Middle Class Tax Cut Act of 2011

Today the Senate will finally consider nominations to fill four vacancies on Federal district courts, all of which were reported by the Judiciary Committee unanimously in September and early October. All four nominees Edgardo Ramos and Andrew Carter, nominated to the Southern District of New York, James Rodney Gilstrap, nominated to fill a judicial emergency vacancy in the Eastern District of Texas, and Dana Christensen, nominated to the District of Montana are superbly qualified nominees with the strong support of their home state Senators. It should not have taken three months or more for the Senate to vote on their nominations.

I thank the Majority Leader for securing a vote on these nominations, but I am disappointed that the Senate Republican leadership would not agree to a vote on the nomination of Jesse Furman to fill a third vacancy on the Southern District of New York. Like Edgardo Ramos, Andrew Carter and James Gilstrap, his nomination was reported by the Judiciary Committee on September 15 without opposition from a single member of the Committee, Democratic or Republican. Mr. Furman, an experienced Federal prosecutor who served as Counselor to Attorney General Michael Mukasey for two years during the Bush Administration, is a nominee with an impressive background and bipartisan support. There is no reason or explanation for why the Senate could not also consider his nomination today.

There is also no reason or explanation why Republican leadership will not consent to consider the other 20 judicial nominations waiting for final Senate action, all but four of which were reported by the Committee without any opposition, all but two of them with significant bipartisan support. Senator Grassley and I have worked together to ensure that each of the 25 nominations now on the Senate Calendar was fully considered by the Judiciary Committee after a thorough, fair process, including completing our extensive questionnaire and questioning at a hearing. Before each of these nominees was selected by the President, the White House worked with the nominees' home state Senators who support them, the FBI completed an extensive background review, and each nominee was peer reviewed by the American Bar Association's Standing Committee on the Federal Judiciary. When the nominations have been favorably reported by the Judiciary Committee after this extensive and thorough process, there is no reason for months and months of further delay before they can start serving the American people.

It is now December 5, with only weeks left in the Senate's 2011 session. I am concerned that we are not able to move more quickly at a time when we continue to hear from chief judges around the country about the overburdened courts in their districts and circuits. We need to consider at least eight judges every week in order to begin to catch up and erase the backlog that has developed from the delays in the consideration of consensus nominees caused by the Senate Republican leadership.

We should not repeat the mistakes of last year, when the Senate Republican leadership refused to consent to consider 19 judicial nominations reported by the Judiciary Committee, an exercise in unnecessary delay I believe to be without precedent with respect to such consensus nominees. It took us until June of this year, halfway into 2011, to consider and confirm 17 of these nominations that could and should have been considered before the end of 2010. Before we adjourn this year, there is certainly no reason the Senate cannot at least consider the 17 judicial nominations reported unanimously by the Committee this session, who are by any measure consensus nominees.

I hope that we do not see a repeat of the damaging decision by Senate Republican leadership at the end of last year to refuse to agree to votes on those nominations. That decision stood in stark contrast to the practice followed by the Democratic majority in the Senate during President Bush's first two years. Last year, Senate Republicans refused to use the same standards for considering President Obama's judicial nominees as we did when the Senate gave up or down votes to all 100 of President Bush's judicial nominations reported by the Committee in his first two years. All 100 were confirmed before the end of the 107th Congress, including two controversial circuit court nominations reported and then confirmed during the lame duck session in 2002. The Senate last year should not have been forced to adjourn with 19 judicial nominations still on the Senate calendar.

With vacancies continuing at harmfully high levels, we cannot afford to repeat these unnecessary and damaging delays. There is no reason we cannot make significant progress this month and consider all of the consensus nominations now pending on the Senate calendar. That is what we did at the end of President Reagan's third year in office and President George H.W. Bush's third year in office, when no judicial nominations were left pending on the Senate Calendar. That is what we did at the end of the 1995 session, President Clinton's third year in office, when only a single nomination was left pending on the Senate calendar. That is also what we did at the end of President George W. Bush's third year, when seven of the nine judicial nominations left on the calendar by the Senate's Republican majority were among President Bush's most extreme ideological picks and had previously been debated extensively by the Senate. The standard has been that noncontroversial judicial nominees reported by the Judiciary Committee get Senate action before the end of the year. That is the standard we should follow this year.

We remain well behind the pace set by the Senate during President Bush's first term. By the end of his first term, the Senate had confirmed 205 district and circuit nominees, and had already confirmed 167 by this point in his third year. So far, the Senate has confirmed only 119 of President Obama's district and circuit nominees. Senate action before adjournment on all 25 judicial nominations that are before the Senate today would go a long way to help resolve the longstanding judicial vacancies that are delaying justice for so many Americans in our Federal courts across the country.

The 100 circuit and district court nominations we confirmed in President Bush's first two years leading to a vacancy total of 60 at the beginning of his third year is almost a complete reverse of the 60 the Senate was allowed to confirm in President Obama's first two years, leading to nearly 100 vacancies at the start of 2011. Yet, even following those years of real progress, in 2003 we

proceeded to confirm more judicial nominations than there were vacancies at the start of that year, and reduced vacancies even further, down to 5 percent, half of where they stand today.

Chief Justice Roberts, the Attorney General and the White House counsel have all spoken about the serious problems created by persistent judicial vacancies. More than half of all Americans over 167 million live in districts or circuits that have a judicial vacancy that could be filled today if Senate Republicans just agreed to vote on the nominations now pending on the Senate calendar. As many as 23 states are served by Federal courts with vacancies that would be filled by these nominations. Millions of Americans across the country are harmed by delays in overburdened courts. The Republican leadership should consent to vote on the qualified, consensus candidates nominated to fill these extended judicial vacancies before we adjourn for the year and not unnecessarily delay their consideration until next spring.

The four nominees we consider today will all be confirmed, I expect, with significant bipartisan support. Edgardo Ramos is nominated to fill a vacancy on the District Court for the Southern District of New York. Since 2002, Mr. Ramos has been in private practice after serving for ten years as an Assistant U.S. Attorney in the Eastern District of New York, where he was promoted to Deputy Chief of the Narcotics Section. The ABA's Standing Committee on the Federal Judiciary unanimously rated him ``well qualified'' to serve, its highest possible rating. The nomination of Mr. Ramos has the strong support of both his home state Senators, Senator Schumer and Senator Gillibrand, and was reported by the Judiciary Committee by voice vote with no dissent on September 15.

The nomination of Judge Andrew Carter to fill a vacancy on the District Court for the Southern District of New York also has the strong support of the New York Senators and was also reported unanimously by voice vote on September 15. Since 2009, Judge Carter has been a Magistrate Judge for the Eastern District of New York. Prior to joining the bench, Judge Carter served for 13 years as a public defender in New York state and Federal and spent two years at the Ford Foundation as a Program Assistant in its Rights and Social Justice Program.

James Rodney Gilstrap is nominated to fill a vacancy on the District Court for the Eastern District of Texas determined by the Administrative Office of the U.S. Courts to be a judicial emergency vacancy. His nomination has the support of both his Republican home state Senators, Senator Cornyn and Senator Hutchison. For 27 years Mr. Gilstrap has been a partner at the law firm of Smith & Gilstrap in Marshall, Texas. He has also served as a part-time County Judge for Harrison County, Texas. His nomination was reported unanimously by the Judiciary Committee by voice vote on September 15.

Dana Christensen is nominated to fill a vacancy on the District Court for the District of Montana. Mr. Christensen has spent his 34-year legal career in private practice and is currently the president of the law firm of Christensen, Moore, Cockrell, Cummings & Axelberg, P.C. in Kalispell, Montana. The ABA Standing Committee on the Federal Judiciary unanimously rated Mr. Christensen ``well qualified'' to serve, its highest possible rating. His nomination has the support of both his home state Senators, Senator Baucus and Senator Tester, and was reported by the Judiciary Committee by voice vote with no dissent on October 6.

I hope the Senate can build on today's progress to fulfill its constitutional duty and ensure the ability of our Federal courts to provide justice to Americans around the country.

Nomination of Caitlin Halligan

Tomorrow the Senate should be holding an up-or-down vote on the long- delayed nomination of Caitlin Halligan to fill one of three vacancies on the Court of Appeals for the D.C. Circuit. Instead, for the seventh time since President Obama took office 34 months ago, we are required to overcome a Republican filibuster for the Senate to consider one of President Obama's superbly qualified judicial nominees.

Ms. Halligan, President Obama's first nominee to the important D.C. Circuit, is the former Solicitor General for the State of New York. With an impressive record in private practice and public service, she is widely respected for the quality of her work as an advocate. Indeed, Ms. Halligan's nomination was greeted with bipartisan support and has since garnered endorsements from law enforcement officials and organizations, women's organizations, law school deans and professors, judges and preeminent lawyers from across the political spectrum. The Judiciary Committee favorably reported Ms. Halligan's nomination nearly nine months ago.

By any traditional standard, she is the kind of superbly qualified nominee who should easily have been confirmed by the Senate months ago with the support of both Republicans and Democrats. I am disappointed that yet again instead of seeing bipartisan cooperation we are required to seek cloture.

From the beginning of the Obama administration, we have seen some Senate Republicans shift significantly away from the standards they used to apply to the judicial nominations of a Republican President. During the administration of the last President, a Republican, Republican Senators insisted that filibusters of judicial nominees were unconstitutional. They threatened the ``nuclear option'' in 2005 to guarantee up-or-down votes for each of President Bush's judicial nominations. Senator McConnell, then the Republican whip, said: ``Any President's judicial nominees should receive careful consideration. But after that debate, they deserve a simple up-or-down vote. . . . It's time to move away from advise and obstruct and get back to advise and consent. The stakes are high. . . . The Constitution of the United States is at stake.''

Many Republican Senators declared that they would never support the filibuster of a judicial nomination--never. Yet, only a few years later, Senate Republicans reversed course and filibustered President Obama's very first judicial nomination, that of Judge David Hamilton of Indiana.

David Hamilton was a widely respected 15-year veteran of the Federal bench. President Obama nominated Judge Hamilton in March 2009, after consultation with the most senior and longest-serving Republican in the Senate, Senator Dick Lugar of Indiana, who strongly supported the nomination. Rather than welcome the nomination as an attempt by President Obama to step away from the ideological battles of the past, some Senate Republicans ignored Senator Lugar's support, caricatured Judge Hamilton's record and filibustered his nomination. After the Senate rejected that filibuster, Judge Hamilton was confirmed.

The partisan delays and opposition to President Obama's judicial nominations have continued since. Senate Republicans have required cloture motions to be filed on judicial nominations that ultimately won unanimous support from the Senate. Earlier this year they filibustered the nomination of Professor Goodwin Liu of California, who was supported by both his home state Senators to fill a judicial emergency vacancy on the Ninth Circuit. That successful filibuster of a brilliant lawyer and a good man prevented the Senate from having an up-or-down vote on his nomination and prevented an outstanding nominee from serving the American people on the Federal bench. They attempted to justify that filibuster on ideological grounds. There is no such justification here, in connection with the nomination of Caitlin Halligan who is a mainstream lawyer and public servant from New York. Senate Republican leadership took the virtually unprecedented step this year of requiring cloture to be filed on a district court nomination. That effort to ratchet up the judge wars was rejected when 11 Republican Senators joined to ensure an up-or-down vote on the nomination of Jack McConnell to the District of Rhode Island.

With their latest filibuster, the Senate Republican leadership seeks to set yet another new standard, one that threatens to make confirmation of any nominee to the D.C. Circuit virtually impossible for the future. Caitlin Halligan is well-qualified nominee with a mainstream record as a brilliant advocate on behalf of the State of New York and in private practice. I have reviewed her record carefully in the course the Judiciary Committee's thorough process, including her response to our extensive questionnaire and her answers to questions at her hearing and

in writing following the hearing. In my view, there is no legitimate reason or justification for filibustering her nomination.

Caitlin Halligan is the kind of nominee who has demonstrated not only legal talent but also a dedication to the rule of law throughout her career. We should encourage nominees with the qualities of Ms. Halligan to engage in public service and we should welcome them on the Federal bench, not denigrate them. Concocted controversies and a blatant misreading of Ms. Halligan's record as an advocate are no reason to obstruct this outstanding nomination.

We must reject these misguided arguments. This filibuster against this qualified woman will set a standard that could not be met by judicial nominees of Presidents of either party. I trust that, as with the nomination of Jack McConnell, sensible Republican Senators will, again, join in preventing such an outcome. It is time to edge away from this dangerous precipice.

When Democratic Senators cooperated to confirm John Roberts to the D.C. Circuit in 2003, it broke the stalemate created by the Republicans refusal for years to even consider President Clinton's nominees to that Court. Like John Roberts, Caitlin Halligan is a highly regarded appellate advocate with the kind of impeccable credentials in both public service and private practice that make her unquestionably qualified to serve on the D.C. Circuit. She should be confirmed, not unjustifiably filibustered.

Ms. Halligan served for nearly six years as Solicitor General of New York and has been a leading appellate lawyer in private practice. She is currently General Counsel at the New York County District Attorney's Office, an office that investigates and prosecutes 100,000 criminal cases annually in Manhattan. Ms. Halligan has served as counsel of record in nearly 50 matters before the U.S. Supreme Court, arguing five cases before that court and many cases before Federal and state appellate courts. Just as John Roberts had served in government and clerked for the Supreme Court, she clerked for Supreme Court Justice Stephen Breyer. She also clerked for Judge Patricia Wald on the D.C. Circuit, the court to which she has been nominated. The American Bar Association's Standing Committee on the Federal Judiciary, which Republican Senators often cite, unanimously rated Ms. Halligan ``Well- Qualified'' to serve on the D.C. Circuit. That is the highest rating that can be received from its non-partisan peer review.

The letters of support we have received for Ms. Halligan's nomination from a broad range of people and organizations is a testament both to her exceptional qualifications to serve and to the fact that this should be a consensus nomination, not a source of controversy and contention.

Twenty-one prominent appellate advocates from across the political spectrum who have worked with Caitlin Halligan, including Miguel Estrada and Carter Phillips, endorsed her nomination, writing:

``We believe that Caitlin is an outstanding selection for

the D.C. Circuit. She is a first-rate lawyer and advocate.

She is well respected and highly regarded as a leader of the

profession. Caitlin has an ideal judicial temperament. She

brings reason, insight and judgment to all matters. Even

those of us who have been on the opposite sides of Caitlin in

litigation have been greatly impressed with her ability and

character. We have no doubt she would serve with distinction

and fairness.''

When Ms. Halligan was nominated, Carter Philips, a preeminent Supreme Court advocate who served as Assistant to the Solicitor General during the Reagan administration, described her as ``one of those extremely smart, thoughtful, measured and effective advocates'' and concluded that she ``will be a first-rate judge.'' Judge Albert Rosenblatt, who was appointed to serve on New York's highest court by former Republican Governor George Pataki, wrote in praise of Ms. Halligan's work as New York's Solicitor General, concluding that ``her sense of fairness and balance is among the best--if not the best--that I have ever seen in my 34 years as a judge and a prosecutor.'' This is not a nomination that should be filibustered. To do so will set a destructive standard that no one will be able to meet. If someone of Caitlin Halligan's outstanding credentials, character and experience cannot be confirmed, no one can be.

The nomination of Ms. Halligan has likewise received significant support from law enforcement officials and organizations. The National District Attorneys Association has called Caitlin Halligan's background ``impressive,'' stating that she ``would be an outstanding addition'' to the D.C. Circuit. District Attorneys from the State of New York, including Republicans Derek Champagne, Daniel Donovan, Jr., William Fitzpatrick, James Reams and Scott Burns, support her nomination, as do the New York Association of Chiefs of Police and the New York State Sheriff's Association. New York City Police Commissioner Raymond Kelly has said that Ms. Halligan has the ``three qualities important for a nominee: intelligence, a judicial temperament, and personal integrity.'' Legendary New York County District Attorney Robert Morgenthau, endorsing her nomination in the ``strongest of terms,'' described Ms. Halligan as ``qualified in terms of intellect, ability and temperament.'' This is not someone to be filibustered and blocked from serving as a Federal judge.

More than 20 former United States Supreme Court clerks, including clerks who worked for conservative Justices such as former Chief Justice Rehnquist, Justice Scalia and Justice Kennedy, wrote that they ``retain a distinct appreciation of Caitlin's sharp intelligence and her ability to cooperate with others in resolving difficult legal problems.'' They concluded their letter of support by praising her ``reasonableness and collegiality,'' and calling her a ``fair-minded colleague who was a pleasure to work with in a sophisticated and demanding legal setting.'' This is not a closed minded ideologue. Caitlin Halligan is an outstanding lawyer who will be an outstanding judge.

Ms. Halligan's nomination has received support from numerous women's law enforcement, business, and legal organizations, including the New York Women in Law Enforcement, the National Center for Women and Policing, the National Conference of Women's Bar Associations, and the Women's Bar Association of the District of Columbia. The U.S. Women's Chamber of Commerce asked the Senate to confirm Ms. Halligan, describing her as ``exceptionally well-qualified'' with ``outstanding legal credentials and legal experience that is both broad and deep.'' The National Conference of Women's Bar Associations, which supports Ms. Halligan because her ``broad experience, public service and intellect make her well suited to the federal appellate bench,'' also notes that ``her appointment would add much needed diversity to the federal court, where only three women are among the active judges on the DC Circuit.'' More than 100 women who are deans and professors at top law schools throughout the country strongly support the nomination because ``Ms. Halligan has won accolades for her judgment, legal acumen, and expertise in appellate litigation,'' and because her ``legal credentials, experience and accomplishments make her exceptionally well-qualified to serve'' on the D.C. Circuit. They also echo the need for bringing gender diversity to this critical court, noting that, ``women have been historically underrepresented on this court, as only five of the fifty-seven judges to serve there have been women.'' This outstanding nominee is a leader and role model whose career should not be short-circuited by petty partisanship.

I ask unanimous consent that some of these letters of support be printed in the Record at the conclusion of my remarks.

Exhibit 1

March 4, 2011.

Hon. Patrick J. Leahy,

Chairman, Senate Judiciary Committee, Dirksen Senate Office

Building, Washington, DC.

Hon. Charles E. Grassley,

Ranking Member, Senate Judiciary Committee, Dirksen Senate

Office Building, Washington, DC.

Dear Chairman Leahy and Senator Grassley: We write in

enthusiastic support of the nomination of Caitlin Halligan to

be a judge on the United States Court of Appeals for the

District of Columbia Circuit. We are lawyers who have worked

with Caitlin in various capacities. We believe that Caitlin

is an outstanding selection for the D.C. Circuit. She is a

first-rate lawyer and advocate. She is well respected and

highly regarded as a leader of the profession. Caitlin also

has an ideal judicial temperament. She brings reason, insight

and judgment to all matters. Even those of us who have been

on opposite

sides of Caitlin in litigation have been greatly impressed

with her ability and character. We have no doubt that she

would serve with distinction and fairness.

Sincerely yours,

Clifford M. Sloan, Skadden, Arps, Slate, Meagher & Flom

LLP; Sri Srinivasan, O'Melveny & Myers LLP; Miguel A.

Estrada, Gibson, Dunn & Crutcher LLP; Carter G.

Phillips, Sidley Austin LLP; Seth P. Waxman,

WilmerHale; Walter Dellinger, O'Melveny & Myers LLP;

David C. Frederick, Kellogg, Huber, Hansen, Todd, Evans

& Figel, P.L.L.C.; Andrew J. Levander, Dechert LLP;

Richard J. Davis, Weil, Gotshal & Manges LLP; Michele

Hirshman, Paul, Weiss, Rifkind, Wharton & Garrison LLP;

Dietrich L. Snell, Proskauer Rose LLP; Paul M. Smith.

Jenner & Block LLP; Patricia Ann Millett, Akin Gump

Strauss Hauer & Feld LLP; Kathleen M. Sullivan, Quinn

Emanuel Urquhart & Sullivan, LLP, Stanford Law School;

Thomas W. Brunner, Wiley Rein LLP; Meir Feder, Jones

Day; Evan M. Tager, Mayer Brown LLP; Philip K. Howard,

Covington & Burling LLP; Ira M. Millstein, Weil,

Gotshal & Manges LLP; Roy L. Reardon, Simpson Thacher &

Bartlett LLP; Michael H. Gottesman, Georgetown

University Law Center.

I fear that what is behind this misguided filibuster attempt is a continuation of a decades-long attempt by some Senate Republicans to play politics with the Federal court and, in particular, to engage in a rear guard action to preserve the D.C. Circuit as a Republican bastion, despite the fact that the American people elected a Democratic President. A recent Washington Post editorial urging the Senate to confirm Ms. Halligan's confirmation, suggested as much, stating: ``GOP senators are grasping at straws to block Ms. Halligan's ascension, perhaps in hopes of preserving the vacancy for a Republican president to fill.'' Yet again, we see some Senate Republicans shifting the standards they use and the arguments they make based on the party of the President making the nominations. They say one thing when President Clinton is in office, flip when the President is a Republican, and flop when the American people elect President Obama.

When President Clinton nominated qualified moderates to vacancies on the D.C. Circuit, Republicans refused to proceed. The last of three Clinton nominees to the D.C. Circuit was confirmed in 1997, after being nominated in 1995 and stalled through the 1996 session when not a single circuit nominee was confirmed by the Senate Republican majority. When Senate Republicans stalled the nomination of Merrick Garland to the D.C. Circuit beyond the 1996 election, even Senator Hatch became frustrated, and in March 1997 he proclaimed that the way that Republicans were opposing judicial nominees was ``playing politics with judges,'' was ``unfair'' and that he was ``sick of it.'' He was right. Merrick Garland, like Caitlin Halligan, was superbly qualified, and was only being obstructed for partisan political gain.

But once the blockade against Judge Garland was broken by President Clinton's reelection, Senate Republicans erected an impenetrable wall around the D.C. Circuit. Neither of President Clinton's two other nominees were allowed a Senate vote, or even Judiciary Committee consideration. That escalation in the judge wars was untoward, it was wrong. It hurt the court and was unfair to both Allen Snyder and Elena Kagan, President Clinton's outstanding nominees. Allen Snyder had served as a clerk to Justice Rehnquist and was an experienced and respected litigator. Elena Kagan went on to become Dean of the Harvard Law School and win confirmation to the United States Supreme Court. These were unquestionably qualified nominees. The fact is that for the rest of President Clinton's second term, virtually his entire second four years, given that Judge Garland had actually first been nominated in his first term, Senate Republicans would not consider another nominee to the D.C. Circuit. They just blocked and pocket filibustered outstanding nominees because they could.

Republican Senators pretended to justify their refusal to proceed on President Clinton's D.C. Circuit nominees not by arguing against the nominees, but by arguing that the caseload of the D.C. Circuit did not justify the confirmation of any more judges. They were contending that the 11th and 12th judgeships on the D.C. Circuit should not be filled. They argued that 10 judges were enough.

But what happened when George W. Bush became President? Republican Senators set aside those arguments when considering the nominations of a Republican President to the same court even as the caseload numbers went down, Senate Republicans abandoned their hollow caseload arguments to press for confirmation of multiple Bush nominees to the D.C. Circuit. Their actions showed that they were not really concerned with a caseload justification. Their reversal now to readopt a caseload argument is not consistency of principle, but relates to the principal who is making the nomination and appears political.

Despite the unwillingness of Senate Republicans to act on President Clinton's nominees to the D.C. Circuit for years, Senate Democrats did proceed to consider President Bush's nominations. The first confirmation, for which I voted, was of now-Chief Justice John Roberts to be a judge on the D.C. Circuit. At the time, John Roberts had been Allen Snyder's junior and his partner at Hogan and Hartson. He was the first judge confirmed to the circuit in six years.

The Senate then confirmed a series of questionable nominees to the D.C. Circuit: Janice Rogers Brown, Thomas Griffith and Brett Kavanaugh. The same Republican Senators who blocked President Clinton's nominations from even being considered by the Judiciary Committee supported every nomination of President Bush's to the D.C. Circuit, as they filled the ninth seat, twice filled the 10th seat on the court and went on to fill the 11th seat that they had said was unnecessary when a Democratic President was doing the nominating. With the change of administration, Republican Senators have now dusted off an old obstructionist argument about the D.C. Circuit's caseload, something they ignored for eight years as President Bush's nominees were confirmed to fill the 10th seat twice and also the 11th judgeship. But they have ratcheted up their partisan opposition and now oppose even filling the ninth judgeship. With three vacancies on the D.C. Circuit, that is the judgeship that Caitlin Halligan would be filling not the 11th that Senate Republicans filled just recently, or the 10th that they voted twice to fill, but the ninth. This is not a basis on which to oppose as qualified a nominee as Caitlin Halligan, who has widespread support from law enforcement and the legal community.

The so-called ``caseload'' concern is no justification for filibustering this nomination. The D.C. Circuit is now more than one- quarter vacant, with three judicial vacancies. In fact, the Senate has acted on the so-called caseload argument. We have already eliminated effective in 2008 the 12th judgeship on that court. In so doing, the Senate and the Congress reaffirmed the authorization of 11 judges needed for the important D.C. Circuit. This court is often considered the second most important court in the land because of the complex cases that it handles. The court reviews complicated decisions and rulemaking of many Federal agencies, and in recent years has handled some of the most important terrorism and enemy combatant and detention cases since the attacks of September 11. As noted in the recent Washington Post editorial: ``[Caseload numbers do] not take into account the complexity and scope of the cases that land at the court. They include direct appeals involving federal regulatory decisions and national security matters, including cases stemming from the detentions at the U.S. naval base in Guantanamo Bay, Cuba.''

The D.C. Circuit's cases have only increased in importance and the court's caseload has not gone down since Republican Senators supported every one of President Bush's nominations to that court. According to the Administrative Office of U.S. Courts, the caseload per active judge has increased by one third since 2005, when the Senate confirmed President Bush's nomination of Thomas Griffith to fill the 11th seat on the D.C. Circuit. That is right--the D.C. Circuit's caseload has actually increased. Judge Griffith's confirmation resulted in there being approximately 121 pending cases per active D.C. Circuit judge. There are currently 161 pending cases for each active judge on the D.C. Circuit, one-third higher. If Ms. Halligan were confirmed to the ninth seat, there would be approximately 143 pending cases for each active D.C. Circuit judge, still significantly higher than after the Senate confirmed President Bush's nominee to the 11th seat in 2005. In addition, according to the Administrative Office of the U.S. Courts, written decisions per active judge have risen 20 percent since 2007. By any objective measure the

work of the D.C. Circuit has grown and the multiple vacancies should be filled, not preserved and extended for partisan purposes.

Of course, if Republican Senators seeking to use caseload figures to justify their opposition to this nomination were serious, they would not be continuing their refusal to consent to the Senate considering the nominations of Morgan Christen of Alaska to the Ninth Circuit, and Judge Adalberto Jordan of Florida to the Eleventh Circuit, the two circuits with the highest number of cases per active judge. They would not be doing everything they can to delay filling vacancies on the Ninth Circuit, a court burdened by multiple vacancies and the largest caseload in the Nation, and we would instead take up and confirm the nomination of Jacqueline H. Nguyen who is nominated to fill the judicial emergency vacancy that remains open after the Republican filibuster of Goodwin Liu. I have repeatedly urged the Senate to take up and consider these nominations, which are supported by home state Senators, yet Republicans have refused to consider them for months. In fact, courts throughout the country are in need of more confirmed judges and more judgeships to handle high and increasingly complicated caseloads, yet we currently have 25 judicial nominations favorably reported by the Judiciary Committee awaiting final action by the Senate. Republicans concerned about caseload should join with us to consider these nominations.

The Senate should not filibuster but should be voting to confirm the nomination of Caitlin Halligan to fill a vacancy on a critical court that is one quarter vacant with only eight active judges and higher caseloads than when Republicans voted to confirm President Bush's nominees fill the ninth, 10th and 11th judgeships on this court just a couple of years ago.

Some have sought to criticize Ms. Halligan for positions she advocated on behalf of the State of New York while serving as its Solicitor General. At her confirmation hearing, Ms. Halligan made clear she filed briefs under the direction of New York's Attorney General, arguing on behalf of the State of New York, not based on her personal views. Yet some outside groups and even some Senators ignore this and seek to use those advocacy positions as a basis to filibuster her nomination.

These arguments are particularly hard to accept for anybody who understands the role of advocates in our legal system. Our legal system is an adversary one, predicated upon legal advocacy for both sides. Nominees such as Chief Justice John Roberts have said lawyers do not stand in the shoes of their clients. Since when do we impose a litmus test for nominees that they can never have been legal advocates? If we were to do that, we would have no judges. Almost every nominee who had been a practicing lawyer would be disqualified by one side or the other. This is especially hard to understand for any Senators who support the rights of states to defend their interests in courts, the duty Caitlin Halligan owed to New York as its Solicitor General.

Some have pointed to her role as New York's Solicitor General acting at the direction of New York's Attorney General in tort lawsuits against gun manufacturers as suggesting that she will not uphold the Second Amendment if confirmed as a judge. As a strong supporter of the Second Amendment, I asked her during her hearing whether as a judge she would faithfully follow and apply the Supreme Court's precedent from District of Columbia v. Heller and McDonald v. Chicago, which held that the Second Amendment protects an individual right to keep and bear arms for self defense. She testified that she would. When asked by Senator Grassley whether the rights conferred under the Second Amendment are fundamental, Ms. Halligan answered: ``That is clearly what the Supreme Court held and I would follow that precedent, Senator.''

In her personal capacity, Ms. Halligan has never challenged or otherwise criticized the Protection of Lawful Commerce in Arms Act (PLCAA) or been critical of the Second Amendment. As New York State's Solicitor General, she prepared an amicus brief at the direction of the New York Attorney General in a case where New York City challenged the PLCAA, seeking to safeguard New York's police powers. The arguments made in the brief were made on behalf of New York State. In the amicus brief, New York State argued that the PLCAA should be struck down as an unconstitutional exercise of Congress's legislative power that infringed on states' rights to exercise the police power within their borders. The amicus brief did not make a single reference to the Second Amendment. Any criticism of the PLCAA in New York State's brief or in the speech she gave as a surrogate for and on behalf of New York Attorney General Spitzer reflected New York State's federalism concerns. It is hardly surprising that New York State--like many other states--advocated for a position that supported state powers.

As Solicitor General for the State of New York, Caitlin Halligan vigorously advocated for New York's interests, in particular the right to govern in traditional state law areas. For example, in the Grutter v. Bollinger affirmative action case, New York joined 20 other states in arguing that they ``must have the freedom and flexibility'' to set their own education policy. I assume that position does not raise concerns for those seeking a basis for opposing her nomination. Nor I assume did her defense as New York's Solicitor General of the constitutionality of the death penalty.

Indeed, Ms. Halligan's time as Solicitor General shows all the hallmarks of serious advocacy consistent with the interests of her ``client''. When New York municipal attorneys requested advice as to whether clerks could issue marriage licenses to same-sex couples, Ms. Halligan carefully analyzed New York's statutory law and concluded that the state legislature did not intend to authorize marriage licenses to be given to same-sex couples, even though the statutory language is gender neutral. After observing that this interpretation raised ``constitutional questions,'' she outlined the current case law and stated that it was for the courts to resolve the issue. This measured response is no basis on which to caricature her record.

Most disconcerting of all are the attacks from some on the outside suggesting that Ms. Halligan lacked candor in the answers she provided to the Judiciary Committee. I hope that we do not see any Senators repeating these baseless charges to create another false controversy. Ms. Halligan has been honest and forthcoming throughout the confirmation process, providing the Committee with her entire record and giving detailed, accurate, and clear answers to over 150 questions from Judiciary Committee members at her hearing and in written follow- up questions on a wide range of topics, such as judicial philosophy, constitutional interpretation, the Tenth Amendment, the Second Amendment, the Commerce Clause, the Eighth Amendment and the death penalty, military commissions and indefinite detention, tort liability, Federal preemption, and standing. In my view, Ms. Halligan's answers to questions from Committee members were detailed and substantive, and show an impressive depth and breadth of knowledge on complex legal issues. There is no lack of record or failure to respond as there was, unfortunately, when the Bush administration would not make information available to Senators in connection with the nomination of Miguel Estrada. There is no lack of forthrightness, as there was when Brett Kavanaugh was manipulating the confirmation process as a political crony and insider during the Bush administration.

Those concerned with a 2004 report that questioned the indefinite detention of enemy combatants issued by the Association of the Bar of the City of New York's Committee on Federal Courts at a time when she served on the Committee continue to ignore Ms. Halligan's repeated testimony that she had no role in preparing the report, that she was not aware of the report until preparing for her nomination and that report ``does not reflect [her] views.'' At no time during Ms. Halligan's hearing or in the Committee's consideration of her nomination did any Senator question Ms. Halligan's candor or thoroughness in answering questions. I hope that no Senator does so now to attempt to justify this unjustifiable filibuster.

Given Caitlin Halligan's impeccable credentials and widespread support,

this should be the kind of consensus nomination supported by Senators of both parties who seek to ensure that the Federal bench continues to attract the best and brightest. Certainly, her nomination should not be subject to a filibuster. Regrettably, however, the Senate's Republican leadership seems intent on continuing with the practices they began when President Obama first took office, engaging in narrow, partisan attacks on his judicial nominations. They seem intent on setting a new standard that could not be met by the judicial nominees of Presidents of either party.

Republican Senators who just a few years ago protested that the filibuster of any judicial nomination was unconstitutional, Republican Senators who joined in a bipartisan memorandum of understanding to head off the ``nuclear option'' and agreed that nominees should only be filibustered under ``extraordinary circumstances,'' abandoned all that they said they stood for and joined together in an attempt to prevent an up-or-down vote on President Obama's very first judicial nominee, David Hamilton. There were certainly no ``extraordinary circumstances'' to justify the Republican filibuster of Judge Hamilton, and several Republican Senators joined together with Democratic Senators in rejecting that filibuster. I trust that they will do so, again, and reject this unjustifiable filibuster of Caitlin Halligan.

By the standard utilized in 2005 to end filibusters and vote on President Bush's controversial nominees, this filibuster should be ended and the Senate should vote on the nomination. Those Senators who claim to subscribe to a standard that prohibits filibusters of judicial nominees except in ``extraordinary circumstances'' cannot support this filibuster. There are no ``extraordinary circumstances'' here. The 14 Senators who signed the Memorandum of Understanding in 2005, the then ``Gang of 14,'' wrote about their ``responsibilities under the Advice and Consent Clause of the United States Constitution'' and that fulfilling their constitutional responsibilities in good faith meant that nominations `` should only be filibustered under extraordinary circumstance.'' Here there are none.

In 2005, Senator Graham, a member of the ``Gang of 14'' described his view of what comprises the ``extraordinary circumstances'' justifying a filibuster. He said: ``Ideological attacks are not an `extraordinary circumstance.' To me, it would have to be a character problem, an ethics problem, so allegations about the qualifications of a person, not an ideological bent.'' Caitlin Halligan has no ``character problem,'' no ``ethics problem,'' and there is no justification for this filibuster. Caitlin Halligan is a superbly qualified nominee whose personal integrity, temperament and abilities have been attested to by lawyers and judges from both sides of the aisle. The many leading lawyers who have worked with Ms. Halligan, law enforcement officials and organizations supporting her nomination have all attested to Ms. Halligan's ``temperament,'' ``fairness'' and ``balance'' in addition to her legal judgment and qualifications for the D.C. Circuit. Hollow contentions about the caseload of the quarter-vacant D.C. Circuit fall well short of any standard of ``extraordinary circumstances.''

The signers of that 2005 Memorandum of Understanding, and the Senate, demonstrated what they thought that agreement entailed when they proceeded to invoke cloture on a number of controversial nominations. The Senate invoked cloture on the nomination of Janice Rogers Brown to the D.C. Circuit, the circuit to which Caitlin Halligan has been nominated.

As a Justice on the California Supreme Court, Janice Rogers Brown was a nominee with a consistent and extensive record, both on the bench and off, of using her position as a member of the court to put her views above the law. This was not a question of one case or one issue on which Democrats differed with the nominee--I have voted for hundreds of nominees of Republican and Democratic Presidents which whom I differ on many issues. But this was a nominee with views so extreme she was opposed not just by her home state Senators, but also by more than 200 law school professors from around the Nation who wrote to the Committee expressing their opposition.

Her record in numerous decisions as a judge showed that she was willing to put her personal views above the law on issue after issue, including a willingness to roll back the clock 100 years on workers' and consumers' rights, to undermine clean air and clean water protections for Americans and their communities, laws providing affordable housing, zoning laws that protect homeowners, and protections against sexual harassment, race discrimination, employment discrimination, and age discrimination. In fact, while serving on the California Supreme Court, Justice Brown had argued that Social Security is unconstitutional, a position clearly at odds with well established law. She went so far as to say ``today's senior citizens blithely cannibalize their grandchildren.''

Despite her ideological extremism and willingness to implement her radical personal views as a judge without regard to the existing law, she was confirmed to the D.C. Circuit, her nomination judged not to present ``extraordinary circumstances'' supporting a filibuster. There is no justification under the standard applied to the nomination of Janice Rogers Brown for a filibuster of the nomination of Caitlin Halligan, a widely respected nominee with a clear devotion to the rule of law and no record of ideological extremism.

Under the Gang of 14's Memorandum of Understanding, the Senate also agreed to invoke cloture on the nomination of Priscilla Owen to the Fifth Circuit, a nominee whose rulings on the Texas Supreme Court were so extreme they drew the condemnation of other conservative judges on that court. Alberto Gonzales, President Bush's White House counsel and later his Attorney General, went so far as to describe one of her opinions as advocating ``an unconscionable act of judicial activism.'' Her nomination was determined not to present ``extraordinary circumstances.''

Neither was the nomination of Thomas Griffith to the D.C. Circuit, despite his decision to practice law without a license for a good part of his career, which I felt should be disqualifying. Yet his nomination was not judged to present ``extraordinary circumstances'' and he was confirmed to fill the 11th seat on the D.C. Circuit. There is no question under the standard Republicans applied to the nomination of Thomas Griffith, Caitlin Halligan should be confirmed to fill the ninth judgeship on that court.

I urge Republican and Democratic Senators to come together and end this misguided filibuster of Caitlin Halligan's nomination to the D.C. Circuit. There is no basis under any standard for blocking her nomination from having an up-or-down vote. To the contrary, Caitlin Halligan's impeccable credentials and record as an accomplished advocate make her nomination worthy of bipartisan support. I look forward to ending this filibuster and voting to confirm Caitlin Halligan to the D.C. Circuit.

Mr. President, I suggest the absence of a quorum but ask unanimous consent that the time be equally divided.

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

Mr. President, we are soon going to a rollcall vote on Edgardo Ramos, of Connecticut, to be U.S. district judge for the Southern District of New York. We also have three others on here: Andrew L. Carter, Jr., of New York, to be U.S. district judge for the Southern District of New York; James Rodney Gilstrap, of Texas, to be U.S. district judge for the Eastern District of Texas; and Dana L. Christensen, of Montana, to be U.S. district judge for the District of Montana.

I ask unanimous consent that following the rollcall vote for Edgardo Ramos, Andrew L. Carter, Jr., James Rodney Gilstrap, and Dana L. Christensen be considered by voice vote.

Mr. President, what is the regular order?

I ask for the yeas and nays.

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

Madam President, first, I want to comment on the Cordray appointment that was attempted a little bit ago, and then I want to bring up some more good news on the economic front.

First, I was somewhat disappointed in the vote of 54 to 45, garnering only 1 Republican from the other side--only 1--and on such an important agency that ensures the protection of consumers in a variety of areas. It seems illogical to me that we would not find compromise in a vote to appoint someone to run an agency that this body, in a 60-vote margin, approved to help protect consumers, particularly considering what has happened over the last several years and the glaring problems and challenges consumers have had to endure with the financial institutions of this country as well as from other entrepreneurs, such as pawnshops and payroll check cashers. All of these institutions would have firm regulations and provide the consumer an opportunity to respond, or those who get abused by those programs.

I am a little disappointed. I wasn't intending to come and speak on that issue, but I wanted to have my voice on the floor that I was disappointed that an appointment could not happen, which I believe is raw politics. It has nothing to do with the individual's ability to make this agency run properly. They didn't want to appoint him because they didn't like the agency--the 45 or so who didn't vote for it. And I think it all boils down to one very simple thing: Consumers are now, once again, left without someone running an agency that will help protect them against these people who prey on individuals in the financial arena.

The Economy

Again, Madam President, I am somewhat disappointed, but let me get to the real reason I came to the floor. I came down yesterday and had a lot to say about the economy and where we are and the headlines that were reported yesterday. And in less than 48 hours--27 hours--there are more good news headlines.

These are some of the headlines I talked about yesterday: ``Jobless Rate Dips to Lowest Level in More Than 2 Years.'' New York Times. CNN: ``Dow Closes With the Largest Gain Since March 2009.'' ``Private Sector Jobs Soar. Payroll Forecasts Rise.'' That is Reuters. The Wall Street Journal: ``Online Sales Reached Record $1.25 Billion on Cyber Monday.''

On top of that, we had record sales for Thanksgiving weekend--Black Friday they call it, and Small Business Saturday. Again, an incredible impact for our economy.

What this tells me--even though we get a lot of criticism from the other side and others who complain maybe we are not doing our job and are frustrated that Washington isn't working as well as it could--and I agree there are a lot of areas where we are not able to move forward, such as the appointment I mentioned a few minutes ago--is there are good examples of policies we have worked through over the last 3 years during this great recession. We have fought kind of a lonely war to get these policies in place.

Once again, more good news, and let me read off a couple. This week's Time magazine has a whole article entitled ``How America Started Selling Cars Again.'' Why is this important? Because this is a manufacturing base for our country. It employs people not only in jobs in the automobile industry but it trickles all the way through the economy of the country. It doesn't matter if they are at a port, for example.

I remember meeting recently with the folks from the Detroit Port Authority talking about ships and the movement of product from the automobile industry across this country, but also manufacturing and other activities throughout the country that support the automobile industry. It is moving forward. It is growing.

We took a dramatic step and got a lot of criticism for it. As a matter of fact, no one wants to even mention the words, because everyone is so nervous about it. Some call it an auto bailout. And, yes, we did do that. That result is a healthy, strong, profitable industry that is bringing jobs to America and creating jobs in America. As a matter of fact, there was an article in the Wall Street Journal not long ago talking about how we are importing jobs from Japan and China back to the United States, to the automobile industry, because it is successful.

And, oh, by the way, they are paying back all those loans they got from the Federal Government with interest. So the taxpayers are getting their money back in full. The net result is, because we helped at the right time, we have ensured we are still a player in the automobile industry not only in this country but in the world market. So for those who want to continue to complain and to demonize that action, the net result is we are bringing jobs back to the United States in this industry.

The Cash for Clunkers Program was another piece of legislation that barely passed. Again, many of us on this side of the aisle took that lonely road because we thought it was the right thing to help move this economy forward. Again, the net result is this industry is profiting more in the last several years. They are producing more jobs not only in their industry directly but indirectly. And the naysayers on the other side rarely bring this up anymore, because in less than 3 years-- really, less than 2 years--this industry has turned itself around because of American ingenuity and with the help and support from the U.S. Government, and that help and support is being paid back with interest in the good old American way.

So from my perspective, once again, this is a great story, and I commend Time magazine for talking about the future.

Let me also talk about another one. This is from CNBC. I pulled this off because I like looking at all the business magazines and Web sites every morning. I glance through quickly to see what is happening, what the markets are doing, what the industry is doing, who is investing, what are the new businesses, and what is happening out there. Here is this one: ``U.S. Mortgage Applications Jumped Last Week.''

This is the industry that fell apart in the beginning of the great recession--the housing industry. A lot of people say that was the main reason the economy collapsed. It was a significant portion of it, no question about it. But let me read this.

The Mortgage Bankers Association said its seasonally

adjusted index of mortgage application activity, which

includes both refinancing and home purchase demand, spiked

12.8 percent in the week December 2. The MBA's seasonally

adjusted index of refinancing applications also jumped,

gaining 15.3 percent, while the gauge of loan requests for

home purchases rose 8.3 percent.

By loan requests, these are people who are now saying, I want to think about buying a home. I want to purchase today. I want to start examining what is out there.

Here is what the Mortgage Bankers Association's vice president of research and economics said. These are his words:

Applications increased significantly as mortgage rates

dropped to their lowest levels in about 2 months.

Actually, overall, it is the lowest level in decades. But we now measure things by an eighth of a point. So when you are at 4.125 or 4.25, we are now measuring which is lower overall, but it is lower for the last several decades. Incredible.

Let me read another one. This is from Politico, but it is reporting on the Bloomberg Global Poll--which they started doing in 2009 to sort of see where foreign investors will put their money. Where will they invest? Where will they take the dollars they have accumulated or will gather through investors and shareholders and so forth? Where are they going to put their money?

More than . . . 41 percent, said they expect the U.S. will

have one of the strongest performing economies in the world

in the coming year--the highest percentage the country has

seen since the Bloomberg Global Poll began in October 2009.

Here is another one. Today, again MSNBC. ``Jobless claims drop to 9- month low.''

. . . jobless claims dropped 23,000 to adjusted 381,000--

That is actually below the magical threshold of 400,000, which people watch. The question is, Will it be consistently under 400,000? We have received more of these under 400,000 recently than in the last 3 years. That is a good signal that the economy is moving.

I know some will say it is not enough. Well, when I came here, half a million people were losing their jobs every single month. So we have now had 21 consecutive months of job growth in the private sector. That is a great statement for us as an economy, this 21 consecutive months of job growth. It is an indication our economy is moving.

Do we want it to move faster? Of course we do. That is what America is about. We want to see things happen right now--today. But this has been called a great recession. Yet we are pulling ourselves out of it. It takes time and it takes good policy. And, yes, it takes some opportunity and taking a little risk, and we did some of that here. We made some decisions that were tough and were not necessarily very popular at times.

I remember many of the calls I received on some of these issues. But what is the end result? That is what we have to measure by. Leadership is not about waiting for a poll to tell us what is right or wrong or waiting for someone to say, here is the right move because your constituency will vote for you if you do this thing this way. It is about leadership. Sometimes the leadership role is tough. It means getting a few trucks running over you a little bit, leaving some tire tracks on your back, but the end result is what we look for.

Today, where we are, we have job growth--not as significant as we want but job growth. Where were we? Half a million jobs a month disappearing.

Let me cite another one. This is a big issue people are concerned about. As a former mayor, managing a city, you are always looking at the revenues because the revenues tell you how your local economy or, if it is State revenue, how your State is doing. If you remember, at the end of 2008, 2009, and beginning of 2010, there was incredible concern about local governments collapsing under the debt and deficit spending and unable to manage.

As a matter of fact, the markets were concerned about municipal and State debt and what that might mean. Oddly enough--and I wish I had brought that article--it hasn't panned out as people thought. Local governments, State governments are doing better than people anticipated. It is still a tough road, no question about it. We still have firefighters, police officers, and teachers who have been laid off. We tried to pass a bill here to help that out, but that didn't happen because too many on the other side opposed it.

But for State and local governments, here is the latest State revenue report by the Nelson A. Rockefeller Institute of Government, University at Albany, NY: ``Overall Tax Revenues Show Strong Growth in Second Quarter.'' The article speaks to State tax revenues growing by 10.8 percent in the second quarter of 2011.

As a matter of fact, the year ending June 2011--which is the end of a lot of fiscal years for State and local governments--the period corresponding to 46 States--almost all of the States' fiscal years-- total State collections increased by $58 billion in that year, or 8.4 percent, from the previous year, the strongest annual gain since 2005.

What does that mean? That means local economies, State governments, are starting to recover. It is still a rough road but starting to recover. Good signs. That means there is more economic activity within their communities. It means businesses are replanting and redesigning their opportunities in those communities. People are buying homes, as I mentioned, which means they are paying property taxes, which means those local governments can hire police and fire and paramedics and teachers.

Again, I could probably come here every day and give this kind of good news. Because what we all hear--today, the market is down. I forget what it is--70, 80 points, maybe 100 today--but the headlines will be: market crashes or market dips significantly.

Here is the reality. Since March of 2009, the market is up, even with today's activity, 81 percent. That means my son's 529 account is better today than it was 3 years ago. That is good because that means my wife and I can afford to make sure he can go to college someday. But it also means retirement accounts have more resources in them today than they did 2\1/2\ or 3 years ago. It means public pension programs and investment retirement programs that invest in these kinds of markets also are doing better. But, again, the headline will be that the sky is falling because that is what people like to do. They like to prey on fear rather than opportunity.

I think a lot of us on this side believed in the opportunity, in the future of this great country 3 years ago when we sat here and made some tough decisions over the first 18 months in my term. Tough decisions. But we believed in what was possible. We believed that this economy would turn around with a little help from the people who live here, work here, and see the future.

We also knew we had to do a little bit. We had to do something extraordinary to create the opportunities for the future of this great country. As I mentioned, private sector jobs increased, the automobile industry better than ever before, home sales doing better than they were 2\1/2\ years ago, the market is up by 80 percent--all good news. But we don't hear a lot of those as the front-page, above-the-fold, big, bold headlines because they are not sexy. They are not controversial. But that is what is happening. If a lot of us around here had more belief in the potential, it would be incredible what could happen.

Let me end on this note; that is, we are in the middle of the debate on continuing tax relief for the folks who are working every day, the people I just talked about who are buying homes, buying cars, paying taxes. We are saying to them: We want to make sure you

continue to receive the dollars in your pocket.

In my State, that is $300 million--just in my State, $300 million with the payroll tax deduction that they get to keep for 400,000 Alaskans instead of the IRS taking it. I don't know about you, but I think that is a good thing.

I know some will say: We have no proof this works. Well, I just gave proof. I will give proof every day if necessary. Yes, we can't say this certain industry came back because of this one little item. But I will tell you, if we put $300 million in my State into the hands of 400,000, Alaskans, a little over $1,000 per person, the net result is they are going to spend that money in the economy. They are going to buy that car, that washing machine, or go on that vacation. They are going to spend that money in this economy. Yes, there is no fancy report that said this business succeeded because we gave them this special tax break--which we shouldn't do. We gave to the people of this country an incredible opportunity to take their money and put it to work.

Mr. President, 160 million families will benefit--160 million families will benefit by this action today. People making $50,000 or less will put back about $1,000 into their pockets again--not in the IRS's pocket but into the consumers' pockets that they will spend.

Again, I will hear from the other side how bad it is, that there is no proof, that this may not work. It is working. They can deny it all they want, but I will continue to lay all the facts down. It is not me producing this out of some government document. It is mostly some very conservative publications reporting on the good news.

I hope the folks on the other side--and I know we picked up a Republican from when we had this before. This is a modified, compromised version that didn't pass last week to say: OK, we are trying to compromise. But we are keeping it simple and trying to do it in a way that ensures that middle-class Americans, and Alaskans whom I represent, put more money in their pockets, people who are working every day, making a difference in the economy--not people who are just on the top end of the cycle. I know that is the great debate, and we differ and I differ with several people on the other side.

I do believe people who make $1 million or more should pay a little bit more. I don't have any heartburn over that. It is 235,000 people we are talking about versus 160 million. That is who I want to put my investment in because I know those people, who are individuals, families, and a significant portion of small businesspeople who will continue to build this economy.

As a matter of fact, the best growth period and growth pattern right now is small business. They are the ones that are the backbone of this economy. Those are the ones that we need to help. That is what this bill does. I hope we find the magical success.

I wish we would have 50 majority votes like the rest of this world operates under. For some reason, this place has to have special rules and make it complicated and hard for anything to get done. But maybe there will be some people who join and want to support the American people and support giving them tax relief and making sure their lives are better, especially at this time of year with Christmas around the corner. I would love to give them a good Christmas gift. I think all of us would. Let's do it. Let's do it today. Let's do it for the American people. Let's do it for my constituency in Alaska, for your constituency, Mr. President, and all the rest in this room.

Mr. President, if there is one thing I look for, if it makes a difference for Alaska, if it is about Alaska, I am there. This is not only about Alaska, it is about this country. It is about the middle class. Not only am I there, I am double there, and I hope we find opportunity in this Chamber to do the right thing.

Mr. President, I ask unanimous consent that any time spent during a quorum call between now and 2:30 p.m. be equally divided.

I ask unanimous consent to enter into a colloquy with my Republican colleagues for up to 30 minutes.

Mr. President, I stand today to urge my colleagues to support efforts to bring forward a balanced budget amendment, one that can be passed out of both Houses of Congress and submitted to the States for ratification.

Article V of the Constitution gives us the power to change the Constitution from time to time, to modify our laws, that 224-year-old document that has fostered the development of the greatest civilization the world has ever known.

We have done this 27 times. We have done it at times in order to protect and preserve the Nation our ancestors fought so valiantly to create and later again to defend. We have to modify our government, the manner in which we do business, in order to preserve that system, in order to make it strong, in order to ensure that it will continue to be strong for future generations.

We made it stronger when, for example, we added the Bill of Rights shortly after the ratification of the Constitution. We made it stronger again when, for example, we added the so-called Civil War amendments, amendments XIII, XIV, and XV, ending slavery and the badges and incidents thereof. We made it stronger when we made clear that women must always be given the right to vote. We have made it stronger a number of times. And the time to make it stronger has come yet again.

It is time to modify the Constitution to limit--to restrict-- Congress's current power granted by article I, section 8, clause 2 of the Constitution to borrow money on credit of the United States. The reason we need to do this is because this power has been so severely abused over such a prolonged period of time that it is causing devastating consequences for our economy and for our ability to fund the operations of the government.

We have now accumulated over $15 trillion in debt as a country. That works out to about $50,000 for every man, woman, and child in America. It works out, arguably, to about $120,000 to $150,000 for every taxpayer in America. This is lot of money. It also represents between 90 and 100 percent of our gross domestic product annually, depending on whose statistics you follow. This is troubling, given that there is an abundant amount of research indicating that once a country's sovereign debt-to-GDP ratio crosses the significant 90-percent threshold--which we have now done--economic growth tends to slow, tends to slow to a point that an economy as large as ours can expect to lose as many as 1 million jobs a year. We can't afford to lose jobs, especially when we know one of the major causes is our national debt. It is time we change the way we do business. It is time to change the manner in which Congress acquires new debt.

This is no longer an issue that is either Republican or Democrat, that is either liberal or conservative. It is simply American. I remind my colleagues, whether you are concerned on the one hand about preserving America's leading edge, its ability to fund its national defense program or, on the other hand, if you are most concerned about funding our entitlement programs, you should want a balanced budget amendment because this is what we need to do, this is what we have to do in order to protect our ability to fund both of those things and everything else we do, you see, because by the end of this decade, according to the White House's own numbers, we will be paying close to $1 trillion every year to pay the interest on our national debt. Just the interest alone. We are currently spending a little over $200 billion a year on interest--still a lot of money but about $800 billion lower than what we are likely to be spending by the end of this decade.

Where will that additional $800 billion every single year come from? This isn't a discretionary sum. This is money we have to pay. It is the first thing we have to pay. Where will that $800 billion difference be made up? At that point, we can't expect simply to raise taxes to make up that difference. I am not aware of any tax increase plan that could bring in that much additional revenue every year, without stagnating our economy to the point that we might, within 1 year or 2 years, bring in less revenue rather than more--certainly not $800 billion more. Nor am I aware of any plan whereby we could simply borrow an additional $800 billion to pay that interest, because doing so, of course, would cause our interest rates to skyrocket, grow out of control, and our interest payments would be even more significant at that point, thus further impairing our ability to fund everything from defense to entitlements. So at that point, the only option on the table would be dramatic, severe, abrupt, even Draconian cuts to everything from defense to entitlements and everything in between. We don't want this. There is a better way. And the better way forward consists of a severe permanent structural spending reform that can be achieved only through a balanced budget amendment.

Let me explain what I mean by that. And, more importantly, let me explain what I don't mean by that.

We have to be aware of things that masquerade as balanced budget amendments, things that will actually do the job instead of purporting to do the job, distracting the public's attention away from the need to do this while in effect doing nothing. We need to be aware of what I sometimes call the Trojan horse balanced budget amendment proposal.

There are a few hallmarks of what a real, effective balanced budget amendment would accomplish. First and foremost, it has to apply to all spending in requiring Congress to provide a supermajority vote for any borrowing authority. There are some who have suggested we should have a balanced budget amendment that exempts certain categories of entitlement spending. But, of course, as we all know, it is entitlement spending that continues to

consume a larger and larger share of our national budget each and every year. It is entitlement spending that is anticipated to have shortfalls for sums that will have to be expended for Americans alive today. It could range anywhere from $50- to $60- to $110 trillion in unfunded entitlement liabilities. So simply exempting entire categories of entitlements is one of these hallmarks of a Trojan horse balanced budget amendment. We can't do that. We need it to apply to all Federal outlays, all Federal spending.

Second, an effective balanced budget amendment must cap spending at the average historic level of Federal revenue. Over the last 40 years, our average take, our average income as a percentage of GDP, has been about 18 to 18.5 percent of our gross domestic product. We need to make sure we are not spending more than that; that Congress can't, without a supermajority vote, spend more than 18 percent of GDP in any given year. Otherwise, we run the risk that Congress will find a way through tricky accounting schemes to circumvent the restrictions to make sure it is not spending more than it takes in.

Third, the supermajority requirement must apply to the folks in both Houses of Congress every time Congress wants to spend more than it takes in. Any balanced budget amendment proposal that allows for a simple majority to bring about an exception to these spending limitations is one that Congress can and will use to circumvent the amendment entirely. Let me explain what I mean.

We have had in the past certain statutory legislative limitations on Congress's spending and borrowing power. Some of these have been known as the Graham-Rudman-Hollings legislation, and also the pay-go rules. But because Congress makes those laws and because they haven't been reduced to a constitutional amendment, just as Congress giveth, Congress taketh away, and Congress has seen fit to exempt itself of those rules. A balanced budget amendment, even while enshrined in our Constitution, becomes no more effective than those statutory or internal rules unless every time Congress wants to get around those limitations Congress is required to cast a supermajority vote to justify that excess.

Finally, an effective balanced budget amendment must require that Congress cast a supermajority vote anytime we raise the debt limit. This will give us an additional guarantee that tricky accounting mechanisms will not be used to circumvent some of these most important restrictions. Without these restrictions, Congress will continue to spend out of control, because Members of Congress tend to be rewarded when they spend and they tend to be criticized when they cut, and political pressures are such that I fear this spending will continue out of control in perpetuity until that moment in which we reach our natural mathematical borrowing limit--not our statutory debt limit, our natural mathematical borrowing limit. It is at that point when the most abrupt, the most painful, the most Draconian cuts will have to be made. We can do this in a way that makes sense. We can do this in a way that is sensitive to the needs of the most vulnerable Americans, those who have become the most dependent upon our entitlement State, most dependent for their day-to-day existence on these very programs. Those programs will have to be cut abruptly and in a most painful manner unless we take the necessary steps right now and start moving onto a smooth glidepath toward a balanced budget amendment.

We may not be able to balance our budget overnight, but we can do it over the course of a few years. That is exactly what this would allow us to do.

I have worked closely with a number of my Republican colleagues in supporting S.J. Res. 10, a balanced budget amendment proposal that has the support of all 47 Republicans. One of my close allies in this endeavor has been my friend and colleague, the junior Senator from Kentucky. I would like to ask him to share his perspective on why this is necessary.

So I ask Senator Paul why does he think this is so important for us to have this amendment right now.

If the Congress is consisting of a Senate and House, and the Members of the Senate and House are elected representatives of the people who stand for reelection at regular intervals, and if the American voting public overwhelmingly supports a balanced budget amendment, why haven't we then passed it and given the States an opportunity to ratify such an amendment?

What is my colleague's sense as to how the various State legislatures are likely to respond to a constitutional amendment proposed by both Houses of Congress? Does he think they would likely ratify such an amendment by the necessary three-fourths margin?

So they are paying for Washington's fiscal irresponsibility in the form of job losses and in the form of increased prices for goods and services and in the form of inflation.

It is likewise my experience with my State legislature that they seem to be very supportive of it. In fact, I have a document here signed by the legislative leaders of my State: by Governor Gary Herbert, by Utah house of representatives speaker Rebecca

Lockhart, and by Utah State senate president Michael Waddoups. It concludes essentially as follows:

We urge the United States Senate and House of

Representatives to pass a balanced budget amendment and send

it to the states for ratification. Additionally, we urge

Congress to make Utah's current resolution part of the

Congressional Record.

They also proceed to explain why they feel so strongly about this. They say:

Not only for our own sake, but for future generations as

well, the states must now combine in an unwavering resolve

with convincing action to put the nation's financial house in

order. Passage of your own state's resolution urging the

support for a balanced budget amendment can help make this

happen. Please join with Utah to call upon Congress to

immediately pass a balanced budget amendment. We respectfully

encourage you to urge your congressional delegation to act in

your behalf.

They are calling not only on Congress but also their fellow State legislators throughout the country to urge this same action from Congress. In the same breath, they also adopt it, and they supported wholeheartedly the specific balanced budget amendment proposal that is found in S.J. Res. 10.

I thank them for doing that. I think they reflect the views of so many of our State legislatures which balance their budgets every single year. Most of them do. It is not news when they do it. It is not news because it is what is expected. It is expected because that is what they do.

I look forward to the day and age when it is no longer news when Congress balances its budget.

I would like to ask Senator Paul another question. Why is it that so many are fond of saying, as our President has recently said, ``We don't need a balanced budget amendment; what we need is for Congress to just do its job''? Why isn't that enough to carry the day?

I think most Members of Congress would acknowledge that their constituents want the Federal budget balanced. Why is it not enough for us just to tell Members of Congress: Please balance it. We don't want to have to restrict your authority. We don't want to have to take the keys away from the irresponsible driver. We just want you to be responsible. Why doesn't that work?

Perhaps it is inherent in the institution itself, in the forces at play, that have made Congress uniquely vulnerable to this kind of massive deficit spending. Whatever the reason, we know Congress is not willing, is not able, or at least in recent years has not been inclined except in rare, unusual circumstances to balance its own budget.

That being the case, we cannot assume that Congress will all of a sudden start doing its job, as those who have used this argument have insisted. Part of Congress's job, as Congress has come to perceive it, is to engage in deficit spending. One of Congress's powers, as Members of Congress who read the Constitution will point out, is to borrow money on the credit of the United States. So it is not enough to simply tell Congress to do its job because it has regarded this kind of massive deficit as consistent with that mandate, consistent with that injunction.

Meanwhile, Congress is continuing to occupy a larger and larger share of the American economy. We have to remember that for the first 150 years or so of our Republic's existence, we were spending between 1 percent and 4 percent of gross domestic product at the Federal national level, with only two brief exceptions--once during the Civil War and once during and then the immediate aftermath of World War I. But that all started to change in the 1930s when we broke into double digits for the first time ever during peacetime. We have never really gone back.

Now the Federal Government is spending about 25 percent of GDP annually. Roughly a quarter out of every dollar that moves through the American economy every year is taken out of the real economy by Washington. It is absorbed within the Federal morass that is our government. That is a problem. That needs to change.

I fear, I suspect, I firmly believe that it will not change until we take this power away, until we at least impose severe restrictions on Congress's borrowing power because it has become part of Congress's nature to engage in this kind of out-of-control deficit spending.

I would like to ask Senator Paul another question. How does he think it would impact the lives of Americans, of Kentuckians, on a day-to-day basis, if we were to pass a amendment such as this and have it ratified by the States?

I could not agree more with that assessment. It is important for us to remind our colleagues of that because according to a recent CNN poll, the American people overwhelmingly support this by a margin of about 75 percent. Those who oppose it, those who are Members of this body, those who are Members of our sister body--the House of Representatives--who choose not to support it, will cast their ``no'' vote at their own political peril because the American people are standing and they are demanding more. They understand that, in the words of Benjamin Franklin: ``He'll cheat without scruple who can without fear.''

When Congress is free to spend more than it takes in every single year without political consequence, bad things happen. When Congress starts to manipulate more and more of the economy, that is something the American people understand is hurtful rather than helpful to them, to the people on the ground, to the person who is unemployed and looking for a job, to the person who is underemployed or underpaid for the work he does, to the single mother who is just worried about taking care of her children, to the grandparents who are worried about the future of their grandchildren, worried about the fact that for the first time in American history, Americans fear their posterity will enjoy a lower standard of living than what they have enjoyed.

All this is due to the fact that Congress has no real boundaries to its authority and recognizes no real limits on its ability to spend our hard-earned money. This has real consequences. We can forestall those negative consequences right now if we will act to restrict, on a permanent and structural basis, Congress's ability to engage in deficit spending.

Accept no imitations, beware of the Trojan horse balanced budget amendment, the one that can be circumvented easily by a simple majority vote. Beware of the balanced budget amendment that limits, as a percentage of GDP, Congress's ability to spend money. Look out for these principles. If we get this balanced budget amendment passed, submit it to the States for ratification. They will ratify it, and we will find our best days, as Americans, are yet ahead of us.

I urge my colleagues to cast a vote in favor of S.J. Res. 10.

I thank the Chair.

I yield the floor.

Mr. President, on behalf of the majority leader, I ask unanimous consent that the time until 2:30 p.m. be equally divided between the two leaders or their designees for debate on the Reid motion to proceed to Calendar No. 251, S. 1944; that at 2:30 p.m., the Senate vote on the motion to proceed to S. 1944; that upon disposition of the Reid motion to proceed, it be in order for the Republican leader or his designee to move to proceed to Calendar No. 244, S. 1931; that there be 2 minutes of debate equally divided between the two leaders or their designees prior to the vote; that both motions to proceed be subject to a 60-vote threshold; finally, that the cloture motion relative to the motion to proceed to S. 1944 be vitiated.

Mr. President, a little earlier today the junior Senator from Utah, Mr. Lee, came to the floor to discuss the balanced budget amendment. Under the budget agreement agreed to in Congress in August, both the House and Senate were required to vote on a constitutional amendment to balance the budget before the end of this calendar year. The House has already taken the vote. The measure failed. The Senate still has a responsibility to take it up, which we will do in the closing hours of the session this calendar year.

There are at least two proposals before us for a constitutional amendment, and my subcommittee, the Subcommittee on the Constitution, Civil Rights and Human Rights of the Committee on the Judiciary, held a hearing last week asking questions about these approaches to the Constitution.

The leading approach on the Republican side comes from both Senators Hatch and McConnell. I am not certain which they will offer or whether the language might change at the last minute, but it would enshrine in our Constitution a disciplinary mechanism to reduce the budget deficit. This has been brought before the Senate and the House before many times. This particular proposed constitutional amendment would:

Require that in each fiscal year Federal outlays shall not exceed receipts unless two-thirds of each House votes to waive.

It caps outlays at 18 percent of gross domestic product each year unless two-thirds of each House votes to waive.

It requires a two-thirds vote in each House for any tax or revenue- raising measure.

It requires a three-fifths vote in each House for raising the debt limit.

It allows for waiver of the amendment in times of declared war or serious military conflict.

It prohibits courts from ordering any increase in revenue to enforce the amendment.

It directs Congress to enforce the amendment through appropriate legislation.

It takes effect 5 years after ratification.

This is far more extreme than the clean House balanced budget amendment, which failed to pass in that Chamber on November 18.

The testimony before our subcommittee from experts in the field said that this amendment, proposed by Senators Hatch and McConnell, will require Draconian cuts in Social Security, Medicare, Medicaid, our military retirement system, and many programs important to working families.

It will make Republican fiscal policies the constitutional law of the land, giving protection to those in higher income categories from any tax increase forever, without an extraordinary vote in either House.

It would delegate the task of resolving budget disputes to our court system.

It would make recessions worse by requiring cuts in countercyclical safety-net programs such as food stamps and unemployment just at the time when those expenditures are most needed.

It would increase the likelihood of debt limit standoffs each year.

It would lead to increased burdens on our States.

During the course of the hearings, several people came forward to testify. I recommend to my colleagues that they carefully read these testimonies, which are available on the Senate Judiciary Committee website.

The first was Robert Greenstein, president of the Center on Budget and Policy Priorities. Mr. Greenstein, who is well recognized and respected on Capitol Hill, spoke about the countercyclical aspect and said that if you cut spending in the midst of a recession, you will not have the resources you need to provide unemployment benefits, food stamps, and the things that save families when they are out of work or making very little money.

I ask unanimous consent that Mr. Greenstein's statement be printed in the Record.

Mr. President, another testimony that I thought was extremely compelling came from Alan Morrison. Alan Morrison is an accomplished attorney and has argued many cases before the U.S. Supreme Court. He is the Lerner Family Associate Dean for Public Interest & Public Service Law at George Washington University Law School.

Professor Morrison really asked us to think through what we are doing. In fact, he asked us the most important question: If you put an amendment to the Constitution that requires a balanced budget, who will enforce it? Who will make it work? Who will decide if you have lived up to its terms? He concluded, based on his background in constitutional law and arguing before the Supreme Court, not the President. The President is not in that position to do it. The President, of course, with his budget, has his own favorites when it comes to spending and revenue.

Professor Morrison said this case ultimately has to find its way to our court system. But he made it clear that any constitutional balanced budget amendment must expressly give to the Federal courts the standing to decide the question. He raised a question that without that expressed language, he really was doubtful that the courts would take it up. They might view it as just a political question to be resolved by Congress itself.

Now, Senator Lee, who spoke on the floor earlier, has a version of the balanced budget amendment that expressly gives standing to Members of Congress, if I am not mistaken. But the point made by Professor Morrison is that any balanced budget amendment has to expressly give to our Federal court system the power of judicial review. In other words, who is going to call the fouls, the balls, the strikes, and the outs? It is going to have to be the court system when it comes to whether the balanced budget amendment is being complied with.

That is the first question but certainly not the last question.

Professor Morrison then went on to say: Now, put this in the real world. In the real world, where Congress has passed a budget, appropriations bills, and now someone is arguing that what Congress did does not comply with the new provision of the Constitution requiring a balanced budget--arguing that, in fact, Congress is overspending the amount it is allowed to spend, for example--then, of course, that case has to find its way from the Capitol Building to the President, who signed the bill, and then over to the court system.

Keep in mind, while we are in doubt about the outcome on appropriations bills and the budget, there is a serious question about how we will continue to fund our government, whether we can continue to make important payments to military retirees, Social Security recipients, Medicare recipients. All of it is in doubt while there is a question raised as to whether the budget passed by the Congress is unconstitutional.

This is the thicket we are being led into by those who very glibly say: All we need to do is mandate in the Constitution a balanced budget, and it will just flow naturally from that mandate.

Well, listen to what Professor Morrison said:

The federal courts will (rightly) be extremely reluctant to

wade into these budget battles and thus will want to be sure

that there is likely to be a violation before agreeing to

decide the merits. But budgets are inherently uncertain in

their impact, depending on such factors as whether revenue

targets are met, whether the demand for entitlements is

higher or lower than anticipated, whether discretionary

spending is fully realized, and whether an existing war winds

down or a new one starts, each with great uncertainties

accompanying them. Thus, it will be far from clear on October

1st of a given fiscal year whether a duly enacted budget will

or will not be in balance, assuming that the question is

reasonably close, as it is likely to be in at least some

years. Unless Congress makes it clear, either in the

[constitutional] amendment or perhaps by subsequent

legislation, that the courts should resolve all doubts in

favor of finding claims ripe, the courts are likely to be

very reluctant to reach the merits even for those persons who

are expressly given standing in the amendment.

Then, of course, is the question of a remedy. What if Congress passes a budget and appropriations bills, the President signs them, and they are challenged in court, and the court says: Yes, in fact, Congress has overspent beyond the requirements of the Constitution. What is next? What remedy would the courts order? What can the court do?

Can they order the recipients (of salaries, social security

benefits, Medicare payments, payments under Government

contracts etc) to ``pay back'' [a certain percentage]? Or can

it order Congress to rectify the balance in the next year's

budget, which would almost certainly trigger a new lawsuit?

To be sure, the courts will not dismiss as moot claims that

are capable of repetition, yet evade review because the

duration of the violation is so limited that the courts

cannot decide its legality before it has ceased.

Professor Morrison asks us to get beyond the bumper stickers and to think twice before we amend our Constitution.

In the 220 years since the enactment of the Bill of Rights, we have amended this Constitution precious few times. We have done it for compelling national reasons. We have done it to extend the right to vote to women. We have done it to make it clear that African Americans treated as slaves will be treated as citizens in the United States. We have done it to deal with questions of Presidential disability and succession. These are things which were compelling, major, national issues which could be resolved in a clear, definitive way by our Congress, working with the States for ratification.

Now comes the flavor of the day. In the midst of the deficit crisis debate, there are those who are arguing that we should not accept our responsibility in the Senate and the House to balance the budget. No, we should just put in the Constitution that we are required to do it. And then they go further. If we are going to address it, they say, we are going to draw certain lines that future Congresses, forever, as long as this constitutional amendment applies, will be bound by--to make it more difficult to raise taxes on anyone in the United States; to make it imperative, if not mandatory, that cuts be made in programs such as Social Security and Medicare. These are questions that should be decided by Congress and the President on a timely basis.

I have been involved in the past 2 years with a lot of debate about our national budget deficit, both on the Bowles-Simpson Commission and with the voluntary effort by six Democratic and Republican Senators. It is not easy. It is very hard. But it can be done if the political will is there.

I think we need to summon the courage, the political courage and the will to do it. But we should reject--summarily reject these efforts to amend our Constitution. They are not well thought out. The Constitution is too important a document, a historical guidepost for our Nation, and an inspiration for nations around the world to put in a fatally flawed constitutional balanced budget amendment in the heat of the moment.

This is a significant vote. Those of us--and that includes every single Member of the Senate--who have sworn to uphold and defend the Constitution need to take that document very, very seriously. Those who want to amend it in quick fashion, changing their amendment language by the day, should be dismissed. If they do not show the reverence for this document that it deserves, if they do not take the time to make certain their proposals are consistent with the sanctity and importance of this document, they should not be taken seriously.

I do not believe any of my colleagues can go home having voted for that amendment and expect wild applause from audiences across America. They will understand that this was just a political reaction to a very important issue. Let's not amend the Constitution with a balanced budget amendment.

(Mrs. HAGAN assumed the chair.)

Madam President, I would like to make one additional brief statement. I see the Senator from Ohio in the Chamber.

The holiday season is upon us, and a lot of us are thinking about our families, and we are thinking about being with them as quickly as we can. It is a time of year that has a special significance for so many of us. But what was made clear by President Obama yesterday--and my colleagues should take note--we are not going home for

Christmas, Hanukkah, or any holiday season until we have done our job for the people of this country.

Millions of people in Illinois and across America are counting on Congress to extend the payroll tax cut. What does it mean in my State? With an average income of $50,000 a year, it is worth more than $1,000 a year to those families. It is worth about $125 to $150 a month to have a payroll tax cut--money that working families, struggling from paycheck to paycheck, desperately need to fill the gas tank, to pay the utility bills, to provide clothing for their kids, to make sure they can stay in their home. These are the basics.

No Member of Congress is going to be allowed to go home and ignore the imposition of such a new payroll tax on America. President Obama met with the Democratic leaders of the Senate yesterday, and he said point-blank--he has told the First Lady, Michelle, and his girls that, if necessary, they can have their Christmas vacation in Hawaii, which they go to each year, by themselves, and he will wait here until this job is done. I hope that does not happen for the sake of his family or for the sake of any family of any Member of Congress, but in order to avoid that, we have to do the right and responsible thing.

This afternoon, there will be a vote on the payroll tax cut offered by Senator Casey of Pennsylvania. It is a payroll tax cut that would help millions of America's working families have more to spend and help the economy to recover. And he pays for it. He does not add to the deficit. He pays for it by imposing a surtax--listen closely--on the second million dollars earned by a person in a year, not the first million. You do not pay a penny on the first million you earn. On the second million, you will pay a surtax, and I think it is 2 percent, maybe less.

The Republicans have said: Absolutely unacceptable. We will not allow you to impose this onerous tax on these people.

People who are already making $20,000 a week, we cannot ask them to pay 2 percent more on the next dollar they make? I do not think it is unreasonable. And if it leads to a payroll tax cut that helps families across this country, if the economy continues to recover even at a faster pace, if we see more business activity and business life and more people working, do you know what is going to happen? Those same wealthy people will prosper again, as they always do. It is in their best interests for this economy to get well. For our Republican friends to fold their arms and say: We are just not going to let you touch the wealthiest people in America, is an irresponsible position.

Senator Casey has led this effort. It is the second effort we have made. We had one last week. The Republicans offered their alternative last week. It had 20 votes on the floor of the Senate--20 out of 47 Republican Senators. Twenty voted for it. They want to bring it up again today. They will probably get more than 20 votes this time, but it is pretty clear that the Republican Senators are halfhearted in their support of this Republican alternative.

One Republican Senator from Maine had the courage to step across the aisle last week and join us. We salute Senator Collins for doing that. We hope others will do it today.

We can bring this challenge to a close the right way by extending the payroll tax cut, paying for it with a tax on the wealthiest people in America. We can do our job and go home and be with our families. If Republicans will not come to the table to work with us on a reasonable compromise, I am afraid the American people will know very clearly who is to blame for continuing a tax on working families across America.

The facts are that we want working Americans to have a good year, get through a difficult time, and the economy to recover.

We should be doing this on a bipartisan basis. The President said: Roll out your Christmas trees and blankets here in the Senate because you are going to stay here, even through the holidays if necessary. We are not going to go home to celebrate until we can celebrate with American families who are counting on us across America.

I yield the floor.

I announce that the Senator from Massachusetts (Mr. Kerry) and the Senator from Wisconsin (Mr. Kohl) are necessarily absent.

Mr. President, in a few minutes, the Supreme Court will be addressing four issues in connection with the constitutionality of the Obama health care law. Previously, I spoke about the unconstitutionality of the individual mandate. Today, I wish to discuss the second issue of four: how much of the law must be struck down if the Court finds the individual mandate to be unconstitutional. This legal question is called severability.

When a court rules a law is unconstitutional, it can strike down only those parts it considers unconstitutional. It can strike down the parts that are intertwined with the unconstitutional provision or it can strike down the whole law. Its action will depend upon whether the remainder of the law can function as Congress intended when it passed it.

There are rules governing severability. Normally, when only parts of a law are held to be unconstitutional, only those parts of the law are struck down by the Court. But when a statute's unconstitutional provisions are severed, the whole law falls when Congress would not have passed the constitutional provisions without the unconstitutional ones being in it as well.

It is not enough that some of the remaining provisions are constitutional. The Supreme Court has asked whether the remaining provisions ``would function in a manner consistent with . . . the original legislative bargain.''

The lower courts have reached four different conclusions concerning the health care reform law; first, that the individual mandate can be severed from the rest of the bill; second, that the individual mandate can be severed but only if the law's related provisions that require mandatory issue and community ratings are also severed; third, the opposite position, that the mandate and the related provisions are not severable; and, finally, that the mandate is not severable and that the whole law must fall.

One of my Judiciary Committee colleagues has stated, for the Democrats, ``worst-case scenario, the mandate falls.'' But even the Obama administration does not take that view. The administration argues that if the mandate falls, the guaranteed issue and community rating provisions must also be struck down. The President's administration says health insurance markets will not function if all Americans are not forced to buy health insurance and insurance companies must, nonetheless, insure everyone who seeks coverage at prices that do not reflect their health risk.

If the mandate falls, keeping any of this law would violate the original legislative bargain. I would like to remind my colleagues of that original legislative bargain. The health care law passed because the majority party--in its own partisan way--was going to pass this bill by any means necessary. The individual mandate was very critical to the ability to pass this law and to particularly pass it only by partisan considerations.

We considered an amendment in the Finance Committee that would have granted exemptions from the individual mandate to everybody who asked for that exemption. My good friend, the chairman--and that is Senator Baucus, as we all know--correctly stated: ``The system won't work if this amendment passes.'' He further called it ``an amendment which guts and kills health reform.'' He commented that ``if we are serious about making sure that the Americans have health insurance, we all have to participate. . . .'' So the bill's sponsors knew the whole operation of the law depended upon this very important provision that the Court is now considering on the individual mandate and whether that issue was constitutional.

Let me repeat that. The people promoting this legislation that passed on a partisan vote knew the whole operation of the law depended upon the compulsion of the individual mandate. The legislative bargain also showed this law would not have passed if a single comma had been changed. Congress could not have enacted any part of this law without the individual mandate or any other provision. That situation comes about from the fact that the bill passed the Senate by one vote and individual Senators were able to extract specific provisions that benefited their State in return for agreeing to provide their deciding vote for the bill. I think we all know the outrage that came from the grassroots of America over some of those very special provisions. We also know the American people were disgusted by these deals. But without those arrangements and deals, none of the law would have passed.

Those deals were one of the reasons why the Democrats lost their 60- vote majority in the last election. So when the other body could pass a bill only by accepting the Senate bill, they blocked any amendments that would have changed so much as a comma. Had anything changed, the new 59-vote Senate majority would have prevented passage. The bill was offered on a take-it-or-leave-it basis, all or nothing. If the individual mandate is struck down, then the whole law must fall. Although it is not conclusive, it is certainly relevant that the law does not contain a severability clause. This is one more indication Congress thought the law was a unified whole.

It is simply not reasonable to argue that the law should survive without the mandate. The most important political accomplishment of the law is the additional coverage, not the lower costs we were promised. Without the mandate, coverage under the law evaporates.

Does anyone believe that without the coverage in the law, Congress could have passed the massive Medicaid expansion? Does anyone believe that without the coverage in the law, Congress could have passed the Draconian cuts in Medicare? Does anyone believe that without the coverage in the law, Congress could have passed hundreds of billions of dollars in new taxes? Of course not. It is simply not a legitimate argument that the rest of the bill could have ever stood on its own without the individual mandate enabling additional coverage.

I am pleased the Supreme Court has granted oral arguments devoted to the severability question all by itself. In the past, the Supreme Court has issued very activist severability rulings in which it rewrote a statute in a way Congress never would have passed it.

For instance, it completely rewrote the campaign finance laws in the 1976 Buckley v. Valeo decision in a way that produced an unworkable system that no Member of Congress would have ever voted for. In the Booker case, the Supreme Court rewrote the sentencing laws in a way that produced a very unworkable system that no Member of Congress would have voted for. This time, the Supreme Court should not use the severability doctrine to rewrite the health care law into something Congress never would have passed in the first place. It should strike down the entirety of the law in keeping with the law on this subject. Such a ruling would give us the chance to do what we did not do before: work in a truly bipartisan way to address these issues.

I yield the floor.

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

If the Democrats aren't going to take their time, I would like to take 5 or 6 minutes on another subject, and I ask unanimous consent to do so.

Mr. President, I come to the floor today to commend Secretary of Defense Leon Panetta for personally focusing top-level attention to what has been a festering problem, and I think it is fair for me to say a festering problem for decades. I am talking about the Defense Department's broken accounting system and lack of financial accountability.

Secretary Panetta has grabbed the bull by the horns and told the military services to get on the stick and move out smartly. He wants them to fix the problem now, not later. Secretary Panetta's bold initiative is laid out in a Department-wide memorandum dated October 11 this year. In this document, he calls for an all-hands-on-deck priority effort to accelerate plans to create a modern, fully integrated finance and accounting system. Such a system, if it ever comes to be, would be designed to generate reliable, accurate, and complete financial information. Such a system should be capable of producing credible financial statements that can earn clean opinions from independent auditors. If that happens, the Department will achieve what is called full audit readiness. But now I want to warn Secretary Panetta about what has happened to so many well-intentioned Secretaries of Defense. That could be a big ``if.''

Under the Chief Financial Officers Act of 1990, all government agencies were supposed to reach full audit readiness 15 years ago. As I understand it, the Defense Department is now the only delinquent agency. After the passage of so much time, how is it, then, that the Pentagon cannot provide an accurate accounting of all the money it spends? Doing it is a constitutional responsibility. Not doing it is unacceptable. Why are the military services dragging their feet as they are? What is the problem? Are all of the petty fiefdoms entrenched in Pentagon bureaucracy causing the problem? Is it because they do not want to surrender control of the money to a centralized financial authority?

This is a festering problem Secretary Panetta has tackled. As a former chairman of the House Budget Committee and Director of the Office of Management and Budget, he has the necessary knowledge and the necessary experience to get this job done.

The magic date for achieving full audit readiness at Defense was set in concrete 2 years ago. Unfortunately, this goal has a long and elusive history, and that long and elusive history is best characterized by relentless slippage. It is a rolling target date, and most experts believe the 2017 deadline is unattainable.

I am sure our tax-paying public doesn't understand why the Federal Government wouldn't have the best accounting system in the world, but they don't, particularly in the Defense Department.

Under Secretary Panetta's leadership, I hope all the slippage comes to a screeching halt and all the bureaucratic roadblocks are torn down. He has definitely turned up the heat and turned up the pressure. He has drawn a line in the sand. He wants to see results and see results now. He is calling for a revised plan for achieving audit readiness. It is due on his desk December 13. So Army, Navy, Air Force, Marines, Coast Guard, and everybody else--well, the Coast Guard is not involved but everybody else--get on the stick because that is next week. He has set a near-term goal. He wants the Department to produce partial financial statements by 2014.

As a first step, Secretary Panetta has called for the production of statements of budgetary resources by 2014. A statement of budgetary resources is just one component of a financial statement, but it represents a big important chunk of the whole. If credible statements of budgetary resources can be produced 3 years ahead of schedule, then maybe the full audit readiness by 2017 is, indeed, possible.

I also understand that Secretary Panetta's near-term goal is being incorporated in legislation working its way through Congress right now. That should help to move the ball further down the field.

Secretary Panetta's decision to set a preliminary goal of 2014 will be a good gauge--a good test--of what is and is not possible. Can the Defense Department achieve full audit readiness by 2017? We won't have to wait 6 years to find that out under the process Secretary Panetta is instituting. If problems surface early on, we in Congress can help the Department take corrective action to keep this effort on track and moving in the right direction.

A willingness and a commitment on the part of the Secretary of Defense to take on this problem goes way beyond the production of credible financial statements required by the Chief Financial Officers Act of the late 1970s. It

goes right to the heart of a much larger constitutional issue; that is, whether the Department of Defense is going to be held accountable.

The Department must be able to provide a full and accurate accounting of all the money it spends. Under article I, section 9 of the Constitution, such an accounting must be published from time to time. The taxpayers expect and deserve nothing less than that. Today, DOD can't do that. The status quo is unacceptable.

While I began conducting oversight of the Defense Department financial management issues more than 20 years ago, I did not come to fully appreciate the true understanding of the root cause issue until 3 years ago.

After receiving a series of anonymous letters alleging misconduct and mismanagement within the inspector general's audit office, I initiated an in-depth oversight review of audit reporting. Early on in the review, there was a startling revelation: One all-important, central element was adversely affecting every facet of the inspector general's audit effort, and that was the Department's broken accounting system. This dysfunctional system is driving the audit freight train. The success or failure of an audit turns on the quality of the financial data available for audit by competent examiners. The record clearly shows the quality of financial data presented for audit by the Department should be rated poor--or maybe I ought to say even worse than poor. This is what I call the ``no audit trail'' scenario. It is frequently encountered by auditors trying to examine Department of Defense books of account. That is the exact problem Secretary Panetta is attempting to address.

All my audit oversight work tells me that fixing the accounting machinery is the first step to audit readiness. Once a modern, fully integrated system is up and running, it should be a simple matter of punching the right computer buttons and credible financial statements will roll off of the printer. Doing routine oversight audits should be a piece of cake. Today's labor-intensive and time-consuming audit trail reconstruction work which auditors now endure in the absence of reliable accounting records will be a thing of the past. Most importantly, effective internal controls will be in place to protect the taxpayers' money against fraud, theft, and waste.

What I am saying to my colleagues is this: Secretary Panetta is on the right track. He is trying to take us to a place where we need to go and go soon. I want to help him lead us there, so I am here today to encourage and support this courageous effort to clean up the books. I admire and respect his personal commitment to such a noble cause.

I am also here to reinforce the words of encouragement contained in a letter that my friend from Oklahoma, Dr. Coburn, and I penned to Secretary Panetta on November 17. We, being Senator Coburn and I, want to work with him to achieve this most worthy goal. And in the process of these remarks to the Senate, I hope other Members of the Senate, particularly those who are on the Armed Services Committee, will also give Secretary Panetta encouraging words of support and thanks.

I yield the floor.