Floor Statements

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 President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. President, in the fall of 2010 I came to this Chamber to speak about my growing concern of synthetic drug use in this country.

Specifically, I raised concerns about a popular new drug known as K2, or Spice, and I learned about this myself for the first time because a constituent of mine by the name of David Rozga committed suicide. David killed himself shortly after smoking a package of the drug he and some friends bought at a local shopping mall.

At the time, David's death in June 2010 was one of the first associated with what was a new and very dangerous drug craze. Nearly 2 years after David's death, the use of synthetic drugs like K2 has exploded and is becoming a major problem across the country.

In 2009 the American Association of Poison Centers reported only 13 calls concerning synthetic drug use. One year later, in 2010, over 1,300 calls were made to poison centers about synthetic drugs. So I have gone from 2009 to 2010, and now 2011. We have gone from 13 to 1,300 to last year, 12,000 calls to poison centers regarding synthetic drugs.

The Monitoring the Future Survey, a survey of high school youth, asked students for the first time last year if they ever tried synthetic drugs. Roughly one in nine high school seniors responded they used synthetic drugs last year.

These numbers are quite obviously an astonishing increase in just 2 years and they illustrate, of course, how rapidly the use of these drugs has come on the scene. These drugs are having a terrible effect on those who use them. Emergency room doctors across the country are reporting increasing uses of synthetic drugs in the number of users coming to the hospital.

My staff heard from one such doctor from upstate New York about what she has seen. Dr. Sandra Schneider, from Rochester, NY, reported that users in her ER experienced psychotic episodes, rapid heart rate, very high blood pressure, and seizures. In some cases, users--many of whom were in their teens and twenties--suffered heart attacks and strokes and died as a result. Other cases involved users who tried to kill themselves, harm others, or got into a car accident while high on these synthetic drugs.

How do we get from practically no use to where we are now? The people who manufacture and sell these drugs have circumvented the laws to easily sell synthetic drugs online, at gas stations, in novelty stores at the local shopping malls, and in tobacco stores and other shops. Many of the drugs are manufactured overseas, in countries such as China, and then imported into the United States. They spray chemical compounds, that have not been tested on humans and were not intended for human consumption, on dried leaves. They package and market these drugs to appear as legitimate products such as incense, bath salts, plant food, and snow remover. They slap a label on these packages stating that the product is not for human consumption to get around FDA regulations.

Over 30 States have passed laws to ban various synthetic drug compounds. The Drug Enforcement Administration has also acted to stop these drugs. Although the DEA has used its emergency scheduling powers to control seven chemical compounds, there are too many on the market now for DEA to go through the long and laborious process to schedule each and every one. The makers of these drugs know this as well and have altered their chemical formulas--some as little as a molecule--to get around existing State and Federal laws.

This is exactly the case in my home State of Iowa. Iowa passed a law last year that banned many chemical compounds. However, the law only listed a specific set of chemical compounds and the drugmakers are now altering their formulas.

Recently, two Iowa youths have become victims of the new drugs. One is a Polk County teenager who got into a high-speed crash smoking a product called 100 Percent Pure Evil.

This teen had two other passengers in her car. After smoking this product the driver became agitated and stated she wanted to kill herself. She started driving her car into several trees. When paramedics arrived at the scene they reported that everyone was badly hurt and the driver was vomiting blood. Thankfully all passengers survived the crash.

Another teen in central Iowa experienced a near-death experience after smoking the same product. This teen purchased the product-- remember the name, 100 Percent Pure Evil--purchased it at a local store and started convulsing and vomiting shortly after smoking the drug. Once a paramedic got this boy into the hospital he fell into a coma. He, however, awoke from the coma the next day but had failed to recognize his mother or grandmother at the hospital. Thankfully this boy has since recovered his memory. Now he suffers occasional anxiety attacks.

When the boy's mother told the police about the product and where he got it, she reported that the police told her there was nothing they could do about it because it was not known what was in the product and it may be legal. This product is still being reviewed to see if any compounds fall under Iowa's law.

Nearly a year ago I introduced this legislation we named after the person who died 2 years ago, David Rozga. I introduced this bill with Senator Feinstein. It bans the chemicals that comprise K2/Spice. We designed the legislation to capture a wide variety of compounds so it would not be so easy to circumvent this law by altering the molecule. In fact, the Iowa Governor's Office of Drug Control Policy is crafting new legislation based on the legislation I introduced last year that captures more substances. My legislation was unanimously passed out of the Judiciary Committee 8 months ago. It is currently being prevented from consideration by the full Senate by one Senator. The House of Representatives passed its version of the Synthetic Drug Control Act overwhelmingly last December, with over 70 percent of the Representatives supporting scheduling these drugs.

Many of the opponents of this legislation stated on the House floor that by scheduling these compounds we are preventing scientific research. This is far from true. Any scheduled substance, even current Schedule I drugs such as cocaine and heroin, can be researched. Any scientist can apply to be registered by the DEA to research any drug. Just because we are removing the drugs from the store shelves does not mean we cannot study them.

I say to my colleagues, it is now time for the Senate to take action. We cannot let the will of one Senator obstruct the will of many. I believe if our legislation received a vote and a fair debate in this body, it would pass overwhelmingly. So I urge my colleagues to support our efforts to get these drugs off the store shelves and off the streets, and I urge the Senate leadership to allow a debate and a vote on the issue. The American people, people such as the Rozga family and others who have been victims of these drugs, want to see this poison removed from their communities.

I appreciate working together with the Senator from Minnesota and the Senator from New York on this bill and similar bills as well.

I yield the floor.

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

I ask permission to speak as in morning business for about 12 or 13 minutes.

Madam President, for over a year now I have been investigating Fast and Furious. That is an operation coming out of the Bureau of Alcohol, Tobacco, and Firearms.

This has been a very complicated investigation. It has been made even more difficult because of the Justice Department's lack of candor and transparency. Basically, the Justice Department is stonewalling, interfering with Congress's constitutional responsibility of oversight.

For example, the Justice Department's Office of Inspector General recently disclosed that it has received 80,000 pages of documents from the Department and over 100,000 e-mails.

Think of what the Inspector General gets from the Department: 80,000 pages and 100,000 e-mails. How much do you think they have given the Congress of the United States, which has the constitutional responsibility of oversight? It is only 6,000 pages that we have received.

Similarly, the inspector general has been allowed to conduct 70 witness interviews. How many has the Justice Department allowed the Congress, in our responsibility of oversight, to interview? Only 9 witnesses.

Last week, Attorney General Eric Holder testified before the House Committee On Oversight and Government Reform. The Justice Department did a document dump to Congress the Friday night before the hearing. That has become a very bad habit of the Department of Justice. In fact, without giving us any advance notice that it was coming, they actually put a CD under the door of our office, after business hours. What did they do for the press? They gave the same documents to the press 2 hours before they ever gave them to us. Yes, they managed to find time to leak the documents to the press during regular business hours. This is the kind of cooperation we get from the Justice Department in our constitutional responsibility of oversight.

What I am telling my colleagues here is that we have a terrible lack of cooperation from the Justice Department. The Justice Department is not only thumbing its nose at the Senate, they are doing it to the entire Congress of the United States, when we know there are 80,000 pages of documents and they only give us 6,000 pages; when

there are 100,000 e-mails and we get a handful of e-mails. Why would they be so mysterious by putting a disk under our door on a Friday night and giving it to the press 2 hours before? What sort of attitude is that of our Justice Department toward the cooperation you ought to have with our filling our constitutional role of oversight? So I guess I would say there is hardly any cooperation whatsoever from the Justice Department.

Even though we get a dribble here and a dribble there, even though we get a CD under the door, instead of very openly face to face receiving documents, what we got last Friday did reveal further facts about a previously unknown proposal to allow these guns to cross the border.

We have long known that in March of 2011, Deputy Attorney General James Cole had a conference call with all Southwest border U.S. agents. In a follow-up e-mail after the call, Mr. Cole wrote:

As I said on the call, to avoid any potential confusion, I

want to reiterate the Department's policy: We should not

design or conduct undercover operations which include guns

crossing the border. If we have knowledge that guns are about

to cross the border, we must take immediate action to stop

the firearms from crossing the border, even if that

prematurely terminates or otherwise jeopardizes an

investigation.

Attorney General Holder himself told us in a hearing in May that Mr. Cole was simply reiterating an existing Justice policy in his e-mails, not communicating new policy. So imagine my surprise when I discovered in the document slid under my door late last Friday that while in Mexico Assistant Attorney General Lanny Breuer proposed letting guns cross the border. Mr. Breuer's proposal came at exactly the same time the Department was preparing to send its letter to me denying that the ATF ever does the very thing he was proposing.

In a February 4, 2011 e-mail, the Justice Department attache in Mexico City wrote to a number of officials at the Justice Department:

AAG Breuer proposed allowing straw purchasers to cross into

Mexico so [the Secretariat of Public Safety] can attest and

[the Attorney General of Mexico] can prosecute and convict.

Such coordinated operations between the US and Mexico may

send a strong message to arms traffickers.

We have people here in Washington saying the program doesn't exist at the same time we have people talking down in Mexico City of what we are trying to accomplish by the illegal sale of guns.

That e-mail I quoted, the recipient of it included Mr. Breuer's deputy, Jason Weinstein, who was helping to write the Justice Department letter to me that they would later withdraw for its inaccuracies. In other words, they wrote a letter to me on February 4 of last year that in October they admitted they misled us. Mr. Weinstein was sending updates about the draft letter to Mr. Breuer in Mexico at the very same time so he cannot say he didn't know about it. Yet, during his testimony to the Senate Judiciary Committee, Mr. Breuer downplayed his involvement in reviewing the draft letter. It is outrageous to me that the head of the Justice Department's Criminal Division proposed exactly what his Department was denying to me was actually happening.

The Justice Department's letter to me clearly said:

ATF makes every effort to interdict weapons that have been

purchased illegally and prevent their transportation to

Mexico.

They said that at the very same time Mr. Breuer was advocating that a Justice Department operation allow weapons to be transported into Mexico. Further, what Mr. Breuer advocated directly contradicted what the Justice Department said its policy was.

Is it possible they can have it both ways? No, you cannot have it both ways. If they didn't have a policy against such operations, and if the left hand doesn't know what the right hand is doing, perhaps it is not a surprise that an operation like Fast and Furious sprang up. After all, as that same Justice Department attache wrote of a meeting a few days after his first e-mail:

I raised the issue that there is an inherent risk in

allowing weapons to pass from the US to Mexico; the

possibility of the [Government of Mexico] not seizing the

weapons; and the weapons being used to commit a crime in

Mexico.

Well, the light bulb went on. If you are selling 2,000 guns illegally and they don't interdict them, well, yes, they end up murdering hundreds of people in Mexico and at least one person in the United States.

If the Justice Department did have a policy against such operations, this is a record of Mr. Breuer proposing to violate it. That is not just my conclusion, that is the Attorney General's conclusion as well.

At last week's hearing in the House of Representatives, the Attorney General was asked to explain the contradiction between his deputy's anti-gunwalking policy and the evidence of Mr. Breuer's proposed operation to let guns cross the border. He could not answer that question, but the Attorney General answered:

Well, clearly what was proposed in, I guess, February by

Lanny Breuer was in contravention of the policy that I had

the Deputy Attorney General make clear to everybody at Main

Justice and to the field . . .

Perhaps this disconnect between Justice Department policy and Lanny Breuer's proposal explains Mr. Breuer's previous inaction to stop gunwalking. When he found out about gunwalking in Operation Wide Receiver in April of 2010, he failed to do anything to stop it or to hold anyone accountable. He simply had his deputy inform ATF leadership.

Regardless, Mr. Breuer's contravention of Justice Department policy is yet another reason why it is long past time for Mr. Breuer to leave the Department of Justice.

Mr. Breuer misled Congress about whether he was aware of the Department's false letter to me. To this day he is still the highest ranking official in any administration that we know was aware of gunwalking in any Federal program, yet he took no action to stop gunwalking. He failed to alert the Attorney General or the inspector general.

Mr. Breuer has failed the Justice Department, and he has failed the American people. This failure raises some important questions. When did Attorney General Holder determine that Mr. Breuer was proposing allowing straw purchasers to reach Mexico with traffic weapons? What has he done about it? Will Mr. Breuer be held accountable for hatching a plan to directly violate the Attorney General's anti-gunwalking policy? The Attorney General clearly testified that the proposal was in contravention of that policy. How does the Justice Department know other senior criminal division officials were not proposing operations similar to Fast and Furious? These are just a subset of some of the major questions remaining in our investigation of Fast and Furious.

It has now been 1 year since the Department sent me its false letter. How did the Justice Department move from its position of dismissing the complaints of whistleblowers to acknowledging that now those whistleblower complaints are true? What officials were internally dismissive of whistleblower complaints and who believes that they could have merit and should be taken seriously? To what extent did Justice Department officials seek to retaliate against whistleblowers? Exactly how and when did the Justice Department officials begin to learn the truth of what happened?

Former ATF Director Ken Melson has testified how and when he learned that guns had walked in Fast and Furious. What about Attorney General Holder? When and how did he learn guns had walked? What about Assistant Attorney General Lanny Breuer? A year after Operation Fast and Furious concluded, who will be held accountable? Why didn't top Justice officials see the clear connection between Fast and Furious and previously flawed operations that they have admitted they knew about? How has the Justice Department assessed the mistakes and culpability of these officials?

Finally, it is time for the Justice Department to stop stonewalling and start providing answers. It is time for Holder to share with Congress the other 74,000 pages of documents they have turned over to the inspector general. It is time for Holder to give us access to the dozens of other people the inspector general has been allowed to interview.

In short, it is time for Holder to come clean with the American people.

The sooner he does it, and the Department does it, the sooner we can get to the bottom of what happened.

I yield the floor.

Mr. President, today the Senate is considering the nomination of Cathy Ann Bencivengo to be U.S. district judge for the Southern District of California. I support this nomination which will fill the vacancy that has been created by Judge Jeffrey Miller taking senior status. I would also note that this vacancy has been designated as a judicial emergency.

After today, the Senate will have confirmed 126 nominees to our article III courts. I would note that even as we continue to reduce judicial vacancies, the majority of vacancies have no nominee. In fact, 46 of 86 vacancies have no nomination. Furthermore, 18 of the 33 seats designated judicial emergencies have no nominee. So when I hear comments about ``unprecedented'' vacancy rates, I would ask my colleagues and the other interested parties to look first to the White House. The fact is, the Senate is doing its job in providing advice and consent to the President's judicial nominees.

Judge Cathy Ann Bencivengo presently serves as a U.S. magistrate judge for the Southern District of California. She was appointed to that court in 2005.

She received a bachelor of arts from the Rutgers University in 1980, a masters from Rutgers in 1981, and her juris doctorate from University of Michigan Law School in 1988.

Upon graduating law school, Judge Bencivengo became an associate at the law firm DLA Piper. There, she worked as a civil litigator, primarily handling intellectual property cases. In 1996, she became a partner at DLA Piper. She also was the national cochair of patent litigation for DLA Piper from 1993 to 2005.

In 1994, Judge Bencivengo was appointed as a judge pro tem for the San Diego Small Claims Court. She served there until 2006, volunteering approximately six times a year and hearing judgments on about 100 cases.

Since becoming a magistrate judge in 2005, Judge Bencivengo has presided over two cases that have gone to final verdict.

The American Bar Association Standing Committee on the Federal Judiciary has rated Judge Bencivengo with a unanimous ``well- qualified'' rating.

Mrs. BOXER: Mr. President, I am proud to vote for the confirmation of Magistrate Judge Cathy Ann Bencivengo to the U.S. District Court for the Southern District of California. Judge Bencivengo was recommended to the President by my colleague, Senator Feinstein, and will be a great addition to the Federal bench.

Judge Bencivengo will bring to the bench her broad experience as a skilled lawyer and a Federal magistrate. A graduate of Rutgers University and the University of Michigan Law School, Judge Bencivengo served as a partner and the National Co-Chair of Patent Litigation Group for the international law firm of DLA Piper. In 2005, she received an appointment to become a Magistrate Judge for the Southern District of California, where she has authored more than 170 opinions.

I congratulate Judge Bencivengo and her family on this important day, and urge my colleagues in the Senate to join in voting to confirm this highly qualified nominee to the Federal bench.

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

Mr. President, 1 week ago we passed a very important good government bill, the one that would make sure Members of Congress cannot benefit from insider trading information. I added to that an amendment that I think is a good government amendment. It calls for people who are involved in political intelligence gathering--we don't hear much about that profession, but it is quite a business. I asked that they be registered just like lobbyists are registered, and I would like to speak to the point of why that is very important and why it is important to bring it to the Senate's attention, even though it passed by a vote of 60 to 39 just a few days ago.

In the dark of night on Tuesday of this week, the House released its version of the insider trading bill that goes by the acronym STOCK, which wiped out any chance of meaningful transparency for the political intelligence industry. Think about the chutzpah of the people in the House of Representatives--a small group of people--taking out the language I put in that bill when similar language is cosponsored by 288 Members of the House of Representatives, but it happened. So that bill is coming back without the Grassley amendment on it, and we need to think about what we are going to do if we believe in good government, and if we believe there ought to be more transparency in government.

What we are faced with is a powerful industry that works in the shadows--

economic espionage. They don't want people to know what they do or whom they work for. They are basically afraid of sunlight, I would guess. My amendment was adopted in the Senate on a very bipartisan basis, kind of a rare occurrence today. It simply requires registration for lobbyists who seek information from Congress in order to trade on that information.

So isn't it very straightforward if trades are taking place based upon ``political intelligence''--that is their word, ``economic espionage'' is my word--obtained from Congress or the executive branch, people in this country should know who is gathering such information. Not requiring political intelligence professionals to register and disclose their contacts with government officials is a very gaping loophole that my amendment fixes. In fact, political intelligence firms actually brag about this loophole, and I will give an example about that bragging. This is on the Web site of an organization called the Open Source Intelligence Group, a political intelligence firm:

Our political intelligence operation differs from standard

`lobbying' in that the OSINT Group is not looking to

influence legislation on behalf of clients, but rather

provide unique `monitoring' of information through our

personal relationships between lawmakers, staffers, and

lobbyists.

Providing this service for clients who do not want their

interest in an issue publicly known is an activity that does

not need to be reported under the Lobbying Disclosure Act,

thus providing an additional layer of confidentially for our

clients.

This service is ideal for companies seeking competitive

advantage by allowing a client's interest to remain

confidential . . .

Think about the words ``personal relationships,'' ``confidentiality.'' Basically, what they are saying is do all this under the radar.

I wish to go back, if you didn't hear it the first time, let me repeat some of this for you, a much shorter quote:

Providing this service for clients who do not want their

interests in an issue publicly known is an activity that does

not need to be reported under the Lobbying Disclosure Act,

thus providing an additional layer of confidentiality for our

clients.

We have it here on paper, and I just read it to you. This firm-- probably one of many firms; I don't know how many firms are doing this--is telling potential clients: If you don't want anybody to know what you are asking of Federal officials, hire us. That is wrong, but that is why firms such as this don't want to register. If someone on Wall Street is trying to make money off conversations they had with Senators or staff, we should know who they are. It is that plain and simple.

Since the passage of my amendment, which would require political intelligence lobbyists to register as lobbyists, I have heard a great deal of ``concern'' from the lobbying community. Political intelligence professionals have claimed they should do their business in secret for several reasons.

Now, this is the explanation of why they need secrecy. First, they have said if they are required to register, they will no longer be able to sell information to their clients because people will not want to hire them. That makes me wonder, what do they have to hide?

Second, they have said many of them have large numbers of clients, and it would take them a lot of time to register these large numbers of secret clients. Again, that makes me think we actually need more transparency to find out who are all of these people buying intelligence information.

Third, they have claimed it would not address the so-called ``20- percent loophole'' that allows people who spend less than 20 percent of their time lobbying from having to register under existing laws as lobbyists. Not too many people know of that 20-percent loophole, but that is a pretty big loophole. A person can lobby, but they don't have to register if they don't spend more than 20 percent of their time on it. Well, on this issue I have some good news for these people. We don't make the mistake that caused the 20-percent loophole. My amendment requires anyone who makes a political intelligence contact to have to register. No loopholes, no deals, no special treatment, just everyone registers.

Finally, I just want to assure people, particularly journalists, that they would not have to register. Now, that information has been floating around, and it has been floating around that some constituents looking for information in order to make a business decision might have to register. Not so. Only political intelligence brokers, people who seek information so others can trade securities, would have to register.

As I said before, if people want to trade stocks from what we do in Congress, we should know who they are. After all, the basic underlying piece of legislation prohibits Members of Congress from having insider trading information and profiting from it. We ought to know with whom we are dealing. The American people deserve a little sunshine from this industry and on this industry.

Last night, the House turned away from transparency. They supported the status quo. What we need is a full and open conference process so we can take up this very important issue once again that the House believes was somehow not very important, even though 288 Members of the House of Representatives--that is two-thirds of the House of Representatives--have signed on to this principle that these people ought to register. We can take that up then in conference, both the House and Senate, working together.

Is every word in this bill the way it ought to be? If somebody wants to point out some things that ought to be changed, I am open to that. But don't forget, 288 people in the House have signed on. It can't be too bad.

So if we don't get to conference or if we have to debate this again on the floor of the Senate, we might not get 60 votes again. So I worry we will miss the best opportunity we have had for openness and transparency in years.

I yield the floor.

Before I speak on the amendment, I ask unanimous consent that the pending amendment be set aside to call up my amendment No. 1493 and make that the pending amendment.

I ask unanimous consent that the reading of the amendment be dispensed with.

Madam President, the Wall Street Journal recently reported that political intelligence is an approximately $100 million industry. The article also says that expert networks employ over 2,000 people to do political intelligence in Washington, DC.

We have to say approximately because no one truly knows how many people work in this industry. We don't know from whom they seek information, what happens to that information, and how much they get paid. This is a problem if one believes in transparency in government and if one believes in the purposes behind this legislation, as I do-- the underlying legislation--that Members of the Senate and Congress should not benefit from insider trading information.

So we have people in this city or people who come into this city to get information on what Congress might do or what their regulators might do that might affect the stock in some company or something, and this political intelligence information is gathered and given to people who presumably profit from it or I guess these people wouldn't be employed in the first place. So there is a growing unregulated industry with no transparency. If a lobbyist has to register in order to advocate for a school or a church or a private corporation, shouldn't the same lobbyist have to register if he or she is seeking and getting inside information that ends up in making people a profit? This is especially true if that information would make millions for a hedge fund or a private equity firm.

We have current law. Under current law, this is not the case. We have no registration of these people and we don't know who they are. So we go back to amendment No. 1493. My amendment merely brings sunlight to this unregulated area. It defines what a political intelligence lobbyist is and requires that person or firm to register. In other words, it requires them to do what, under the 1995 law, every lobbyist has to do.

I understand some would say there have not been hearings on this subject and that it should be studied first. But there isn't much that is complicated about this amendment. It is pretty simple. If a person seeks information from Congress in order to make money, the American people have a right to know the name of that person and who that person is selling that information to. That is just pretty basic good government, isn't it? It is the same as if a person is a lobbyist for a piece of legislation under laws going back to 1946 and amended since then, they have to register. The public has a right to know who the lobbyist is, whom they are working for, and what they are lobbying for or against.

This amendment isn't just helpful to the American people, though. It isn't just helpful to make people responsible, because the more transparency we have the more accountability there is and the more openness we have in government the better off we are. So I make a case to help the American people, yes. But it is also going to help Members of Congress and our staff who are trying to decipher their duties under this proposed legislation.

Senators have raised the question: How will we know if the people we speak to trade on what we say? So to answer that question, we require the people doing it to be responsible. So we achieve more transparency in government, and we even help Members of Congress and our staff because these political intelligence people are pretty smart. They know where to get the information because they come to us and ask questions, but we might not know why they are asking the questions. So it is going to help Members of Congress and our staff as well. By requiring lobbyists who sell information to stock traders to register, Members and staff then have an easy way to track who these people are and to whom they would sell their information. This strengthens the bill, from my point of view, and helps Members and staff comply with its requirements.

So I hope we can pass this amendment soon and bring light and transparency to this growing industry and, when we are talking to someone, know who they are, what they seek, whom they are working for, et cetera.

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

This is a good government amendment. Similar to the underlying piece of legislation, it is a good government amendment. The manager is going to tell you it ought to be studied a little bit longer. We have gone for far too long not having enough transparency in government. What my amendment does is it takes these people whom you call political intelligence professionals and has them register just like every lobbyist registers, so it is totally transparent when these people come around to get information from you that they sell to hedge funds. You will know who they are. You don't know that now, and transparency in government is very important if you want accountability.

For the Senators and their staffs who have to abide by these laws, they want to make sure they are not doing anything unethical. They have to know who these people are. They can come around and ask us questions. I don't know how many times each of us has maybe been caught up in this. You give them information, and they have information that people don't have on Wall Street and they sell it. We ought to know what we are being used for, and this gives identity to these people. So I want these people registered like lobbyists.

There is a problem.

Do I have time to tell the Senators not to vote for Wall Street, vote for my amendment?

I ask for the yeas and nays.

Madam President, I have been asked by Senator Brown of Ohio if he could be recognized immediately after me.

Madam President, one week ago today, I addressed the Senate on President Obama's decision to bypass the Senate, and the Constitution as well, by making four ``recess'' appointments at a time when the President's recess appointment power did not apply.

I explained in detail why the legal memo released by the Obama administration attempting to justify President Obama's actions did not hold legal water.

Last Thursday, I laid out the case that this is not an isolated incident or a technical legal squabble. Rather, the President's recent actions are part of a pattern of disregard for the constitutional system of checks and balances.

Today, I will address why such criticisms are justified and why such criticisms are necessary.

First, is it legitimate for a U.S. Senator to criticize a legal opinion issued by the Office of Legal Counsel and the Senate-confirmed head of that office?

I have no doubt Senators may criticize such opinions and, when the facts warrant, ask whether that office and its head are exercising the independence that is required for the Constitution to be upheld. Recently, we read some in the media apparently disagreed with this. They say it is wrong for a Senator to ever criticize a Senate-confirmed official's independence and judgment. They say that all a Senator can do is criticize the official's substantive arguments.

I say nonsense. When the media makes these claims, it merely seeks to divert attention from the weakness of the opinion's actual conclusions and reasoning. In my statement last week, I laid out my disagreement with the contents of the Office of Legal Counsel. Of course, Senators and administration officials can reach different conclusions on the law; each can have a reasonable point of view; but that is not the case here.

If the Office of Legal Counsel is to be ``the Constitutional conscience of the administration'' that some in the media characterize it to be, it must exercise a certain level of independence, as I mentioned in my statement.

When a President who takes an expansive view of his power asks the Justice Department officials, who owe their job to him, whether he has the constitutional or legal authority to take such action, there is always the chance that pressure will overtake their responsibilities to provide their best legal judgment.

That is why at Ms. Seitz' confirmation hearing and in a followup communication, we took very painstaking efforts to give her the opportunity to state on the record her commitment to providing independent legal advice, to make sure she would place loyalty to the law and loyalty to the Constitution above her loyalty to the President. That was our purpose. Ms. Seitz promised to act independently. She promised not to stand idly by if she thought the Constitution was being violated.

The only way to tell whether the office has given independent advice, the only way to tell whether pressure has been resisted, is to review the arguments and the reasoning the Office of Legal Counsel provides.

The media cannot address criticism of whether the head of that office is independent and has used good judgment without such a review. It is not enough that the media might agree with her conclusions. In this case, the analysis in the Office of Legal Counsel opinion was so poor as to raise legitimate questions concerning judgment and independence.

The Office of Legal Counsel is supposed to give the President objective legal advice before that person acts. It is not supposed to provide a weakly thought-out rationalization for a Presidential decision to act that has already been made.

Here, the arguments in the opinion are so weak that a fair-minded person can question the independence and judgment of the opinion's author. For instance, the opinion is internally inconsistent. It correctly recognizes that a President's ability to make recess appointments turns on the capacity of the Senate to conduct business. But in determining whether the pro forma sessions constitute a recess, the opinion does not consider at all the capacity of the Senate to conduct business and what it could do. Rather, it relies upon what individual Senators said, not what the institution said or can do, and it ignores not only what theoretically the capacity of the Senate had to act but even its actual actions.

Similarly, the established meaning of the word ``recess'' is the same each

time it appears in the Constitution. Giving the term the same meaning means that the President can make recess appointments, but that this is a limited power.

The Office of Legal Counsel, contrary to clearly established precedent, inconsistently defines the term ``recess'' differently when it was used in different parts of the Constitution. But we cannot do that. The only thing consistent in the opinion is that it interprets recess each time in a way that expands the power of the President to make recess appointments and in such a way as to leave open the question of whether that power is limited in any meaningful way.

Former Federal Circuit Judge Michael McConnell, himself a former Justice Department lawyer who has defended Presidential power, found the arguments in the Office of Legal Counsel opinion to be so implausible--those are his words--that ``it is difficult to escape the conclusion that the Office of Legal Counsel is simply fashioning rules to reach the outcome that it wishes.''

Since the outcome that the Office of Legal Counsel wishes is to expand Presidential power contrary to the text of the Constitution, and also many decades of historical practice, it is quite fair to question the independence, the judgment, and the adherence to statements made during the confirmation process by the head of that office.

The media again focused more on personalities than on substance, and they will say the Bush administration reached a similar conclusion, so how can Ms. Seitz be criticized. That is where the media is coming from.

There are three points to be made that set the record straight for the newspaper.

First, President Bush did not make recess appointments when the Senate was in pro forma session. Secondly, President Bush did not even claim he could make such recess appointments while declining to do so. Third, his Office of Legal Counsel did not issue any opinion that would be binding on future Justice Department advice.

Unlike the public actions of the Senate-confirmed head of OLC, a lower level official in the previous administration, the Bush administration, apparently wrote a secret memorandum to the file on this subject.

The existence of such a memorandum was not known until the Office of Legal Counsel's opinion referred to it and sought to rely on it. It is not possible to evaluate the reasoning of that memorandum because the Department of Justice has not agreed to release it, despite my request that they do release it.

If the Office of Legal Counsel is to exercise the independent judgment that is necessary for it to properly perform its functions, it cannot rely on some sort of secret memo or memos from lower level officials. That approach creates incentives for the Office of Legal Counsel heads to avoid accountability. An incentive is created for the preparation of secret memoranda that make outlandish claims of Presidential power if they cannot be reviewed by anybody. No one knows of the memo. So its arguments do not face the transparency of public scrutiny. The President and Office of Legal Counsel take no responsibility for its conclusions.

Then the Office of Legal Counsel later issues a public opinion on the subject. To bolster very weak arguments, it cites earlier memos. But it avoids transparency as well by keeping the memoranda secret, so no one can see that the opinion's weak arguments may be supported by only other weak arguments. It avoids accountability by suggesting that this question was already decided by an earlier Office of Legal Counsel memorandum.

Instantly, the number of administrations that support expanded Presidential power goes from zero to two, neither one of which is said to be responsible for that expansion. That bootstrapping can never lead to a reasoned, objective analysis of Presidential power.

It cannot produce the independent OLC that Ms. Seitz promised the Senate she would provide at her confirmation. The media has also made the strange argument that Ms. Seitz' opinion must be professional and her judgment and independence cannot be questioned because of her high professional reputation.

Is that not a little bit backward? The legitimacy of the argument contained in a legal opinion is not established by the reputation of the person who wrote it. Reputations are not steady. They are established by the quality of the professional work, not the other way around.

In the past, a prominent Democratic Senator called for a judge to resign because of his legal work as Office of Legal Counsel head. The Washington Post, in an earlier editorial, criticized the opinions of other Bush administration OLC lawyers as displaying ``the logic of criminal regimes'' and ``bringing shame to the American democracy.''

If the Post truly believes that criticizing Office of Legal Counsel lawyers is beyond the pale, they should retract their earlier opinions and condemn the far harsher rhetoric that was hurled against Bush OLC lawyers.

While explaining what is wrong with the newspapers, I now go to explain why my criticisms were not just legitimate but they were absolutely necessary. Last Thursday, I laid out in great detail a long series of abuses of executive authority and usurpation of legislative authority by President Obama and his administration.

In fact, he made his willingness to bypass Congress a campaign issue with slogans such as ``We can't wait for Congress,'' and those headlines and slogans were splashed all across the White House website. President Obama has made the decision to run for reelection not on his record, for obvious reasons, but against Congress. In doing so, he is daring Congress to defend its role as representatives of Americans from each of the 50 States in the face of his unilateral agenda.

Some have suggested this is a clever political trap laid by President Obama; that if Congress resists the President's power grabs, it will validate his slogans and play into his electoral strategy. This may or may not be true. However, the stakes are greater than the next Presidential election, and the implications of the President's actions will be felt well beyond any short-term political gain.

The Framers of the Constitution foresaw the temptation by one branch of government to try to usurp the powers of the other branches. In Federalist 51, James Madison explained how the Constitution was designed to prevent power grabs through an ingenious system of checks and balances.

He wrote this long quote:

But the great security against a gradual concentration of

several powers in the same department consists in giving to

those who administer each department the necessary

constitutional means and personal motives to resist

encroachments of the others.

The provision for defense must in this, as in all other

cases, be made commensurate to the danger of attack. Ambition

must be made to counteract ambition.

Of course, this assumes a desire on the part of each branch to guard its constitutionally granted powers.

If some Members of Congress are not willing to resist an encroachment because they place party loyalty above constitutional responsibilities or if members are reluctant to push back for fear of political consequences, then the system of checks and balances will not work as intended by our Constitution writers.

All Members of Congress swore an oath to support and defend the Constitution. That is our first obligation. I want to be clear that this is not an argument about constitutional semantics; it is one of fundamental principle.

As Madison explains in Federalist 51: The ``separate and distinct exercises of the different powers of government'' is ``essential to the preservation of liberty.''

This also goes beyond an argument about the ends to which President Obama has used the new powers he now claims. His agenda is controversial, to be sure, or he would not have had to bypass Congress.

Still, even those who support this President's policies should not be so quick to look the other way. Once the walls separating the powers allotted to each branch of government are eroded, they are very difficult walls to rebuild.

The most eloquent expression of the philosophy on which our Nation was founded is, of course, the Declaration of Independence. I quote the all familiar:

We hold these truths to be self-evident, that all men are

created equal, that they are

endowed by their Creator with certain unalienable Rights,

that among these are Life, Liberty and the pursuit of

Happiness.

That to secure these rights, Governments are instituted

among Men, deriving their just powers from the consent of the

governed. . . .

Based on these fundamental principles, the Constitution laid out a form of government designed to protect individual rights by resisting the concentration of power. This can be frustrating to those who would like a more activist government. Still, these features of our Constitution perform a very important role in preventing one faction of Americans from dominating another faction of Americans.

I am sure President Obama is convinced his agenda is what is best for the country and that the ends justify the means in pursuing that agenda. But that is not the Machiavellian ideas that any of our Constitution writers had.

Naturally, he doesn't see any danger in concentrating power in the Presidency because he believes he will use that power very wisely. Moreover, he has gone out of his way to identify himself with the school of thought that the constitutional separation of powers is an outdated barrier to change.

Last month, President Obama gave a speech in Kansas in which he sought to link his agenda to Teddy Roosevelt's famous ``New Nationalism'' speech at the same place in 1910. The original speech marked the beginning of Roosevelt's break with many of his past policies and with the incumbent Republican President, William Howard Taft.

Roosevelt then went on to challenge Taft in the 1912 election, heading up the Progressive Party ticket. You know that both Roosevelt and Taft lost.

In that 1910 speech to which President Obama paid tribute, Roosevelt described his new nationalism as ``impatient of the impotence which springs from overdivision of governmental power.''

This philosophy seeks to fundamentally transform the United States from a nation founded on the principle that protecting the unalienable natural rights of each citizen is the paramount goal of government to one that empowers an enlightened elite to take whatever actions they deem necessary to correct perceived wrongs in society. In other words, throw the Constitution out the door. This may start out with very good intentions, but there is no guarantee that once our constitutional protections are gone, future leaders will always act in the most enlightened way. In fact, the single-minded pursuit of a better society at the expense of individual rights has led to some of history's worst tyrannies.

Moreover, not only is the concentration of power in the executive branch contrary to the founding principles of our Nation, it is foreign to the realities of American civic life. With a country as large and as diverse as ours, no individual can claim to speak on behalf of all Americans. Our constitutional system, based on federalism, separation of powers, and checks and balances helps ensure that each American has the opportunity to live their life as they see fit.

I return to the words of James Madison:

It is of great importance in a republic not only to guard

the society against the oppression of its rulers, but to

guard one part of society against the injustice of the other

part.

The voices of all Americans deserve to be heard through the elected representatives of the people. That is what is at stake. Those of us who were elected to represent the people of our States should do just that or we deserve not to be here.

I yield the floor.

Mr. President, I rise to pay tribute to a fallen son of Iowa,

MSgt. Travis Riddick. Master Sergeant Riddick joined the Marine Corps after graduating from high school in Centerville, IA. In doing so, he was following in a laudable family tradition of patriotic service. His father and grandfather were marines, as well as his uncle and cousins. His twin brother recently retired after 21 years in the Navy. Travis Riddick certainly did his family, his State, and his country proud. He was awarded six Air Medals, the Navy and Marine Corps Commendation Medal, four Navy and Marine Corps Achievement Medals, seven Marine Corps Good Conduct Medals, two National Defense Service Medals, the Southwest Asia Service Medal, the Afghanistan Campaign Medal, the Iraq Campaign Medal, the Global War on Terrorism Expeditionary Medal, the Global War on Terrorism Service Medal, the Armed Forces Service Medal, the Humanitarian Service Medal, the NATO Medal, the NATO ISAF Medal, and the Kuwait Liberation Medal.

My prayers are with his mother, Barbara, his father, John, and his wife, Jennifer, as well as his children and all his family and friends. His father reports that Travis loved his job and his mother said that he was the best marine ever. Our Nation is tremendously fortunate to have individuals like Travis Riddick who have the drive to step forward and serve their country with enthusiasm and honor. To selfless heroes like Travis Riddick, we owe nothing short of our liberty. Unlike at the birth of our country, when every person who aligned with the cause of freedom was putting themselves at great risk, those who enjoy our way of life today rely on a select group of patriotic Americans to preserve everything we hold so dear. We can never repay the debt we owe, but we are obliged to honor and remember them for their sacrifice in the name of liberty.

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

Mr. President, I addressed the Senate recently on President Obama's recess appointments, and he did this when the Senate was not in fact in recess. I described at length why this was an outrageous and unconstitutional power grab. However, President Obama's decision to bypass the constitutional advice and consent of the Senate is not an isolated incident by the President. It is merely the latest escalation in a pattern of contempt for elected representatives of the American people and the constitutional separation of powers. This pattern has become more apparent since the last election when public opinion turned against the direction that President Obama was trying to take the country.

When the President's party in 2009 and 2010 had an overwhelming control of both Houses of Congress, he was able to pursue his agenda with only the slightest of lip service to the objections from congressional Republicans because we were very much in the minority, and, of course, we believe we were representing millions of Americans whose views were in opposition to President Obama's views. In 2009 and 2010, President Obama could in fact govern more like a Prime Minister in a European parliament, where the leader of the party in power dictates the policy to be rubberstamped by that parliament.

Since the 2010 election, that is no longer the case. There was a tremendous voter backlash against both the style and substance of the President's agenda. A groundswell of Americans became convinced their government was out of touch, and they demanded to be heard. The President's party in the Senate is now well below the supermajority necessary to pass legislation without consulting the minority party, and that is the way it was intended for the Senate to work. Moreover, there is now a new majority in the House of Representatives trying to chart a new course based on the concerns that so many voters expressed in the last election.

Rather than accept the message of the 2010 election and the fact he is faced with a Congress that is no longer a rubberstamp, the President has decided that he does not need Congress at all. Imagine that. In fact, he has even said so.

In October, upset that Congress would not pass his latest stimulus bill exactly as he had proposed, the President launched a media campaign around the tag line, ``We can't wait for Congress.'' Under this banner he has announced executive actions for everything from mortgage and student loans, summer jobs for youth, and new fuel economy standards.

A President being frustrated with Congress is nothing new. We all know that from history. What is more remarkable is the notion that the President, however, can act independently of Congress. ``Where they won't act, I will,'' the President has said.

Article I, section 1 of the Constitution of the United States says:

All legislative Powers herein granted shall be vested in a

Congress of the United States,

which shall consist of a Senate and House of Representatives.

Having had their rights violated by King George, our Founding Fathers intentionally put the power to make laws in the branch of government that is most directly related and accountable to the citizenry of this country. Under our Constitution, the President's role is not to make policy unilaterally but, to quote the Constitution, ``take care that the laws are faithfully executed.''

Some might say the whole ``we can't wait'' campaign is just harmless political rhetoric. It would be bad enough if the President were just kidding when he implies that he is usurping legislative power, the legislative power vested in the duly elected representatives of the citizens of the 50 States. However, after his latest power grab, there can be no doubt that President Obama is dead serious. It is not just political rhetoric.

This disregard for the constitutional role of Congress did not start with President Obama's ``we can't wait for Congress'' campaign. An earlier indicator of actions to come was his controversial appointment of several new so-called czars. The President is well within his rights to choose advisers. We all agree to that. That is in the past just what these positions now termed ``czars'' are supposed to be, just advisers. However, it became clear that many of President Obama's new high-level czars--such as the climate czar, for instance--were involved in crafting regulations and other roles normally reserved for Senate- confirmed officials. Why? Because then they could be called to the Senate committees to respond and have us operate a proper oversight function.

Another example of President Obama's disregard for Congress is his administration's unilateral pursuit of climate change regulations. The House and Senate have considered various proposals to regulate greenhouse gas emissions, but these have proved very controversial and very harmful to the economy. When the climate legislation backed by President Obama could not achieve sufficient support to pass Congress, the administration announced that it would go ahead anyway. While a Supreme Court ruling opened the door to that possibility, the fact that Congress specifically did not authorize such regulations should have given the President pause.

In a similar move, when the DREAM Act as currently written was unable to secure sufficient support in Congress to pass, an Immigration and Customs memorandum appeared calling for immigration laws to be enforced so as to bring about the same ends as the legislation that could not pass Congress. Congress also rejected the card check bill supported by President Obama to eliminate secret ballot elections for union members. Sure enough, the National Labor Relations Board proposed a rule providing for snap elections, which would achieve the same goals, thus giving union leaders an upper hand in union elections.

The President's ``Race to the Top'' education program is another significant overreach. Congress bears responsibility for writing a $5 billion check to the Secretary of Education in the first stimulus bill with minimal guidelines attached. However, the administration blew past even those broad guidelines to implement an unprecedented Federal intervention into State education policy. The resulting program offered the possibility of big grants to cash-strapped States provided they first changed State laws to implement specific policies favored by the Secretary of Education. Most States, such as Iowa, implemented the Secretary's preferred policies and applied for the funds yet never saw a dime in return for changing out State laws.

In a similar move, the President announced he would grant waivers to States for relief from the requirements of the No Child Left Behind Act. The catch is that States will have to adopt key components of his education reform agenda in order to get such a waiver. This is despite the fact that Congress is currently considering legislation to update the Federal education policy and may not adopt all aspects of the President's proposal. Moreover, current law allows for waiving existing requirements on a case-by-case basis but does not authorize the administration to add new requirements in return.

So far during my remarks I have mostly focused on areas where the President has acted without authority from Congress. On the other hand, when Congress has passed legislation the President has not entirely agreed with, he has announced while signing them into law that he will not implement the parts he does not like.

During the 2008 campaign, candidate Obama said that he was ``not going to use signing statements as a way of doing an end run around Congress.''

However, he has done just that on numerous occasions.

Moreover, he has made clear his intention to not enforce certain laws that are already on the books, such as federal anti-drug laws.

The President's Attorney General also decided not to defend a legal challenge to the Defense of Marriage Act.

Again, the Constitution makes clear that it is the President's responsibility to ``take Care that the Laws be faithfully executed'' whether the current occupant of the White House agrees with those laws or not.

I can think of plenty more examples of executive overreach.

It would be much harder to think of examples where Congress has successfully fought off an executive power grab.

In fact, the more President Obama has gotten away with these little power grabs, the bolder he has become.

Congress has not been effective in fighting this executive encroachment because Congress is not of one mind.

Members of the President's party are understandably reluctant to oppose him publicly.

However, with this latest escalation, the time has come for Congress, on a bipartisan basis, to say ``Enough is enough.''

I would ask my colleagues on the other side of the aisle to think hard about the precedent being set for the next Republican President.

Once the genie is out of the bottle, you are not likely to be able to get it back in.

For those who are tempted to sympathize with the President when he justifies bypassing Congress because of ``obstructionism'', I would return to the fact that our system of checks and balances between the different branches of government did not come about by accident.

The philosophy underpinning the American Revolution, as expressed in the Declaration of Independence, is based on ``unalienable Rights'' and the principle ``That to secure these Rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.''

As a result, our government was intentionally structured to provide maximum protection to individual rights.

In our Constitution, that principle takes precedent over getting things done.

In my previous remarks, I quoted the Father of the Constitution, James Madison, in Federalist 51, ``separate and distinct exercise of the different powers of government'' is ``essential to the preservation of liberty.''

Madison was concerned about a temporary majority faction assuming full control of the government and acting tyrannically toward those Americans in the minority.

By contrast, the French Revolution was inspired by the philosophy of Jean-Jacques Rousseau, who wrote that claims of natural rights must be abandoned in favor of submission to the authority of the ``general will'' of the people as a whole.

The application of this philosophy tends to result in power centralized in a ruling elite that claims a unique ability to interpret the ``general will''.

This centralization of power allows for a more active government.

That may be attractive to those whose main concern is making the trains run on time. But Amtrak doesn't run on time.

On the other hand, the single-minded pursuit of a common purpose at the expense of individual rights has led to some of history's worst tyrannies.

Our system of separation of powers, federalism, and checks and balances, designed to protect individual rights, results in a more deliberative form of government.

This can be frustrating.

It means that the President cannot expect Congress to just pass his proposals without reading them. But Speaker Pelosi said about Health Care

Reform we have to first pass it to find out what is in it.

Still, these features of our Constitution perform an important role in preventing one faction of Americans from dominating another.

President Obama is not the first to become frustrated with the checks and balances built into our constitutional system.

In fact, at the dawn of the 20th century, an entire philosophical movement developed around the idea that our Constitution had become outmoded, that its focus on individual rights was no longer applicable to the modern age.

I mentioned in my previous remarks about the President's unconstitutional appointments that it was Theodore Roosevelt who started to change the way Presidents viewed power.

It is worth noting that President Obama recently gave a speech in Osawatomie, KS, the site of Teddy Roosevelt's famous ``New Nationalism'' speech.

That speech marked the beginning of Roosevelt's break with the incumbent Republican president, William Howard Taft.

Roosevelt then went on to challenge Taft in the 1912 election on the Progressive Party ticket.

In that speech, which President Obama commemorated, Roosevelt described his New Nationalism as ``. . . impatient of the impotence which springs from overdivision of governmental powers.'' Throw the Constitution out the window.

He went on to say that, ``This New Nationalism regards the executive power as the steward of the public welfare.''

An even more explicit description of the progressive view of the Constitution was written by the ultimate winner of the 1912 presidential election, Woodrow Wilson.

In his Constitutional Government, Wilson wrote,

The makers of the Constitution constructed the federal

government upon a theory of checks and balances which was

meant to limit the operation of each part and allow to no

single part of organ of it a dominating force; but no

government, can be successfully conducted upon so mechanical

a theory.

Leadership and control must be lodged somewhere . . .

It seems strange we have made it for 225 years under our Constitution.

He then goes on to describe at length why he feels the President is where this ``leadership and control'' should ultimately be lodged.

This philosophy advocates a concentration of power in order to more effectively act on behalf of ``the people,'' at the expense of representing the diverse views of Americans.

It is contrary to the founding principles of our Nation and foreign to the realities of American civic life.

We are a large nation with tremendous variety in both geography and people.

No one man can claim to speak on behalf of all Americans, which is why we have a Congress in the first place.

The voices of all Americans deserve to be heard through their elected representatives and the rights of each American must be respected.

As the State motto of Iowa goes, ``Our liberties we prize, and our rights we will maintain.''

We must not let short term partisan interests trump those enduring constitutional principles.

The Senate, and the whole Congress, has a solemn duty to defend its constitutional role.

Mr. President, just over a month ago, on December 17, the Senate entered into a unanimous consent agreement to consider the nomination of John M. Gerrard, of Nebraska, to be United States District Judge for the District of Nebraska. We are proceeding with this nomination, which I will support, despite the President's actions on recess appointments. During the last session we acted responsibly in considering the President's nominees. Even the Majority Leader acknowledged this. He stated, ``We have done a good job on nominations the last couple of months. Actually, in the last 3 months, we have accomplished quite a bit.''

I will have more to say about the recess appointments. But with regard to this nomination I hope my colleagues understand that even though we are proceeding under regular order today, it is only because this unanimous consent agreement was locked in before the President demonstrated his monarchy mentality by making those appointments. I am not going to hold this nominee accountable for the outrageous actions of the President.

However, as this is a matter of concern to my Republican colleagues, as it should be for all Senators, we must consider how we will respond to the President and restore a Constitutional balance. Since the adoption of the unanimous consent agreement governing the nomination before us, President Obama has upset the nominations process. Article II, Section 2 of the Constitution provides for only two ways in which Presidents may appoint certain officers.

First, it provides that the President nominates, and by and with the advice and consent of the Senate, appoints various officers. Second, it permits the President to make temporary appointments when a vacancy in one of those offices happens when the Senate is in recess. On January 4, the President made four appointments. They were purportedly based on the Recess Appointments Clause. He took this action even though the Senate was not in recess. This action is of the utmost seriousness to all Americans.

These appointments were blatantly unconstitutional. They were not made with the advice and consent of the Senate. And they were not made ``during the recess of the Senate.''

Between the end of December and today, the Senate has been holding sessions every 3 days. It did so precisely to prevent the President from making recess appointments. It followed the same procedure as it had during the term of President Bush. Honoring the Constitution and the desire of the Senate President Bush declined to make recess appointments during these periods. But President Obama chose to make recess appointments despite the existence of these Senate sessions.

In addition to being unconstitutional, these so-called recess appointments break a longstanding tradition. They represent an attempted presidential power grab against this body.

A President has not attempted to make a recess appointment when Congress has not been in recess for more than 3 days in many decades. In fact, for decades, the Senate has been in recess at least 10 days before the President has invoked this power.

Other parts of the Constitution beyond Article II, Section 2 show that these purported appointments are invalid. Article I, Section 5 provides, ``Each House may determine the Rules of its Proceedings. . . .''

In December and January, we provided that we would be in session every 3 days. The Senate was open and provided the opportunity to conduct business. That business included passing legislation and confirming nominations. In fact, the Senate did pass legislation, which the President signed. According to the Constitution--each House--not the President determines whether that House is in session. The Senate said we were in session. The President recognized that fact by signing legislation passed during the session.

Article I, Section 5 also states, ``Neither House, shall, during the session of Congress, without the consent of the other, adjourn for more than 3 days. . . .'' The other body did not consent to our recess for more than 3 days. No concurrent resolution authorizing an adjournment was passed by both chambers. Under the Constitution, we could not recess for more than 3 days. We did not do so. The President's erroneous belief that he can determine whether the Senate was in session would place us in the position of acting unconstitutionally. If he is right, we recessed for more than 3 days without the consent of the other body. By claiming we were in recess, the President effectively dares us to say that we failed to comply with our oath to adhere to the Constitution. Yet, it is the President who made appointments without the advice and consent of the Senate while the Senate was in session. It is the President who has violated the Constitution.

Of course, the President does not admit that he violated the Constitution. He has obtained a legal opinion from the Office of Legal Counsel at his own Department of Justice.

That opinion reached the incredible conclusion that the President could make these appointments, notwithstanding our December and January sessions. That opinion is entirely unconvincing. For instance, to reach its conclusion that the Senate was not available as a practical matter to give advice and consent, it relies on such unpersuasive material as statements from individual Senators.

The text of the Constitution is clear. It allows no room for the Department to interpret it in any so-called ``practical'' way that departs from its terms.

The Justice Department also misapplied a Judiciary Committee report from 1905 on the subject of recess appointments. That report said that a Senate ``recess'' occurs when ``the Senate is not sitting in regular or extraordinary session as a branch of the Congress, or in extraordinary session for the discharge of executive functions;

when its Members owe no duty of attendance; when its Chamber is empty; when, because of its absence, it can not receive communications from the President or participate as a body in making appointments.''

Obviously, that report does not support the Department of Justice. During these days, the Senate was sitting in session. It could discharge executive functions. The Chamber was not empty. It could receive communications. It could participate as a body in making appointments. In fact, it sat in regular session and passed legislation.

There is nothing in the 1905 report that justifies the President substituting his judgment for the Senate's regarding whether the Senate is in session. In any event, a Senate Judiciary Committee report from 1905 does not govern the United States Senate; in 2012. The Senate; as constituted today; decides its rules and proceedings.

The Department is on shaky legal ground when it claims that ``whether the House has consented to the Senate's adjournment of more than 3 days does not determine the Senate's practical availability during a period of pro forma sessions and thus does not determine the existence of a `Recess' under the Recess Appointments Clause.''

There is no basis--none--for treating the same pro forma sessions differently for the purposes of the 2 clauses. The Department simply cannot have it both ways.

The Justice Department's opinion contains other equally preposterous arguments. For instance, the opinion claims that the Administration's prior statements to the Supreme Court--through former Solicitor General Elena Kagan--that recess appointments can be made only if the Senate is in recess for more than 3 days are somehow distinguishable from its current opinion, or that the pocket veto cases do not apply.

Or even if they did, the ``fundamental rights'' of individuals that the courts described in those cases include the right of the President to make recess appointments.

There was a time when Presidents believed that they could take action only when the law gave them the power to do so. They obtained advice from the Justice Department on the question whether there was legal authority to justify the action they wished to take. But Theodore Roosevelt started to change the way Presidents viewed power. He believed that the President could do anything so long as the Constitution did not explicitly preclude him from acting. When he used that theory to create wildlife refuges against a rapidly expanding industrial base, there was no objection. But a dangerous precedent was set. When he claimed that he could make recess appointments during a ``constructive recess'' of the Senate, the Senate rejected this view in that 1905 report.

When a President thinks he can do anything the Constitution does not expressly prohibit, the danger arises that his advisers will feel pressure to say that the Constitution does not stand in the way. At that point, a President is no longer a constitutional figure with limited powers as the founders intended. Quite the contrary, the President looks more and more like a king that the Constitution was designed to replace.

This OLC opinion reflects the changes that have occurred in the relationship between the Justice Department and the President on the question of presidential power. Formerly, the Justice Department gave legal advice to the President based on an objective reading of texts and judicial opinions. It was not an offshoot of the White House Counsel's office.

This more objective view of the limits of Presidential power also provided a level of protection for individual liberty, the principle at the core of our constitutional separation of powers. The President might refuse to accept the advice. He might choose to fire the officer who gave him advice with which he disagreed. He could seek to appoint a new officer who would provide the advice he preferred. But he risked paying a political price for doing so. An official who thought that loyalty to the Constitution exceeded his loyalty to the President could refuse to comply, at great personal risk. That is what Elliot Richardson did during the Saturday Night Massacre of the Watergate era.

During the Reagan Administration, OLC issued opinions that concluded that the President lacked the power to undertake certain acts to implement some of his preferred policies. The President did not undertake those unilateral actions.

President Obama originally submitted a nominee for OLC that was wholly objectionable. The Senate had good reason to believe that she would not interpret the law without regard to ideology. We refused to confirm her.

The President ultimately withdrew her nomination and nominated instead Virginia Seitz. We asked important questions at her confirmation hearing and thorough questions for the record.

Ms. Seitz responded that OLC should adhere to its prior decisions in accordance with the doctrine of stare decisis. And she stated that if the administration contemplated taking action that she believed was unconstitutional, she would not stand idly by. Relying on those assurances, the Senate confirmed Ms. Seitz.

Ms. Seitz is the author of this wholly erroneous opinion that takes an unprecedented view of the Recess Appointments Clause. And I suppose it is literally true that Ms. Seitz did not stand idly by when the administration took unconstitutional action: rather, she actively became a lackey for the administration. She wrote a poorly reasoned opinion that placed loyalty to the President over loyalty to the rule of law.

That opinion, and her total deviation from the statements she made during her confirmation process, show extreme disrespect for the institution of the Senate and the constitutional separation of powers. I gave the President and Ms. Seitz the benefit of the doubt in voting to confirm her nomination. However, after reading this misguided and dangerous legal opinion, I am sorry the Senate confirmed her. It's likely to be the last confirmation she ever experiences.

The Constitution outlines various powers that are divided among the different branches of our Federal government. Some of these powers are vested in only one branch, such as granting pardons or conducting impeachment proceedings. Other powers are shared, such as passing and signing or vetoing bills. The appointment power is a shared power between the President and the Congress. When one party turns a shared power into a unilateral power, the fabric of the Constitution is itself violated, and a response is called for.

In Federalist 51, Madison wrote that the separation of powers is more than a philosophical construct. He wrote that the ``separate and distinct exercise of the different powers of government'' is ``essential to the preservation of liberty.''

The Framers of the Constitution wrote a document that originally contained no Bill of Rights. They believed that liberty would best be protected by preventing government from harming liberty in the first place. That was the reason for the separation of powers. They designed a working separation of powers through checks and balances to ensure a limited government that protected individual rights. Madison wrote, ``Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place.''

That is what the Framers intended in a case such as this. When the President unconstitutionally usurped the power of the Senate, the Senate's ambition would check the President's. In this way, the Constitution is preserved. The power of the government is limited. And the liberties of the people are protected. But the Framers did not anticipate the modern Presidency. It took Justice Jackson's famous concurrence in the Youngstown case to address presidential powers in today's world. When the Judiciary Committee held its confirmation hearings on President Bush's Supreme Court nominations, my friends on the other side of the aisle posed many questions about the Jackson concurrence. That opinion sheds light on these so-called recess appointments.

For instance, President Obama argued in a nationally televised rally that his actions were justified because ``[e]very day that Richard [Cordray] waited to be confirmed . . . was another day when millions of Americans were left unprotected. . . . And I refuse to take `no' for an answer.''

Justice Jackson anticipated these hyperbolic statements. He wrote: ``The tendency is strong to emphasize the transient results upon policies. . . . and lose sight of enduring consequences upon the balanced power structure of our Republic.'' President Obama has definitely let transient policy goals overtake the Constitution. His argument is that the end justifies the means.

His argument is that he can say no to the Constitution. Or, in essence, that the Constitution does not apply to him. But the Constitution demands that the means justify the ends, and that adherence to established procedure is the best protection for liberty. A monarch or a king could say no to the Constitution. But under our Constitution, the President may not. It is the Constitution, and not the President, that refuses to take no for an answer.

Justice Jackson was also aware that the modern President's actions ``overshadow any others [and] that, almost alone, he fills the public eye and ear.'' By virtue of his influence on public opinion, he wrote, the President ``exerts a leverage upon those who are supposed to check and balance his power which often cancels their effectiveness.''

Some people believe that President Obama challenged the Senate for partisan purposes. But Justice Jackson understood the true partisan dynamic that is now playing out. He recognized that the President's powers are political as well as legal. Many presidential powers derive from his position as head of a political party. Jackson wrote: ``Party loyalties and interests sometimes more binding than law, extend his effective control into branches of government other than his own, and he often may win, as a political leader, what he cannot command under the Constitution.'' Finally, he concluded, ``[O]nly Congress itself can prevent power from slipping through its fingers.''

Outside these walls, in the reception room, are portraits of great Senators of the past. The original portraits were selected by a committee that was headed by then Senator John F. Kennedy. They included such figures as Webster, Clay, Calhoun, LaFollette, and Taft. Yes, these Senators were partisans. But they were selected because of the role they played in maintaining the unique institution that is the Senate in our constitutional system. In particular, they protected the Senate and the country from the excessive claims of presidential power that were made by the chief executives of their time. Where are such Members today?

Where is a member of the President's party today who is like a more recent Senate institutionalist--Robert C. Byrd? He defended the powers of the Senate when Presidents overreached--even Presidents of his own party. Where are the Members who recognized that our sessions every 3 days rightly prevented President Bush from making recess appointments but who stand idly by as President Obama makes recess appointments without a recess?

I remind my colleagues of my experiences as chairman or ranking member of the Finance Committee. I refused to process nominees to positions that passed through that committee to whom President Bush gave recess appointments. That is how I used the authority that I had to protect the rights of the Senate.

I do not believe we should let the powers vested in the elected representatives of the American people slip through our fingers because we place partisan interests above the Constitution. I have shown how the Framers understood that supposedly expedient departures from the Constitution risked individual liberty. The constitutional text in this situation is clear. It must be upheld. We must take appropriate action to see that it is done.

Nor should we wait for the courts.

Although the NLRB appointments are already the subject of litigation, we should take action ourselves rather than rely on others. The stakes are too high. On the other hand, even the OLC opinion recognizes, as it must, the litigation risk to the President.

For more than 200 years, Presidents have made very expansive claims of power under the Recess Appointments Clause. The President and the Senate have worked out differences to form a working government.

Now, the Obama administration seeks to upend these precedents and that working relationship. It may well find, as did the Bush administration, that when overbroad claims of presidential power find their way to court, that not only does the President lose, but that expansive arguments of presidential power that had long been a part of the public discourse can no longer be made.

Although I believe that this ironic result will ultimately occur here as well, the Senate must defend its constitutional role on its own, as intended by the framers of the Constitution that we all swore an oath to uphold.

Mr. President, John M. Gerrard is nominated to be United States District Judge for the District of Nebraska. Judge Gerrard received his B.S. degree from Nebraska Wesleyan University in 1975 and his J.D. from Pacific McGeorge School of Law in 1981.

He began his legal career in private practice as an associate for the Nebraska law firm of Jewell, Otte, Gatz, Collins & Domina. A year later, Judge Gerrard joined in a new law firm where he conducted primarily a general litigation practice. In 1990, Judge Gerrard and two partners formed a new law office. For the next 5 years, before being appointed to the bench, he engaged in an active trial practice and administrative law/school law practice.

In 1995, then-Governor Nelson appointed Judge Gerrard to the Nebraska Supreme Court. He has been retained (by election) in 1998, 2004, and 2010. He has written roughly 480 opinions, 450 of which are published. The opinions cover a variety of legal issues, including homicide appeals, tort issues, and evidentiary disputes. While serving on the State's highest court, Judge Gerrard has served on a number of committees, including those focusing on issues pertaining to gender, race and the judicial system.

The American Bar Association Standing Committee on the Federal Judiciary has rated Judge Gerrard with a unanimous ``Well Qualified'' rating.

Mr. President, I suggest the absence of a quorum.

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

Mr. President, I ask for the yeas and nays.

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

I will yield and ask unanimous consent that I reclaim the floor when the leader is done.

Mr. President, I wish to take a few minutes to discuss a case that was argued a few weeks ago before the Supreme Court, Hall v. the United States. This case involves a specific provision that I authored which is contained in the 2005 bankruptcy reform law. Throughout the litigation in this case, my statements supporting the provision--in other words, the statements that were said here on the floor of the Senate and in committee report were discussed in these cases at length.

I want to take a few minutes and walk through the history and intent of this provision so people hear it straight from this author's mouth, meaning from this Senator.

At its core, the case Hall v. the United States is about statutory interpretation. The statute at issue is 11 U.S.C. (a)(2)(A), which was a farm bankruptcy provision added to the Bankruptcy Code in 2005.

Before I get into the discussion about the case, I wish to explain what this particular provision does and why it needed to be added to the Bankruptcy Code. Congress enacted Chapter 12 of the Bankruptcy Code in 1986, which was subsequently made permanent in 2005. Chapter 12 allows family farmers to use a bankruptcy process to reorganize their finances and operations. It is a proven success as a leverage tool for farmers and their lenders. It helps a farmer and the banker sit down and work out alternatives for debt repayment. Not long after it became law in 1986, we began to hear about what worked and what did not work for farmers who were reorganizing in bankruptcy.

One problem we learned arose when a debtor farmer needed to sell assets in order to generate cash for reorganization. A farmer may need to sell portions of the farm to raise cash to fund a plan and pay off his creditors. However, in this situation, we are usually dealing with land that has been in the family's hands for a long time. This means the cost basis is probably very low. So once a farmer filed bankruptcy and then tried to sell a portion or all of the land, he would be hit with a substantial capital gains tax. This creates problems, because as originally drafted, Chapter 12 required full payment of all priority claims under Section 507 of the Bankruptcy Code. The only way to avoid this requirement was if the holder of the claim agreed that its claim could be treated differently.

Thus, when a farmer sold his land which resulted in large capital gains, the IRS would have a priority claim against the bankruptcy estate. I wish to take a moment to explain the concept of bankrupt estates, which may be

a bit confusing. When an individual or corporation files for bankruptcy, an estate is created. The estate consists of property that is liquidated for the purpose of paying creditors. So in the case of farmers filing a bankruptcy petition under Chapter 12, the farm assets are the property of the estate.

According to section 541(a)(6) of the Bankruptcy Code, the proceeds of the sales of those assets are also property of the estate. So the situation farmers faced was that the IRS held a large priority claim against the bankruptcy estate.

Let me take a minute to talk about claims against the estate to understand how we got to where we are today. In this situation, we are dealing with a claim that is based on taxes owed. The Bankruptcy Code says that taxes incurred by the estate are administrative expenses. An administrative expense essentially receives top priority when determining who gets paid what. Thus, the effect this had was that the IRS with its priority claim could object to any reorganization plan that did not provide for full payment of its tax claim. The IRS essentially held veto authority over a family farmer's plan confirmation. In some instances then, a farmer who sought to sell a portion of his farm to reorganize, pay creditors, and become profitable again was prohibited completely from doing so.

After learning of this problem, I started working on a way to fix it. Simply put, I wanted to make sure that family farmers in a Chapter 12 case could, in fact, sell portions of their farm to effectively reorganize without the capital gains taxes jeopardizing the reorganization. The very purpose of Chapter 12 and bankruptcy in general is to allow for a fresh start. Unfortunately, this was not happening because of the IRS priority.

In 1999, I introduced the Safeguarding America's Farms Entering the Year 2000 Act. This bill, among other things, sought to fix the capital gains tax issue. When I introduced the bill, I said it would ``help farmers to reorganize by keeping tax collectors at bay.'' I also explained:

Under current law, farmers often face a crushing tax

liability if they need to sell livestock or land in order to

reorganize their business affairs . . . High taxes have

caused farmers to lose their farms. Under the Bankruptcy

Code, the IRS must be paid in full for any tax liabilities

generated during a bankruptcy reorganization. If the farmer

can't pay the IRS in full, then he can't keep his farm. This

is not sound policy. Why should the IRS be allowed to veto a

farmer's reorganization plan?

But let me go back to a portion of what I quoted, these words, ``then he can't keep his farm.'' Simply put, if you are a farmer in a farming operation, and you can continue to farm, and reorganization is keeping you from farming, well, obviously you do not have a business of farming and you cannot farm. Family farms are very important to the economic viability of rural America.

The language I proposed ultimately was enacted in the 2005 bankruptcy reform law. Since the Bankruptcy Code, the courts, and the IRS treated the tax liability as an administrative expense, the new provision created a very narrow exception to that administrative expense. Basically, only in Chapter 12 cases, if a farmer sold farmland that resulted in a capital gains liability, then the IRS's claim would not receive priority status. That is the benefit of the legislation I got passed to reorganization of a family farm. But it is what is in dispute in these particular cases I am referring to. Instead the government would have an unsecured claim, which means they may get paid something but not necessarily the entire amount. Also, the IRS would no longer be able to veto a plan's confirmation, thus the farmer debtor would be allowed to reorganize.

From a bankruptcy point of view, this approach makes complete sense. As I have discussed already, filing a petition creates a bankruptcy estate. The bankruptcy estate then sells the lands post petition, and that results in capital gains that are owed to the IRS. Those taxes incurred by the estate post petition are administrative expenses which receive priority status.

My language, enacted into law in 2005, stripped the priority claims owed to the government in this very specific instance and made them generally unsecured claims. However, since the passage of this legislation, the IRS has made an about-face. The government now argues, despite the way it treated this situation for all of these years, that the tax liability created is the responsibility of the individual and not the bankruptcy estate. Yet the entire reason we created this new provision was because of the way the IRS treated the tax liability.

The IRS's new position has been argued in Federal courts and has received mixed results, so now there is a dispute whether my provision accomplishes what it was designed to do. In 2009 the Eighth Circuit case Knudsen v. IRS held the provision applies to post-petition sales of farm assets, which is what we are discussing here. Specifically, the Eighth Circuit rejected the IRS's position that the Internal Revenue Code does not recognize a separate taxable entity being created when a debtor files a Chapter 12 petition.

Put another way, the IRS is claiming the individual debtor is responsible for tax liability that arises out of a bankruptcy estate action. The Eighth Circuit disagreed and said there is now an exception preventing the IRS from having a priority claim for capital gains.

But in the Ninth Circuit, the court there held that there was no exception for post-petition capital gains. In Hall v. the United States, now before the Supreme Court, the Ninth Circuit said the Halls were responsible for the capital gains tax from selling part of their farm during bankruptcy. This holding means that my provision did not create a narrow exception even though that is what I intended.

Unfortunately, the IRS, under the Obama administration, is taking a position today that is antifarmer and the exact opposite of what it said 6 years ago. This about-face on the part of the IRS came only after we made the change in the law, and it became clear that in very narrow circumstances the IRS would lose its priority position. I respect the IRS's interest in pursuing tax dollars, but it exhibited a heck of a lot of chutzpah in taking this position. Our policy reasons for this new exception were very simple. The farmers didn't have enough money to pay everyone. We decided it would be better to let them sell some assets, which would generate cash and help them to reorganize, keep farming, and pay their creditors.

In making this decision, we realized someone would have to make a sacrifice. We decided to give farmers a break from government taxes in a very narrow set of circumstances. Now, though, the government is trying to figure out a way to jump back ahead of other creditors and get more money. These creditors the IRS is trying to break in front of are small businesses, suppliers, and small local banks that extend credit and supplies to farmers. This is not what we expected would happen when we passed the 2005 bankruptcy law.

This is an important issue and an important case that the Supreme Court will decide in the coming months. The Supreme Court will decide whether this provision accomplishes my goal, which I have stated. I look forward to seeing how the case is resolved. Rest assured, I will work to ensure that this policy of protecting family farmers is followed as that was our clear intent in having this law enacted. Chapter 12 has proven successful as a leverage tool for farmers and their lenders. It helps the farmer and banker to sit down and work out alternatives for debt repayment. Should the Court rule that the Internal Revenue Code is inconsistent with the Bankruptcy Code and rule against my intent as the author, I will obviously have to work to remedy that inconsistency because what we did in 2005 is the right thing. I hope the Supreme Court realizes the history and intent behind the legislation and follows the congressional intent.

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

Mr. President, today the Senate is expected to confirm an additional judicial nominee. With this vote, we will have confirmed 62 article III nominees during this Congress. More than half of these have been for vacancies designated as judicial emergencies. That is real progress. Over 72 percent of President Obama's judicial nominees have been confirmed.

Morgan Christen is nominated to be U.S. circuit judge for the Ninth Circuit. Justice Christen received her B.A. from the University of Washington in 1983, and her J.D. from Golden Gate University Law School in 1986. After graduating from law school, she clerked for the Hon. Brian Shortell on the Alaska Superior Court in Anchorage.

In 1987 she was hired at Preston Gates & Ellis LLP, working as an associate until 1992. She was a partner in the firm from 1993 to 2002. At that firm she was a general civil litigator, primarily representing plaintiffs. She began by assisting with large litigation projects. One of her most notable early matters involved serving on the liability team representing the State of Alaska in its claims for compensation arising from the Exxon Valdez oilspill. After the State settled its liability claim in 1991, she defended claims brought by individuals who argued the State's response to the spill was inadequate.

By the time Justice Christen became a partner in 1993, she had developed a practice in Jones Act personal injury claims and was lead counsel in a case in the U.S. Court of Claims representing the parents of an infant who died after receiving a childhood vaccination. She also served as lead counsel on four aviation fatality cases between 1993 and 1999, representing the estate of an FAA employee who was killed in a mid-air collision, the estate of a pilot killed during a catastrophic engine failure and in-flight failure, among others. She has also served as the lead counsel in the Equal Pay Act and represented a fuel barge line in several commercial disputes. Finally, from 1999 to 2001 over half of her practice was devoted to defending two physician practice groups in a Federal Medicaid fraud investigation and related False Claims Act case, and assisting with the defense of a class action antitrust case brought against purchasers of salmon harvested in Alaska.

In 2001 she was appointed to the Alaska Superior Court, where she served from January 9, 2002, until her elevation to the supreme court in 2009. The superior court is the court of general jurisdiction in Alaska. As a superior court judge, her docket was comprised entirely of civil cases. From 2005 to 2009 she served as presiding judge of the Third Judicial District of the Superior Court. In this position she supervised approximately 40 judicial officers in 13 court locations.

Justice Christen was appointed to the Alaska Supreme Court on March 4, 2009, and has been a member of that court from April 6, 2009, to the present. She was nominated for that seat by the Alaska Judicial Council, composed by three members of the bar, three members of the public appointed by Governors, and the chief justice. She was then selected from a slate of two nominees by Governor Sarah Palin.

The American Bar Association Standing Committee on the Federal Judiciary has rated Justice Christen with a unanimous ``well qualified'' rating.