

perceived ``race, color, religion, national origin, gender,

sexual orientation, gender identity or disability''--as

explained on the White House Web Site, signaling the

president's approval. A defendant convicted on these grounds

would be charged with a ``hate crime'' in addition to the

original crime and would get extra prison time.

The extra punishment applies only to these ``protected

classes.''

He quotes a Denver, CO criminal defense lawyer:

As Denver criminal defense lawyer Robert J. Corry Jr. asked

. . . ``Isn't every criminal act that harms a person a hate

crime?'' Then, regarding a Colorado ``hate crime'' law, one

of 45 such state laws, Corry wrote:

``When a Colorado gang engaged in an initiation ritual

specifically seeking out a `white woman' to rape, the Boulder

prosecutor declined to pursue ``hate crime'' charges. She was

not enough of one of its protected classes.''

Corry adds that the State ``hate crime'' law--like the

newly expanded House of Representatives Federal bill--``does

not apply equally,'' as the 14th amendment requires,

essentially instead:

``Criminalizing only politically incorrect thoughts

directed against politically incorrect victim categories.''

Hentoff concluded:

Whether you're Republican or Democrat, think hard about

what Corry adds:

``A government powerful enough to pick and choose which

thoughts to prosecute is a government too powerful.''

David Rittgers of the CATO Institute, a libertarian group, said this:

The Federal hate crimes being considered in the Senate

undermines the rule of law and shows casual disregard, if not

outright hostility, for the principles of limited government

and equality under the law. The bill Federalizes violent acts

against victims by reason of their actual or perceived race,

color, religion, national origin, gender, sexual orientation,

gender identity or disability.

Never mind that these acts are already prosecuted by the

states--45 of which have their own hate crime laws--and that

violent crimes of this nature are universally perceived as an

affront to justice. Matthew Shepard, a gay man brutally

killed in Wyoming, has provided one of the rallying cries for

passage of this legislation. His killers both received two

consecutive life sentences from a state court. James Byrd,

Jr., the African-American man dragged to death behind a truck

in Texas, is cited as another reason to pass the law. His

killers received death sentences or life imprisonment.

The federal government would also be authorized to

prosecute whenever ``the verdict or sentence obtained

pursuant to State charges left demonstratively unvindicated

the Federal interest in eradicating bias-related violence.''

While this doesn't violate the letter of the Supreme Court's

double jeopardy jurisprudence--the federal and state

governments are considered separate sovereigns--it certainly

violates its spirit.

The National Religious Broadcasters write they are opposed to the concept as well as the current legislative permutations of the so- called ``hate crimes.'' This legislation takes any conduct that is viewed as a threat to homosexuals or bisexuals or a threat to persons who want to immunize their religion from public debate and turns that threat or perceived threat into a species of criminal felony. As a consequence, this legislation will inevitably stifle the free exercise of religion and freedom of speech, and brings with it the very real likelihood of abusive prosecutions. Federal ``hate crimes'' laws also ignore the fact that the underlying core offense, the causing of bodily injury to another, is already criminalized in all 50 states.

The Research Council says this:

Hate crimes laws force the courts to guess the thoughts and

beliefs which lie behind a crime, instead of looking at the

crime itself.

The Family Research Council believes that all crimes should be prosecuted to the fullest extent of the law, and that every violent crime has some form of hate behind it. All around the country, crimes are being prosecuted in the State justice systems. American justice is being done. There is simply no need for a Federal hate crimes law.

Violent attacks upon people or property are already illegal, regardless of the motive behind them. With hate crime laws, however, people are essentially given one penalty for the action they engage in and an additional penalty for the particular and highly selective attitudes and thoughts that motivated these actions.

Motive-based analysis and intent-based analysis are not the same thing. For example, with the crime of manslaughter, intent-based analysis looks at whether the perpetrator intended the result. Hate crime legislation takes into account what the offender thinks, feels, or believes about the victim regardless of whether the perpetrator intended the result. This is why hate crimes may be referred to as ``thought crimes.''

The Traditional Values Coalition says:

The so-called hate crimes bill will be used to lay the

legal foundation and framework to investigate and prosecute

and persecute pastors, business owners, Bible teachers,

Sunday School teachers, youth leaders, Christian counselors,

religious broadcasters, and anyone else whose actions are

based upon and reflect the truths found in the Bible, which

have been protected by the first amendment.

That is not accurate? Well, they are concerned about that. And they object to the legislation.

The Concerned Women for America note that:

The legislation would violate genuine constitutional rights

in an attempt to address a nonissue, create a caste system of

victims, violate the spirit of the Double Jeopardy Clause of

the Constitution, and unintentionally extend privileges to

individuals who engage in illegal sexual acts even against

children.

I would share those thoughts and say that this is why this legislation has been controversial. The predicate for this legislation is the interstate commerce tag that is very weak. The Supreme Court has already found several Federal statues do not have sufficient interstate nexus to justify prosecuting a crime in Federal court.

I would say if a few people walk out in the pasture and one finds a rock and murders a person, as a Federal prosecutor for 15 years I will tell you, there is no jurisdiction federally to try and prosecute that case. It is a criminal case in the State court only. And to make it a Federal case, you have to have some sort of peg to hang your hat on, so to speak.

In that case, I do not think there is any. But if you are on a railroad train and you are traveling and you are in interstate commerce, you murder someone, that can be a Federal crime. If you steal from an interstate shipment, that can be a Federal crime. If you murder a postman, that is a Federal crime--or a Federal civil servant, and so forth. Those are Federal crimes. But normal murder, rape, robbery, theft, that occur by the tens of thousands every day all over America are not Federal crimes. They are not prosecutable in Federal court.

The very small number of FBI agents, compared to the massive numbers of police and sheriffs, deputies, and State law enforcement officers is such that there is no way they can ever begin to prosecute or investigate these crimes. They have to focus on those crimes that are uniquely Federal, vindicate a uniquely Federal interest.

With regard to the Civil Rights Act that was passed in the 1960s, it has some similarities, although it is more tightly written.

I will conclude with these thoughts: There was a demonstrable record of failure to prosecute violations of civil rights against African Americans in the South, sad to say, and in other places in this country. It appeared that local law enforcement was ineffective, sometimes unwilling, to vindicate those rights, and so the Civil Rights Act said: If you are going to school or a legal activity at the city or county or Federal Government or voting and you are interfered with, that can be a Federal offense.

There was a clear record to justify the need for Federal involvement in those cases. And most of those cases, I think virtually all, have been upheld as being sufficiently tied to interstate commerce to be a legitimate Federal crime to prosecute.

We asked the Attorney General at a hearing recently, can he name any cases? He did not name a single one. But he said in his statement there were four. After the hearing we submitted questions to the Attorney General: Did he have any cases to show that these prosecutions are not being effectively prosecuted locally?

He stood by the four. That is all we ever got over a period, I think, of 5 years. At least that is what I asked him for. And the four cases were very insubstantial. In each one of the four cases prosecutions were initiated. I think in all but one convictions were obtained.

Some people were not happy with the results of the case, and they would have liked the Federal Government to take it over and prosecute it again. But as I said, there are tens of thousands of cases prosecuted every day, and many victims in those cases felt that the outcome of the case was not sufficient. They would like also for the Federal Government to prosecute it again. But they might not have been in these ``special classes'' that got this ``special benefit'' in this bill.

Do you see then what it is all about? It is basically saying that the Federal Government sits up and hovers above the criminal justice system, and it can decide whenever, based on the length of the chancellor's foot, I suppose, when a case has not effectively resulted in justice.

They said in their answer, they want to make sure that there is justice every time. That is a pretty high goal, I have got to tell you, especially when people might not agree. Juries make decisions. I hope we in this Congress will understand the huge responsibility we have to the historic concept that crimes of a local nature should be prosecuted locally, and that the Federal Government does not need to be involved in everything to try to ensure perfect justice.

Indeed, it is not involved in every case and it never has been. It should not be. I wanted to make these quotes a part of the Record, and call on the Members of the Senate as we go forward in the future to make sure that the legislation we pass is consistent with our heritage, which understands that the Federal Government does not have a general criminal power, has only narrow limited enumerated power to make crimes Federal, and we ought not overreach and create a situation in which, according to the U.S. Civil Rights Commission in their letter to us: Every single rape would be a Federal crime because the action would have been carried out as a result of the gender of the person being assaulted.

Ms. Heriot said she had talked with the Department of Justice in previous years about this, before she was on the Commission, and they refused to narrow the language because they wanted that broader language.

I think that is too broad. This bill is too amorphous and too broad and should not become law.

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

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

Mr. President, today marks President Obama's sixth month in office. The President began his term with an enormous amount of goodwill, high approval ratings and pledges to work in a bipartisan way. In the earliest days he reached out in a bipartisan way to secure passage of administration priorities and Republicans reciprocated. For example, I joined the President in supporting the release of the second tranche of financial stabilization money. But the administration has become increasingly partisan in the months since then. The effectiveness of the President's policies is increasingly questioned by the American people as spending and deficits have skyrocketed. Unemployment has gotten much worse since he took office, and America's interests abroad have been challenged with little response.

Let me first speak to the issue of domestic policy, spending and debt. On domestic policy, President Obama's first 6 months in office have been characterized by unprecedented spending and debt accumulation. In 6 months, President Obama has put the country on a course to spend more and accrue more debt than any President in history; in fact, to take on more debt than all of the other Presidents in the history of the United States combined. The President has at the same time exercised the power of government in unprecedented ways. The President knows this is greatly concerning to the American people. So on June 16, President Obama told an interviewer:

I actually would like to see a relatively light touch when

it comes to government.

But when it comes to the size and scope of the government, nothing President Obama has done in his first 6 months resembles a light touch. Time after time, he has pushed government intervention and takeovers and huge spending increases as the preferred solutions to various problems, whether it is to stimulate the economy, reform health care, or bail out bankrupt car companies.

The President cites the economic downturn as a reason to clear the way for more and more new spending, but we still don't have any evidence that this record-breaking spending has actually helped the economy. Take the $1.2 trillion so-called stimulus bill. In pitching the stimulus to the Nation, the President pledged that ``a new wave of innovation, activity, and construction would be unleashed all across America.'' The administration also said it would help keep unemployment from topping 8 percent and ``save or

create 3.5 million new jobs.'' He insisted Congress rush the bill through despite concerns about the cost and the Government's ability to disburse funds in a timely way.

As we now know, since President Obama signed the legislation, far from stopping unemployment from exceeding 8 percent, unemployment has now reached over 9.5 percent and is headed to at least 10 percent. The economy has lost over 2 million jobs, including 433,000 last month. According to the White House Web site, which tracks stimulus spending, only 7.68 percent of the stimulus money has been funneled into the economy.

In an article for the Washington Post, Michael Gerson explains why the stimulus is having such a negligible effect:

Pouring money into the economy through a thirst sponge of

federal programs . . . is slow and inefficient.

Just as Senate Republicans argued when we opposed this plan.

The nonpartisan Congressional Budget Office projects less than a quarter of the funds earmarked for this bill will be spent by the end of this year, with the lion's share being distributed over the next 3 years, by which time, hopefully, the recession will be over. If that is the case, the administration will no longer have a justification for this stimulus spending. But taxpayers will still be on the hook for the hundreds of billions of dollars the government will have to borrow to pay for it.

Thanks to a new report by Senator Coburn, we know more about some of these wasteful projects that have been funded by the so-called stimulus or are awaiting funds, including a $23.5 million turtle tunnel in Florida, a $550,000 skateboard park in Rhode Island, and even $40,000 to give someone a job in North Carolina to lobby for more stimulus funds. That is just a handful of the projects approved so far.

So what has happened to the President's plan to spend wisely? That brings us to the budget. The President's $3.4 trillion 10-year budget also defies the idea of a light touch. In an editorial about the budget, the Wall Street Journal wrote:

With [his] fiscal 2010 budget proposal, President Obama is

attempting not merely to expand the role of the federal

government, but to put it in such a dominant position that

its power can never be rolled back.

So the spending is the means to an end, a bigger government that can never be tamed. To understand the magnitude of the budget the President proposed, consider: Federal spending will skyrocket to 27.7 percent of the gross domestic product in 2009. That is up from 21 percent of GDP in 2008. According to the CBO's monthly budget review, for the first 9 months of the 2009 fiscal year, outlays are 21 percent higher than they were in the first three quarters of 2008, though revenues have fallen by 18 percent. Federal spending will make up a greater share of the economy in 2009 than in any year since 1945, when the country was still fighting World War II. It is also a greater share of the economy than during the Vietnam war or during the recessions of 1974-1975 or 1981- 1982.

The debt created by his budget will be greater than the combined debt created by the budgets of each of the previous 43 Presidents, all the way back to President Washington. By the end of this fiscal year, our publicly held debt will amount to roughly 57 percent of the gross domestic product and deficits of $1 trillion every year are predicted for the next decade. This will drive the debt to 82 percent of the gross domestic product by the year 2019. Interest payments on this debt will soon make up the single largest item in the debt. In fact, as for the interest cost, beginning in 2012 and every year thereafter, the government will spend more than $1 billion a day on finance charges to holders of U.S. debt. That means Federal spending on finance charges for the government's debt will be a whopping $5,700 per household in 2019.

Americans are weary of this kind of debt, to say the least, and many don't think it is fair for Washington to overspend and then simply pass the bill on to our children and grandchildren.

These levels of spending and debt would be reckless in the best of economic times, and they are not consistent with President Obama's pledge for a new era of fiscal responsibility.

Let's turn to health care.

The American people--and those of us in Congress--want health care reform. That is not in question. But President Obama is proposing a trillion-dollar health care program that would, according to the Congressional Budget Office, cause millions of Americans to lose their current care by providing an incentive to employers to drop their health care coverage.

How is this consistent with the President's assurances that if Americans like their current insurance, they can keep it? Remember, 85 percent of Americans have insurance and the vast majority of them like their coverage and they do not want to lose it.

President Obama frames this huge new entitlement as a cost-saving, deficit-reducing measure. At a July 1 townhall meeting in Virginia, the President told participants:

If we want to control our deficits, the only way for us to

do it is to control healthcare costs.

But does anyone believe that creating a new trillion-dollar, Washington-run health care bureaucracy will reduce costs? When in history has a new government program ever reduced costs? Our two current government-run health care programs--Medicare and Medicaid--are both on financially unsustainable paths. Medicare alone has a $38 trillion unfunded liability over the next 75 years and is in urgent need of reform.

Some of the projected revenue for the President's plan comes from cuts in Medicare. How is it fair to cut seniors' care to pay for a new government-dominated system for nonseniors, especially since Medicare is already in financial trouble? This would ultimately lead to shortages, rationing, and the elimination of private plan choices-- something our seniors rightly fear.

It does not make much sense to strip funds from those already participating in government health care and to then use the savings for the creation of a massive new government health care system that few people want. Americans rightly worry the President's proposals will lead to the kind of denial and delay that happens in Canada and Great Britain.

The President has even said:

What I think the government can do is be an honest broker

in assessing and evaluating treatments.

That can only mean one thing: denial and delay of care. In that kind of system, Federal boards would dictate what is best for you and me, if our health care is worth the money, and drive a wedge between doctors and patients.

President Obama said recently:

When you hear the naysayers claim that I am trying to bring

about government-run healthcare . . . know this, they are not

telling the truth.

Well, maybe the President does not like the term ``government-run health care'' because it is not popular with Americans. But a plan administered by the government, with prices and policies and treatments evaluated and dictated by Washington bureaucrats, is government-run health care, plain and simple.

On another issue, cap and trade: One of the President's oft-repeated campaign pledges was he would not raise taxes on middle-income Americans. But the cap-and-trade legislation he and congressional Democrats are backing would do just that.

On June 26, the House of Representatives passed cap-and-trade legislation described by Harvard University economist Martin Feldstein as ``a stealth strategy for a massive long-term tax increase.''

The bill would implement a cap-and-trade program with the goal of reducing carbon dioxide emissions into the atmosphere. Cap-and-trade programs set strict mandatory limits on carbon emissions from various sources, such as electric utilities. Those sources would then either reduce carbon emissions or buy or trade emission allowances to achieve the required overall emissions reductions.

The energy bill would not directly raise taxes on Americans; that is, they will not necessarily see a larger income tax bill at tax time in April. Rather, cap and trade increases the cost of living for everyone by raising energy costs and consumer prices for virtually everything. The effect would be the same as if the IRS sent them a tax bill.

When the nonpartisan Congressional Budget Office analyzed the cost of a reduction of carbon emissions by 15 percent below 2005 levels, it estimated a

family's cost of living would increase by $1,600.

To put that $1,600 carbon tax in perspective--

Martin Feldstein wrote--

a typical family of four with earnings of $50,000 now pays an

income tax of about $3,000. The tax imposed by the cap-and-

trade system is, therefore, equivalent to raising the

family's income tax by about 50 percent

That is $1,600 that families will not be able to spend or save for the future.

In addition to the tax increase, cap and trade would retard economic growth. The Heritage Foundation analyzed the proposal and concluded it would slow long-term growth by almost $10 trillion over the next 26 years. Jobs would be lost. The Heritage Foundation's analysis, in fact, found that my State of Arizona would lose thousands of jobs.

Proponents of the cap-and-trade proposal argue that job losses will be offset by the creation of new green jobs. But it is not at all certain those jobs will materialize, let alone make up for the jobs that are lost. In Spain, where government has invested heavily in green jobs, two jobs are lost for every green job created, according to Spanish economist Gabriel Calzada.

Especially at a time when the economy is shaky and unemployment has reached a 25-year high, I am disappointed the President is promoting this legislation that not only would violate his campaign promise but would cost taxpayers billions of dollars and harm jobs.

Let me now address some issues that are not directly domestic: free trade issues and problems with Iran and North Korea.

First, on free trade: I am very disappointed that the administration has not made free trade a top priority. It has failed in its first 6 months to take any action on bilateral trade pacts with Colombia, Panama, and South Korea--all of which were signed under President Bush. These trade deals would provide a boost to the U.S. economy and would also strengthen U.S. partnerships in two important regions. Not only has the administration failed to move swiftly on these trade agreements, it has also supported a number of damaging protectionist measures, such as a ``Buy American'' provision in the stimulus package.

These policies have angered U.S. trading partners and hurt America's credibility as a promoter of free trade liberalization. They have already triggered retaliation. For example, after the administration canceled a trucking program with Mexico--a program opposed by the Teamsters Union--the Mexican Government responded by slapping tariffs on a range of American imports, including wheat, beans, beef, and rice. A global recession is no time in which to start a trade fight.

With Iran: There are few regions of the world as volatile as the Middle East. Yet the administration's approach to Iran has been regrettable, to say the least.

When prodemocracy demonstrations were being suppressed in Tehran, the President offered barely a word of support for the people putting their lives on the line for their freedom.

Iranian people were met with violence after they took to the streets to peacefully protest the validity of Iran's Presidential election in June to declare their support for free elections and oppose Iran's oppressive police state.

The President likes to say: Words matter. Very true. But his initial statement referring to ``deep concerns about the election'' failed to condemn the Iranian theocracy and lacked moral fortitude. And even as pressure rose on the President to take a stronger stand, he declined to provide the leadership the world expects from America, the standard bearer for freedom and democracy.

As the Weekly Standard recently editorialized:

Since June 12, [President Obama has] done nothing to help

those Iranians who have been seeking, in the words of Thomas

Jefferson, `` . . . to assume the blessings and security of

self-government.''

Explaining his reticence, the President said:

It's not productive, given the history of U.S.-Iranian

relations to be seen as meddling--the U.S. president meddling

in Iranian elections.

The United States should be lending full-throated voice to the democratic aspirations of the Iranian people, while seeking to impose sanctions on their oppressors. It is not meddling for the world's oldest and greatest democracy to stand with them.

The administration's Iranian policy was flawed from the beginning. It came into office with the idea that it could negotiate a ``grand bargain'' with the mullahs on Iran's nuclear program and would meet with its rogue leader without preconditions. With the mullah's repression of dissent following Iran's flawed elections, that has all gone by the boards. Of course, it was always destined to fail.

Was it ever realistic to believe this is a government with which we can successfully negotiate--a government that sponsors terrorism and murders peaceful student protesters and does not even have the mandate of its own people? What do we think we can give this government more than it wants a nuclear weapon?

What is more, what message do we send to the Iranian people, many of whom have been arrested, tortured, and had family members killed, by negotiating with this regime while it robs its own people of their fundamental rights? I do not believe the United States can deal in good faith with a regime that so violently suppresses its own citizens. I hope the President will come to agree.

With regard to North Korea, the administration's reaction to North Korea's recent activity is also of concern. As Pyongyang prepares for the transition of power from Kim Jong Il to his son Kim Jong Un, the regime's behavior has become increasingly belligerent and unpredictable.

North Korea has pulled out of the six-party negotiations, restarted its nuclear program, test launched several ballistic missiles, and conducted a suspected underground nuclear test. The regime even declared that it has now abandoned the armistice that brought a cease- fire to the Korean war.

What has the Obama administration done in response to this threat to the security of other nations in the region and indeed to the very security of the United States? The answer is disappointing. It has cut missile defense.

The President's budget cut the Missile Defense Agency's budget for fiscal year 2010 by $1.2 billion and decreased the planned number of Ground-Based Interceptor missiles in Alaska from 44 to 30. These proposals amount to almost a 15-percent cut in the Missile Defense Agency's budget and a major reduction in our missile defense portfolio--at the very moment we should be increasing our capability to defend ourselves and our allies from the North Korean threat.

Finally, a word about the prison at Guantanamo Bay. I think this is important in evaluating the first 6 months of this administration because one of the very first acts of the President, after he was inaugurated 6 months ago, was his self-imposed deadline to close the facility at Guantanamo within 1 year.

A majority of Americans strongly oppose the closure of Guantanamo. Congress has refused to support President Obama's arbitrary deadline to close the facility without a plan, for example, showing where he will relocate the terrorists. The administration has convinced Palau and Bermuda to take a few detainees, but this is not much of a solution if the President is determined to close the facility in just another 6 months. Where will the rest of the detainees still housed at Guantanamo Bay go? We still do not know.

Ultimately, the debate over Guantanamo has become a debate over geography. Both the new Attorney General and the new Solicitor General have endorsed the government's right to detain suspected terrorists indefinitely. Whether we can detain them at Guantanamo or at prisons on U.S. soil does not change the fundamental reality that this administration, similar to its predecessor, will be holding certain individuals without trial.

We have been told that Guantanamo must be closed for symbolic reasons. But America should never make national security decisions based on symbolisms--or on false moral arguments.

In conclusion, on the campaign trail and after his election, President Obama repeatedly promised ``change we can believe in'' and the end of partisan politics in Washington. He pledged to bring Republicans and Democrats together.

On election night, he said:

Let us resist the temptation to fall back on . . .

partisanship.

But partisan politics looms larger than ever. Congress is urged to rush costly legislation through, despite frequent Republican concerns about the pricetag and the efficacy of the legislation. Indeed, the President's budget and stimulus both passed mainly on party lines.

As Michael Barone recently wrote, the President:

Brings [to Washington] the assumption that there will

always be a bounteous private sector that can be plundered on

behalf of political favorites. Hence, the takeover of

Chrysler and GM to bail out the United Auto Workers union.

Six months later, President Obama continues to take unnecessary jabs at his predecessor. On his promise for change, more government debt, government bailouts, and large transfers of the economy from the private to the public sector are not what Americans are looking for.

Americans want the President and Congress to support the private sector to help the economy get back on track, without tidal waves of spending, debt, and new taxes. They want real health care reform without a government takeover, and they want the President to lead us in this dangerous world, acknowledging the harsh reality that not every rogue regime will respond to smooth talk.

In the next 6 months, and beyond, I hope the President will take a more sensible and, indeed, more bipartisan course so we can all accomplish what the American people seek.

The following Senators are necessarily absent: the Senator from Utah (Mr. Bennett), the Senator from Missouri (Mr. Bond), the Senator from Florida (Mr. Martinez), and the Senator from Alaska (Ms. Murkowski).

Madam President, I commend the Secretary from Texas for her commemoration of this spectacular day when Americas went to the Moon. One of them was a fellow named Buzz Aldrin, who lived in the town of Montclair, NJ, the town that I inhabited for many years.

It looked as though it were a fairly simple mission. Now as we study it more thoroughly and realize what conditions were like there--the dust was threatening to the people, to the machinery, to the ship that took them there, to the spaceship that took them there--it was a remarkable event. I join the distinguished Senator from Texas in her tribute.

Madam President, this past Friday, five policemen from a city in New Jersey, Jersey City, were shot by a single gunman. On the previous Wednesday, only a few hundred feet from the steps of this Senate, a gunman fired an assault weapon at Capitol policemen. Despite this point in time, after all of that mayhem last week, we have seen the prospect for more gun violence offered by the Senator from South Dakota.

He has offered an amendment that would gut State public safety laws and make it easier to carry concealed weapons across State lines, regardless of the laws of that State. Currently 48 States do allow some sort of concealed carried weapons. The standards vary from State to State based on each State's law enforcement needs and challenges. But under this new idea, this amendment would permit a concealed carry permit from one State to simply override the rules in other States. If I get a permit in State A, I can go to State B, C, D, any one I choose, with a weapon on my back, on my hip, wherever I want it. And I don't think it matters how many guns one carries.

Understand this thoroughly, that despite a State's laws on availability of concealed guns, Congress would override them. The State says no. Congress would say: No, we want the Federal Government to be able to tell you what to do. That is unusual, because I think the offeror of this amendment is more often a States rights person. But now he wishes Congress to override State laws and make one's own State follow this mandate. It would deprive one's State from making its own decisions on the issue. One's constituents would not be able to say they don't want this to happen. In fact, this amendment would allow some people to carry concealed assault weapons, multifiring, multishell firing weapons in States where those assault weapons are not even permitted.

The amendment before us is more about the right of States to make their own decisions about how they keep families in their States safe from gun violence. This amendment would allow almost anyone anywhere to carry a concealed firearm regardless of that State's law. Strangers coming into town carrying a hidden weapon have an open sesame opportunity to go anywhere they darn please--into town, into a school, into a sporting event, into a shopping mall, anywhere they wish to go regardless of what that State's laws are. Because under this amendment it is clear: If you have a license for a permit from a State in the Far West and you want to carry it to the eastern part of our country, you can do so. Just take away the public safety laws in that State and essentially erase the fact that they are now in the laws.

The amendment declares to State governments that they don't know how to take care of themselves. The gun lobby in Washington is the best place to go to find out what you should or can do. We can't tolerate such an insult.

Here are some of the State concealed weapon requirements that would be wiped out by the amendment. Eighteen States prohibit alcohol abusers from receiving carry permits, including South Dakota. Under the Thune amendment, these 18 States would have to allow alcohol abusers from other States to carry a weapon into their State. Twenty-four States prohibit those convicted of certain misdemeanor crimes, including Pennsylvania, which does not allow those convicted of impersonating a police officer, to carry concealed weapons. Under this amendment, those prohibitions would be violated. Nineteen States require those seeking concealed carry permits to complete gun safety programs. Under this amendment, those States would have to allow untrained, untested gun users from other States to carry concealed firearms. It is an outrage.

The proponents of this amendment claim they are respecting each State's concealed carry laws. That is simply not true. Not only does the Thune amendment override a State's concealed weapons law, it also overrides State laws restricting the type of guns that can be possessed in that State, such as assault weapons. Think about that; the type of guns that are restricted in the State, that rule would be obviated, and you would have to permit the licensed gun owner from a far different State to come in.

I have a letter from 400 mayors opposed to the Thune amendment. Over 400 mayors wrote to the Congress and said: Vote no on the Thune amendment, including 106 from Pennsylvania, 51 from Florida, 50 from Ohio, 13 from Wisconsin--the list goes on--from Louisiana, from Missouri, from South Carolina, from almost every State in the country that has its own gun laws. They have written and said: Don't do this.

As these mayors explained in their letter:

Each state ought to have the ability to decide whether to

accept concealed carry permits issued in other states.

I ask unanimous consent that this letter be printed in the Record.

As the mayors make clear, the Thune amendment savages the rights of States to enact their own laws. Unfortunately, this dangerous amendment doesn't end there. It would unleash total havoc by suddenly letting dangerous and unstable people carry weapons into other States and across State lines. Supporters of this amendment claim that only ``law-abiding citizens'' get their hands on concealed weapons permits. That is not true. Over the 2-year period from May 2007 to April 2009, concealed carry permit holders killed seven law enforcement officers with guns. In fact, the Florida Sun Sentinel did an investigation of concealed carry permit holders in Florida and found that Florida granted concealed carry weapons to more than 1,400 people who pled guilty or no contest to a felony; 216 people with outstanding warrants were allowed to carry a gun; 120 people with active domestic violence injunctions; and 6 registered sex offenders.

I worked very hard some years ago--going back to 1996--to get a rule on issuing guns that would say to those convicted of misdemeanor spousal abuse should be unable to get guns. It was scoffed at by some who were here at that time who said: This isn't a gun matter. It is nothing too serious and why bother. I am pleased to tell the Senate that with Supreme Court affirmation about 6 months ago, saying that the law prohibiting gun permits to spousal abusers stood, 150,000 of these people were denied guns.

When I look at these things, it raises a question. While a State such as Florida works to correct these problems, should every other State be forced to allow felons, domestic abusers, and sex offenders to carry guns within their States? I don't want it in my State.

This is a reckless amendment that would force States from coast to coast to comply with the weakest conceal carry laws. A few months ago in Alabama, a person holding a concealed carry license went on a murderous rampage that lasted almost a full hour and spanned two communities. First he shot and killed his mother in Coffee County, AL. He then put on a vest loaded with firearms and ammunition, got into his car and drove into town. Once there he shot and murdered 10 innocent people--we can't forget that--including two young mothers, a father, and an 18-month-old child. It was later discovered that this killer had qualified and been issued a concealed weapons permit from the Coffee County sheriff's department.

A few weeks after Mr. Mclendon's murderous rampage in Alabama, there was a premeditated shooting spree in upstate New York. The gunman drove his car up to a citizenship services center in Binghamton, NY, barricaded the backdoor with his car, and then burst through the front entrance with two handguns and a bag full of ammunition. In what would become the worst mass shooting since the tragic assault at Virginia Tech, the assailant opened fire, killing one receptionist and wounding another.

He then entered a classroom where he sprayed gunfire, killing 12 more innocent people and wounding 7 others. The gunman then committed suicide. The killer was no stranger to guns. He was a firearms enthusiast and even though he had been convicted of a misdemeanor, he held a license to carry concealed weapons.

The day after the city of Binghamton was terrorized by a gunman, two police officers arrived at a house in Pittsburgh to quell a domestic conflict between a man and his mother. When the two officers entered, they were ambushed and killed. The assailant was carrying three firearms and wearing a bulletproof vest and murdered the policemen with an AK-47.

Minutes later, the gunman shot and killed a third officer who arrived at the scene. The attacker held the police at bay for 4 hours before surrendering. It was later learned the killer had been arrested for domestic abuse against his girlfriend but held a concealed weapons permit.

We have to face up to this. This amendment would let more brutal people carry concealed weapons legally--

and not just in their own town or in their own State but in other States and across State lines.

This amendment would also open the floodgates for gun trafficking. A gun dealer who sells firearms to criminals would be free to travel across the country with a car full of loaded weapons as long as the driver had a concealed weapons permit from some other State. The fact is, if the police were to discover the pile of guns in the trafficker's trunk, the police could do nothing about it.

The prospect of this scenario is no exaggeration. Last year, a report showed that one-third of firearms sold on the black market came from States with weak gun safety laws. The Thune amendment would simply exacerbate this problem and make it easier for gun traffickers to supply known criminals--including terrorists--with weapons.

The scourge of gun violence and gun deaths is a menace this Chamber must take seriously. Think about it. All of us here represent a State-- all of us, two per State--and we are being told by one of our Members that what we ought to do is let the Federal Government decide how we care for our people: decide, the Federal Government, how safe our streets ought to be; decide, the Federal Government, to ignore or obviate laws we have on our books, and say: We are going to override your books. We know best what is good for you.

Well, those in other States--whether Illinois or San Francisco, CA, or Houston, TX--do not know better about what we ought to do in New Jersey than we do about them, and we should not allow this to take place.

Just look at the toll gun violence takes on our most innocent and defenseless in our country. Every single day, 8 children die because of gun violence, while another 48 kids are shot. They, however, manage to survive their gun injuries. Think about it: over 50 kids shot each and every day. It is a tragedy in America.

The Thune amendment would place our communities in danger in further danger than we already have. That is why law enforcement leaders--the very people who put their lives on the line to combat criminals and keep families safe--are against the Thune amendment. I have a letter from the International Association of Chiefs of Police opposing this amendment. As the letter explains, the police chiefs urge Congress to ``act quickly and take all necessary steps to defeat this dangerous and unacceptable legislation.'' The Association of Chiefs of Police--if anybody ought to know what is good for their communities, it should be the chiefs of police.

Madam President, I ask unanimous consent that this letter be printed in the Record directly following my remarks.

It is no wonder that when police departments are in charge of issuing concealed weapons permits, they are very conservative about whom they allow to have these permits. Nevertheless, the amendment from Senator Thune would defer to the weakest--think this through--would defer to the weakest concealed permit laws. So now untrained, amateur gun owners will be free to carry a hidden firearm in other States and across State lines.

Do we want to completely disregard State law enforcement officers' decisions or do we want criminals wandering our streets with pistols in their backpacks or carrying them on their sides or do we want unstable drivers stuck in rush hour with guns in the front seats of their cars? I do not.

These are critical questions, and they should not be resolved by an amendment tacked onto a Defense authorization bill--defense. We have our soldiers, and the toll keeps rising in Afghanistan. By no means is Iraq a safe place to be. They should not have to be further jeopardized or have their health threatened. We see what conditions are like. We see the reports from the war front. This bill ought to be moved along just on the Defense authorization.

On Thursday, the Judiciary Committee is going to hold hearings on Senator Thune's proposal. That hearing will give everyone a fair opportunity to get all the facts, hear from both sides of the issue, and learn from the testimony of experts. The hearing will include law enforcement officers testifying against this legislation. They deserve to have their voices heard. We should not shortcut the legislative process and the vital work of the Judiciary Committee.

Before I close, I wish to make one thing crystal clear: This amendment has nothing to do with individuals' rights to protect themselves in their own homes. A concealed weapons permit is a separate and special privilege that lets gun owners hide their firearms in a jacket or a bag as they travel in the community and go out in public. Whether they are riding in a bus or a car or walking down the street, they can have that weapon.

Why in our world is it necessary to make sure those who want to carry a concealed weapon can go anyplace they want with this weapon? You know what happens. We read about fights occurring in cafes all the time. To just allow people to come in there with weapons and see what happens after alcohol or too much celebration? Bad idea, and we should not allow it.

States and local communities must be allowed to choose who has earned this privilege, based on what is in the best interest of that particular State or community. Unfortunately, this amendment takes the power away from the local community, away from the State capitals, and leaves the decision about what is in the public interest to the gun lobby and the politicians here in town--lobbyists in many cases.

The Thune amendment poses extreme danger to our country, and it blatantly nullifies State laws and State rights in favor of a radical agenda. I strongly urge my colleagues to vote no on the Thune amendment.

I recently was traveling with my wife out West, and we were interested in seeing a particular baseball team play. We know the owners of the team. The hotel had a gun show.

By the way, I carried a gun. It was not concealed. I did it in a uniform during a war, and I loved that weapon. But it had a mission. It had a mission to kill somebody else before they killed me. That is not what we typically see with concealed weapons.

In this case, we were at this hotel gun show, and people were buying ammunition for their purpose. There was lots of activity. Lots of ammunition was being put in the back of cars. The State, though, in that case permitted it. There could not be any objection. The State decided what was best for its citizens and its communities, and they did just that. I do not agree with that, but I cannot object. If that State wants to do it that way, they are entitled to do it that way, and who am I, from the State of New Jersey, to tell them how they should conduct themselves in those moments? I have no right to do that.

So here we are. We are faced with an amendment that says nobody in the State knows what is better for their people than does the gun lobby, the NRA, the gun manufacturers. We disagree with that, and I hope we will show the American people we care enough about them and respect their intelligence--respect the fact they have their own structure in their States to take care of their needs as they see them. We do not want to see intruders carrying guns coming into those States--not mine, not yours, not anybody's--who do not pass the test that is required within that State's jurisdiction before they go around town with their weapons.

Exhibit 1

International Association

of Chiefs of Police,

Alexandria, VA, July 17, 2009.

Hon. Harry Reid,

Majority Leader, U.S. Senate,

Washington, DC.

Dear Majority Leader Reid: On behalf of the International

Association of Chiefs of Police (IACP), I am writing to

express our strong opposition to S. 845, the Respecting

States Rights and Concealed Carry Reciprocity Act of 2009.

This bill would weaken existing state laws by allowing an

individual to carry concealed firearms when visiting another

state or the District of Columbia as long as the individual

was entitled to carry concealed firearms pursuant to the laws

of his or her home state.

It is the IACP's belief that S. 845 would severely

undermine state concealed carry licensing systems by allowing

out of state visitors to carry concealed firearms even if

those visitors have not met the standards for

carrying a concealed weapon in the state they are visiting.

For example, some states require a person to show that they

know how to use a firearm or meet minimum training standards

before obtaining a concealed carry license. These states

would be forced to allow out of state visitors to carry

concealed weapons even if they do not meet that state's

concealed licensing standards.

It is the IACP's belief that states and localities should

have the right to determine who is eligible to carry firearms

in their communities. It is essential that state, local and

tribal governments maintain the ability to legislate

concealed carry laws that best fit the needs of their

communities--private citizens as well as active and former

law enforcement personnel.

The IACP urges you to act quickly and take all necessary

steps to defeat this dangerous and unacceptable legislation.

Thank you for your attention to this matter. Please let me

know how we can be of assistance.

Sincerely,

Russell B. Laine,

President.

Madam President, I suggest the absence of a quorum.

Mr. President, I am going to proceed on my leader time.

Mr. President, I want to begin by thanking the Judiciary Committee staff, as well as Senators Leahy and Sessions, for conducting a collegial, civil, and dignified hearing on the matter of the Supreme Court nomination. In my view, the hearing was in perfect keeping with the importance of the task before it.

Article II, section 2 of the Constitution says the President ``shall nominate''--``by and with the Advice and Consent of the Senate''-- ``Judges of the supreme Court.'' It is an obligation that all of us in the Senate take very seriously, even though Senators have not always agreed on the exact meaning of the phrase ``advise and consent.'' In fact, it has been the subject of significant disagreement and struggle over the years.

I remember from my days as a young staffer on the Senate Judiciary Committee in the late 1960s and early 1970s, when the debate flared up over the nominations of Clement Haynsworth and Harrold Carswell after a full century in which appointments to the Supreme Court had more or less been a sleepy Presidential prerogative.

It was during that time that I first grasped the danger of politicizing the process. By focusing on a nominees's

ideology or political views above all else, I feared the Senate would end up distorting its traditional role of providing advice and consent and weaken the Presidential prerogative of making appointments to the Court.

I was so concerned, in fact, about the potential dangers that I wrote a law review article on the topic, which I have repeatedly returned to over the years. Its purpose was to establish a meaningful standard for considering Supreme Court nominees that would bring some consistency to the process.

In the course of developing that standard, I went back and looked at the history of nominations, and I noticed something interesting: Every time a Senator had opposed nominees in the past, the reason for doing so was almost always based on the nominees's ``fitness''--even if it was perfectly clear to everyone else that the Senator's opposition was based on political or ideological differences.

What this polite fiction showed me, quite clearly, was that up until fairly recent history, ideology had never been viewed as an openly acceptable reason to oppose a nominee. And, in my view, this aversion to a political litmus test was a good convention and well worth following if we wanted to avoid gridlock every time the White House switched parties.

So I developed a list of fairly standard criteria that I had hoped would govern the process: A nominee must be competent; have obtained some level of distinction; have a judicial temperament; violated no existing standard of ethical conduct; and have a clean record in his or her life off the bench.

In short, a President should be given great deference on his choice of a nominee, and these criteria certainly allowed that. As a Senator, I have consistently applied these criteria to Supreme Court nominees by Presidents of both parties.

In adhering to this standard, I was confident I had history on my side. Despite a few notable exceptions, during the last century the Senate understood its advice and consent role to be limited to an examination of a nominee's qualifications, not his or her ideology. This attitude is consistent with the Framers' decision, after no little debate, to invest the President, not the Senate, with the power to nominate Justices. They did not want politics to interfere. And that is why it has always been my view that opposing a nominee to the Supreme Court because he or she has a different judicial philosophy than I do was not a valid reason for doing so.

During the Clinton years, I had no illusions about the ideology or political views of Stephen Breyer or Ruth Bader Ginsburg. Justice Ginsburg's views on a number of contentious issues were well known and clearly different than my own, such as her view that Mother's Day should be abolished or that the Boy Scouts and Girl Scouts should be criticized for perpetrating false stereotypes about gender.

Most Americans, and certainly most Kentuckians, do not think those kinds of things. Yet despite that, I and the vast majority of my Republican colleagues voted for Justice Ginsburg. Why? Because the Constitution gave the President the power to nominate. And, in my view, Justice Ginsburg met the traditional standards of competence, distinction, temperament, and ethical conduct.

The vote in favor of Justice Ginsburg was 96 to 3. The vote in favor of Justice Breyer was 87 to 9. I voted for both, just as I had voted for every previous Republican nominee to the high Court since my election to the Senate--consistent with my criteria and based on their qualifications.

In voting for nominees such as Ginsburg and Breyer, it was my hope that broad deference to a President's judicial nominees would once again become the standard. Even if the treatment of Republican nominees, such as Robert Bork and Clarence Thomas, suggested that many Democrats felt differently than I did, it was still possible at that time to imagine a day when the traditional standard would reemerge. As it turned out, that hopefulness was misplaced and short-lived.

Things changed for good during the last administration. It was then that the Democrats turned their backs on the old standard once and for all. Ideology as a test would no longer be the exception but the rule. The new order was firmly established at a Democratic retreat in April 2001 in which a group of liberal law professors laid out the strategy for blocking any high-level conservative judicial nominee. The strategy was reinforced during a series of hearings in which Senator Schumer declared that ideology alone--ideology alone--was sufficient reason to block judicial nominees.

These events marked the beginning of a seismic procedural and substantive shift on judicial nominees, and the results were just as I had anticipated as a young staffer. Democrats would now block one highly qualified nominee after another to the appeals court for no other reason than the fact that they were suspected of being too conservative for their tastes.

Miguel Estrada was one of the first victims of the new standard. Because he had been nominated by a Republican, Estrada got no points for his compelling personal story, despite the fact that he had come here as a child from Honduras, went to Harvard Law School, clerked on the U.S. Supreme Court, and served as a prosecutor in New York and at the Justice Department. He was blocked by seven leadership-led filibusters--an unprecedented action for an appeals court nominee.

Opponents of the Estrada nomination were ruthless and eventually succeeded in driving him to withdraw from consideration after more than 2 years of entrenched opposition. He was not alone. Democrats employed the filibuster strategy against an entire block of Republican nominees on the insistence of special interest groups and in complete contravention of Senate tradition--often relying on the flimsiest of pretexts for doing so.

As a result, several widely respected, highly qualified nominees saw what should have been a high honor transformed into a humiliating and painful experience for themselves and for their families; the country was deprived of their service on the circuit court; and the standard I had articulated and applied throughout my career became increasingly irrelevant.

Despite my efforts to preserve deference and keep ideology out of the process, the proponents of an ideological test had won the fight; they changed the rules. Filibustering nominees on the grounds of ideology alone was now perfectly acceptable. It was now Senate precedent.

Some may argue that Republicans were no better since a few of them supported filibusters against two Clinton-era nominees, Richard Paez and Marsha Berzon. It is a flawed comparison. First, neither filibuster attempt got very far. And in both cases, the leadership--the leadership--of the Republican Party, including me, strongly opposed the effort.

Senator Lott, the then-majority leader at the time, voted in favor of allowing an up-or-down vote on both nominees, even though he would ultimately vote against them as nominees to the Ninth Circuit, as did I and the vast majority of our conference. It was our view that a President--and in that instance President Clinton--deserved considerable deference and that therefore his nominees should not be filibustered.

The new standard devolved even further during the Roberts nomination. Judge Roberts was a spectacular nominee, a man whose background and legal abilities, even according to Democrats, made him one of the most qualified Supreme Court nominees in the history of our country. For him, Democrats came up with an even more disturbing test.

Ironically, no one Senator articulated this new test more forcefully than Senator Obama. In a floor speech announcing his opposition to John Roberts, Senator Obama was perfectly straightforward. Roberts was completely qualified, he said. But he still would not get his vote. Here is what Senator Obama said on the Senate floor:

There is absolutely no doubt in my mind Judge Roberts is

qualified to sit on the highest court in the land. Moreover,

he seems to have the comportment and the temperament that

makes for a good judge. He is humble. He is personally

decent.

The reason Senator Obama would vote against Judge Roberts, he said, rested not on any traditional standard, but on a new one, a standard which amounted to a kind of alchemy based on what he described as ``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''--what has come to be known as the ``empathy standard.''

So over the course of the Bush administration the rules completely changed. Not only had it become common practice to block nominees on the grounds of ideology, but now it was acceptable to reject someone based solely on the expectation that their feelings--their feelings-- would not lead them to rule in favor of certain groups. Suddenly, judges were not even expected to follow the fundamental principle of blind justice. Deference had eroded even more.

As I have stated repeatedly throughout this debate, empathy is a very good quality in itself. And I have no doubt that Senator Obama--now President Obama--had good intentions, and that his heart was in the right place when he made this argument. But when it comes to judging, empathy is only good if you are lucky enough to be the person or group that the judge in question has empathy for. In those cases, it is the judge, not the law, who determines the outcome. And that is a dangerous road to go down if you believe, as I do, in a nation not of men but of laws--which brings us to Judge Sotomayor.

Over the past several weeks, Judge Sotomayor has impressed all of us with her life story. And the confirmation process is not easy. I admire anyone who goes through it, which is why I was gratified by Judge Sotomayor's statement at the conclusion of the hearing that she was treated fairly by everyone.

But the first question I have to ask myself in deciding how to vote on this nominee is this: How stands the traditional standard for voting on nominees?

Deference is still an important principle. But it was clearly eroded during the filibusters of appeals court nominees early in the Bush administration, and it was eroded even further when Senators voted against John Roberts and tried to filibuster Samuel Alito. Moreover, the introduction of a new standard--the empathy standard--forces us to reevaluate again the degree of deference a President should be granted. Isn't it incumbent upon even those of us who have always believed in deference to be even more cautious about approving nominees in this new environment? I believe it is.

If empathy is the new standard, then the burden is on any nominee who is chosen on that basis to show a firm commitment to equal justice under law. In the past, such a commitment would have been taken for granted. Americans have always had faith that our judges would apply the law fairly--or at least always knew they should. Unfortunately, the new empathy standard requires a measure of reassurance about this. If nominees aren't even expected to apply equal justice, we can't be expected simply to defer to the President, especially if that nominee, as a sitting judge, no less, has repeatedly doubted the ability to adhere to this core principle.

This doesn't mean I would oppose a nominee just because he or she is nominated by a Democrat. It means that, at a minimum, nominees should be expected to uphold the judicial oath that judges in this country have taken since the earliest days of our Nation; namely, that they will ``administer justice without respect to persons, and do equal right to the poor, to the rich, and . . . faithfully and impartially discharge and perform all the duties incumbent upon them under the Constitution and laws of the United States, so help [them] God.''

Looked at in this light, Judge Sotomayor's record of written statements suggests an alarming lack of respect for the notion of equal justice and therefore, in my view, an insufficient willingness to abide by the judicial oath. This is particularly important when considering someone for the Supreme Court since, if she were confirmed, there would be no higher court to deter or prevent her from injecting into the law the various disconcerting principles that recur throughout her public statements. For that reason, I will oppose her nomination.

Judge Sotomayor has made clear over the years that she subscribes to a number of strongly held and controversial beliefs that I think most Americans, and certainly most Kentuckians, would strongly disagree with, but that is not why I oppose her nomination; rather, it is her views on the essential question of the duty of a judge and the fact that there would be no check on those views were she to become a member of the Supreme Court.

In her writings and in her speeches, Judge Sotomayor has repeatedly stated that a judge's personal experiences affect judicial outcomes. She has said her experiences will affect the facts she chooses to see as a judge. Let me say that again. She has said her experiences will affect the facts she chooses to see as a judge. She has argued that in deciding cases, judges should bring their sympathies and prejudices to bear. She has dismissed the ideal of judicial impartiality as an ``aspiration''--an aspiration--that, in her view, cannot be met even in most cases. Taken together, these statements suggest not just a sense that impartiality is not just impossible but it is not even worth the effort.

But there is more. It appears these views have already found expression in Judge Sotomayor's rulings from the bench. The clearest evidence of this is the judgment of the Supreme Court itself. The Supreme Court doesn't take easy cases. It only takes cases where there is no easy precedent, where the law is not crystal clear, cases where somebody's policy preferences can more easily make their way into an opinion. In this vein, it is worth noting that the Supreme Court has found that Judge Sotomayor misapplied the law in 9 of the 10 cases in which her rulings were brought before it. In this term, in fact, she is zero for three. Not only isn't this a record to be proud of, together with her statements about impartiality, it is a record to be scared of if you happen to find yourselves standing in front of Justice Sotomayor.

Her most recent reversal by the Court is a perfect illustration of how her personal views can affect an outcome. I am referring to the Ricci case in which a majority of the Justices of the Supreme Court rejected Judge Sotomayor's decision, and all of them, all nine of them, agreed that her reading of the law was flawed.

This was a case in which a group of firefighters who had studied hard and passed a written test for promotion were denied it because not enough minority firefighters had scored as well as they had. In a one- paragraph opinion that a number of judges on her own court criticized as insubstantial and less than adequate given the seriousness of the circumstances, Judge Sotomayor flatly rejected an appeal by firefighters who had scored highly.

Here was a case where Judge Sotomayor's long history of advocacy for group preferences appeared to overtake an evenhanded application of the law. Judge Sotomayor didn't empathize with the firefighters who had earned a promotion, and they suffered as a result. This is the real- world effect of the empathy standard. If the judge has empathy for you, great, but if she has it for the other guy, it is not so good. That is why you can call this new standard a lot of things, but you certainly can't call it justice.

Judge Sotomayor's record on the Second Circuit is troubling enough, but, as I have noted, at least on the circuit court there is a backstop. Her cases can be reviewed by the Supreme Court. This meant that in the Ricci case, for example, the firefighters whose promotions were unfairly denied could appeal the decision. Fortunately for them, the Supreme Court sided with them over Judge Sotomayor. If, however, Judge Sotomayor would become a Supreme Court Justice, her rulings would be final. She would be unencumbered by the obligation of lower court judges to follow precedent. She could act more freely on the kinds of views that animated her troubling and legally incorrect ruling in the Ricci case. That is not a chance I am willing to take.

From the beginning of the confirmation process, I have said that Americans expect one thing when they walk into a courtroom, whether it is a traffic court or the Supreme Court, and that is equal treatment under the law. Over the years, Americans have accepted significant ideological differences in the kinds of men and women various Presidents have nominated to the Supreme Court, but one thing Americans will never tolerate in a nominee is a belief that some groups are more deserving of a fair shake than others. Nothing could be more offensive to the American sensibility than that.

Judge Sotomayor is a fine person with an impressive story and a distinguished background. But above all else, a judge must check his or her personal or political agenda at the courtroom door and do justice evenhandedly, as the judicial oath requires. This is the most basic and therefore the most fundamental standard of all upon which judges in our country must be judged. Judge Sotomayor does not meet the test.

Mr. President, I yield the floor.

Mr. President, I ask unanimous consent to speak as in morning business and that Senator Kaufman of Delaware be recognized after I have concluded.

Thank you very much.

Mr. President, I thank the minority whip for his statement on the floor. I would like to suggest I see things a little differently and suggest there are a couple items I would like to speak to.

First, on Guantanamo:

President Obama took office and realized we had a serious problem in Guantanamo Bay. It is a safe and secure facility, but it has become a recruiting tool for terrorists around the world. That is not just his conclusion; it is the conclusion of people I respect very much. Among those who called for the closing of Guantanamo include the following: GEN Colin L. Powell, former Chairman of the Joint Chiefs of Staff and Secretary of State under President George W. Bush; Republican Senators John McCain and Lindsey Graham; former Secretaries of State James Baker, Henry Kissinger, and Condoleezza Rice; Defense Secretary Robert Gates, who served President Bush and President Obama; ADM Mike Mullen, Chairman of the Joint Chiefs of Staff; and GEN David Petraeus.

These are not politicians, these are people who represent both sides of the political aisle--Democrat and Republican--who have concluded that keeping Guantanamo open, unfortunately, is going to continue to give encouragement to the recruitment of terrorists around the world.

President Obama announced that we should start to close Guantanamo, we should start deciding the fate of each of these prisoners, and it is high time we do.

Under President George W. Bush, hundreds of Guantanamo Bay detainees were released. They were arrested, incarcerated, questioned, and released, no charges against them. It was accepted. We made mistakes on the battlefield. People came up collecting bounties for turning in prisoners who turned out not to be dangerous. These people were released. The overwhelming majority of these people didn't cause any trouble beyond that. Some did. That is a fact. I will not ignore it.

Now comes the Republican side of the aisle arguing that it is unsafe for us to transfer Guantanamo prisoners from Guantanamo to Federal prisons in the United States. I have heard the arguments. They say it is unsafe in my community of Springfield, IL, to have a convicted terrorist; that it is a threat to all the people, the 12.5 million people who live in Illinois, and they believe that is the case around the country. But if we look at the facts, that argument doesn't stand up.

Today, in the prisons of the United States, the Federal prisons, we have 355 convicted terrorists currently incarcerated, being held safely and securely. They are no threat to our safety. In my hometown of Springfield, not far away, just in southern Illinois, maybe a little over 100 miles, is Marion Federal Penitentiary. I visited there several weeks ago and talked to the men and women who are the guards and those running the prison, and they said to me: Senator Durbin, send them here. We have dealt with terrorists. We have terrorists now on our cell block. We have had crime syndicates. We have had people from the Colombian drug cartels. We can handle them.

The mayor of Marion, IL, went out and said to the people: Are you frightened if these detainees come to Marion?

They said: No.

These guards know how to do their job. This is a Federal penitentiary that is safe. So the fear that is being espoused and bred by the other side of the aisle about Guantanamo Bay is not well placed. What the President is doing systematically and carefully is evaluating each of these prisoners.

I know of one who received notice from our government last year, after having been held for 6 years as a prisoner, that we had no case against him. No charges were going to be pursued. He is still a prisoner. We are looking for a place to put him. He is from the Gaza, a bottled up area. There is a question about whether he goes back there. But the fact is, we have no reason to believe we can convict or prosecute this man for anything. He is being held. It will be his seventh year now. He came in at age 19. He may leave at age 26 or 27. His life is dramatically changed because, unfortunately, our early inclination that he was a danger to this country turned out not to be a basis for a crime that could be prosecuted. That is the reality.

The President has addressed this issue. Just a few weeks ago he announced one of these detainees in Guantanamo Bay was finally going to face justice, and despite the protests of some on the other side of the aisle, he moved that prisoner to New York for a trial. It wasn't the first time the city of New York has had the trial of a terrorist. It has happened before. They know how to hold these terrorists in jail during the course of the trial. We don't hear panic in the streets in New York over it. The only panic and fear we hear comes from the other side of the aisle in the Senate.

The President is doing the right thing closing Guantanamo Bay and saying to the world: We will not engage in torture. We will close Guantanamo Bay. This is a new chapter and a new day for America. With this approach, we are closing down a recruiting tool for terrorists and opening the door for allies to come back to the side of the United States to join us in stopping the kind of extremism that led to the tragedy of 9/11.

So I disagree with my colleague from Arizona who has argued that we shouldn't close Guantanamo Bay. I agree with GEN Colin L. Powell and other military leaders that closing it is in the best interests of the security of the United States.

Senator Kyl initiated his remarks by noting that we have reached the 6-month anniversary of the inauguration of President Obama. It is hard to imagine. It seems to have just been flying by if you are on the floor of the Senate with all of the activity and all of the business we have considered. But he made special notice of the stimulus bill.

I wish to remind people what the President inherited when he took his oath of office 6 months ago. Our economy was losing on average 700,000 jobs a month when President Obama took his oath of office. The growth rate was at a negative 6.3 percent, the worst since the 1982 recession. Home foreclosures, mortgage foreclosures were at record levels, and residential investment had fallen by more than 40 percent in just 18 months. Banks were in crisis, freezing lending, and nearly $10 trillion in wealth had been lost in the stock market. Virtually all of us who had 401(k)s or savings involved in the stock market know exactly what happened to those savings. We lost a lot of value.

As President Obama took office, this is what he inherited. He came to the

Congress and said: We can't stand idly by. We have to do something. We have to try to energize this economy, create and save American jobs; give businesses and families a fighting chance. He asked for both sides of the aisle to cooperate.

On the House side not a single Republican House Member would join the President in this effort, in this attempt at a bipartisan effort to deal with the economic situation in our country. On this side of the Rotunda, three Republican Senators stepped up and said they would work with the Democrats to try to find a way to help put our economy back on its feet--only three, despite the President's invitation for all of them to join in this conversation to try to find a compromise to work toward a solution to the problems we faced.

At the end of the day, the bill was a $787 billion recovery and reinvestment bill to be spent over 2 years. We are now 4 months into that 2-year period--150 days, roughly, into that 2-year period--and Senators are coming to the Senate floor, as did the minority whip, and saying it has failed.

Well, let's take a look and see what it has done. So far we have actually spent about $56 billion out of the $787 billion, a very small amount. We have obligated--which means we have promised to spend--up to $200 billion, 4 months into it. We are trying to address this carefully so taxpayers' funds are not wasted. But there are still those who voted against it initially who come to the Senate floor, as the previous Senator did, and say it was a failure; we shouldn't have done it.

Several things should be noted. First, they had no alternative. They had no substitute. They had no option for the economy other than to stand idly by, take two Excedrin, try to take a nap, and hope it would be better in the morning. Not good enough.

If we are going to deal with an economy with so many jobs lost, so many businesses failing, standing idly by waiting for the economy to work its way out would have been a disaster.

This stimulus package from President Obama stopped what could have been the collapse of the U.S. economy and the global economy. We still have a long way to go. We are not out of this recession, but it could have been worse. For those who say we shouldn't have done it, let me tell my colleagues: Over 40 percent of the money in the stimulus package went back to tax breaks for working families in America. Ninety-five percent of working families across America will see the benefits of the Making Work Pay tax credit in their paychecks. Those dealing with job loss, unemployed people, got an additional $25 a week. It doesn't sound like much unless you have no other source of income.

I take it from their statements those on the other side of the aisle think the tax breaks for working families should not have been enacted. They oppose the unemployment compensation benefit increases.

We also gave a helping hand to unemployed families to keep health insurance for their kids and their families. That was part of the stimulus package, as well as money for nutrition assistance, food stamps for some of these unemployed families. So when the other side of the aisle says we shouldn't have done this, they are basically saying we shouldn't have helped these unemployed families and a lot of other families across America. I think it was the right thing to do.

We are making investments in the infrastructure of America as well. Basically, we are trying to make an investment that will give us a recovery in jobs. We were losing about 25,000 jobs a day when this initially hit. Now we are trying to build back from that to create and save jobs across America. In my home State of Illinois, it means infrastructure projects, transportation infrastructure projects, and many others. So we are just beginning. We are moving in the right direction. We have stopped the worst from occurring in the economy. We are going to see a turnaround, I hope, sooner rather than later.

The President's words warrant repeating: This is not going to happen overnight, and we have to be open to the idea that it is going to take some time for us to make the kind of recovery we absolutely need.

Secondly, the Senator from Arizona talked about health care reform. Republican after Republican has come to the Senate floor--not all of them but many of them--and criticized the idea of health care reform, but they are ignoring the obvious. We have a serious problem with health care in America. We are spending twice as much per person as any nation on Earth for health care, and the results--the health care results don't show it. Many times countries spend far less, have far better outcomes in terms of curing diseases and life expectancy.

So we should ask the hard questions: Shouldn't our money be better spent? Shouldn't it be more effectively spent? Then we take a look at what we face when it comes to health insurance premiums, and we find out that premiums over the last several years have been going up three times the increase in the average worker's wages in this country.

We are falling further and further behind as the costs of health care go beyond the grasp of individual families and small businesses. So we have to tackle this, and the American people know we do. They understand this system is, unfortunately, out of control. They have called on us to fix what is broken and to preserve those parts of our system that are important.

One of the things we want to make sure we do is to say: If you have a health insurance policy today you want to keep for your family or your business, you can keep it. Nothing we say or do in the law will change that. It is ultimately your decision.

Secondly, we want to preserve the relationship between doctor and patient--the confidential relationship, the trust that has developed between them so that you can take a member of your family or yourself to a doctor and believe it is a confidential conversation and that doctor is giving the best advice possible for you. We want you to have that choice and make that decision.

What we want to stop is the mistreatment of Americans and American families by health insurance companies. You know what I mean: If you happened to have had an illness last year and it becomes a preexisting condition this year and you find out your health insurance won't cover it, or if they are going to cover it but dramatically increase your premiums, in fact, they increase your premiums without notice or any kind of forewarning that it is going to occur, these sorts of things trouble people.

The fact that their doctors have to get into a fight with health insurance clerks as to appropriate medical care and whether a person should be hospitalized; the fact that health insurance companies, private health insurance companies, have turned out to be some of the most profitable companies in America, even during the recession. All of these things are fair warning that if we don't do something about health care in this country, the costs are going to break the bank, not only for individuals, families, and businesses, but for governments at every single level.

Today many Americans live in fear of the astronomical costs that will occur if they or their families experience a health care emergency. Two and a half Illinoisans in my State of 12.5 million, more than one out of every five under the age of 65, is in a family who must spend more than 10 percent of its income on health care costs. Among those, one- fourth of those are spending more than 25 percent of their income on health care costs.

The other side says: Just leave well enough alone. This isn't ``well enough.'' For these families, this is intolerable and unsustainable. It is an astounding burden. It is 30 percent more people than the number facing the 25-percent payment than faced it 8 years ago.

There is also concern on the other side about cap and trade. Well, cap and trade is a bill that has passed the House to address global warming, to try to assign a value to carbon in our economy. Just last week we had the CEOs of three major companies come speak to us: Duke Energy, one of the largest energy companies in America, DuPont, and Siemens.

They favor the establishment of a cost for carbon. They said: Give us a transition period so that we can make our plants cleaner, our processes more energy effective, and we can meet that goal. We have the creativity to do it.

So we can reduce global warming and reduce the pollution and our dependence on foreign oil. In the meantime, we will create new businesses; new products; new technology that will be energy efficient; new jobs, 21st-century jobs that will pay well, and jobs we can keep right here in America. There are those who oppose this and say leave it as it is. Our continued dependence on foreign oil should be a source of concern to every single person.

I am also genuinely concerned that the world I am leaving my grandson might be a compromised world because of some of the bad environmental decisions that have been made by my generation. We have an opportunity to change that, to make this a cleaner planet, to show ourselves as good stewards of the Earth that God gave us, and we can work together in a bipartisan fashion to find a way to encourage the right conduct and discourage bad conduct when it comes to these energy issues. Some don't want to touch it; they just want to criticize it. At the end of the day, we won't be judged as having met our responsibility if we do nothing.

I know Senator Kaufman is on the floor and will ask for recognition at this time.

I yield the floor.

I announce that the Senator from West Virginia (Mr. Byrd), the Senator from Massachusetts (Mr. Kennedy), the Senator from Louisiana (Ms. Landrieu), and the Senator from Maryland (Ms. Mikulski) are necessarily absent.