Floor Statements

Madam President, I come to the floor to speak about the nomination of Peter Kadzik to be an Assistant Attorney General for Legislative Affairs in the Justice Department. I happen to know that the majority leader hasn't yet filed cloture on this nomination, but I expect that he will in the near future. So now I take the opportunity to speak about that nomination.

It is no secret that I have concerns about Mr. Kadzik's nomination. I opposed his nomination in committee, and I will oppose it when it comes to a vote on the floor.

The reasons are pretty simple. Mr. Kadzik has been acting in that position since April 2013--in other words, in the very same position for which he has been nominated. His job is to respond to questions from Members of Congress. We have a clear track record to judge his performance, and that record has been dismal. Letters go unanswered for months. Then, when answers come, they ignore or dodge the questions.

Even before coming to the Justice Department, Mr. Kadzik had shown a lack of respect for congressional oversight. While he was in private practice, he represented the billionaire tax fugitive Marc Rich. Rich was infamously pardoned at the end of the Clinton administration following a large donation by Mrs. Rich to the Clinton Presidential Library. No fugitive has ever been pardoned before--let alone a billionaire fugitive who owed millions of unpaid taxes.

In the course of the congressional investigation into that controversy, Mr. Kadzik was subpoenaed to testify at the House hearing in 2001. He refused the committee's invitation to testify voluntarily. Then, he decided to fly to California the day before the hearing. The House committee had to send the U.S. marshals to serve him with a subpoena in California ordering him to return for the hearing. He later denied that his attorneys knew a subpoena was on the way when he got on the plane. But his denial is contradicted by handwritten notes from 2001 telephone conversations with his attorneys about the subpoena. Those notes are in the record of his confirmation hearings, and I invite any Senator to review them.

Some people might say: Well, that was a long time ago, and maybe it was just a misunderstanding.

But one thing is not in dispute even by Mr. Kadzik: He refused the House committee's request to testify voluntarily. He was unwilling to cooperate unless forced to do so by compulsory legal process. Everything in his record since then has reinforced the impression that Mr. Kadzik is simply not interested in answering questions from Congress unless he has no other choice.

He was not forthcoming during his nomination hearing on several issues, not just the Marc Rich controversy. Getting him to answer simple inquiries has required two or even three sets of questions. He wouldn't even promise to answer each individual question from members of our Judiciary Committee. Instead, he had a bad habit of grouping together a set of specific detailed questions, and then repeating one vague nonanswer over and over. In one set of responses he repeated word for word the same answer to previous questions nine times. That simply is not a good-faith effort to be responsive to each question.

When his answer was one he thought I didn't want to hear, he glossed over it. Example: At his nomination hearing, I asked Mr. Kadzik whether he intended to provide certain documents Chairman Issa and I had requested relating to a briefing by the Bureau of Alcohol, Tobacco, Firearms and Explosives. After he failed to mention the documents in his response, I prompted him about the documents once again and he evaded the question. Only after two subsequent sets of questions for the record did Mr. Kadzik finally come clean and admit that the Department would refuse to provide those documents requested. Mr. Kadzik should have been that candid initially, instead of avoiding the issue.

His seeming inability to give straightforward and accurate answers to simple questions causes real concern for me about his ability to perform his job, of which a very important part is answering inquiries from Members of Congress. I think an Assistant Attorney General for Legislative Affairs needs to ensure that Congress receives accurate information from the Department. That is what checks and balances of our constitutional setup is all about.

This also became a problem for Mr. Kadzik's predecessor, whose false denials about Operation Fast and Furious eventually had to be retracted. This office needs leadership that will restore its credibility. Mr. Kadzik's track record in the acting position makes it clear he does not have what it takes to restore sorely needed credibility. At Mr. Kadzik's confirmation hearing last October, Senator Feinstein told Mr. Kadzik that the Senate's Select Committee on Intelligence had recently received answers to questions for the record from the FBI that were over 1 year late. As she pointed out to Mr. Kadzik, ``A year is really outside the pale of propriety.''

Mr. Kadzik said in response: ``One of my missions at the Department is to improve that record and to expedite the providing of information to this Committee and all Members of Congress.'' But from what I have seen so far, Mr. Kadzik's record has been even worse than his predecessor's.

The Judiciary Committee still has not received answers to questions for the record from Attorney General Holder from an oversight hearing dating back to March 6, 2013, 14 months ago. Recently, the Judiciary Committee received answers to FBI questions for the record dated ``current as of August 26, 2013.'' According to the FBI Congressional Affairs staff, that is when the answers were forwarded to Mr. Kadzik's office. Although the FBI responses to Congress were then only 2 months old, apparently they sat in Mr. Kadzik's Office of Legislative Affairs for another 9 months.

Mr. Kadzik is just as unresponsive to letters. His staff recently acknowledged they were aware of 13 pending letters from this Senator that have gone completely unanswered. I don't mean he replied with an answer I didn't think was good enough; I mean there was simply no reply whatsoever. Some of those questions from this Senator dated back to October 2012, well over a year and a half ago. His office is completely ignoring those letters.

He did send me a couple of very weak responses in just the last few days. Each of those was essentially one paragraph long. One was a reply to a letter I sent almost 1 year ago. The other replied to a letter from January in which I asked four simple questions. They addressed Attorney General Holder's failure to issue a report on the need for reform of the FBI's whistleblower procedures.

The Attorney General was required to report to President Obama within 180 days of the Presidential directive on whistleblowers, which was issued October 2012. A little history: The FBI was exempted from whistleblower provisions in the Civil Service Act of 1978 and the Whistleblower Protection Act of 1989. That has resulted in the FBI being one of the worst retaliators against whistleblowers over the years. Therefore, the FBI report President Obama requested was an important part of the Presidential directive. I had written to the Justice Department 3 weeks after the Presidential directive in 2012 to emphasize how important it was that the directive be followed and that the FBI people have proper whistleblower protection. Then there was a 180-day deadline. That deadline came and went.

I wrote the Justice Department earlier this year asking about the report because at that time it was more than 10 months overdue. I asked the current status of the report, why they had failed to issue it so far, when it would be complete, and whether they would provide a copy to the Judiciary Committee.

So those are the simple questions I asked Mr. Kadzik. Once again, the nominee failed to send a prompt, good-faith response to my letter. Mr. Kadzik could have written immediately to say the Justice Department knows this review is important and explain why it was taking longer than they thought. Mr. Kadzik could have told me the review was expected to take several more months. Instead he waited 4 long months until the report was complete, then simply sent me a one-paragraph response, stating the report was sent to the President of the United States. He didn't try to explain why it took so long. He completely ignored my question about providing a copy of the report to our Judiciary Committee. This is not the kind of good-faith, candid response the Justice Department owes Congress, especially in our oversight capacity to see that the laws are faithfully executed by the President of the United States.

As a nominee who already works in that office, Mr. Kadzik had the opportunity to demonstrate a real commitment to the role of congressional oversight in our constitutional system of checks and balances. He could have answered the mail on time. He could have insisted on candid, good-faith, substantive replies to Congress. Rather than trying to raise the bar, he lowered it.

The attitude this nominee brings to dealing with congressional oversight and the requests we make is a symptom of much larger problems. The Justice Department has a lot of work to do to rebuild trust and confidence after the false letter it sent me on Operation Fast and Furious. It still is fighting in court to avoid turning over documents that explain its decision to ultimately withdraw the letter and admit that letter was false.

The Obama administration is arguing for a vastly expanded view of executive privilege. They want the ability to expand it far beyond direct advice a counselor would give to the President. They want it to include internal emails between lower level bureaucrats and agencies and departments. These, the administration claims, are so-called deliberative documents. They are created by people who may never even have been to the White House, let alone advise the President on anything where lawyer-client relationship can be established. That kind of broad privilege would be a massive blow to government transparency and to our system of checks and balances.

The position the Obama administration is taking in the Operation Fast and Furious lawsuit is a direct breach of the promise the President made in his first day in office. He pledged at that time to have the most transparent administration in the history of this country, but now the President's Justice Department is arguing for a massive expansion of executive privilege to include all of that so-called deliberative material. This nominee, Mr. Kadzik, is aggressively implementing that new policy even today, refusing to answer questions and withholding documents. His actions today are consistent with his history. Voluntary cooperation takes a backseat to legalism and forcing a legal confrontation.

I wish I could say Mr. Kadzik had demonstrated the kind of serious commitment to open, honest, and forthright cooperation with congressional oversight that the office needs. Unfortunately, he has not, but the failure to cooperate extends far beyond Mr. Kadzik's investigations.

We don't need to look any further than today's headlines to see the latest instance of this administration's failure to abide by its obligations under the law to submit to congressional oversight. Of course I am referring to the recent release of five of the most dangerous detainees from Guantanamo. The President's decision to release what some have called the Taliban dream team without notifying Congress in advance exemplifies this administration's contempt for congressional oversight. It is troubling for a host of reasons, especially when the stakes are so high.

In December 2013, Congress passed and the President signed the 2014 National Defense Authorization Act. Section 1035 of that law addresses the procedure the executive branch is required to follow if the President decides to release a detainee being held at Guantanamo Bay. This process isn't optional. It is not something that is a matter of Presidential discretion. It is actually required as a matter of federal law. It is required by a law this President signed.

The White House's failure to follow the law in this instance is just the latest example of this administration's blatant disregard for congressional authority. The law requires the President to notify certain House and Senate committees, including the Senate Select Committee on Intelligence and the House Permanent Select Committee on Intelligence, at least 30 days before Guantanamo Bay detainees are transferred or released. Obviously that did not happen.

Not only that but the law requires the President to explain ``why the transfer or release is in the national security interest of the United States.'' That didn't happen either. The President also had a legal obligation to describe any actions his administration took ``to mitigate the risks of reengagement by the individuals to be transferred or released.'' Such mitigating actions are required by the law, but that didn't happen either.

The reasons for these legal requirements are fairly obvious. The Members of this body understand and respect the President's responsibility to protect national security. That is in fact his paramount responsibility as Commander in Chief, but we too have a responsibility in this Congress and all Congresses to ensure that the national security is protected. Congress is a coequal branch of government. Yet our ability to ensure that the actions this President takes are designed to promote the national security have been thwarted because this White House kept us in the dark about the release of the five Taliban kingpins every step of the way.

The administration is fully aware it violated Federal law in failing to timely notify Congress of its intentions. We know this because the White House has contacted some of my colleagues on the Select Committee on Intelligence and apologized--actually apologized--for failing to notify them in advance; in other words, apologized for not following the law.

According to press reports the White House said the failure to make notification required by law was ``an oversight.'' An oversight? What happened is not an oversight. An oversight is what happens when you forget to send a thank-you note for a birthday gift. This was not an oversight. In other words, it is extremely difficult to view this as anything but a deliberate attempt to leave Senators in the dark. You don't simply forget to meet your legal obligations to notify Congress, and it is not as if this was some obscure provision of the law nobody knew anything about. This has always been a very big deal. Not only did the White House have an obligation to notify Congress, but the White House had previously promised that it would in fact comply with the law.

On June 21, 2013, at the White House press briefing, Press Secretary Jay Carney promised that the administration ``would not make any decision about the transfers of any detainees without consulting with Congress and without doing so in accordance with U.S. law.''

It is perfectly clear the administration was aware of its duties under the law and made a calculated and deliberate decision to ignore them. The President more or less admitted this when he recently explained at a press conference in Poland that he saw an opportunity he had to take immediately because ``we were concerned about Sgt. Bergdahl's health.''

I am sick and tired of the approach this administration takes toward its legal obligations under the law, and that is why I wrote to the Attorney General in January of this year concerning some statements the President made in the State of the Union Address, hinting that he intended to take unilateral action using executive orders.

In the letter I wrote to the Attorney General, I asked him to direct the Justice Department's Office of Legal Counsel to publicly disclose its opinions and conclusions concerning the lawfulness of executive orders issued by the President.

Here is where Mr. Kadzik comes in. In May he declined my request, citing again his overbroad and legally unsupportable claims of executive privilege.

It is not without good reason that the former executive editor of the New York Times--by the way, an outlet that is not exactly an aggressive critic of the President--called this White House the most secretive she ever covered.

So let me renew my request to the Attorney General regarding the publication of opinions from the Office of Legal Counsel. Frankly, I think my request is all the more important now that we have seen the administration's flagrant disregard for Federal law in the matter of the Taliban prisoner deal. I am, therefore, asking the Attorney General to direct the Office of Legal Counsel to make public any opinions or legal analysis concerning the lawfulness of the transfer of the Taliban commanders without compliance with section 1035 of the National Defense Authorization. But given this Department's track record, I am not going to hold my breath that that request will be honored.

I will sum up by saying this: Mr. Kadzik's nomination is a perfect example of the contempt that this--the self-professed most transparent administration in history--has for congressional oversight authority.

Let me be clear to my colleagues on the other side of the aisle. One day you folks might be in the minority or the administration might be controlled by the Republican Party. If a Republican administration ignores your oversight request, how can you complain, if you don't stand up today, when the shoe was on the other foot? If you support this kind of stonewalling now by supporting this nominee, it will come back to bite you, and, of course, you will deserve it. I plan to be around here to remind you of that.

I will vote against this nominee and urge my colleagues to do the same.

I suggest the absence of a quorum.

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

Mr. President, this afternoon we are going to vote on the nomination of Ms. Burwell to be the Secretary of HHS. I am going to support that nomination. I am here on the floor to alert people to some of the problems she will face and hopefully she can correct.

For starters, I hope that everybody remembers the government has checks and balances. Congress passes laws, the executive branch enforces them, and it is our responsibility to make sure that those laws are enforced according to the intent of Congress. When they are not enforced, we have a responsibility to point that out, and that is what I will be doing. I hope she will be able to correct the issues that my colleagues and I will be pointing out this morning.

We also have a situation where Congress passed the Affordable Care Act, and in that process the President has done a lot of things that some of us think are illegal and in some cases even unconstitutional. Hopefully, she, as the new director, will make sure that those practices don't continue.

When Ms. Burwell was nominated, I said that anyone put in charge of ObamaCare would be set up to fail. The theme of this law has really been ``by any means necessary.'' In other words, it doesn't really matter what the law says, do whatever it takes to get this program underway: the President can fix it later. He has done that 38 times-- and surely sometimes contrary to what the law says and contrary to the oath he took to uphold the laws of this country: The legislative process was certainly, by no means, necessary; if you want to change it, change it.

The implementation of this law has operated similarly. The department we are considering Ms. Burwell to lead has ignored the plain read of the statute whenever it was considered necessary. In other words, don't bother to come to Congress to correct something you think is not working; just correct it yourself. Deadlines were considered to be written in pencil.

If the statute needed to be creatively reinterpreted to make the program work, the Department of HHS did so, and that still continues today. Consequently, that is why I am pleading with Ms. Burwell to change things.

The Department is supposed to implement the employer mandate, which is a year overdue, and it has been significantly altered from the statute. The Department is supposed to implement risk corridors this year, although the legal authority to distribute funds is questionable and the standards used to make those distributions will likely be kept very quiet.

Speaking of things that will be kept quiet, Congress is going to want to know what the premiums will be next year for health insurance. We consider the information very important and relevant.

My State of Iowa is considered to be one of the States most at risk for premium spikes. The Department will want to use any means necessary to hide the premiums until after the November elections unless, of course, the premium numbers are good, and then I am sure the Department will shout them from the rooftops, much as they did with enrollment numbers.

We have heard over and over about enrollment numbers, but the enrollment numbers don't tell the whole story--not even close. I was under the impression that the law was supposed to increase coverage and lower costs. So far that is not the case. The independent research firm McKinsey found that 74 percent of the people getting coverage through ObamaCare plans were previously insured. If those numbers are accurate, that means one in four people getting coverage was previously uninsured. Certainly that is what I hear from my constituents. They have had to change their coverage, and often that coverage has been much more expensive.

Furthermore, the McKinsey research also found that the majority of people who shopped for an ObamaCare plan but did not purchase that plan cited affordability as the No. 1 reason for not buying that insurance.

A poll released by the Kaiser Foundation found that roughly 4 in 10 uninsured Americans named affordability as their primary reason for going without health insurance. It is not working as it was intended.

I hope Ms. Burwell will change the relationship the Department has with Congress. I hope she will be willing to break the ``by any means necessary'' mindset that we have seen for the last 5 years. I hope she doesn't disappear into the bunker over there in that office building and that we will never hear from her again.

Her challenge is very severe. The law appears to be shifting around the previously insured more than it is covering the previously uninsured. The previously uninsured are citing costs as a primary reason for not purchasing insurance.

I will support the nomination of Ms. Burwell today and hope that down the road--several months from now--I am not sorry I did that. I think she is a person who has the capability of turning things around, and that she will do that. But the law remains far from being worthy of support.

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

Mr. President, I will vote to confirm the President's nominee for Director of the Peace Corps. However, I want explain why I objected to any unanimous consent request relating to this nomination in March and why I have withdrawn my objection. I objected because I was informed by the Peace Corps inspector general that she was having difficulty accessing records from the agency. The nominee is the acting director of the agency. The records relate to sexual assaults reported by Peace Corps volunteers.

The inspector general is entitled to access these records under the Inspector General Act and the Kate Puzey Act. Both acts reinforce the principle that agency operations should be monitored by an independent and objective inspector general. The Kate Puzey Act requires the agency to better respond to volunteers who report sexual assault and implement certain protections for victims of sexual assault. To ensure that these protections are actually implemented, it also requires the inspector general to conduct ``a case review of a statistically significant number of cases'' of sexual assaults reported by volunteers.

However, the agency has gone out of its way to interpret the Kate Puzey Act as conflicting with the Inspector General Act. In fact, the agency repeatedly stated that certain provisions of the Kate Puzey Act override the Inspector General Act. That was never the intent of Congress. But the Peace Corps withheld most of the information that the inspector general requested from the agency.

Fortunately, the Peace Corps and the inspector general recently agreed on a memorandum of understanding, MOU. This MOU was agreed to only after I placed a hold on the Acting Director's nomination, and only after I sent three letters to the agency about the dispute, along with several other Members. Under the MOU, the Peace Corps has agreed to provide the inspector general with more information than before. For the time being, the inspector general believes that the MOU will allow her to carry out her oversight duties.

However, the inspector general has made it clear to me that the MOU has many shortcomings. Most importantly, the Peace Corps still refuses to acknowledge the inspector general's legal right to access the records in question. In addition, the MOU can be terminated by either party at any time. So the inspector general believes that she would be back at square one if the parties ever disagree in the future on the amount of information she needs to independently evaluate how the agency handled a specific case of sexual assault.

Still, the MOU represents progress. So I am voting in favor of this nomination. The law says that the inspector general is entitled to full and timely access to the records in question. So I will monitor this situation closely. And I will count on the nominee to guide the agency into full compliance with the law.

Mr. President, I intend to object to any unanimous consent request at the present time relating to the nomination of Nani Coloretti to be Deputy Secretary of Housing and Urban Development.

I have been conducting an inquiry regarding allegations of questionable hiring practices at the Financial Crimes Enforcement Network, FinCEN. As part of that inquiry, I have requested documents from the Treasury Department that could resolve my concerns and questions. I encourage the administration to provide those documents to me as soon as possible.

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

Madam President, before we vote on the Barron nomination, I want my colleagues to know the White House continues to keep the Senate in the dark. Yesterday I called upon the White House to state once and for all whether it has provided to the Senate any and all materials written by this nominee on the drone program. The White House refuses to answer that simple question.

One hour after I spoke, the White House Press Secretary refused for a third time to confirm that the Senate has been provided all of this nominee's writings on the drone program. Why is that? Why will this White House not give us a simple, straightforward answer? We still don't know how much more is out there on this subject that this nominee has been involved with.

After this vote, my colleagues still will not be able to tell their constituents that the White House has provided all of this nominee's materials on the drone program because we simply don't know that is true.

Finally, I wish to emphasize one more point about that court order requiring the administration to make a redacted copy of one memo public. Senators should know the court also ordered the trial court to take a second look at the other additional secret documents to see whether any of those additional documents should be made public in redacted form.

If some of those documents were written by this nominee, and if the court orders them to be made public, Senators' constituents are going to ask why they didn't stand today to get that information. Their constituents are going to ask why they didn't stand up to this White House and demand to see any and all memos this nominee wrote on this subject before this vote.

I yield the floor.

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

Mr. President, I wish to speak about Harvard law professor David Barron's nomination to the First Circuit. I will do so by addressing some aspects of Professor Barron's record I find particularly troubling. At the end of the day, I believe his record reveals a nominee who simply doesn't belong on the Federal bench.

I will also update my colleagues on the efforts to withhold material relevant to this nominee from the American public, as well as, it appears, from the Senate.

Unfortunately, the White House continues its refusal to confirm that it has provided the full Senate with all Barron-related drone materials. As I stated 2 weeks ago, every Senator should be provided access to any and all Barron memos related to the drone issue, but before I turn to Barron's drone materials, I will discuss with my colleagues some of the other problematic aspects of this nominee's record.

I have reviewed the record. It is a record of legal reasoning and policy positions that are far outside the mainstream of legal thought. Professor Barron's record is even outside the mainstream of typically left-wing legal thought that we see in so many of our

law schools. It is a record that reveals Professor Barron's judicial philosophy. While that judicial philosophy may be appropriate for the ivory towers of academia, it has no place on a Federal appellate court. It is also a record that reveals Professor Barron's embrace of an approach to judging that is flatly inconsistent with what Federal judges are called upon to do.

Professor Barron has been very candid about his view on the role of the Federal courts. So from that standpoint, he is intellectually honest. It is fair to say he appears to view the Federal judiciary as a political branch of our government, not the judicial branch interpreting law instead of making law. I will recount some of the evidence which leads me to this conclusion.

Professor Barron has written that the courts are a ``significant wielder of power'' for ``progressive potential.''

What he appears to mean is that the courts should be used as an instrument to impose progressive policies on the American people, a role generally reserved to the legislative branch of government. These are of course policies that liberals couldn't otherwise impose through legislation because they are so far outside the political mainstream.

Professor Barron also appears to believe that progressives should mask their motives. He has written that candor and clarity have potential to ``obstruct progressive decisionmaking'' and that ``candor, clarity, and activism cannot co-exist.''

If that is what he believes, he is intellectually honest. His solution to this problem is, ``Candor and clarity seem a preferable choice for sacrifice'' to all-important progressive decisionmaking.

I would like my colleagues to stop and think about whether that kind of thinking is compatible with the role of a Federal judge. It is surely compatible with being a legislator but not being a judge. I think the answer is, quite simply, it is not because judges are called upon to decide cases based upon laws applied to the facts.

Consider this quote from the professor: ``Principled frankness has its place, but it need not always lie between the covers of the United States Reports.''

Let that sink in for a moment. The ``United States Reports'' he is referring to of course are the volumes containing the reported opinions of the U.S. Supreme Court.

So when we consider this statement together with his view that candor and clarity have the potential to ``obstruct progressive decisionmaking,'' it then becomes very clear he believes that liberal judges should hide their true intent.

That is an astounding proposition. It is unthinkable that someone who holds such a cynical view of the judiciary could obtain a lifetime appointment to one of the Nation's highest courts. What more assurance could my colleagues have that Professor Barron views the Federal judiciary merely as a tool for liberal policymaking?

Consider another statement. The professor has suggested that ``principled judicial interpretation may obstruct democratic constitutional politics.''

Is that the sort of person who should be judging instead of legislating? Comments such as these make it clear to me that this nominee has a ``whatever it takes'' judicial philosophy. He will aggressively do whatever it takes to reach his desired progressive policy outcomes.

Are any of my colleagues ready to vote for a judicial nominee who has hinted that ``principled judicial interpretation'' might occasionally need to take a backseat to political considerations? It is in a body such as we are in right now--the Senate--where political considerations and policy considerations rule according to what our constituents tell us, but that is not something a judge takes into consideration.

The professor is an unabashed advocate of what he calls ``progressive federalism.'' According to Professor Barron, the purpose of progressive federalism is to ``promote national and local relations consistent with a broader liberal political vision.''

Legislators are supposed to have political vision. Judges are supposed to judge and not have political vision because they don't run for office. Is that the type of individual we want on the Federal bench?

He has added:

Federalism is what we progressives make of it. Rehnquist

and his conservative colleagues have been making the most of

it for more than a decade. It's time for progressives to do

the same.

That is a pretty explicit example of his judicial philosophy. That philosophy is that the courts are an instrument of leftist policymaking. He sees the courts as basically a third political branch. That view of the Federal judiciary is totally incompatible with the limited role the Constitution assigns to the courts.

It should be clear to all Senators that if he is confirmed, the professor would bring an extreme progressive political agenda with him to the First Circuit. Political agendas belong in the Senate, not in the First Circuit.

His academic work gives us some indication of the kind of judge he would be. I would note that we had a hearing last week where some of my colleagues on our Judiciary Committee expressed their frustration about the nomination process. They remarked that every nominee who comes before a committee dutifully promises that he or she will objectively and dispassionately apply the law to the facts and respect precedent.

But my Democrat colleagues claim, after being confirmed, some nominees do not simply call the balls and the strikes. Let me assure my colleagues that we don't need to guess at what kind of judge the professor would be. It is not a mystery. He makes no secret of it.

Let's take another look at his academic work. It is clear the professor wouldn't be bound by the law when deciding cases. He's admitted as much. Professor Barron is an outcome-oriented legal thinker. He will select his desired progressive results and then find a way to get there. As I said, it is a ``whatever it takes'' judicial philosophy.

Here is what the professor said about precedent and the doctrine of stare decisis: ``Any good lawyer knows how to distinguish a precedent, if you need to.''

You see, in the professor's world view, precedent is just an inconvenient obstacle that can be easily dismissed on the road to his preferred outcome. Can any of us doubt that as a judge the professor would cleverly choose the precedents that he agrees with and ignore those he disagrees with?

Let me give you some more evidence. He lost a case before the Supreme Court 9 to 0. In other words, a unanimous vote against legal arguments that the professor advocated. He told the press that the Supreme Court ``got it wrong'' and that his brief ``was right after all.'' Imagine that, being voted down 9 to 0 and saying the Supreme Court got it wrong because in the professor's judgment every member of the Supreme Court got it wrong--but not our professor nominee. What does this statement suggest that we can expect from him when it comes to his respect for legal precedent? I don't think we can expect much. We cannot expect him to follow legal precedent because he disagrees with the Supreme Court even after they disagree with him 9 to 0.

There is more evidence the professor wouldn't be confined by the law in reaching the right outcome in a case. He has written that judicial decisionmaking, guided by statutes and legal precedent, is ``awfully cramped and technical, because it doesn't reflect a broader legal culture.''

Now, get back to basics. I thought the role of a judge was to apply the law, not to go fishing around for the ``broader legal culture'' until you find support for the result you want.

So I think we can be very clear. I don't expect President Obama to nominate conservatives to the Federal bench. When this President was elected, I didn't expect that a crop of young Scalias, Thomases, and Alitos would be filling the vacancies in our courts. Judicial nominees are a Presidential prerogative, and I voted for many of this President's judicial nominees who don't share my views on constitutional interpretation or federalism or the First Amendment. I voted for them because they were accomplished judges and lawyers who I believed could put their personal preferences aside once they took to the bench. I would and did expect when I voted for them to objectively rule based upon the law; or, if I wasn't absolutely sure, I was willing to give them the benefit of the doubt.

However, given the statements from this nominee's body of work that I have recounted today, as well as others, I can't understand how any of my colleagues could think the same about this nominee. In fact, I don't believe that I have seen a nominee who has been more candid about his or her desire to use the courts as an instrument of political ideology than Professor Barron.

This nominee's views are fundamentally incompatible with the limited constitutional role of the Federal courts. Here I want to go back to the people who wrote the Constitution and tell you what they really had in mind about the courts. In Federalist No. 78, Alexander Hamilton famously referred to the judicial branch of government as ``the least dangerous branch,'' because in the constitutional vision of our Founders the courts would have ``neither force nor will, but merely judgment.'' The professor's judicial philosophy turns that vision on its head. His record reveals a judicial philosophy that says progressive policy ends justify the legal means to get there. It is a judicial philosophy in which will trumps judgment. I don't share those views, and I cannot vote for this nominee or a nominee who does.

Now I will take a few minutes to update my colleagues on another aspect of this nominee that deals with the Barron drone materials and the White House's apparent refusal to provide this body with every one of the Barron-related drone materials.

Two weeks ago I came to the floor calling on the Obama administration to release any and all Office of Legal Counsel materials on the drone program that were written by or related to the professor. I also called upon the administration to comply with the Second Circuit's opinion last April ordering the Department of Justice to release a copy of the 41-page Barron drone memo in redacted form. We know this particular memo provides the legal arguments for targeted killing of American citizens overseas.

Yet the administration refuses to comply with the court order of the Second Circuit to make the arguments public, albeit in redacted form, and I haven't heard any indication that the administration intends to do that. Not only that, but the White House refuses to tell us whether they have made available to the full Senate all of the professor's drone-related materials.

Since 2010, the press has reported that Professor Barron wrote at least 2 memos that justified the Obama administration's drone policies while he was at the Office of Legal Counsel, and the Second Circuit said that there are at least 3 and possibly as many as 11 memos on the administration's drone policy. That much is very clear. What isn't clear is the scope of the professor's writings on the legality of the administration's drone program. We don't know this because the administration continues to ignore the bipartisan demands of Members of the Senate to make available all of those drone memos, particularly the ones written by the professor. We don't know how many of the drone memos exist because this administration refuses to even confirm whether they have provided all the drone memos to the full Senate. These materials are of crucial importance to the full Senate's consideration of this nominee.

I would recount for my colleagues what has happened thus far. On May 12, White House Press Secretary Jay Carney said that a single drone memo--what Carney referred to as the al-Awlaki memo--had been made available to the full Senate. But the Press Secretary was asked repeatedly how many drone memos exist, and he repeatedly dodged the question.

Here is what Mr. Carney said. Question: ``How many of them are there?'' Mr. Carney answered:

What I can tell you is a couple of things. First, on the

Senator Paul op-ed in which he does call for the memos to be

made available to senators, we have made the memo available--

the memo in question available before the vote.

Again, the White House is dodging here and just addressing one memo. So Mr. Carney was asked a second time at the news conference. The questioner said: ``How many memos are there? How many memos in which he [meaning Barron] was a principal author outlining the legal case?''

Mr. Carney answers: ``There was one memo in question that I have referred to, and that has been made available to U.S. Senators.''

So the questioner came back: ``Are there others?'' Mr. Carney, the Press Secretary, answers: ``Are there other memos that he [meaning Barron] drafted? I don't know.''

Now get this: An answer of ``I don't know'' to how many memos exist. That is as good as the White House can do when there is this high level of discussion about how many memos exist? Surely there are people scrambling around the White House to have an answer, even if they don't want to give the answer, because it is already obvious that they want to know what is going on themselves. But you still get the answer: I don't know how many memos there are. That is the best answer we can get from the White House after weeks of bipartisan requests from Senators to provide the full Senate with any and all of the professor's drone materials. ``I don't know'' is simply not an acceptable response from the White House.

Again, the White House seems to imply that it has provided all of the Barron-related memos on the drone program, but the fact of the matter is that they will not confirm that. Unfortunately, it appears many Democrats as well as members of the media have fallen for this ruse. The Second Circuit mentioned at least three memos that were responsive to the New York Times Freedom of Information Act request for materials on killing Americans abroad. So we know that there are multiple drone memos. That is a matter of public record.

Has anyone in this administration bothered to read the Second Circuit's opinion? We know that there are multiple memos on the drone program--as many as 11. As the New York Times has reported since 2010, there are at least two drone memos that this nominee has written. But there may be more. The best answer we have gotten so far is ``I don't know.''

On May 14 the White House changed its tune just slightly. Another White House spokesperson told the press that the White House said it had provided all of the Barron drone materials related to ``U.S. citizens.''

But, again, the White House hasn't said whether there are additional materials that the professor wrote on the drone program. It is not at all clear to me why this administration thinks it has done its duty to provide the full Senate with materials that are crucial to our consideration of this nominee's fitness for a lifetime appointment, particularly considering the fact that the White House should make at least that one memo available to the public. It is similar to when President Jackson didn't like what John Marshall ruled in a particular case; the Chief Justice ruled, now let him enforce it. Are we going to have that respect for the circuit court opinion that says the White House ought to release to the public this decision? Is that the oath the President of the United States took to uphold the Constitution?

Why does this administration think that any Senator would vote on a judicial nomination without having reviewed the nominee's work on such an important topic?

Moreover, as I mentioned 2 weeks ago, the Freedom of Information Act litigation in the Second Circuit is still ongoing. Whatever responsive memos that the administration has not yet released may become public in the future. Again, are my colleagues ready to vote on this nomination without having reviewed all relevant writings of the nominee? Are my colleagues ready to shrug their shoulders and accept the White House Press Secretary's statement when he says, ``I don't know'' how many memos there are? Are my colleagues prepared to face their constituents and explain that they didn't bother to track down this controversial nominee's complete record on this topic before they voted?

The Constitution requires every Senator to provide advice and consent on a nominee. We cannot satisfy that obligation if this administration continues to withhold the professor's writings. At the very least, the White House should say definitively that no additional Barron-related drone materials exist. What are they hiding?

The Second Circuit says the professor is the author of the memo that sets forth the legal framework used to justify killing Americans overseas. What

else has he written that the administration refuses to release to the full Senate? The Members of this body will never know until the administration ends the obstruction and provides access to each and every one of the memos on drones that Professor Barron has written. Again, the administration should comply with the Second Circuit's order requiring them to make the opinion of the Office of Legal Counsel public, even if it is with redactions.

Why the rush to have this vote before the public gets to read the legal reasoning? Why is the other side so afraid of waiting to vote until their constituents read this nominee's legal rationale for the targeted killing of American citizens?

It is time for the White House and the administration to stop playing games regarding how many of the professor's memos there are. It is time for the White House to stop hiding from the public the materials they have been ordered by the court to disclose.

I will vote against this nominee and urge my colleagues to do the same.

I suggest the absence of a quorum.

Mr. President, I am glad the Senate is finally getting serious about passing tax extenders this year. Congress has put off the extension of the expired tax provisions until the last minute all too frequently. In 2012 provisions remained expired for an entire year before finally being extended in January of 2013. Similarly, the previous extension of the expired provisions did not occur until the middle of December. Such late action by Congress results in complications come filing season for taxpayers, particularly for people who hire tax preparers; tax forms are not ready and as a result refunds are delayed. So we owe it to our constituents to see to it that these added complications are not a factor this year. Tax season is unpleasant enough without our adding to it by failing to do our job in a timely fashion.

Already, by allowing these tax provisions to expire for more than 5 months, we have created a lot of headaches and uncertainty for individuals and businesses. The current expiration causes headaches for teachers purchasing school supplies, college students paying for higher education, and seniors making charitable donations from their IRAs. Those are only 3 of some 53 provisions we are considering extending. These should have been extended 4 months ago.

Furthermore, it creates uncertainty for businesses, which harms investment and business growth. The enhanced expensing rules under section 179 are of particular importance to small businesses and farmers. I regularly hear from my constituents who are putting off purchasing a new truck or tractor for their business operation because they do not know the fate of that provision. This is bad for economic growth, and it obviously has something to do with us having a high unemployment rate and jobs not being created.

The lapse of renewable energy incentives has already created a lot of uncertainty and slow growth in the renewable industry. This serves only to hamper the strides made toward a viable self-sustainable renewable energy and fuel sector.

I am aware that some of my colleagues have expressed extreme opposition to some of the provisions in the package. I would like to specifically respond to claims that some of my colleagues have made about wind energy and the wind production tax credit.

I am sympathetic to the argument that the Tax Code has gotten too cluttered with too many special interest provisions. That is the reason many of us for a long period of time have been clamoring for tax reform. But just because we haven't cleaned up the Tax Code in a comprehensive way doesn't mean we should pull the rug out from under domestic renewable energy producers. Doing so would cost jobs, harm our economy, harm the environment, and even enhance problems for national security.

I am glad to defend the wind production tax credit and wind energy. Wind energy provides more than 4 percent of U.S. electricity, supports 80,000 American jobs, spurred $105 billion in private investment in the United States just since 2005, and that source of energy displaces more expensive and more polluting sources of energy, lowering electricity prices for consumers.

More than 70 percent of U.S. wind turbine value is now produced right here in the United States, compared to just 25 percent prior to 2005. More than 550 industrial facilities across 44 States manufacture for the wind energy industry. The wind industry today supports 80,000 American jobs. The tax incentive has spurred $105 billion in private investment in the United States since 2005.

Opponents of the renewable energy provisions want to have this debate in a vacuum. They disregard the many incentives and subsidies that exist for other sources of energy and are permanent law, but they don't seem to talk about those much.

For example, the 100-year-old oil and gas industry continues to benefit from tax preferences that benefit only their industry. These are not general business tax provisions, as we are led to believe, no different from what other industries have. These are specific to the oil and gas business, the same way a wind energy tax credit is specific to wind. I will give a few examples of these tax provisions: expensing for intangible drilling costs, deductions for tertiary injectants, percentage depletion for oil wells, and special amortization for geological costs. These four tax preferences for this single industry result in the loss of more than $4 billion annually in tax revenue.

Nuclear energy would be another example--in fact, a very great example. The first nuclear powerplant came online in the United States in 1958--56 years ago. Nuclear receives special tax treatment for interest from decommissioning trust funds. Congress created a production tax credit for this mature industry in 2005, and that production tax credit is going to be available until 2020. Nuclear also benefits from the Price-Anderson Federal liability insurance provisions. Congress provided that as a temporary measure in 1958, but it is still here and it was renewed, as I said, through 2025. Nuclear energy has also received $74 billion in Federal research and development dollars since 1950.

Are these crony capitalist handouts? I haven't heard it from the same colleagues who talk about wind energy. Is it time to end market distortion for nuclear power? I haven't heard my colleagues talk about that.

A Cato study found that ``in truth, nuclear power has never made economic sense and exists purely as a creature of government.''

There is also no truth to the claim that wind energy is somehow undercutting baseload power. Baseload nuclear and coal energy are being harmed by cheap natural gas, transmission congestion, and stagnant electricity demand.

The chairman and CEO of NextEra Energy James Robo addressed this issue in an op-ed recently. NextEra operates significant wind generation but also a large nuclear operation. He stated:

We do not merely advocate for an ``all-of-the-above''

energy strategy--we live it. And from our perspective,

nuclear plants in competitive markets are not challenged by

wind energy but by low natural gas prices caused by the shale

gas revolution.

Blaming the wind industry for the challenges in the

merchant nuclear business may be politically expedient, but

it will not help any company or technology operate more

successfully in a low natural gas price environment.

Wind energy and its incentives are not to blame for the market conditions affecting the economics of nuclear energy.

So I would ask my colleagues a very simple question: Why is repealing a subsidy for oil and gas or nuclear energy a tax increase on energy producers and consumers, while repealing an incentive for alternative or renewable energy is not? It is not intellectually honest.

I authored the wind energy incentive in 1992. We know there is no justification for it to go on forever. It was never meant to, and it shouldn't. I am happy to discuss a responsible multiyear phaseout of the wind tax

credit. In 2012 the wind industry was the only industry to put forward a phaseout plan. But any phaseout must be done in the context of comprehensive tax reform where all energy tax provisions are on the table at the same time. It should be done responsibly over a few years to provide certainty and ensure a viable industry.

Thank God Chairman Wyden has expressed his determination that this will be the last tax extenders bill prior to comprehensive tax reform. I share Senator Wyden's sentiment in favor of putting an end to the annual kabuki dance that is what we call tax extenders, the bill before the Senate we are going to be voting on shortly. Good tax policy requires certainty that can only come from long-term predictable tax policy. Businesses need certainty in the Tax Code so that they can plan and invest accordingly. Moreover, taxpayers deserve to know that the Tax Code is not just being used for another way to dole out funds to politically favored groups. However, the only sound way to reach this goal is through comprehensive tax reform, and Senator Wyden, as chairman of the Finance Committee, can make that happen, and he said he is going to.

I agree that there are provisions in extenders that ultimately should be left on the cutting-room floor, but it is in a tax reform environment where we should consider the relative merits of individual provisions.

Targeting certain provisions for elimination now makes little sense for those of us who want to reduce tax rates as much as possible. Tax reform provides an opportunity to use a realistic baseline that will allow the revenue generated from cutting back provisions to be used to pay for reductions in individual and corporate tax rates.

I look forward to working with my colleagues in the future to enact that tax reform and put an end to the headaches and uncertainty created by the regular expiration of the tax provisions we are considering right now on the Senate floor. Right now our focus must be on extending current expired or expiring provisions that will end up giving us room in the baseline--the baseline CBO always talks about--to work toward that goal of tax reform.

It is my hope that we can move quickly to reach a bipartisan agreement in the Senate and come to a timely agreement with the House. Taxpayers should not have to wait until December or January for us to act.

I yield the floor.

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

Mr. President, there are new reports that the majority leader is considering bringing to the floor the so-called Smarter Sentencing Act, and to bring it to finality.

I rise again today to express my strong opposition to this bill and to argue against taking up the Senate's time to consider it. I will list several reasons.

This country has experienced a tremendous drop in crime over the past 30 years. We have achieved hard-won gains in reducing victimization. More effective police tactics played a very significant role.

Congress assisted with funds for law enforcement and mandatory sentencing guidelines to make dangerous offenders serve longer sentences. But after the Supreme Court applied novel constitutional theory, those mandatory guidelines were made advisory only. Federal judges then used their discretion to sentence defendants more leniently than the guidelines had called for.

Today, the only tool Congress has to make sure Federal judges do not abuse their discretion in sentencing too leniently is mandatory minimum sentences. So bringing this bill would cut a wide range of mandatory minimum sentences by half or more. Those sentences include people convicted of manufacture, sale, possession with intent to distribute, and importation of a wide range of drugs, including heroin, cocaine, PCP, LSD, ecstasy, and methamphetamines.

When supporters of this bill discuss how it increases discretion for judges and keeps current maximum sentences, what they really mean is that judges will gain discretion only to be more lenient. The bill does not increase discretion for judges to be more punitive.

When supporters of this bill say that the bill only applies to nonviolent offenders, don't be misled into thinking it applies to people in Federal prison for simple possession of marijuana. It doesn't. The offenses covered in this bill are violent.

Importing cocaine is violent. The whole operation turns on violence.

Dealing heroin also involves violence or threats of violence, and the offense for which the offender is sentenced may have even been violent. The defendant's codefendant might have used a gun.

While the bill does not apply to a drug crime for which the defendant used violence, it does apply to criminals where the defendant has a history of committing violent crimes. Supporters have failed to recognize that it would apply to drug dealers with a history of violent crimes.

Supporters of the bill also raise the argument of prison overcrowding. But prison populations in this country are decreasing and have been in fact decreasing for several years. States have been able to reduce prison construction and sentencing as crime has thus fallen.

Charles Lane wrote in the Washington Post that one reason States could do this is the reduction in the fear of crime that has accompanied falling crime rates.

The rate of increase in Federal prison populations has fallen a great deal. In recent years, the number of new Federal prisoners receiving prison sentences has declined. New policies the Department has adopted with respect to clemency and its unwillingness to charge defendants for the crimes they have committed will only further reduce overcrowding and prison expenses.

It is also important to recognize that drug offenders are an increasingly small proportion of the new offenders who are being sentenced to Federal prison as Federal law enforcement shifts more resources away from drugs and toward immigration and weapons offenses.

The reduction in prison populations is not really so much about the cost saving as cost shifting from prison budgets to victim suffering. This is happening as the number of State and Federal prisoners has dropped.

In 2012, the last year for which statistics are available, the FBI's Uniform Crime Report recorded an increase in the number of violent crimes for the first time in many years. Now, it is only 1 year and the increase was less than 1 percent, but it represents a dramatic change in the past downward trend of crime, and it bears a vigilant watch, not support for a reckless, wholesale, and arbitrary reduction in mandatory minimum sentences.

The bill represents a particularly misguided effort in light of current conditions concerning drug use. We are in the midst of a heroin epidemic right now. Deaths from heroin overdoses in Pennsylvania are way up. The Governor of Vermont devoted the entirety of his State of the State address this year to the heroin problem.

Marijuana decriminalization is leading to the greater availability of marijuana at a lower price. This is causing Mexican growers who formerly produced marijuana to grow opium for heroin importation into this country instead of marijuana.

The Obama administration says it is concerned about the heroin epidemic, but it supports a bill that cuts penalties for heroin importation and dealing.

The administration says it wants to fight sexual assaults on campuses--and I think that is the right thing to do and I applaud them for doing that. But they are also supporting this bill, which cuts in half the mandatory minimum sentence for dealing in ecstasy, the ``date rape'' drug.

The administration's support for this bill, then, makes no sense, and at least some administration officials understand that.

We had the privilege of having the Director of the Drug Enforcement Agency before our committee a little while ago. Michelle Leonhart said:

Having been in law enforcement as an agent for 33 years,

[and] a Baltimore City police officer before that, I can tell

you that for me and for the agents that work for DEA,

mandatory minimums have been very important to our

investigations. . . . We depend on those as a way to ensure

that the right sentences are going to the . . . level of

violator we are going after.

Current mandatory minimum sentences play a vital role in reducing crime. They do more than keep serious offenders in jail so that they cannot prey upon innocent citizens. They also induce lower-level drug offenders to avoid receiving mandatory minimum sentences by implicating higher-ups in the drug trade.

As FBI Director Comey recently stated:

I know from my experience . . . that the mandatory minimums

are an important tool in developing cooperators.

Recently, a bipartisan group of former Justice Department officials wrote to Leaders Reid and McConnell. Their letter expressed strong opposition to cutting mandatory minimums for drug trafficking by half or more. They warned:

We are deeply concerned about the impact of sentencing

reductions of this magnitude on public safety.

We believe the American people will be ill-served by the

significant reduction of sentences for federal drug

trafficking crimes that involve the sale and distribution of

dangerous drugs like heroin, methamphetamines, and PCP.

We are aware of little public support for lowering the

minimum required sentences for these extremely dangerous and

sometimes lethal drugs.

We are all going to be supporting National Police Week. Officers from all over the country have traveled to Washington to make their concerns known. We salute them for the work that they do and the dangers they face. If we really respect these law enforcement people and want to support them, then we ought to listen to what they have to say.

The National Narcotics Officers' Association has written:

As the men and women in law enforcement who confront

considerable risks daily to stand between poisoned sellers

and their victims, we cannot find a single good reason to

weaken federal consequences for the worst offenders who are

directly responsible for an egregious amount of political

despair, community decay, family destruction, and the

expenditure of vast amounts of taxpayer dollars to clean up

the messes they create.

The Federal Law Enforcement Officers' Association has also come out against the bill. They have stated:

It is with great concern that FLEOA views any action or

attempt . . . that would alter or eliminate the current

federal sentencing policy regarding mandatory minimum

sentence sentencing.

The mandatory minimum sentencing standard currently in

place is essential to public safety and that of our

membership.

Many of us will rightfully praise our law enforcement officers as they are in town for National Police Week. But what we really ought to do is listen to them. They are telling us that taking up this bill would be a slap in the face of all our brave police officers who protect us from harm every day. They deserve better than that.

Citizens who are finally less likely to become crime victims deserve it. The respect that is due those on the front line against wrongdoers demands that the Senate neither take up nor pass the mislabeled so- called Smarter Sentencing Act.

I suggest the absence of a quorum.

Mr. President, I come to the Senate floor to discuss a pending nomination, that of Harvard Law School Professor David Barron to a seat on the First Circuit Court of Appeals.

This nomination is exceptionally controversial and was voted out of our committee, the Judiciary Committee, on a 10-to-8 vote. Even a cursory look at Professor Barron's record reveals views on the Constitution and on federalism that are well outside the mainstream. But I want to put all those views aside and speak about this nomination from another point of view.

So today I discuss Professor Barron's service as Acting Assistant Attorney General for the Office of Legal Counsel in 2009 and 2010.

According to multiple media sources, while heading up the Office of Legal Counsel, Professor Barron was instrumental in formulating the legal arguments that this administration used to justify the targeted killing of American citizens by drone strikes.

According to press reports, Professor Barron wrote at least two legal opinions laying out those arguments. We also know the Department of Justice relied on the legal arguments Professor Barron formulated to justify the targeted killing of an American citizen in a tribal region of Yemen in September 2011.

In a May 2013 letter to the chairman of our Judiciary Committee, the Attorney General wrote that ``since 2009, the United States, in the conduct of U.S. counterterrorism operations against Al-Qaeda and its associated forces outside of areas of active hostilities, has specifically targeted and killed one U.S. citizen.''

According to press reports, that individual was the first American citizen placed on the CIA's disposition matrix, better known as the kill list. However, the Attorney General conceded that three additional Americans located outside the United States have been killed by drone strikes since 2011.

According to the Attorney General's letter, these Americans were killed even though they ``were not specifically targeted by the United States'' as part of a counterterrorism operation.

But today I am not debating Professor Barron's legal arguments related to the drone strikes. The fact is that Senators aren't in a position to make an informed judgment about the nominee because of the way this administration has handled the issue, so I wish to address our constitutional duty with respect to the nomination.

Article II, Section 2, instructs us to give advice and consent on the President's judicial nominees. That is not a procedural technicality, it is a constitutional imperative. These happen to be lifetime appointments, and the men and women we confirm to the Federal bench play a vital role in the life of our Republic.

It is my view this body cannot, as things stand today, fully and appropriately discharge its constitutional duty to advise and consent with respect to this nominee. I will briefly address some recent developments in the courts that lead me to that conclusion.

On April 21 of this year, the Second Circuit issued an opinion in a Freedom of Information Act lawsuit brought by two New York Times reporters and the American Civil Liberties Union against the Department of Justice, the Department of Defense, and the CIA. That lawsuit began in December 2011 after the administration denied a Freedom of Information Act request from the New York Times for documents on the administration's targeted killing of American citizens outside this country. Specifically, the Times requested ``a copy of all Office of Legal Counsel memorandums analyzing the circumstances under which it would be lawful for United States armed forces or intelligence community assets to target for killing a United States citizen who is deemed to be a terrorist.''

The administration refused to provide anything in response to that request by the New York Times. In fact, initially the administration wouldn't even acknowledge that any responsive documents even existed, but as the litigation developed, the Department of Justice identified a single document but claimed it was exempt from disclosure under FOIA. That document is the so-called OLC-DOD memorandum.

Essentially, according to the Second Circuit, that is Professor Barron's memo providing the legal justification for targeted killing of American citizens abroad with drones. Basically, the court reasoned that because the administration had leaked and then officially released the so-called Department of Justice White Paper on the drone program, the administration then waived any basis for withholding the Barron drone memo under the Freedom of Information Act. Therefore, the Second Circuit ordered the administration to produce a redacted copy of this Barron drone memo to the New York Times.

The Second Circuit's opinion confirms that Professor Barron wrote this drone memo. However, according to press reports going as far back as September 2010, Professor Barron had written at least one other drone memo on the targeted killing of Americans while he was at the Office of Legal Counsel. That second memo wasn't addressed by the Second Circuit's opinion and hasn't been disclosed publicly.

We also don't know whether Professor Barron wrote or was involved in producing other materials related to the drone program that have yet to be provided to the full Senate. For example, the Second Circuit has identified two additional memos from the Office of Legal Counsel that it ruled were not subject to disclosure under the Freedom of Information Act. Moreover, according to some media reports, there are quite a few additional memos on the drone program. In fact, the Second Circuit opinion repeats the ACLU's contention that there may be as many as 11 total memos related to this drone program.

This fact didn't escape the Second Circuit. In sending the case back to the district court for further litigation, the circuit left open the possibility that there might be other documents subject to disclosure down the road. The court said, after giving the government another chance to submit additional reasons for withholding the documents: ``The district court may, as appropriate, order the release of any documents that are not properly withheld.''

Let me be very clear. My colleagues should be on notice that more of these documents very well may be made public down the road. In my view, that is all the more reason for the full Senate to receive all materials on the drone program, written by and related to Professor Barron, from the Office of Legal Counsel and do it now before Members decide and are held accountable for their vote on this nominee.

It is impossible to overstate the importance of these materials to our consideration of Professor Barron's nomination. The memos and whatever other materials Professor Barron drafted as the acting head of the Office of Legal Counsel provides the legal framework for the administration's policies related to killing American citizens abroad. We know this because the administration itself has said so. In testimony before the Senate Select Committee on Intelligence, CIA Director Brennan testified that advice from the Office of Legal Counsel on the drone program ``establishes the legal boundaries in which we can operate.''

Once again, let me be clear. The Senate cannot properly discharge its duty to advise and consent on this nomination without having a full picture of this nominee's legal philosophy. A very legitimate question is, How can the Senate predict what kind of a judge he will be if we don't know what kind of a lawyer he has been?

The Senate simply cannot evaluate whether this nominee is fit for a lifetime appointment to one of the Nation's most important courts without

complete access to his writings. It is even more important now that we know some of those writings concern perhaps some of the most controversial issues the Office of Legal Counsel has addressed in recent years; that is, the use of drones to kill American citizens abroad.

Time and again this President and even this Attorney General have promised transparency. They have made these promises to us. They have made promises to the American people. We all know in our oversight capacity of trying to get information out of this administration that they haven't delivered on these promises.

In that letter from the Department of Justice to Chairman Leahy that I mentioned just a few minutes ago, the Attorney General claimed this administration ``has provided an unprecedented level of transparency as to how sensitive counterterrorism operations are conducted.'' The Attorney General also wrote that the administration was taking all steps to ensure that congressional committees ``are fully informed of the legal basis'' for targeted killings of American citizens.

Again, those assertions aren't accurate when it comes to this nominee's track record at the Department of Justice. If press reports are accurate, this administration hasn't made all the relevant materials available to all Members of this body yet. I am not the first Member of this body to point this out.

I give several of my Democrat colleagues credit for publicly drawing attention to this administration's shortcomings in respect to this administration sufficiently giving us information. I agree with them that this nomination cannot go forward until this body, every Member of this body, is given access to any and all secret legal opinions this nominee wrote on this critical issue of the constitutional basis for the President subjecting an American to killing by drone without trial. Every legal opinion this nominee wrote related to this issue ought to be made available. I wholeheartedly concur in the sentiment of my colleagues, some of them Democrats, on this issue.

Again, I think all Senators should bear in mind that these documents may very well become public in the future. Are Senators who are up for reelection in a few short months ready to vote on this nominee without knowing the full extent of his writings on a topic as serious as the killing of an American citizen by a drone? Are those Senators ready to go home to face their constituents and explain that they cast a vote on that nominee without knowing all of the facts?

On Tuesday the administration announced it will provide the full Senate access to the Barron drone memo that it was ordered to make public by the Second Circuit.

Is this what the most transparent administration in American history looks like, disclosing a memo that a court has already ordered it to disclose?

Keep in mind this administration agreed to the disclosure only after the Second Circuit order and a threat from the American Civil Liberties Union. Is that transparency?

In fact, I am having a bit of a flashback to a statement I made before this body just last week about another judicial nominee. That nominee led the administration's effort to stonewall congressional oversight into the murder of four Americans at our diplomatic mission in Benghazi. That nominee refused to comply with congressional subpoenas and assisted the administration's unlawful withholding of documents from Congress. The Benghazi documents that should have been turned over years ago weren't released until a judge forced the administration to turn over those documents by issuing a court order in a Freedom of Information Act lawsuit.

Just like the memos I have been talking about today, I am starting to see a pattern, and I am starting to understand what this administration means by the word ``transparency.'' It means ``show me a court order first.''

Incidentally, I have been for more transparency at the Office of Legal Counsel for years, and even more so since January, when President Obama threatened to aggressively use Executive orders to circumvent Congress. It is the job of the Office of Legal Counsel to ensure that Executive orders are constitutional.

On January 31 I wrote the Attorney General to ask him to disclose the Office of Legal Counsel's work related to Executive orders issued by the President. I still haven't received a response.

I will also note that Professor Barron himself has gone on record publicly and urged increased transparency at his former workplace, the Office of Legal Counsel, and for that we ought to give him due credit.

In fact, the nominee said this about the OLC--the Office of Legal Counsel:

OLC should follow a presumption in favor of timely

publication of its written legal opinions. Such disclosure

helps to ensure executive branch adherence to the rule of law

and guard against excessive claims of executive authority.

It couldn't be said any better by me in regard to the letter I wrote on January 31. He went on to say:

. . . transparency also promotes confidence in the

lawfulness of government action.

That is a very admirable standard. I would like to call it the Barron standard, and I hope the administration follows the Barron standard with respect to informing the full Senate about this nominee's work in the Office of Legal Counsel. The administration's offer to disclose the memo it was already ordered to make public by a court isn't good enough, and it shouldn't be good enough for the other 99 Senators, because this is already their legal obligation.

The administration must turn over not only the memo addressed by the Second Circuit, but every legal opinion from the Office of Legal Counsel written by and related to Professor Barron on this issue. Given the lack of clarity thus far, I call on the White House to provide every Senator with access to all Barron materials related to the administration's drone program.

I am also calling on the White House to comply with the Second Circuit's order and release to the public--not just to Senators--a redacted copy of the Barron drone memo that it addressed in its opinion. This is the administration's legal obligation.

Our obligation, as Senators, is to ensure our constituents have full access to information a Federal Court has ordered to be made public before we vote on the nomination. Without full disclosure to the full Senate of all materials on this nominee's involvement in the legal case for the administration's drone program, this nomination should not proceed.

I suggest the absence of a quorum.

Mr. President, today, the Departments of Homeland Security and Commerce announced a proposed rule change that would extend employment authorizations to spouses of certain H-1B workers. The rule says that spouses who have already begun the process of seeking legal permanent resident status through employment, or those who have been granted an extension beyond their 6-year limit of stay in the country, are eligible for employment authorizations.

On a call with media today, Homeland Security Deputy Secretary Mayorkas said that the intent of this regulation is to make it more attractive for foreign workers to come to and stay in the United States. Under current law, Congress authorized 85,000 H-1B visas to be available each year for high-skilled workers. Yet, with this sweeping rule, more workers will be allowed to come, work, and compete with U.S. workers in high-skilled fields despite the well-documented fraud in the H-1B program. The Department believes that the rule change will allow more than 97,000 people to obtain employment authorization in the first year alone.

While we're all interested in attracting the best and the brightest foreign workers to the United States, the Obama administration clearly doesn't seem concerned with the millions of unemployed Americans, and those who have been forced out of their jobs because companies prefer to hire lower-paid workers from abroad.

In addition to their lack of compassion and understanding for American workers, it is disturbing that the administration is once again circumventing Congress and implementing their own rules. As with other unilateral actions this administration has taken, I question their legal authority to issue this rule.

In 2001, Congress explicitly laid out in statute that the Secretary could provide work authorizations to certain spouses of foreign workers. Congress said that work authorizations could be given to spouses of L1, intercompany transfers, and E, treaty traders/investors, visa holders. Congress did not, at that time, give spouses of H-1B visa holders the permission to work. It could have, but it did not.

The administration may claim that it has broad authority to issue work authorizations to anyone in the United States. If the executive branch has such broad authority, then why would Congress explicitly lay out the category of visa holders and foreign nationals who could work in the U.S.?

And, what will come next? Where will this administration stop? What other categories of individuals will be granted work authorizations? The rule allows spouses of ``certain'' H-1B visa holders to work. What about the others? Why didn't the administration do a more comprehensive rule for all H-1B spouses? Maybe the Department realized they were already pushing the envelope with its authority. Will the administration push back against advocates of other nonimmigrant categories, or refuse to expand the rule to all spouses of H-1B visa holders?

What is frustrating about this rule is that it flies in the face of the immigration bill that the Senate passed last summer. The bill, if passed, would allow spouses of H-1B holders to work. Section 4102 of S. 744 would give the Secretary of Homeland Security the authority to issue work authorization to those who are accompanying or following to join a principal H-1B worker. Inclusion of this provision signals that the Secretary does not currently have authority.

Originally, the bill written by the Gang of Eight, only gave that authority to the Secretary if the home country of the foreign national did the same for U.S. workers. The Gang of Eight's bill said, ``The Secretary of Homeland Security shall authorize the alien spouse to engage in employment in the United States only if such spouse is a national of a foreign country that permits reciprocal employment.''

The intent of the authors of the Senate bill was to ensure that American spouses were treated equally. The rule does not take this into consideration.

The Obama administration claims it wants immigration reform, but they can not wait for Congress. They act on their own. And, they do it to the detriment of American workers. We need to get immigration reform right, and doing ad-hoc rules that fly in the face of the statute are not helpful to the process. What is next? Will the President unilaterally legalize the undocumented population because he can not have his way with Congress? President Obama has to prove that he can be trusted. Otherwise, American workers and the American people will continue to lose out because of his policies.

I thank the Chair.

Tonight we will be voting on the nomination of Justice Moritz, a nominee for the Tenth Circuit. During her legal career, Justice Moritz handled a wide variety of cases both in the private sector and while serving as an assistant U.S. attorney for the District of Kansas for over 9 years. She also served on the Kansas City Court of Appeals and is currently a Justice of the Kansas Supreme Court. Justice Moritz has significant appellate experience, and I expect she will be confirmed tonight.

Before we vote on that nominee, I wanted to update my colleagues on where the Senate stands in regard to judicial nominations. After tonight's vote we will have confirmed 243 of President Obama's district court and circuit court nominees. To put that in perspective, at this point in President Bush's Presidency, the Senate had confirmed 235 district and circuit court nominees, 8 less than we have approved for President Obama.

During President Obama's second term and including tonight's nominees, we will have confirmed 72 of President Obama's district and circuit court nominees. By comparison at this point in President Bush's second term, the Senate had confirmed only 32 district and circuit court nominees. So you can see a difference between 72 approvals for President Obama versus 32 approvals for President Bush in the second term. Despite this record, it seems to me that no matter how many judges we confirm, the other side, along with some confused commentators outside of the Senate, cannot help but complain about our progress.

Last week one member from the Judiciary Committee accused Republicans of obstructing and slowing the nomination process through the President's entire term, but as I just pointed out, the Senate has confirmed more of President Obama's judges than we had at this point during President Bush's term. Another way to put it is all but two of President Obama's nominees have been approved, so that is a 99-plus percent approval. These complaints just do not ring true.

Even the Washington Post, which was never a friend of George W. Bush, now recognizes how well President Obama is doing on judges. A recent article entitled, ``Obama overtakes George W. Bush on judges confirmed,'' noted that ``the Senate has confirmed more Obama nominees to the federal branch than were confirmed at this point in Bush's second term.''

The Washington Post has also conceded that President Obama's confirmation rate essentially matches that of President Bush and President Clinton.

I also heard one of my colleagues complain about the President's vacancy rate, but the reason the vacancy rate is marginally higher than during President Bush's term is because President Obama has simply had more vacancies and more work to do in filling these vacancies during his Presidency. There have been more judges retiring now than during the last administration, which obviously creates more vacancies.

As you have heard me say many times on the floor of the Senate, we cannot deal with nominees until they come to the Senate. In other words, the President has to do his work before we can do our work.

The bottom line is that we are confirming judges at the same rate. It takes time to process and review each nominee who comes before us. This is simply the way the Senate works in its role to advise and consent on judicial nominees.

It isn't just lately that the Senate has worked its will in making sure these nominees are good ones to approve. That is the way it has been done for a long period of time. In other words, we simply don't have the President submit somebody and bring it before the Senate. It takes a lot of homework to make sure that not just their qualifications but all the other evidence that comes from the White House is reviewed adequately.

So there is simply no basis to say Republicans are not giving this President fair treatment. In fact, just last week the Senate confirmed nine judges. That is the most judges confirmed in 1 week this entire Congress. In fact, we haven't confirmed nine judges in 1 week since December 2010, when we needed to vote on a Sunday to get nine judges confirmed during 1 week.

So I take this time just to remind my colleagues of the excellent work the Senate is doing on confirmations, and of course I do it to set the record straight.

I congratulate tonight's nominee on her anticipated confirmation, a confirmation for which I will vote.

I yield the floor.

I suggest the absence of a quorum.

I yield back time on this side.

Mr. President, I am going to talk for a few minutes on one of the nominations we have today, the nomination of Theodore Chuang to be district judge for Maryland. This nomination was voted out of committee on a 10-to-8 vote. I opposed the nomination in committee, and I would urge my colleagues to do the same today. I can't support the nomination because of the central role Mr. Chuang played in the administration's persistent and steadfast stonewalling of the congressional investigation into the attack on our diplomatic mission in Benghazi on September 11, 2012. That attack resulted in the first murder of a sitting U.S. Ambassador in over 30 years. Three other brave Americans serving their country were killed in Benghazi as well.

As we all know too well, just hours after the fighting had ended, this administration--in the middle of a Presidential campaign at the time--rushed to blame the attack on an obscure Internet video. The administration denied what was already clear: that what had happened at Benghazi was a premeditated terrorist attack that had nothing to do with any video. The CIA's Libya station chief and other administration officials immediately recognized and reported that the attack was an act of terror, not a spontaneous demonstration. The American people demanded answers. Congress demanded answers as well. But the administration has systematically stonewalled our ability to get those answers. That is where this nominee's role comes into play.

Following the Benghazi attack, Mr. Chuang left his position at the Department of Homeland Security to undertake a special detail at the State Department. His job at the State Department was to provide legal guidance and manage the Department's responses to the congressional investigation into a terrorist attack.

For months the State Department ignored congressional inquiries. That forced the House Oversight & Government Reform Committee to issue subpoenas in August 2013. Mr. Chuang received those duly issued subpoenas but continued the administration's policies of systematic stonewalling.

So let me be very clear. The State Department has never asserted that the emails, the documents or witness interviews conducted by the Benghazi Accountability Review Board are protected by executive privilege. The State Department has never asserted any privilege justifying its refusal to disclose documents responsive to these subpoenas. The State Department has never provided any legal basis whatsoever for its continued stonewalling of this investigation.

So following Mr. Chuang's nomination hearing before our Judiciary Committee, I asked him several questions for the record about why the State Department refused to comply with its legal obligation to respond to the subpoenas. Mr. Chuang, who was in charge of coordinating the State Department's responses, couldn't come up with a legal basis. Instead, he cited only ``institutional concerns.''

That ought not be a good enough answer for what is a legitimate role of oversight by the Congress, trying to get answers to legitimate questions. In other words, abstract ``institutional concerns'' does not permit the executive branch to toss a congressional subpoena into the garbage.

Benghazi raises questions of vital national importance that to this very day remain unanswered. They remain unanswered because this administration refuses to honor its legal obligations to comply with the congressional oversight that is being done through the extraordinary measure of subpoena. The American people deserve better and so do we. We are members of coequal branches of the Federal Government.

But the Benghazi scandal isn't simply going to go away. In fact, just this week additional emails came to light demonstrating that the White House led a coordinated messaging effort on Benghazi from the very beginning.

This is what one of the emails said: It was the administration's goal ``to underscore that these protests are rooted in an Internet video and not a broader failure of policy.''

That quotation is from an email sent by the administration's Deputy National Security Advisor on September 14, 2012--2 days after the attack. That email was sent even though officials on the ground in Libya had reported that the attack was an act of terror.

Some have called this email the smoking gun, proving that the administration intentionally misled the American people about the terrorist attack, but no matter how this email is characterized, it was clearly responsive to congressional subpoenas and does not seem to have been produced until a government watchdog group filed a Freedom of Information lawsuit seeking to compel the administration to comply.

So let me be clear. From what we know now, it took a Freedom of Information Act request and an ensuing lawsuit to force the State Department to produce documents that were obviously related to the terror attack at Benghazi, and this is the case even though the House committee made multiple requests for those documents and then issued subpoenas compelling their production.

I am sure Mr. Chuang thought he was doing his duty to zealously represent his client when he was managing the document subpoenas the State Department received from Congress, but his role in coordinating administrative responses was plainly unsatisfactory and unacceptable and something that goes against the grain of an administration that on day two of their administration--in other words, January 21, 2009--said this was going to be the most transparent administration in the history of the country.

We should demand more and expect more respect for congressional oversight. For this reason I have decided to oppose this nomination, a nomination that was reported out of committee on a 10-to-8 vote.

I yield the floor.