Floor Statements

Mr. President, this afternoon we are considering the nomination of Brian C. Wimes, of Missouri, to be United States District Judge for the Eastern and Western Districts of Missouri. Again, we are moving forward under the regular order and procedures of the Senate. With today's nomination we will have confirmed 78 judicial nominees during this Congress. With the confirmations today, the Senate will have confirmed more than 75 percent of President Obama's judicial nominations. I would note that in 3 years of President Obama's term, we will have confirmed four nominees as a District Judge in Missouri. This is the same number President Bush had confirmed in his 8 years.

Judge Wimes is a 1990 graduate of the University of Kansas. He received his law degree in 1994 from Thurgood Marshall School of Law, Texas Southern University. Upon graduation from law school, Judge Wimes became an attorney advisor in the litigation branch of Federal Bureau of Prisons in Washington, DC. He represented the Bureau in civil actions by inmates throughout the country. In 1995, the nominee left the Bureau and became an assistant prosecuting attorney for the Jackson County Prosecutor's Office in Kansas City, MO until 2001. During his time there, he served as coordinator for the drug abatement response team; was the East Patrol community prosecutor, acting as office liaison to the community; and, in 1999, became the senior trial attorney for the drug unit. In this position he prosecuted cases involving major crimes with an emphasis on drug-related homicides.

In 2001, Judge Wimes became the drug court commissioner for the court for Jackson County, MO. He was appointed for two, 4-year terms. He presided over 400 assigned cases to drug court, with a caseload of 120 to 150 docketed cases per week.

After serving as the drug court commissioner for Jackson, Judge Wimes was appointed by then-Governor Matt Blunt to serve as the circuit court judge for the 16th Judicial District, Jackson County, MO. He was appointed in 2007, and retained in the 2008 election cycle.

As a circuit court judge, Judge Wimes has presided over approximately 29 criminal trials and 25 civil trials that have gone to judgment. From 2008 to 2009, Judge Wimes was assigned to the family court division and heard over 500 domestic cases to judgment as well.

A substantial majority of the ABA Standing Committee on the Federal Judiciary gave him a unanimous rating of qualified.

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

Madam President, I am here to point out that 10 years ago this very day, this Senate decided not to drill for more oil in the United States, where we know oil exists. At that time, the argument that was used was why drill because it was going to take many years to get it online. The Senate bought the argument we shouldn't drill because it was going to take too long.

Today, we think about more opportunities to drill for oil in the United States.

I wish to point out that the very same arguments that were used 10 years ago are being used today: If we drill today, we might not get some of that oil online for several years down the road. We want to be thinking about the future, as we should have thought about the future in 2002, 10 years ago, when we decided not to drill.

Around the country, American consumers are paying near-record prices for gasoline at the pump. The current average price for gasoline is near $3.90. Since January 2009, the average price of a gallon of regular gasoline has more than doubled. In 2011, consumers spent a greater percentage of their household income on gasoline than any year since 1981, when we thought 90 cents for a gallon of gas was a lot of money.

Affordable energy is a major economic issue. Paying nearly $4 for gas acts as a hidden tax and results in people having less money to spend on other things. Rising energy prices also increase the cost of doing business for job creators, taking away dollars that otherwise could go to hiring workers. We should be doing everything possible to prevent these high energy prices today or tomorrow.

The Senate had an opportunity 10 years ago today to take action to increase our domestic oil supply. Unfortunately, the Senate missed that opportunity. It missed an opportunity for lower prices today and importing something less than the $830 million we spend every day to import oil. We need to keep that money in this country.

Ten years ago today, the Senate considered an amendment offered by then-Senator Frank Murkowski--father to present Senator Lisa Murkowski--to open a tiny portion of the Arctic National Wildlife Refuge to oil and gas development. A vote on the cloture motion was rejected by the Democratic majority in the Senate on April 18, 2002.

During that debate, opponents argued that opening ANWR to development would never supply more than 2

percent of our Nation's oil demands. They opposed it based on the belief that opening ANWR wouldn't address the real problems; namely, our dependence upon fossil fuels. They said we needed to work toward a comprehensive approach.

Opening ANWR was also portrayed as a distraction from the real solutions, such as conservation, alternative and renewable energy, and less environmentally sensitive fossil energy development. Some even argued that fully inflated or low friction tires should be a larger part of our national energy policy.

I recognize the need for a comprehensive, balanced national energy policy. I truly believe in an all-of-the-above approach that includes conservation, alternative and renewable energy, nuclear power, and oil and gas development.

But the fact remains we were talking about these policies as solutions to our energy problems in 2002. Yet gas prices are still near $4 a gallon.

I listened to dozens of speakers in the Senate that day who argued against opening ANWR because it wouldn't address our near-term energy needs. They said it would take nearly 10 years to get that oil to the consumers. Ten years ago we were told to forget about opening ANWR because development was too far down the road to impact our energy supply and energy security.

Here are a few quotes from my Democratic colleagues during the debate in April 2002. I am not going to use their names. But this Democratic Senator said:

I oppose the proposal to drill in the Arctic National

Wildlife Refuge. Drilling in ANWR will not increase energy

independence, even if we started drilling tomorrow, the first

barrel of crude oil would not make it to our market for at

least ten years. So it would not affect our current energy

needs.

Another Democratic Senator said--and these Senators are still here today:

The oil exploration in ANWR will not actually start

producing oil for as many as 10 years. Exploring and drilling

for oil is not forward thinking.

Another Democratic Senator said this:

That oil would not be available for 10 years. This means

drilling in ANWR would not provide any immediate energy

relief for American families.

Another Democratic Senator said:

Developing ANWR is simply not a necessary component of a

progressive energy policy for this country. For a period

starting about 2012--

That is this year, understand; he was looking ahead 10 years--

For a period starting at about 2012, we would see an

increase of domestic production under ANWR, if ANWR was open

to development. So development would not address the near-

term prices or shortages with which people are faced.

Ten years down the road, here we are, but if we drilled back then we would have this oil on line and we would not be spending $830 million every day to import oil.

Another Senator said this:

When my colleagues come to the floor of the Senate and

suggest to us that the crisis in the Middle East is a reason

to drill in ANWR, that is a misleading argument because no

oil will flow from ANWR until from 7 to 10 years from now.

That means if you open the refuge today, you are not going

to see oil until about 2012, maybe a couple of years earlier.

You see, a decision made in 2002--people were looking ahead 10 years and saying it was not going to make much difference, but 2012 is here and we could have been using that oil.

Another Senator said:

Oil extracted from the wildlife refuge would not reach

refineries for 7 to 10 years.

That is the end of my quotes of several Democratic Senators who are now serving. If they are using the same argument now, are they going to be smart enough to look ahead to 2022 when maybe we could start using the oil we would start drilling for today? The defeat of the Murkowski amendment back in 2002 was then enormously shortsighted. If we had voted to open ANWR 10 years ago, that oil would be driving down the price at the pump for consumers today. You know the rule of economics; if you increase supply, you reduce price. And we would at least be keeping the money in the United States instead of spending $830 million every day to import oil. Time after time, opponents of domestic oil production have argued that because it will not lower prices at the pump today it is not worth doing. You know from the debate of 2002 that is a bunch of hogwash. Does anybody wonder if the American people wish that the Senate had opened ANWR 10 years ago?

It is past time to take action to ramp up domestic production of traditional energy, energy we can harvest in this country instead of importing it and paying $830 million to import it. Greater domestic energy production would increase supply and help to lower prices. It would create American jobs.

President Obama continues to push policies that contribute to higher gas prices, including restricting access to Federal lands and permitting delays, regulatory threats to refiners, and his decision to deny Keystone XL. He says he is for ``all of the above,'' but when you look at that list, he is for ``none of the above.'' By limiting domestic energy production we have less supply and higher prices.

The Obama administration has made things worse by restricting access to domestic energy sources. The President's record contradicts his remarks that he is for an ``all of the above'' strategy. His policies have prevented more oil production in the United States and resulted in higher prices, lost opportunities for jobs creation, less energy security, and shipping out of the country 830 million of our dollars that could be used in this country and kept in this country, money we are spending to import oil.

President Obama's denying of the Keystone XL Pipeline inhibits energy-related development that could create 20,000 jobs. Greater domestic energy production would increase supply and help to lower prices, and it would create American jobs.

It is time to take action. Denying ANWR development 10 years ago was a mistake, a mistake I hope we learn a lesson from. The Senate missed an opportunity 10 years ago that would have brought gas price relief and more supply, keeping more money in this country, creating jobs in this country right now. We should not make the same mistake again. You cannot repeat that statement too often. We should not make the same mistake again. We should be looking ahead 10 years, as they were doing in 2002, but they were using it as an excuse to do nothing. So don't ever tell me don't drill today because it will not come on line until 10 years from now. That is not a very wise thing to say to me, after you said that 10 years ago. We should have learned the lesson.

I yield the floor.

Mr. President, again we are moving forward under the regular order and procedures of the Senate. This year we have been in session for about 37 days, including today. During that time we will have confirmed 15 judges. That is an average of better than one confirmation for every 2\1/2\ days we have been in session. With the confirmations today, the Senate will have confirmed nearly 75 percent of President Obama's article III judicial nominations.

Despite this progress, we still hear complaints about the judicial vacancy rate. We are filling those vacancies. But again, I would remind my colleagues that of the 82 current vacancies, 50 have no nominee. That is over 60 percent of vacancies with no nominee.

Another complaint we hear, which is a distortion of the record, is the so-called delay in confirming nominees. Those who raise this complaint only focus on the time a nominee is reported out of committee until confirmation. But the confirmation process is more than just Senate floor action.

For those who may not be familiar with the confirmation process, let me review. Once a nomination is received, the committee takes an appropriate amount of time to review the nominee's Senate questionnaire and background and review written materials. The Committee holds a hearing on judicial nominees and then holds the record open for additional written questions. Of course there is debate on the nomination in committee, then the nomination is reported to the floor. All of this takes time. Every step is important. Not all nominees make it through each step.

The average time for this process for President Bush's circuit judge nominees was 350 days. That means it took, on average, nearly 12 months from the time a nomination was received in the Senate until final confirmation.

For President Obama's circuit nominees the average time from nomination to confirmation is 243 days. That means President Obama's circuit nominees are being confirmed faster than those of President Bush. So to those who ask What's different about this President? I would respond that one thing that is different is that this President's circuit nominees are being treated much more fairly than President Bush's nominees were treated.

As I stated, not all nominees make it through every step of the process. In the case of our nominee today, she completed that process in about 220 days, below the average for President Obama and much quicker than the average for President Bush. She will likely be confirmed and take her place on the Court of Appeals for the fourth circuit.

This was not the outcome for many of President Bush's nominees to the fourth circuit. Let me review just a few of the highlights from those failed nominations.

I wonder if my colleagues remember William Haynes, President Bush's nominee to sit on the fourth circuit. In the 108th Congress, my Democratic colleagues held up his nomination for 638 days on the Senate calendar alone before it was returned to the President. All in all, he put his life on hold for 1,173 days and never received an up-or-down vote.

Later, at a point during the 110th Congress, the fourth circuit had a vacancy rate of 33 percent and desperately required judges. The President

did his duty and submitted four nominations. Unfortunately, all of them were needlessly delayed.

Judge Robert Conrad was nominated to a seat on the fourth circuit which had been designated as a judicial emergency, Both home State Senators supported his nomination. Furthermore, he had received unanimous support from the Senate on two prior occasions--first when he was confirmed to be a United States Attorney and again when he was confirmed by voice vote to be a United States District Judge for the Western District of North Carolina. The American Bar Association's Standing Committee on the Federal Judiciary unanimously gave him a rating of well qualified.

Judge Conrad met every standard to be considered a well qualified, noncontroversial, consensus nominee. Yet, his nomination stalled. He was nominated on July 17, 2007. Despite his extensive qualifications, a hearing was never scheduled. On October 2, 2007 Senators Burr and Dole sent a letter to the chairman asking for a hearing for Judge Conrad. On April 15, 2008 they sent a second letter to the chairman requesting a hearing for Judge Conrad.

Their request was never granted. After waiting 585 days for a hearing that never came, Judge Conrad's nomination was returned on January 2, 2009.

Steve Matthews was another nominee to the fourth circuit, nominated on September 6, 2007. He was a graduate of Yale Law School and had a distinguished career in private practice in South Carolina. He also had the support of his home State Senators. On April 15, 2008 Senators Graham and DeMint sent a letter to the chairman asking for a hearing for Mr. Matthews. Despite his qualifications, Mr. Matthews waited 485 days for a hearing that never came. His nomination was returned on January 2, 2009.

Rod Rosenstein was nominated to a fourth circuit seat designated as a judicial emergency on November 15, 2007. The American Bar Association's Standing Committee on the Federal Judiciary unanimously rated him well qualified. Previously, in 2005 he had been confirmed by a noncontroversial voice vote as U.S. Attorney for Maryland. Prior to his service as U.S. Attorney, he held several positions in the Departm6nt of Justice under both Republican and Democratic administrations.

On June 24, 2008 Senator Specter, the ranking Republican Member, sent a letter to Mr. Rosenstein's home State Senators pointing out that the seat to which Mr. Rosenstein had been nominated had been vacant since August 2000--at the time nearly 8 years. He requested they return their blue slips on his nomination. That request was declined, reportedly because the nominee lacked ties to Maryland and was doing too good of a job as the U.S. Attorney for Maryland. I find that rationale somewhat perplexing, if not inconsistent.

Nevertheless, despite his stellar qualifications, Mr. Rosenstein waited 414 days for a hearing that never came. His nomination was returned on January 2, 2009.

Judge Glen Conrad was another failed nomination to the fourth circuit. Nominated on May 8, 2008 he had the support of his home State Senators, one a Republican, the other a Democrat. Judge Conrad had previously been supported by the full Senate when he was confirmed to be a United States District Judge for the Western District of Virginia by a unanimous, bipartisan vote of 89 0 in September 2003. Despite his extensive qualifications, Judge Glen Conrad waited 240 days for a hearing that never came. His nomination was returned on January 2, 2009.

What was the reaction to this Democratic obstruction to President Bush's fourth circuit nominees? A December 2007 Washington Post editorial lamented the dire straits of the fourth circuit writing: ``[T]he Senate should act in good faith to fill vacancies--not as a favor to the president but out of respect for the residents, businesses, defendants and victims of crime in the region the 4th Circuit covers. Two nominees--Mr. Conrad and Steve A. Matthews--should receive confirmation hearings as soon as possible.''

In 2008, another Washington Post editorial stated that ``blocking Mr. Rosenstein's confirmation hearing . . . would elevate ideology and ego above substance and merit, and it would unfairly penalize a man who people on both sides of this question agree is well qualified for a judgeship.''

I would note that the seat to which Mr. Rosenstein was nominated went vacant for over 9 years. When President Obama made his nomination to that vacancy, the nominee fared far better. He received a hearing a mere 27 days after his nomination and received a committee vote just 36 days later.

So today, as we confirm another of President Obama's nominees to the fourth circuit, I hope my colleagues understand, recognize, and acknowledge that President Obama's nominees are being treated in a fair manner.

Stephanie Dawn Thacker is nominated to be United States Circuit Judge for the fourth circuit. She graduated with honors from West Virginia University College of Law in 1990 and received her B.A., magna cum laude, from Marshall University in 1987. Ms. Thacker began her legal career as an associate in the Pittsburgh office of Kirkpatrick & Lockhart, now K&L Gates. There she worked on complex commercial and asbestos defense litigation.

In 1992, she worked for a brief period as an assistant attorney general in the Environmental Division of the Office of the West Virginia Attorney General. There she represented the State of West Virginia on environmental issues involving permitting and compliance. She then joined King, Allen & Betts--now Guthrie and Thomas--as an associate, where she worked from 1992 to 1994 on cases involving commercial litigation defense, white collar criminal defense, and legal malpractice and professional responsibility defense.

In 1994, she joined the United States Attorney's Office for the Southern District of West Virginia as an assistant United States attorney in the General Criminal Division. As an assistant United States attorney, she prosecuted cases on a wide range of criminal matters including money laundering, fraud, firearms, and tax evasion matters. She eventually developed a niche in domestic violence, child support enforcement, and coal mine safety.

In 1999, she became a trial attorney with the Department of Justice's Child Exploitation and Obscenity Section. She was promoted to deputy chief for litigation in 2002 andl principal deputy chief in 2004. As a trial attorney, she prosecuted cases around the country involving child pornography, child sexual exploitation, sex trafficking, and obscenity. As deputy chief and principal deputy chief, she was responsible for the management and professional development of the section trial attorneys.

In 2006, she became a partner at Guthrie and Thomas--formerly King, Betts & Allen--where she previously worked basis as an associate. She has specialized in complex litigation, environmental and toxic tort litigation, representing large companies, as well as handling some criminal defense cases representing individuals.

A substantial majority of the ABA Standing Committee on the Federal Judiciary gave her a rating of well qualified; a minority of that committee rated her as qualified.

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

Madam President, I ask unanimous consent to speak for 15 minutes as in morning business.

Supreme Court Justice Ginsburg, on a recent trip to Egypt, made comments that garnered public notice. She said:

I would not look to the U.S. Constitution if I were

drafting a constitution in the year 2012. I might look at the

constitution of South Africa.

She also spoke favorably of the Canadian Charter of Rights and Freedoms and the European Convention on Human Rights.

Although some people have criticized Justice Ginsburg for speaking negatively about the U.S. Constitution while abroad, I think she has a right to say what legal documents countries should consider that are now writing constitutions. But I do not agree with her those other constitutions are better examples of constitutions today than the U.S. Constitution is.

Some people who have criticized Justice Ginsburg's preference for the other constitutions she named have focused on the positive rights contained in those documents. Some of those constitutions, such as South Africa's, protect the right to ``make decisions concerning reproduction,'' to ``inherent dignity,'' and the right to have an environment protected ``through reasonable legislative and other measures that prevent pollution and environmental degradation.'' The European Convention on Human Rights guarantees a right to education. Of course, none of these constitutions contain anything like a second amendment right for the citizens to defend themselves.

Our Constitution is all about limiting the power of government. Americans do not fully trust the power of government, and Americans insist on rights that are protected against government action. In other words, our Constitution was intended to last for centuries, with the same meaning, even as those principles were applied to new situations. Our judges should reflect that philosophy, which is at the heart of our Constitution. If other countries feel differently, that is their right.

I think praise for those foreign constitutions rather than our own raises a much more serious issue--the role of the judiciary. Our Constitution made a judiciary that was the least dangerous branch, as Hamilton said. Policy is to be made by elected officials who answer to the voters and can be replaced; whereas, judges, under our Constitution, cannot be replaced. They have a lifetime position, short of impeachment.

The foreign constitutions that were named create a much different judiciary. The Canadian Supreme Court has stated their charter of rights and freedoms ``must be capable of growth and development over time to meet new social, political and historical realities often unimagined by its framers. The judiciary is the guardian of the Constitution and must, in interpreting its provisions, bear these considerations in mind.''

The European Convention has been interpreted by the European Court of Human Rights to be a ``living instrument.''

Madam President, these are explicit statements--that Justice Ginsburg's preferred constitutions are ``living constitutions.'' A living constitution is one in which the meaning changes over time. Judges decide that new circumstances require a living constitution to mean something it did not mean sometime before. They say the constitution must keep up with the times. A living constitution can mean whatever judges want it to mean, completely contrary to what our forefathers had in mind when they wrote our Constitution.

Our Constitution is not a living constitution. Judges are not to make up its meaning as they go along over time. Even President Obama's Supreme Court nominees told us the role of a judge under our Constitution is not to interpret words however they believe new circumstances might warrant. ``It's the law all the way down,'' Justice Kagan said. We should be skeptical of a living constitution that opens the door for judges to impose their values, not those of the Framers of the Constitution, on the citizenry of this country.

The Canadian Charter says it ``guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and Democratic society.'' The Canadian Supreme Court interprets that provision in light of a highly generalized four-part test that invites judges to insert their own policy preferences.

Similarly, the South African Constitution provides that its rights can be limited if they ``are reasonable and justifiable in an open and democratic society based on human dignity, equality, and freedom.'' It tells courts explicitly to apply a six-part subjective balancing test that allows judges to interpret this provision however they want.

How would you like to live under a constitution such as that?

These constitutions Justice Ginsburg endorses invite judges to rule however they want on any question of rights. That is not consistent with traditional American notions of the rule of law, of a government of laws and not a government of people. Some judges may prefer constitutions in which judges are free to displace democratic decisionmaking on policy questions that are to be decided by elected representatives of the people under our Constitution. I do not. Our Constitution does not. We do not live in a government of, by, and for the judiciary.

But no one should think that the Canadian or the South African Constitutions fully protect rights that Americans think are precious, such as freedom of speech. Under the Canadian Charter, reasonable limits on free speech include prohibiting so-called hate speech against a group.

Finally, it is important to recognize why some of us on the Judiciary Committee continue to press judicial nominees on their adherence to the Constitution without reference to foreign law. For instance, Justice Breyer has stated that foreign judges also interpret ``texts that more and more protect basic human rights.'' He has stated that he looks to the decisions of the European Human Rights Court and to Canadian cases as well, because they are ``relevant'' even if they do not control. He says, ``[W]e can learn something about our law and our documents from what happens elsewhere.''

What Justice Ginsburg did was to make very clear that which had only been implied in the past, making very clear that there are some in this country who feel that our venerable Constitution is outdated. If they treat that document as it was written and understood by the Framers, then their decisions will often lead to results they do not like as a policy matter. But if they can cite decisions from foreign courts and interpret constitutions that contain all kinds of different rights and that give judges unbridled power to make policy decisions at the expense of the elected representatives of the people, then they can reach decisions that our Constitution otherwise would not allow.

It is not simply a disinterested survey of what other courts around the world are doing. It opens the door to a search for preferred liberal activist outcomes. These are the very high stakes at issue when we discuss whether it is appropriate for judges to cite or rely on foreign law in interpreting the U.S. Constitution.

We need to preserve, protect, and defend the Constitution of the United States. We need to preserve, protect, and defend the rights of American citizens. Justice Ginsburg and others who have a judicial longing for other constitutions that protect different rights and give unelected judges power that, under our Constitution, self-governing people exercise themselves--I tell those judges, including Justice Ginsburg, that is the wrong approach.

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

Mr. President, I rise today in support of a bill that I am introducing on behalf of a bipartisan group of Senators, the Officer Safety Act of 2012, S. 2276. This bill allows a Federal law enforcement agent, who stops a violent crime while off-duty and is indicted in a State court for those actions, to petition for the State criminal prosecution against him to be removed to Federal court.

The bill effectuates this change by amending the Federal removal statute, found in 28 United States Code, Section 1442, to clarify when a Federal law enforcement officer is acting under the color of his office.

As a 2003 Judiciary Committee report stated, ``Law enforcement officers are never `off-duty.' '' Many are required to carry an off- duty weapon. When they fly on personal business, they are expected to carry their weapon and check-in with the airline as a Federal law enforcement agent so they can defend the pilots and passengers if something bad happens. In fact, Federal agents are specifically paid to be available 24 hours a day, 7 days a week. Agents can be disciplined if they are not available when called.

They are not even allowed to engage in activities on their personal time that regular citizens take for granted, like coaching their kids' sports teams, if it might interfere with their ability to respond to a crisis.

Federal law enforcement agents are extensively trained, at the expense of the taxpayer for the benefit of the taxpayer. They not only train in basic academies, but they are required to participate in additional and regular training and re-certifications many times each year. If training is missed or if standards are not up to par, the agent is disciplined or removed. Federal law enforcement agencies take training requirements very seriously. The United States is known for having the best trained Federal law enforcement officers in the world.

So what if one of these exceptionally trained Federal law enforcement agents walks into the grocery store on a Saturday and witnesses a woman being repeatedly hit by her husband; do we want him to walk past the woman? No. The taxpayers spend money on his training so that he can protect victims, not walk away from them. In this situation, we all hope that he would use his training to protect the victim. But when he steps in to protect the victim from a crime of violence occurring in his presence, he risks state criminal prosecution and damage to his career. That might lead him to hesitate. This is contrary to good public policy. If we were the victim in this scenario, every one of us would want that Federal law enforcement officer to help us.

If a Federal agent acts to protect an individual in his presence from a crime of violence, as taxpayer dollars have trained him to do, and then is indicted in State court for that act, he should have the right to defend himself within the Federal court system.

So the Officer Safety Act amends the removal statute, found in Title 28, United States Code, Section 1442, to clarify when a Federal law enforcement officer is acting under the color of his office. This bill does not provide immunity for law enforcement agents, and it does not grant them additional authority. It doesn't even guarantee that the case will be moved from State to Federal court: the State will be heard and its position will be weighed by the judge before deciding if removal is appropriate. It does allow a Federal law enforcement officer/agent, who is indicted in a State court for actions related to his protection of a victim of a violent crime that is committed in the officer's presence, to petition for that criminal case to be removed to Federal court, where the officer will be required to defend his actions.

Current law provides that removal is proper so long as defendants demonstrate that they are officers of the United States that acted ``under color of'' their office and have a ``colorable federal defense''.

In general, a Federal agent acts ``under color of'' his office when he takes actions that are necessary and reasonable for the discharge of his Federal responsibilities. Accordingly, the prototypical example of a Federal officer acting under color of his office is a Federal law enforcement officer who kills someone while performing an act related to Federal law enforcement and, in the subsequent State homicide prosecution, claims he was acting in self-defense and/or is entitled to official immunity. The Supreme Court has upheld this prototypical example as appropriate for removal from State court to Federal court.

The primary restraint on the current statute's scope is its limitation to defendants who acted under color of Federal office or, in other words, while performing official duties. Defendants must show in their petition for removal that there is a causal nexus between the actions challenged and their Federal duties.

The history of the removal statute explains why this is important. The statute dates back to 1815. It was passed in response to the New England States' opposition to the trade embargo with England during the War of 1812. The law provided for the removal to Federal court of any suit or prosecution commenced in State court against a Federal customs officer or other persons enforcing Federal customs laws.

Thus, Federal agents did not need to fear performing their jobs because the local authorities opposed the embargo and wanted to stop them from enforcing it.

A few decades later, the U.S. Government encountered a similar problem in South Carolina, which in 1833 declared certain Federal tariff laws unenforceable within its borders. Congress responded by authorizing the removal of any suit or prosecution commenced in a State court against an officer of the United States for the enforcement of the Federal revenue laws.

During the Civil War and the Reconstruction era, Congress' disenchantment with State courts in the South led to new Federal officer removal laws. In the 1863 Habeas Corpus Act, Congress provided for the removal of suits or prosecutions against persons acting under Federal authority for actions, or failures to act, during the Civil War. In addition, Congress passed a removal statute similar to those of 1815 and 1833, authorizing the removal of suits or prosecutions commenced in State court against Federal officers for actions, or omissions, related to the collection of Federal revenue. However, it was not until the enactment of the Judicial Code of 1948 that Congress extended the statute to cover all Federal officers.

The courts view the history behind section 1442 and its statutory predecessors as justification for construing the statute broadly to assure the supremacy of U.S. law and protect Federal operations against interference from State judicial proceedings.

This bill does not infringe upon States' rights, as they retain the same due process rights to be heard on the question of removal that have existed since the early 1800s. In fact, this Congress passed a bill by unanimous consent that amended this statute, without a word about States' rights.

Today, Federal law enforcement officers, whether or not in uniform, require protections when they take actions to assist citizens. Civil liability protections are provided to officers under The Good Samaritan Act, codified at Title 28, United States Code, Section 2671. This bill, the Officer Safety Act, while modeled on the Good Samaritan Act, is narrower, more restrictive, and provides no liability protection. Rather, this bill clarifies the ``color of law'' prong required in the removal process, as courts have invited Congress to clarify.

The bill makes no change to the current standards governing when removal is permissible, and therefore leaves alone existing standards and case law. But it provides that in three situations, the law enforcement officer who is a defendant in a State criminal prosecution will be deemed to have acted under color of his or her office: when the officer protects a victim from a violent crime committed in the presence of the officer; when the officer provides immediate assistance to an individual who suffered or is about to suffer imminent bodily harm; and when the officer prevents the escape of an individual the officer reasonably believes committed or was about to commit, in the presence of the officer, a crime of violence that resulted in or was likely to result in serious bodily injury. I believe that in these situations, the Federal courts should always determine that the law enforcement officer acted under the color of his or her office for purposes of determining whether to grant the officer's removal petition. But the courts remain free to determine under current law that there are other circumstances in which an officer seeking removal satisfies the color of office standard.

So the bill is a modest change that nevertheless provides an important layer of safety for the people who risk their lives day-in and day-out to protect us. It will help make our communities safer and protect those who are sworn to guard and serve the American public.

This principle and this bill are supported by the Federal Law Enforcement Officers Association, the Federal Bureau of Investigation Agents Association, and the National Border Patrol Council.

I want to thank Senator Coons, a member of the Committee on the Judiciary, who co-chairs the Senate Law Enforcement Caucus, and is a co-sponsor on this bill. He understands the need to support law enforcement officers who risk their lives every day so that we can sleep safely at night.

Further, I want to thank Senators Coburn and Sessions, also members of the Judiciary Committee and co-sponsors. They, too, understand this allows us to support Federal agents without spending a dollar.

``Law enforcement officers are never `off-duty.' '' To expect them to standby while a victim suffers violent acts in his presence is contrary to the oath they take to protect and renders their tax-funded training wasted as a citizen becomes a victim. Please join me in protecting those who protect us.

Mr. President, I rise today in support of a bill that I am introducing on behalf of a bipartisan group of Senators, the Officer Safety Act of 2012, S. 2276. This bill allows a Federal law enforcement agent, who stops a violent crime while off-duty and is indicted in a State court for those actions, to petition for the State criminal prosecution against him to be removed to Federal court.

The bill effectuates this change by amending the Federal removal statute, found in 28 United States Code, Section 1442, to clarify when a Federal law enforcement officer is acting under the color of his office.

As a 2003 Judiciary Committee report stated, ``Law enforcement officers are never `off-duty.' '' Many are required to carry an off- duty weapon. When they fly on personal business, they are expected to carry their weapon and check-in with the airline as a Federal law enforcement agent so they can defend the pilots and passengers if something bad happens. In fact, Federal agents are specifically paid to be available 24 hours a day, 7 days a week. Agents can be disciplined if they are not available when called.

They are not even allowed to engage in activities on their personal time that regular citizens take for granted, like coaching their kids' sports teams, if it might interfere with their ability to respond to a crisis.

Federal law enforcement agents are extensively trained, at the expense of the taxpayer for the benefit of the taxpayer. They not only train in basic academies, but they are required to participate in additional and regular training and re-certifications many times each year. If training is missed or if standards are not up to par, the agent is disciplined or removed. Federal law enforcement agencies take training requirements very seriously. The United States is known for having the best trained Federal law enforcement officers in the world.

So what if one of these exceptionally trained Federal law enforcement agents walks into the grocery store on a Saturday and witnesses a woman being repeatedly hit by her husband; do we want him to walk past the woman? No. The taxpayers spend money on his training so that he can protect victims, not walk away from them. In this situation, we all hope that he would use his training to protect the victim. But when he steps in to protect the victim from a crime of violence occurring in his presence, he risks state criminal prosecution and damage to his career. That might lead him to hesitate. This is contrary to good public policy. If we were the victim in this scenario, every one of us would want that Federal law enforcement officer to help us.

If a Federal agent acts to protect an individual in his presence from a crime of violence, as taxpayer dollars have trained him to do, and then is indicted in State court for that act, he should have the right to defend himself within the Federal court system.

So the Officer Safety Act amends the removal statute, found in Title 28, United States Code, Section 1442, to clarify when a Federal law enforcement officer is acting under the color of his office. This bill does not provide immunity for law enforcement agents, and it does not grant them additional authority. It doesn't even guarantee that the case will be moved from State to Federal court: the State will be heard and its position will be weighed by the judge before deciding if removal is appropriate. It does allow a Federal law enforcement officer/agent, who is indicted in a State court for actions related to his protection of a victim of a violent crime that is committed in the officer's presence, to petition for that criminal case to be removed to Federal court, where the officer will be required to defend his actions.

Current law provides that removal is proper so long as defendants demonstrate that they are officers of the United States that acted ``under color of'' their office and have a ``colorable federal defense''.

In general, a Federal agent acts ``under color of'' his office when he takes actions that are necessary and reasonable for the discharge of his Federal responsibilities. Accordingly, the prototypical example of a Federal officer acting under color of his office is a Federal law enforcement officer who kills someone while performing an act related to Federal law enforcement and, in the subsequent State homicide prosecution, claims he was acting in self-defense and/or is entitled to official immunity. The Supreme Court has upheld this prototypical example as appropriate for removal from State court to Federal court.

The primary restraint on the current statute's scope is its limitation to defendants who acted under color of Federal office or, in other words, while performing official duties. Defendants must show in their petition for removal that there is a causal nexus between the actions challenged and their Federal duties.

The history of the removal statute explains why this is important. The statute dates back to 1815. It was passed in response to the New England States' opposition to the trade embargo with England during the War of 1812. The law provided for the removal to Federal court of any suit or prosecution commenced in State court against a Federal customs officer or other persons enforcing Federal customs laws.

Thus, Federal agents did not need to fear performing their jobs because the local authorities opposed the embargo and wanted to stop them from enforcing it.

A few decades later, the U.S. Government encountered a similar problem in South Carolina, which in 1833 declared certain Federal tariff laws unenforceable within its borders. Congress responded by authorizing the removal of any suit or prosecution commenced in a State court against an officer of the United States for the enforcement of the Federal revenue laws.

During the Civil War and the Reconstruction era, Congress' disenchantment with State courts in the South led to new Federal officer removal laws. In the 1863 Habeas Corpus Act, Congress provided for the removal of suits or prosecutions against persons acting under Federal authority for actions, or failures to act, during the Civil War. In addition, Congress passed a removal statute similar to those of 1815 and 1833, authorizing the removal of suits or prosecutions commenced in State court against Federal officers for actions, or omissions, related to the collection of Federal revenue. However, it was not until the enactment of the Judicial Code of 1948 that Congress extended the statute to cover all Federal officers.

The courts view the history behind section 1442 and its statutory predecessors as justification for construing the statute broadly to assure the supremacy of U.S. law and protect Federal operations against interference from State judicial proceedings.

This bill does not infringe upon States' rights, as they retain the same due process rights to be heard on the question of removal that have existed since the early 1800s. In fact, this Congress passed a bill by unanimous consent that amended this statute, without a word about States' rights.

Today, Federal law enforcement officers, whether or not in uniform, require protections when they take actions to assist citizens. Civil liability protections are provided to officers under The Good Samaritan Act, codified at Title 28, United States Code, Section 2671. This bill, the Officer Safety Act, while modeled on the Good Samaritan Act, is narrower, more restrictive, and provides no liability protection. Rather, this bill clarifies the ``color of law'' prong required in the removal process, as courts have invited Congress to clarify.

The bill makes no change to the current standards governing when removal is permissible, and therefore leaves alone existing standards and case law. But it provides that in three situations, the law enforcement officer who is a defendant in a State criminal prosecution will be deemed to have acted under color of his or her office: when the officer protects a victim from a violent crime committed in the presence of the officer; when the officer provides immediate assistance to an individual who suffered or is about to suffer imminent bodily harm; and when the officer prevents the escape of an individual the officer reasonably believes committed or was about to commit, in the presence of the officer, a crime of violence that resulted in or was likely to result in serious bodily injury. I believe that in these situations, the Federal courts should always determine that the law enforcement officer acted under the color of his or her office for purposes of determining whether to grant the officer's removal petition. But the courts remain free to determine under current law that there are other circumstances in which an officer seeking removal satisfies the color of office standard.

So the bill is a modest change that nevertheless provides an important layer of safety for the people who risk their lives day-in and day-out to protect us. It will help make our communities safer and protect those who are sworn to guard and serve the American public.

This principle and this bill are supported by the Federal Law Enforcement Officers Association, the Federal Bureau of Investigation Agents Association, and the National Border Patrol Council.

I want to thank Senator Coons, a member of the Committee on the Judiciary, who co-chairs the Senate Law Enforcement Caucus, and is a co-sponsor on this bill. He understands the need to support law enforcement officers who risk their lives every day so that we can sleep safely at night.

Further, I want to thank Senators Coburn and Sessions, also members of the Judiciary Committee and co-sponsors. They, too, understand this allows us to support Federal agents without spending a dollar.

``Law enforcement officers are never `off-duty.' '' To expect them to standby while a victim suffers violent acts in his presence is contrary to the oath they take to protect and renders their tax-funded training wasted as a citizen becomes a victim. Please join me in protecting those who protect us.

Mr. President, a couple weeks ago, and just now my colleague, the Senator from Tennessee, has been speaking on the Senate floor in opposition to the wind energy production tax credit.

Obviously, I have great respect for Senator Alexander. A person who has been in the Cabinet, a person who has been Governor of their State, a person who has been president of a university, and probably a lot of other important positions, can't help but be respected as a very important Senator and a very knowledgeable Senator. While I differ with him greatly on this issue, I will continue to respect him.

The greatness of this body allows for debate and disagreeing points of view to be heard. I disagree strongly with my colleague. It might be natural for me to do that because I have championed the wind energy tax credit as a way to provide a level playing field for a very clean renewable resource.

As a result, wind energy has become more efficient and cost effective. The cost of wind energy has declined by 90 percent since the 1980s. Wind has accounted for 35 percent of all new American electric generation in the last 5 years. Wind already provides 20 percent of the electric generation in my State of Iowa. It supports as many as 5,000 good-paying jobs in our State.

As a result of the tax incentive, the wind energy has actually created new manufacturing jobs in the United States. Today, 60 percent of the wind turbines' value is now produced in the United States, compared with 25 percent 6 years ago. There are now 400 facilities building wind components in 43 States. That is why a bill in the House of Representatives to extend the wind energy production tax credit has 80 cosponsors, including 18 Republicans.

If we fail to extend the incentive, thousands of jobs will be lost in the wind manufacturing industry. Unemployment remains high at 8.3 percent. Why would Congress exacerbate the unemployment in our country by failing to extend this successful incentive?

The Senator from Tennessee has criticized wind turbines because he believes they are ugly and they kill birds. Well, I happen to find them majestic and awe-inspiring on the landscape.

With regard to bill-kill accusations, the Senator's claims were evaluated by Politifact, a fact-checking organization. They concluded that the estimates of birds killed by wind turbines vary widely and that there is no consensus. They do point out that the 400,000-bird estimate used by Senator Alexander is the conclusion of just one person. It is not an official U.S. Fish and Wildlife estimate. In fact, the U.S. Fish and Wildlife cites figures that are, at most, half that, if not less by much.

By comparison, 976 million birds die annually from collisions with buildings. Collisions with high-tension lines kill between 130 million and 1 billion birds. Cars kill 80 million birds each year.

The Senator from Tennessee referred many times to the wind project built in his State by the Tennessee Valley Authority. They constructed a 29-megawatt wind farm at Buffalo Mountain at a cost of $60 million. But it only generates 6 megawatts, because it generates electricity only 19 percent of the

time. The Senator criticized it as being inefficient, wasteful, and ill-advised. The TVA apparently characterizes it as a failed experiment. He blames the Federal incentive for this failed wind project. The blame is totally misplaced. I think the blame should go to the taxpayer-subsidized TVA which put windmills where there was very little wind.

We do agree that the modification made to the renewable energy incentives in the stimulus bill of 2009, specifically the creation of the 1603 cash grant program, is in fact bad policy and should not be extended. However, the production tax credit, which I first authored in 1992, provides the incentive only for electricity that is actually produced. Under the production tax credit, there is no tax benefit simply for placing the turbine in the ground. Electricity must be produced in order to get the credit.

The Senator from Tennessee went on to say that the tax incentive has encouraged developers to build wind projects in places with insufficient wind resources. The TVA project is the only one I am aware of that was built with no prospects of generating electricity. For- profit utilities have to look out for the bottom line. They are not going to make an investment if it doesn't make economic sense. A nonprofit such as TVA can fritter away money, which is what they apparently did in this wind energy project.

The Senator from Tennessee might spend a bit of time criticizing the leaders of the TVA over their poor decision to build this wind project in the first place. I am not aware of a policy forcing them to develop wind. There is no mandate that they build a wind farm there in the State of Tennessee.

Most intelligent businesses determine whether an investment makes common sense. The Tennessee Valley Authority obviously failed in that regard in relationship to this wind project. The Senator from Tennessee might use his time getting to the bottom of this leadership failure and squandered resources by the Tennessee Valley Authority.

I am also glad that he raised the issue of the Tennessee Valley Authority. Much of the criticism aimed at the wind production tax credit is that it is costly, was meant to be temporary, and that it provides a small benefit at great cost. Those same accusations could clearly be aimed at the Tennessee Valley Authority. Regardless of one's opinion of the TVA, there is no doubt--it is a big government program subsidized by all Americans that benefits just a few.

The TVA was created in 1933 to provide flood control, navigation services, and electrical power in the Tennessee Valley region. For more than 60 years, Congress appropriated funds to cover losses by the Tennessee Valley Authority.

A 2009 article published by Jim Powell of the Cato Institute noted that a study estimated the annual cost of capital subsidies exceeded $1.2 billion, including taxes that the Tennessee Valley Authority was able to avoid.

In 1997, the Heritage Foundation issued a report entitled ``Five Good Reasons to Force the TVA into Mandatory Retirement.'' This report stated:

Throughout its history, the TVA has benefited from generous

subsidies, tax breaks, and regulatory exemptions that allow

it to keep its power rates lower than the national averages.

Yet, despite its protected geographic monopoly, substantial

indirect subsidies totalling roughly $1.2 billion each year,

sweeping, across-the-board regulatory exemptions, the TVA has

managed to amass a debt of well over $27 billion and a

disturbing record of waste, mismanagement, and chronic cost

overruns.

The private nonprofit group Citizens Against Government Waste has suggested selling the TVA's electric power assets and privatizing its nonpower functions. In their 2011 list of ``Prime Cuts,'' they argued this move would save taxpayers $16.2 billion over 5 years.

Even the Congressional Budget Office listed the TVA in its March 2011 report on spending and revenue options to reduce the national debt and the annual deficit. When the Federal Government is borrowing 40 cents of every dollar we spend, perhaps the time has come to review an entity that benefits 3 percent of the population at a cost of over $1.2 billion annually. And I use that 40 cents the Federal Government is borrowing of every dollar we spend just as the Senator from Tennessee a few minutes ago used that very same figure as a rationale for eliminating certain expenditures. In this particular case, I apply it to the Congressional Budget Office recommendation of selling TVA.

Rather than blaming the tax incentives for an ill-conceived wind project, I think a review of the management and taxpayer subsidy of TVA would be more appropriate. On many occasions, the Senator from Tennessee has argued that the incentives should be repealed and the savings used to double the Federal energy research budget and to support development of new nuclear.

First, I support research efforts to develop clean energy, but I do not support imposing a tax hike on one energy industry so we can spend billions through our Federal bureaucracy. This idea is nothing more than a tax increase to pay for further Washington spending. It is this kind of activity that helped create the fiscal mess our country is in right now.

Second, I strongly support nuclear energy. In fact, I believe there are four critical elements to a comprehensive energy policy. They are drilling for domestic oil and gas, promoting renewable and alternative energy, supporting conservation and, of course, fourth, nuclear energy.

Nuclear is an emission-free resource. It certainly should play a key role in providing our Nation and economy with renewable emission-free energy. However, this discussion of wind energy versus nuclear energy should be an intellectually honest debate. The fact is, nuclear energy in the United States would not exist today--would not even be here today--without significant government support over 60 years, and development of new nuclear in the United States is unlikely to happen without even greater government intervention and subsidies.

An analysis done by the Christian Science Monitor concluded that the nuclear power industry in the United States receives about $9 billion annually in subsidies. They state that the subsidies stem from things such as Federal decommissioning, waste management policy, and research and development in the Nation's National Laboratories.

The Union of Concerned Scientists published a document in February of last year entitled ``Nuclear Power: Still Not Viable without Subsidies.'' They contend that the 50-year-old nuclear industry has benefited from 30 subsidies. The Price-Anderson insurance liability policy was enacted in 1957 as a temporary measure for an infant industry. It was recently extended until the year 2025.

The Cato Institute published an article, June 2003, entitled ``No Corporate Welfare for Nuclear Power.''

That report states:

Despite extensive and continued government assistance--

including more than $66 billion in research and development

alone--no nuclear powerplant has been ordered and built in

the United States since 1973.

But it goes further.

The decline of nuclear power is the result of several

factors: the Three Mile Island disaster heightened public

safety fears and citizen opposition to the siting of grants

in their neighborhood grew. But nuclear power was ultimately

rejected by investors because it simply does not make

economic sense. In truth, nuclear power has never made

economic sense and exists purely as a creature of government.

A more recent piece by the Cato Institute cites an economist who believes existing nuclear power subsidies are equal to one-third or more of the value of the power produced, and that they face a negative 49-percent tax rate.

There are only two new nuclear plants on the drawing board in the United States today. Both are recipients of loan guaranties provided by the Department of Energy. One is an $8.3 billion loan guaranty, and the other is $2 billion. When the Loan Guaranty Program was first created by Congress, the Congressional Budget Office estimated that ``the risk of default on such loan guaranties to be very high--well above 50 percent.'' This is the same program that backed Solyndra.

Congress originally set aside $18.5 billion for loan guaranties for nuclear. President Obama has requested tripling that amount to $54.5 billion. It is estimated that this $54 billion would help construct 12 new nuclear plants. That is about $4.5 billion each.

Congress created a production tax credit for new nuclear in the year 2005.

Now the nuclear industry is advocating a 30-percent investment tax credit for these new nuclear constructions.

They are also advocating that the production tax credit be extended to the year 2025--that is right; they are seeking to extend for another 13 years a temporary tax incentive.

Taxpayers for Common Sense, in an article published just last week, concluded:

The U.S. cannot afford to shoulder the high price tag and

long term fiscal risk. If the industry cannot figure out a

way to manage its long term risks, the taxpayer should not

step in. This is especially true when the nation is staring

into a $15 trillion chasm of debt. After more than 50 years

of subsidies and support, it's well past time for the nuclear

industry to stand on its own two feet.

I do not raise these points to undermine our nuclear industry. I am not urging my colleagues to end the entire big nuclear gravy train at this time. I support that form of energy as one component of a comprehensive energy program. I support a real, ``all-of-the-above'' approach to energy security. But a fair comparison of Federal support for wind and nuclear needs to be made. That is the point of my remarks at this time.

I say to the Senator from Tennessee, as he just spoke and as he spoke a couple of weeks ago, it is intellectually dishonest to criticize wind incentives while at the same time ignoring those subsidies for nuclear energy. The Senator from Tennessee referred to a Wall Street Journal editorial that criticized the wind energy incentive. It called into question whether wind energy could survive a market-based system.

I will eagerly await an editorial in the Wall Street Journal--which, by the way, will never appear--calling for the gravy train for big nuclear to end after nearly 60 years of Federal subsidies with no market-based timetable on the horizon.

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

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

I want to ask, Mr. President, if it is appropriate for me to speak on the judges who will be up for a vote?

Mr. President, again, we are moving forward under the regular order and procedures of the Senate. This year, we have been in session for about 35 days, including today. During that time we will have confirmed 14 judges. That is an average of better than one confirmation for every 3 days. With the confirmations today, the Senate will have confirmed nearly 75 percent of President Obama's article III judicial nominations.

Despite the progress we are making, we still hear complaints about the judicial vacancy rate. We are filling those vacancies. But again, I would remind my colleagues that of the 81 current vacancies, 47 have no nominee. That is 58 percent of vacancies with no nominee.

So I am growing a bit weary of the vacancy rate being blamed on Senate Republicans.

I have spoken on numerous occasions about the seriousness with which I undertake the advice and consent function of the Senate, as I know we all do. Our inquiry of the qualifications of nominees must be more than intelligence, a pleasant personality, an inspirational life story, or a prestigious clerkship.

When I became ranking member on the Senate Judiciary Committee, I articulated my standards for judicial nominees. I want to ensure that the men and women who are appointed to a lifetime position in the Federal judiciary are qualified to serve. Factors I consider important include intellectual ability, respect for the Constitution, fidelity to the law, personal integrity, appropriate judicial temperament, and professional competence.

In applying these standards, I have demonstrated good faith in ensuring fair consideration of judicial nominees. I have worked with the majority to confirm consensus nominees.

In fact, of the 138 judges confirmed so far, I have voted in favor of over 90 percent of President Obama's judicial nominees. This includes supporting 100 of the 108 district judges we have confirmed during President Obama's term of office.

However, today on the agenda is a nominee that in my judgment does not measure up to the criteria I have outlined. Ms. Miranda Du was nominated to be a U.S. district judge for the District of Nevada on August 2, 2011.

We have heard Ms. Du's life story--leaving Vietnam following the war; living in refugee camps with her family; coming to America at a young age; obtaining an education and establishing herself in a respectable career. She has risen above disadvantages that most of us can't imagine. This is a great success story, and we congratulate her for these notable accomplishments.

However, this is not sufficient for confirmation to a lifetime appointment as a Federal judge. We all can think of similar success stories. Miguel Estrada immigrated to America at a young age, graduated from Harvard, clerked at the Supreme Court, and had a prestigious legal career. His confirmation to the Federal court was defeated by a Democratic filibuster.

Justice Thomas grew up in humble circumstances, rose above his disadvantaged background to graduate from Yale Law School, faced discrimination in legal hiring, but went on to an illustrious public service career. He was barely confirmed to the Supreme Court.

Janice Rogers Brown, an African-American female, was the daughter of sharecroppers. Overcoming these circumstances, she graduated from UCLA School of Law working her own way through while being a single mother. She served in California State government and on the California Supreme Court. Her Federal judicial nomination faced a Democratic filibuster before she was finally confirmed by a vote of 56 to 43.

I bring up these examples to point out that many individuals we consider for judicial positions have overcome difficult circumstances in life. Most are examples of the American dream. Some are confirmed, others are not. But in each case, the gender or race of the individual, or the particular life story was not part of the consideration of whether or not to confirm to a lifetime appointment. So while I think Ms. Du's accomplishments are admirable, they are not the basis for evaluating her qualifications to serve as a Federal district judge.

The relevant factors for me are her ability and professional competence. In those areas, she does not meet the standards I would consider necessary for a Federal judge.

I would note that the ABA has rated Ms. Du with a partial ``not qualified'' rating. She states she was ``involved in'' four jury trials and has limited criminal law experience. As I have stated before, this is no place for on-the-job training.

A mere 16 legislative days after her nomination, Ms. Du appeared at her nominations hearing. At that hearing, she was asked about a case in which she was lead counsel. Ms. Du was the

partner in charge of handling the case of Woods v. Truckee Meadows Water Authority.

In that case, she filed a motion to dismiss the original complaint. But she failed to raise the lack of subject matter jurisdiction as a reason to dismiss the case. The court, therefore, denied her motion. Ms. Du then filed a third-party complaint against the local union. But the union's counsel recognized that there was no subject matter jurisdiction. Therefore, they advised Ms. Du, in a six-page letter, that the court lacked subject matter jurisdiction. The union, therefore, warned Ms. Du that they would seek sanctions if Ms. Du did not withdraw her complaint. Rather than recognizing her mistake and filing a second motion to dismiss, Ms. Du went forward with the third- party complaint. In response, the union proceeded exactly as they said they would: They filed a motion to dismiss and filed for sanctions.

The district court agreed there was no subject matter jurisdiction and dismissed the action. In addressing the sanctions issue, the court stated:

Having reviewed the record and considered arguments of

counsel at the hearing on this motion, the court finds that .

. . TMWA's counsel acted recklessly. . . .

Let me remind you, TMWA's counsel was the nominee, Ms. Du. The court said she acted recklessly. The court went on to state that TMWA-- referring to Ms. Du's client--``has not advanced a legitimate, good faith reason for bringing the Union into this litigation.'' Accordingly, the court concluded sanctions were warranted.

At her hearing, Senator Lee asked her if she agreed with the court's assessment that her conduct was reckless. She stated that she did not believe that she was reckless.

In written follow-up questions, I asked her again about the court finding her reckless, and she responded that she disagreed with the magistrate judge's finding. Let me be clear: The finding of reckless action on her part was not a mere observation of the court, but a legal finding. That finding allowed the court to award sanctions pursuant to 28 U.S.C. 1927.

I was troubled that she would fail to acknowledge the finding of the court that she was reckless. I think this demonstrates a lack of humility, which is an essential element of being a Federal judge. I understand attorneys may make mistakes or have differing views on litigation strategy. However, this is not the case in this situation. Ms. Du was put on notice of her flawed motion, was warned of the consequences of proceeding, but went forward anyway. That is why the court found her to be ``reckless.'' Her subsequent attempt to downplay this serious matter goes against the standards for judicial nominees which I previously discussed.

There is another substantive legal element that concerns me as well. That is her apparent lack of knowledge or disregard for the law regarding subject matter jurisdiction. Senator Lee's questions at the hearing on this issue I think demonstrate a lack of ability or professional competence.

Her written responses to questions for the record failed to adequately explain her legal reasoning or to clarify the issues raised at her hearing.

Accordingly, Senate Republicans on the Senate Judiciary Committee unanimously opposed reporting her nomination to the Senate.

I would note that more than 2 months after her hearing, and more than one month after she was listed on the Executive Calendar, Ms. Du sent a letter addressed to me and Senator Lee. In that letter, she apologized for her earlier unclear explanations and for her misstatements. While I appreciated her response to me, the doubts I have about her ability and competence remain. Therefore, I cannot support this nomination and urge a ``no'' vote on this nominee.

I yield the floor.

Mr. President, soon, around the 12:30 hour or on one of the seven votes this afternoon, we are going to be voting on cloture on the STOCK Act. I have 45 minutes allotted to me to speak about the disappointment I have with the way this has been handled and why I think the parliamentary procedure is wrong and why the whole process irritates me.

Bipartisanship happens to be alive and well in Washington, DC, where most of our constituents believe it is never working. Earlier this week, we had the Republican majority leader of the House and the Democratic majority leader of the Senate--that is bipartisanship--work together to thwart the will of 60 Senators and 286 Members of Congress. The end result is, as well-meaning as the people behind this maneuver might be--the end result is that 60 Members of the Senate are going to be denied an opportunity to pursue what they had previously voted for and 286 Members of the House of Representatives, cosponsoring the language of my amendment, are not going to have a chance to do what 286 Members of the House want to do. As I said, this is bipartisanship, but it is not the kind of bipartisan cooperation, intended or not, this Nation deserves.

I will not ascribe motives to anyone in this body, but I know that today's action only serves the desires of obscure and powerful Wall Street interests, and it undercuts the will of the overwhelming majority of Congress I just described. Once again, it is an example of Wall Street being heard in Washington and maybe the common persons throughout the United States not having their will expressed.

With this process, they took a commonsense provision, supported by a majority of both Houses of Congress, and they simply erased it. In other words, we have to remember, when we

have a 60-vote requirement in the Senate, we know what that 60-vote requirement is meant to do; that no amendment under a 60-vote requirement is ever going to be adopted. That was surely the motive behind the 60-vote threshold on the amendment I got adopted when this bill was first up, because the Democratic leader voted against it, the Republican leader voted against it, the Democratic manager spoke against it, and the Republican manager was against it. Common sense tells us, if we study the Senate, an amendment such as that is never supposed to get adopted. But we got the 60 votes to get it adopted. Frankly, I was surprised we got the 60 votes to get it adopted. But that is taken out of the bill we are going to be voting on this afternoon.

My amendment simply says that if someone seeks information from Congress or the executive branch to trade stocks, Congress, the executive branch, and the American people ought to know who they are. Nobody is saying they cannot do it, but we ought to know who they are. We do that through the process where everybody ought to know who lobbyists are--not that lobbying is illegal or wrong, but it ought to be transparent. With transparency comes accountability. The same way this amendment asks these people who are involved in seeking information to register so we know who they are. The amendment makes nothing illegal. But we ought to know who these people are who seek political and economic espionage. We ought to bring all that out of the shadow, into the public's information.

But the leadership of both parties--the majority in the House and the majority in the Senate--went behind closed doors and made that provision magically disappear. What they did was truly amazing because a handful of Senators and Congressmen overrode the will of 60 Senators and 280-plus backers of my amendment in the other body. First, the majority leader in the House said the definition of political intelligence was so vague he could not possibly figure out how to define it. That is the excuse given for stripping any regulation of political intelligence, my words, or political and economic espionage from the STOCK Act when it was taken up in the House of Representatives.

Let me tell you why that excuse is truly amazing to me and quite a surprise. It is because the House of Representatives put in a diluted provision that uses the very same definition I had in my bill of what political intelligence gathering is. Then, by taking out my language and putting in theirs, they got it done because it was an excuse, that the language I had in my amendment was so vague. But you know what. They took that very same language and put it in their amendment, calling for a study of political and economic espionage and political intelligence and used it.

Let me go back to section 7, part b, and quote:

Definition--for purposes of this section, the term

``political intelligence'' shall mean information that is

derived by a person from direct communications with an

executive branch employee, a Member of Congress, or an

employee of Congress; and provided in exchange for financial

compensation to a client who intends, and who is known to

intend, to use this information to inform investment

decisions.

That is the definition that they thought we don't know what political intelligence is, so we should not be passing this amendment, even though 286 Members of the House of Representatives have sponsored a bill to do it and take that very same definition that they say is so vague and put it in a bill for the purposes of studying something. That seems pretty straightforward, doesn't it? That definition seems pretty straightforward. Of course, now that definition will only by applied to a study, not to legislation with real teeth--because the powerful interests of Wall Street are winning out.

If you think that is bad, this is what happened to the STOCK Act in the Senate. By now, I think just about everybody in this body knows how strongly I feel about this amendment that was adopted by this body 60 to 40, under a rule requiring 60 votes because that kills any amendment--but it did not kill this one because we were right. I have spoken many times about the dangers of unregulated political and economic espionage. I have reached out to the leadership to express my concern and written a letter with Senator Leahy, the chairman of the Judiciary Committee, on the importance of our STOCK Act provisions. I said that I was willing, if necessary, to negotiate on the language of my amendment, and that would be on the question of what is political intelligence. But it seems to me one doesn't need to negotiate that if we pass something with that definition in it. The House already has 286 cosponsors with that definition in it, but they take that same definition and put it in the amendment in the other body for a study, not an amendment with any real teeth.

So when I said I was willing to negotiate, what was the response? Nothing. I was not even given the courtesy of being notified before cloture was filed. So it was kind of like an ambush, plain and simple. Just like those people who traffic in political and economic espionage, this process has been cloaked in a great deal of secrecy.

Now the claim is made that the Senate was forced to take up the House bill because an unnamed Republican was threatening to object to a conference. However, no Republican--or any Senator, for that matter-- has publicly owned up to trying to stop this bill from going to conference. But even if we accept this fact, there are still more questions. Supposedly we are taking up the House bill because the Senate does not have time to take two or more cloture votes. Throughout this Congress, we have spent weeks in nothing but quorum calls, but suddenly we have run out of time.

Of course, in less than 10 days we will be leaving Washington, DC, for a 2-week recess. I intend to go home and have town meetings, but we are not going to be doing business here in Washington, DC. So I have an idea for people to consider. With congressional approval ratings in the near single digits, why can't we spend part of that time getting the STOCK Act right? And by getting it right, I see nothing wrong with the basic underlying piece of legislation, but when there is a chance to bring transparency and accountability through the registering of people who are involved in political and economic espionage, I think we ought to do it, and that is what I mean by getting the STOCK Act right.

The Washington Post said that my amendment, combined with Senator Leahy's political corruption amendment, ``transformed the [STOCK Act] into the most sweeping ethics legislation Congress had considered since 2007.'' Maybe you don't agree with the Washington Post all the time, and I don't agree with them all the time, but they are looking at things on a wider scale, and they are saying that a Congress that doesn't have a very good approval rating has a chance, for the first time in 5 years, to do sweeping ethics legislation that we need in order to improve the Congress's reputation by the public.

So isn't it worth taking just a couple of extra votes to get it done right and to make Congress look better? I think so, but apparently a small handful of people in the House and the Senate who make the decisions on how we are going to do business around here--not taking into consideration the votes of 60 Senators supporting this--have other ideas.

Well, at the end of the day, here is what will happen if we don't proceed. There are about 2,000 people working in the completely unregulated world of political intelligence or political and economic espionage. Right now, these people have to be celebrating because they are in the shadows. They want to stay in the shadows. They are celebrating because they know it is business as usual. They can continue to pass along tips that they get from Members of Congress, Senators, and staff, and no one will be the wiser. They pass along these tips to hedge funds, private equity firms, and other investors who pay them top dollar. The lobbyists get rich, Wall Street traders get rich, but the American people lose.

At one time, these folks who set up these meetings for Members of Congress or even in the executive branch--and I have examples to show that--used to charge $10,000 for just setting up a meeting. They don't charge $10,000 anymore because that information got out and it was too embarrassing to

them. So now there is kind of a relationship built up here between the people who know their way around Congress and people who want this information that if there is investment in stock as a result of this and there is an increase in the value of the stock, that one will do their trading through the company. That is a tragic result of this decision by the leadership to leave out the amendment that was adopted by 60 Members of this Congress and would do nothing more--not make anything illegal--than let us know who these people are.

Through my oversight investigations, I have learned that political intelligence gathering for Wall Street is a growing field ripe for abuse. Here are two examples of the type of activity that will continue to be kept in the dark.

In the course of my investigations of a whistleblower's claim, I learned that the Center for Medicare and Medicaid Services has closed- door meetings with Wall Street firms where CMS policies are discussed. No record is kept of the meetings, and employees are essentially on the honor system to make sure they are not giving investors inside information. As an example, the whistleblower who came to us claimed that over a dozen CMS employees spent nearly 2 hours briefing Wall Street analysts and investigators on the taxpayers' dime. A member of the public could not walk in and get that kind of access to that information. CMS is supposed to be working for us. Instead, we found out that they are working for Wall Street. If my amendment fails, we won't know how many of these meetings occur throughout the government and who profits from these meetings.

Another example is an investigation I conducted into the Obama administration's Department of Education. The Department of Education was getting set up to issue regulations on gainful employment that would affect not-for-profit colleges. Several hedge funds had bet big that those new regulations would make it harder for for-profit colleges to do business. Then news began to leak that those regulators were not going to be as tough as was expected. Suddenly, for-profit stocks began to rise, and these hedge fund investors reached out to their friends in the Department of Education.

This is from an actual e-mail my investigators uncovered. It was sent from Steve Eisman, a hedge fund investor, to David Bergeron. He was part of a team in charge of writing these regulations. The e-mail reads:

I know you cannot respond, but FYI education stocks are

running because people are hearing DOE is backing down on

gainful employment.

To translate that Wall Street jargon, the term ``running'' means that a stock is going up.

Within minutes this e-mail was marked ``high importance'' and forwarded to senior-level political appointees. These appointees included James Kvaal, the Deputy Under Secretary, and another policy expert at the Department and Phil Martin, the Secretary of Education's confidential assistant. To this day we do not know why the Department's higher education policy experts needed to know that a hedge fund investor was losing money. What we do know is that for-profit stock dropped significantly, and if you bet big that these stocks would drop, you likely made a lot of money.

When the Department of Education answered my questions, they admitted to my staff that this e-mail was not a proper contact.

In addition, the Department of Education inspector general is investigating the gainful employment rulemaking process.

These are just two examples in government agencies where reports such as these are just the tip of the iceberg. The more power Washington, DC has, the more it affects financial markets, and the more it affects financial markets, the more people on Wall Street want to pay for information about what is going to happen here on this island surrounded by reality that we call Washington, DC.

Usually, the only way any sort of ethics reform gets done around here is if someone gets caught. With political intelligence, we have the opportunity to create transparency before the next scandal occurs. As government grows, this industry is going to grow, with the potential for corruption. The question is, What are we going to do about it? Transparency is the simplest and least intrusive solution, and if transparency doesn't do the job, then you can legislate. But I have found out through so many of my investigations over the last 20 years that if you bring transparency to something and get it out in the open, it tends to correct itself--maybe not completely but to a great degree.

Originally, in starting investigations, you think you are going to have to have a massive amount of legislation, but when you get transparency involved and the accountability that goes along with it, you find that you don't have to pass a lot of laws, that a lot of people know that if somebody is looking over their shoulder, they are going to do what is right.

Now, we can commission another study, as the House of Representatives wants to do and we are going to be voting on when we vote on cloture here, but that is kicking the can down the road for another year. We can act today by defeating cloture and getting to some of these amendments that have such widespread support in the Congress of the United States. With 60 votes in the Senate and 286 cosponsors in the House of Representatives, this is our last chance to make sure the Senate speaks with a unified voice against secrecy for political and economic espionage people and for transparency in government. We must not allow the special interests to operate in the dark. Just bring them out of the shadows--not that what they are doing is illegal, but we ought to know what it is.

For these reasons, and to support transparency, to support open government, and to support good government, I will oppose cloture on the bill, and I hope a lot of my colleagues--in fact, I hope all 60 of my colleagues who voted for the amendment in the first place--will oppose cloture.

If cloture is invoked, which is likely, I intend to vote for this bill anyway because the underlying bill is a very necessary piece of legislation, but it is not much of a victory for the American people. As the Washington Post said, if it included the Leahy amendment, if it included the Grassley amendment, it would be the most sweeping ethics reform in the last 5 years.

I yield the floor and reserve the remainder of my time. I suggest the absence of a quorum.

Madam President, again, we are moving forward under the regular order and procedures of the Senate. This year, we have been in session for about 32 days, including today. During that time we will have confirmed 12 judges. That is an average of better than 1 confirmation for every 3 days. With the confirmations today, the Senate will have confirmed nearly 74 percent of President Obama's Article III judicial nominations.

Today, we turn to three more judicial nominations. Ronnie Abrams is nominated to be United States District Judge for the Southern District of New York. She graduated with a B.A. from Cornell University in 1990. She received her J.D. from Yale Law School in 1993. Upon law school graduation, she clerked for Honorable Thomas P. Griesa of the United State District Court for the Southern District of New York. From 1994 to 1998 she worked as an associate on civil matters at David Polk and Wardwell. In 1998, Ms. Abrams joined the United States Attorney's Office for the Southern District of New York as an Assistant United States Attorney in the Criminal Division. She handled a variety of criminal cases, inducing ones involving the sexual exploitation of children, bank robbery, immigration, identity theft and money laundering. She also served in the Narcotics, Violent Crime and Public Corruption Units. From 2004 to 2008, Ms. Abrams served in a supervisory role at the United States Attorney's Office, as either Deputy Chief or Chief of the Criminal Division. In 2008, Ms. Abrams returned to David Polk and Wardwell as Special Counsel for Pro Bono and represents those without means to represent themselves.

Rudolph Contreras is nominated to be United States District Judge for the District of Columbia. He is a 1984 graduate from Florida State University and received his J.D. in 1991 from the University of Pennsylvania Law School. After graduating from law school, Mr. Contreras joined the litigation department of the law firm Jones Day. In 1994, he became an Assistant United States Attorney in the District of Delaware and the District of Columbia. In that capacity, he has represented the United States and its departments at both the trial level and appellate levels in civil actions. In 2003, Mr. Contreras became Chief of the Civil Division in the District of Delaware. There, he supervises 40 Assistant United States Attorneys, 6 Special Assistant United States Attorneys, and 31 support staffers.

David Nuffer is nominated to be United States District Judge for the District of Utah. He received his B.S. in 1975 and his J.D. in 1978 from Brigham Young University. He began his legal career as an associate at Allen Thompson & Hughes. From 1982 to 1992, Judge Nuffer practiced both criminal prosecution and criminal defense. From 1995 to 2002, he represented municipalities, individuals and businesses in civil litigation. He also served as a part-time United States Magistrate Judge during this time. In 2003, he was appointed to serve as a full-time magistrate judge. In 2009, he became Chief Magistrate Judge. He has presided over 30 cases that have gone to verdict or judgment. While some may complain about the time it has taken to confirm Judge Nuffer, I would note that the President took over a year and a half--576 days--to submit this nomination, once the vacancy occurred.

Mr. President, I yield back our time.

I say to the Senator from Wyoming, definitely not, and Americans are seeing every day that is not the case. If I could respond a little bit more in length, I would go back to 1994 and point out a problem President Clinton had, and in turn that President Obama tried to avoid about 14 years later. It was in 1994 that the health care reform issue came before the Congress--promoted by President Clinton at that time--and it failed in large part because it fundamentally changed the health care coverage for nearly every American.

We know the bill that is now law has fundamentally changed, but President Obama, in 2009--and throughout his campaign in 2008--decided he would combat the failure of the Clinton administration on health care reform, and not being successful there, by repeating over and over to Americans: ``If you like what you have, you can keep it.'' That is basically what we heard at least 47 different times while the bill on health care reform was being debated.

We heard that from the President himself. We probably heard it from Members of this Congress hundreds of times. While it may have been politically useful to make that promise to the American people, it remains a promise he cannot keep and he did not keep.

The fact is, millions of Americans are seeing changes in their existing health plans due to the health reform law. So, basically, when the President said, ``if you like what you have, you can keep it,'' it is not turning out that way, and Americans are seeing it every day.

The administration's regulations governing so-called ``grandfathered health plans'' will force most firms--up to 80 percent of the small businesses--to give up their current health care programs, and that is happening fairly regularly. When those businesses lose their grandfathered status, they immediately become subject to costly new mandates and increased premiums that follow. So the economics of health care costs and health care insurance dictate that people are not going to be able to keep what they have, as the President promised.

Families in 17 States no longer have access to child-only plans as a result of

the health care law. So if you were a voter in 2008, and the President said to you ``if you like what you have, you can keep it,'' and you wanted only health insurance for your children, you cannot do that today in these 17 States. It is not known how many families who lost coverage for their children because of the law have been able to find an affordable replacement.

Medicare Advantage covers about 20 percent of the senior citizens of America. There is a study that shows the Medicare Advantage enrollment is going to be cut in half. The choices available to seniors are going to be reduced by two-thirds. Then there is the open question about Americans who receive their health care through large employers. The CBO recently released a report that constructed a scenario where as many as 20 million Americans could lose their employer coverage.

While I acknowledge that the Congressional Budget Office report provided the number that I just mentioned as only one possible scenario, there are many who believe that is very plausible given the incentives in the health care law created for large businesses.

So I say to the Senator from Wyoming, 47 times--just while we were debating it; I don't know how many times during the campaign--this President said, ``If you like what you have, you can keep it.'' It is a promise that was not kept.

That is not only a promise that has been broken, that is a promise that is very easy to quantify because, on July 29, 2009, during the consideration of this health care reform law, the President said:

Medicare is a government program. But don't worry: I'm not

going to touch it.

So let's take a look at the health care law and see if that promise was kept. The health care law made significant cuts in Medicare programs. This is what we can quantify in dollars and cents.

On April 22, 2010, the Chief Actuary of Medicare analyzed the law and found that it would cut Medicare by $575 billion over 10 years. The President said, about Medicare, as I told you, ``I'm not going to touch it.'' But the President has touched it in a big way: $575 billion out of Medicare.

Medicare is on a path to go broke by 2021; $575 billion is not going to guarantee Medicare for everybody in the future. We have to reform and change Medicare if that promise is going to be kept. We all want to do that, but the President has made that more difficult.

The Congressional Budget Office wrote that over $500 billion in Medicare reductions ``would not enhance the ability of the government to pay for future Medicare benefits.'' You know what the President said during the debate on this bill: ``I'm not going to touch it.'' But he has touched it in a big way.

The Chief Actuary had this to say about the Medicare reductions:

Providers--

Meaning hospitals and doctors--

Providers for whom Medicare constitutes a substantive

portion of their business could find it difficult to remain

profitable and, absent legislative intervention, might end

their participation in the program.

So not only touching 500-and-some billion dollars, but also touching it in a way of limiting access for senior citizens of America when the President said, ``I'm not going to touch it,'' he misled the American people.

The CM Actuary said, in essence, these cuts could drive providers from the Medicare Program. I have a hard time understanding how these massive cuts to Medicare count as somehow: I'm not going to touch Medicare.

On the other hand, the biggest problem facing Medicare in the near term is a physicians payment update problem that we constantly have to address and could have been addressed in the health care reform bill. You know what. It was not addressed. Of course nothing was done about it. Perhaps that is what the President meant when he said about Medicare, I say to the Senator from Wyoming, ``I'm not going to touch it.''

Mr. President, if I could add one thing at this point, we don't really know how bad this law is yet. I am going to add something to what Senator Blunt said when he quoted the Speaker of the House saying that we don't really know what is in this bill and we are going to have to pass it to find out what is in it. That is what she had to say to get a majority vote even within her own party to get it through the House of Representatives. But, in a sense, she is right. One could understand every letter of this law, but it has 1,693 delegations of authority for the Secretary to write regulations, and until they are written, we aren't really going to know what is in it. We remember the accountable care organization rules that came out. Six pages out of 2,700 in the bill dealt with accountable care organizations, but the first regulations that were written were 350 pages long. So we really won't know how bad this legislation is maybe for a few years down the road, and hopefully we never get that far down the road.

Mr. President, today I am introducing the Rural America Preservation Act of 2012. I appreciate Senators Johnson of South Dakota, Enzi, Brown of Ohio, Gillibrand, Harkin, and Nelson of Nebraska for joining on this bill, and in this effort.

As the Senate Agriculture Committee continues working on the next Farm Bill, one thing seems to be clear. The title one safety-net is going to look quite different than current programs. It appears the direct payment program may be done away with entirely. Some of my colleagues and agriculture groups have proposed a variety of new ideas as possible replacements to the current commodity title.

No matter what commodity program we create, my bill sets the marker on payment limitations. I introduced a similar payment limits bill last year, but this bill should better address whatever type of safety-net program we adopt going forward. The premise remains the same. We need firm payment limit. We need to close loopholes.

I support having a safety-net for farmers. This nation enjoys a safe and abundant food supply. Certainly a lot of that can be attributed to the ingenuity and hard work of the American farmer. But the farm safety-net helps small and medium-size farmers get through tough times that are out of their control.

We need an effective safety-net to assist farmers. But equally important is for Congress to develop a defensible safety-net. I will continue to work with my Agriculture committee colleagues to figure out what type of program will be most effective.

But we already know the steps that need to be taken to make it more defensible. Defensible means setting firm caps on the farm payments any one farmer can receive. The current approach does not have any overall cap. There is nothing wrong with farmers growing their operations. But big farmers shouldn't be using taxpayer dollars

to get even bigger. When the largest 10 percent of farmers receive 70 percent of farm payments, something is wrong. There comes a point where some farms reach levels that allow them to weather the tough financial times on their own. Smaller farms do not have the same luxury, but they play a pivotal role in producing this nation's food.

If you want to witness how farm payments to big farmers creates a barrier for small and beginning farmers, look at land prices. The current system puts upward pressure on land prices making it more difficult for small and beginning farmers to buy ground. This is not unique to Iowa. This upward pressure on land prices is occurring in many other states.

This bill proposes an overall cap of $250,000 for a married couple. In my State, many people would say this is still too high. But I recognize that agriculture can look different around the country, and so this is a compromise. Strong payment limits will ensure farm payments are helping those who payments were originally created for, the small and medium-size farmers.

Having an overall cap is more defensible from a Federal budget standpoint as well. This Nation needs to make tough decisions regarding all government programs. We need to find savings across the board. Setting strict caps on all commodity programs should be a no-brainer as we look to find savings and increase accountability in farm programs. Having a defensible safety-net also means closing loopholes in the current law.

For all the rhetoric that comes out of Washington, D.C. about eliminating fraud, waste, and abuse, making sure non-farmers don't game the system is a common sense step to take. It's simple, if you are not a farmer, you shouldn't get a farm payment. The bill I introduced last year, and this bill, has language that closes the loopholes.

After I introduced the bill last year, we received some questions regarding the language from two camps of people. The first camp of people I would say were critical because they don't want the loopholes closed. They would have us turn a blind eye to the fact people game the system. They would have us turn a blind eye to the fact we have nonfarmers who claim to help ``manage'' the farm by participating in one or two conference calls a year. To those people, I cannot satisfy your concerns. I will not turn a blind eye to abuses. These are loopholes that need to be closed.

To the other camp of people, who have provided constructive feedback, I would say, we have listened. The revisions we made addressed the issues raised. We have improved the language closing the loopholes. This bill provides a tangible, workable, and fair approach. Closing these loopholes is the right thing to do for the American taxpayer. It is the right thing to do for the American farmer.

Hard caps on farm payments and closing loopholes should be supported by anyone who wants an effective and defensible farm safety-net. As the Senate Agriculture Committee heads toward a mark-up of the Farm Bill, I invite my Senate colleagues to join me in supporting this bill.

Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. President, today I am introducing the Rural America Preservation Act of 2012. I appreciate Senators Johnson of South Dakota, Enzi, Brown of Ohio, Gillibrand, Harkin, and Nelson of Nebraska for joining on this bill, and in this effort.

As the Senate Agriculture Committee continues working on the next Farm Bill, one thing seems to be clear. The title one safety-net is going to look quite different than current programs. It appears the direct payment program may be done away with entirely. Some of my colleagues and agriculture groups have proposed a variety of new ideas as possible replacements to the current commodity title.

No matter what commodity program we create, my bill sets the marker on payment limitations. I introduced a similar payment limits bill last year, but this bill should better address whatever type of safety-net program we adopt going forward. The premise remains the same. We need firm payment limit. We need to close loopholes.

I support having a safety-net for farmers. This nation enjoys a safe and abundant food supply. Certainly a lot of that can be attributed to the ingenuity and hard work of the American farmer. But the farm safety-net helps small and medium-size farmers get through tough times that are out of their control.

We need an effective safety-net to assist farmers. But equally important is for Congress to develop a defensible safety-net. I will continue to work with my Agriculture committee colleagues to figure out what type of program will be most effective.

But we already know the steps that need to be taken to make it more defensible. Defensible means setting firm caps on the farm payments any one farmer can receive. The current approach does not have any overall cap. There is nothing wrong with farmers growing their operations. But big farmers shouldn't be using taxpayer dollars

to get even bigger. When the largest 10 percent of farmers receive 70 percent of farm payments, something is wrong. There comes a point where some farms reach levels that allow them to weather the tough financial times on their own. Smaller farms do not have the same luxury, but they play a pivotal role in producing this nation's food.

If you want to witness how farm payments to big farmers creates a barrier for small and beginning farmers, look at land prices. The current system puts upward pressure on land prices making it more difficult for small and beginning farmers to buy ground. This is not unique to Iowa. This upward pressure on land prices is occurring in many other states.

This bill proposes an overall cap of $250,000 for a married couple. In my State, many people would say this is still too high. But I recognize that agriculture can look different around the country, and so this is a compromise. Strong payment limits will ensure farm payments are helping those who payments were originally created for, the small and medium-size farmers.

Having an overall cap is more defensible from a Federal budget standpoint as well. This Nation needs to make tough decisions regarding all government programs. We need to find savings across the board. Setting strict caps on all commodity programs should be a no-brainer as we look to find savings and increase accountability in farm programs. Having a defensible safety-net also means closing loopholes in the current law.

For all the rhetoric that comes out of Washington, D.C. about eliminating fraud, waste, and abuse, making sure non-farmers don't game the system is a common sense step to take. It's simple, if you are not a farmer, you shouldn't get a farm payment. The bill I introduced last year, and this bill, has language that closes the loopholes.

After I introduced the bill last year, we received some questions regarding the language from two camps of people. The first camp of people I would say were critical because they don't want the loopholes closed. They would have us turn a blind eye to the fact people game the system. They would have us turn a blind eye to the fact we have nonfarmers who claim to help ``manage'' the farm by participating in one or two conference calls a year. To those people, I cannot satisfy your concerns. I will not turn a blind eye to abuses. These are loopholes that need to be closed.

To the other camp of people, who have provided constructive feedback, I would say, we have listened. The revisions we made addressed the issues raised. We have improved the language closing the loopholes. This bill provides a tangible, workable, and fair approach. Closing these loopholes is the right thing to do for the American taxpayer. It is the right thing to do for the American farmer.

Hard caps on farm payments and closing loopholes should be supported by anyone who wants an effective and defensible farm safety-net. As the Senate Agriculture Committee heads toward a mark-up of the Farm Bill, I invite my Senate colleagues to join me in supporting this bill.

Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Madam President, I ask unanimous consent to speak as in morning business for 12 minutes.

Madam President, this is Sunshine Week--a week that is observed annually to point out the public's business ought to be public and that government, except in the cases of national security, should be open to public inspection. This week coincides with the birthday of James Madison, the Founding Father known for his emphasis on checks and balances in government and advocacy of open government.

Open government and transparency are essential to maintaining our democratic form of government. Although it is Sunshine Week, I am sorry to report that contrary to the proclamations President Obama made when he took office 3 years ago--and he made them, in fact, within hours after his swearing in--that 3 years later the Sun still isn't shining on the public's business in Washington, DC. So there is a real disconnect between the President's words and the actions of his administration.

On his first full day in office, President Obama issued a memorandum on the Freedom of Information Act. This memo went to the heads of executive agencies. In it, the President instructed these executive agencies to ``adopt a presumption in favor of disclosure, in order to renew their commitment to the principles embodied in the Freedom of Information Act, and usher in a new era of open government.''

We all know actions speak louder than words. Unfortunately, based on his own administration's actions, it appears the President's words about open government and transparency are words that can be ignored. If not ignored by the President--and maybe well-intended on the part of the President--being ignored down to the bowels of the bureaucracy.

Given my experience in trying to pry information out of the executive branch, and based on investigations I have conducted, and inquiries by the media, I am disappointed to report that President Obama's statements about transparency are not being put into practice. In other words, it is a little bit like ``business as usual.'' I had the same problems when we had Republican Presidents. But based upon the President's pronouncements after his swearing in, I expected things to be totally different in this administration, and I don't find them to be any different. Federal agencies under the control of the President's political appointees have been more aggressive than ever in withholding information from the public and from the Congress.

Throughout my career, I have been actively conducting oversight of the executive branch, regardless of who controls the Congress or what party controls the White House. When the agencies I am reviewing get defensive, and when they refuse to respond to my requests, it makes me wonder what they are trying to hide. Over the last year, many of my requests for information from various agencies have been turned down again and again either because I am ranking member or because I am not chairman of the Judiciary Committee. Agencies within the executive branch have repeatedly cited the Privacy Act as a part of the rationale for their decision not to grant requests even though the Privacy Act explicitly says it is not meant to limit the flow of information from the executive branch to the Congress.

This disregard by the executive branch for the clear language of the law is disheartening, and so it is quite appropriate during Sunshine Week we bring out the truth. Citing another example, since January 2011, Chairman Issa and I have been stonewalled by Attorney General Holder and by other people in the Justice Department regarding our investigation of Operation Fast and Furious. This deadly operation let thousands of weapons ``walk'' from the United States into Mexico.

Despite the fact the Department of Justice inspector general possesses over 80,000 relevant documents, Congress has received only around 6,000 in response to a subpoena from the House Oversight Committee. Even basic documents about the case have been withheld by the Justice Department. Yet the Department insists on telling us--and before they tell us, they seem to tell the press--that they are cooperating with Senator Grassley and Congressman Issa. The Sun must shine on Fast and Furious so the public can understand how such a dangerous operation took place and what can be done to prevent such stupid actions of our government in the future.

I have also worked hard to bring transparency to the Department of Housing and Urban Development. This is an executive branch agency that desperately needs more sunshine. Over the past 2 years, I have been investigating rampant fraud, waste, and abuse at public housing authorities throughout the country. I have discovered exorbitant salaries paid to executive staff, conflicts of interest, poor living conditions, and outright fraud, waste and abuse of taxpayer dollars. Many of these abuses have been swept under the rug, and Housing and Urban Development has been slow at correcting the problems.

HUD cannot keep writing checks to these local housing authorities and then blindly hope the money gets to those Congress intended to help. I will continue to work to bring sunshine to the Department of Housing and Urban Development as well.

In April of last year, I requested documents from the Federal Communication Commission regarding a valuable regulatory waiver it granted to a company called LightSquared. LightSquared was attempting to build a satellite phone network in a band of spectrum adjacent to global positioning systems.

The problem is that LightSquared's network causes interference with critical GPS users such as the Department of Defense, the Federal Aviation Administration, and NASA.

The FCC responded to my document request by saying they don't give documents to anyone but the two chairs of the committee with direct jurisdiction over the Federal Communications Commission. How idiotic. Because that means that if someone is not chairman of a committee--in other words, if a person is in the 99.6 percent of the Congress which does not chair a committee--with direct jurisdiction, then as a Member of Congress they are out of luck and can't fulfill their responsibilities of constitutional oversight and can't be a check, as envisioned by Madison writing the Constitution, on the executive branch of government.

In this letter to me from Chairman Genachowski, he told me he would make his staff available even if I didn't get the documents. So I could interview the staff. But when I took him up on his offer and asked him to interview members of his staff, my request was refused.

Once again, actions speak louder than words. People can get away with lying, and there is stonewalling, pure and simple. It seems obvious that the FCC is embarrassed and afraid of what might come from uncovering the facts behind what the Washington Post called the LightSquared debacle. If there is nothing to hide, then why all the stonewalling? The FCC seems determined to stonewall any attempt at transparency.

But it is not just the executive branch that needs more transparency. The judiciary should be transparent and accessible as well. That is why over a decade ago I introduced the Sunshine in the Courtroom Act, a bipartisan bill which will allow judges at all Federal courts to open their courtrooms to television cameras and radio broadcasts. By letting the Sun shine in on Federal courtrooms, Americans will have an opportunity to better understand the judicial process.

The sunshine effort has no better friend than whistleblowers. Private citizens and government employees who come forward with allegations of wrongdoing and coverups risk their livelihoods to expose misconduct. The value of whistleblowers is the reason I continue to challenge the bureaucracy and Congress to support whistleblowers.

For over two decades, I have learned from, appreciated, and honored whistleblowers. Congress needs to make a special note of the role whistleblowers play in helping us fulfill our constitutional duty of conducting oversight of the executive branch. The information provided by whistleblowers is vital to effective congressional oversight. Documents alone are insufficient when it comes to understanding a dysfunctional bureaucracy. Only whistleblowers can explain why something is wrong and provide the best evidence to prove it. Moreover, only whistleblowers can help us truly understand problems with the culture at government agencies.

Whistleblowers have been instrumental in uncovering $700 being spent on toilet seats at the Department of Defense. These American heroes were also critical in our learning about how the FDA missed the boat and approved Vioxx, how government contracts were inappropriately steered at the General Services Administration, and how Enron was cooking the books and ripping off investors.

Similar to all whistleblowers, each whistleblower in these cases demonstrated tremendous courage. They stuck out their necks for the good of us all. They spoke the truth. They didn't take the easy way out by going along to get along or looking the other way when they saw a wrongdoing.

I have said it for many years--without avail, of course--I would like to see a President or this President of the United States have a Rose Garden ceremony honoring whistleblowers. This would send a message from the very top of the bureaucracy to the lowest levels about the importance and value of whistleblowers. We all ought to be grateful for what they do and appreciate the very difficult circumstances they often have to endure to do so, sacrificing their family's finances, their employability, and the attempts by powerful interests to smear their good names and intentions.

I have used my experience working with whistleblowers to promote legislation that protects them from retaliation. Legislation such as the Whistleblower Protection Act, the Sarbanes-Oxley Act, and the False Claims Act recognize the benefits of whistleblowers and offer protection to those seeking to uncover the truth. For example, whistleblowers have used the False Claims Act to help the Federal Government recover more than $30 billion since Congress passed my qui tam amendments in 1986.

These laws are a good step; however, more can be done. For example, the Whistleblower Protection Enhancement Act will provide much needed updates to Federal whistleblower protections. I am proud to be an original cosponsor, and I believe the Senate should move this important legislation immediately. This bill includes updates to the Whistleblower Protection Act to address negative interpretations of the Whistleblower Protection Act from both the Merit System Protection Board and the Federal Circuit Court of Appeals.

I started my remarks by quoting James Madison, the Founding Father who is one of the inspirations for Sunshine Week. Madison understood the dangers posed by the type of conduct we are seeing from President Obama's political appointees. Madison explained that:

[a] popular government without popular information or the

means of acquiring it, is but a prologue to a farce, or a

tragedy, or perhaps both.

I will continue doing what I can to hold this administration's feet to the fire, to protect whistleblowers, to get the truth out, and to save the taxpayers' money.

I hope my colleagues will help work with me so we can move toward restoring real sunshine, in both words and actions, in Washington, DC.

I yield the floor.

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

Madam President, this week the judicial confirmation process was a bit off track. The 17 threatened cloture motion votes were unnecessary. I am pleased the majority leader determined to not move forward with that plan.

The Senate has now returned to its regular order of processing judicial nominations in a careful and deliberate manner--just exactly what we ought to do when we are talking about confirming people to lifetime appointments. This means nominees are called up, debated, and voted upon, just as we have been doing. In fact, we have done that 131 times for President Obama's judicial nominees. Of course, on rare occasions, as within the traditional rules and practices of the Senate, there will be difficulty in moving forward with consent to proceed on just a very few.

So I view what happened yesterday not as some deal but as a rejection of a political stunt in favor of returning to regular order, as we are doing today. I have worked with the chairman and members of the Judiciary Committee, as well as my colleagues throughout the Senate, to ensure nominees are treated fairly, and I will continue to do so.

In the meantime, I am pleased the Senate has turned to the JOBS bill. It is imperative that the Senate keep its focus on what the people back at the grassroots level think we ought to be working on--jobs, the economy, energy, and other critical issues facing our Nation.

Today we turn to two judicial nominations under regular order and the procedure of the Senate: Gina Groh, who is nominated to be a U.S. district judge for the Northern District of West Virginia, and Michael Fitzgerald, who is nominated to be a U.S. district judge for the Central District of California.

Earlier this week, I heard remarks blaming the judicial vacancy rate on Republican obstructions. What was failed to be discussed--not even mentioned--was that 44 of the judicial vacancies have no nominee. Of the 35 judicial vacancies designated as judicial emergencies, the President has failed to submit a nomination for 19 of those seats. So what about the other 16? What about the other 39 of the 83 I just mentioned? It is a fact of life; we can't proceed to process judicial nominations if the President doesn't send them to us. So the President needs to hurry if he wants to get some consideration.

That has been the pattern for most of this administration--failure or delay in submitting nominations to the Senate. For example, look at the nomination of Gina Groh, a nomination we are considering today. Yes, her nomination has been before the Senate for 5 months, but this seat became vacant in December 2006. President Bush submitted a nomination for this seat on May 24, 2007. That nominee never even had a hearing but languished in committee for 19 months before being returned to the President. This is just 1 of 53 nominees of President Bush's who were subjected to what some have characterized as a ``pocket filibuster'' or otherwise went unconfirmed.

Even after President Obama's election, it took until May 19, 2011, for him to nominate Ms. Groh. The President took 848 days to submit the nomination--nearly 2 years and 4 months. I have to ask, Where was the nomination? Where was the outrage of the other party during all of this time of dillydallying around at the White House?

Again, we are moving forward under regular order and procedures of the Senate. This year, we have been in session for about 28 days, including today. During that time, we have confirmed nine judges. That is an average of about one confirmation for every 3 days. With the confirmation today, the Senate will have confirmed 72 percent of President Obama's judicial nominations.

Gina Marie Groh is nominated to be United States District Judge for the Northern District of West Virginia. Judge Groh graduated summa cum laude with a B.A. from Shepherd University in 1986, and with a J.D. from West Virginia University College of Law in 1989. From 1989 to 1998, she worked as a litigation associate for three separate firms. From 1989 to 1991, she was with Steptoe & Johnson and then she moved to Mell, Brownwell & Baker, where she worked until 1995. Finally she worked at Semmes, Bowen, & Semmes until 1998. During this period, her practice primarily involved civil litigation, including workers compensation and personal injury defense.

From 1998 to 2006, she served as an Assistant Prosecuting Attorney. She served in this capacity with the Berkeley County Prosecuting Attorney's Office until 2002 and then with the Jefferson County Prosecuting Attorney's Office. As an assistant prosecutor, she primarily prosecuted felony cases on behalf of the State of West Virginia. While with the Jefferson County Attorney's Office, she also represented the county government in civil matters. While an assistant county prosecutor, she estimates she tried about 500 cases to verdict.

In December 2006, Governor Manchin appointed Judge Groh as a circuit judge in the 23rd Judicial Circuit of West Virginia. In November 2008 she was elected to the same position. As a judge serving on a court of general jurisdiction, she presides over a variety of civil and criminal cases and manages the grand jury in Morgan and Jefferson counties, which meets three

times per year in each county. She estimates that she has presided over 93 cases that have either gone to verdict or judgment. In addition, she has issued orders in over 3,400 cases.

Michael Fitzgerald is nominated to be United States District Judge for the Central District of California. He is a 1981 graduate of Harvard University and received his J.D. in 1985 from the University of California, Berkley--Boalt Hall--School of Law. After graduating from law school, Mr. Fitzgerald clerked for the Honorable Irving R. Kaufman on the United States Court of Appeals for the Second Circuit.

From 1986 1987, he was an associate at O'Donnell & Gordon where he represented individuals and small companies in civil litigation. In 1988, he became an Assistant United States Attorney where he served on the Organized Crime and Drug Enforcement Task Force/Major. With the task force he primarily prosecuted cocaine rings. He also worked with a money laundering task force comprised of IRS criminal agents and Los Angeles Police Department narcotics officers. From 1991 1995 he worked as an associate at Heller, Ehrman, White & McAuliffe LLP, on commercial litigation.

In 1995, Mr. Fitzgerald joined the Law Offices of Robert L. Corbin, P.C. as an associate attorney, and became a partner in 1998, when the firm was renamed Corbin, Fitzgerald & Athey LLP. Initially he represented small businesses and individuals in small to medium-sized civil cases, as well as a variety of criminal cases in Los Angeles Superior Court. He also was involved in federal civil and criminal cases. For the past six years, the focus of his firm has been representing clients who are under investigation by federal agencies. These investigations have concerned securities, defense contracting, environmental law, health care, antitrust, tax and financial crisis.

Mr. Fitzgerald reports that he has appeared in court regularly for most of his career. However, since 2004, he has only appeared in court occasionally. He has tried 26 cases to verdict.

I yield the floor.