Floor Statements

Mr. President, I will vote to confirm Donald B. Verrilli, Jr., to be Solicitor General of the United States, but I do so with little enthusiasm. Mr. Verrilli has impressive credentials and noteworthy accomplishments. In addition to his government service in the White House Counsel's Office and at the Department of Justice, he has been a litigator in private practice for more than 20 years. He has argued 12 cases, and participated in more than 100 cases, before the Supreme Court of the United States. Mr. Verrilli served for over 15 years as an adjunct professor of constitutional law at the Georgetown University Law Center. He clerked for Associate Justice William J. Brennan, Jr., of the U.S. Supreme Court, and Judge J. Skelly Wright of the U.S. Court of Appeals for the District of Columbia Circuit.

My concern with this nomination is whether or not the nominee will demonstrate appropriate independence in the office. His testimony at his hearing raised doubts about his ability and commitment to uphold that principle. Mr. Verrilli seemed to buy into the notion that he was still the President's lawyer. He gave lipservice to the two traditional exceptions to the Solicitor General defending a statute--first, if the statute violates separation of powers by infringing on the President's constitutional authority; and second, if there is no reasonable argument that can be advanced in defense of the statute. Mr. Verrilli then appeared to create a third exception one that is not supported by practice or tradition. He stated he would defend a statute's constitutionality ``unless instructed by my superior not to do so.''

This position advocated by the nominee--that interference in the rule of law, by the President or by the Attorney General, is an appropriate reason not to defend statutes--was extremely troubling to me and other members of the committee. That position is not the standard of the office. It is not what the Nation expects from its Solicitor General. His response gave me great pause about supporting his nomination.

Following his hearing, I gave Mr. Verrilli ample opportunity to address my concerns. In extensive written questions I asked the nominee to review and comment on testimony given by previous Solicitor General nominees. In particular, I asked many questions regarding statements by prior Solicitors General regarding the independence of the office. I asked him to review cases where the Department of Justice had made a determination not to defend a statute. I asked him to analyze those cases as to the rationale for not defending the statute. In addition, I asked him to review and comment on a number of Supreme Court cases that address serious constitutional issues.

I reviewed his answers to my written questions for the record. I commend Mr. Verrilli for his serious approach to the task of providing responses. In most cases he gave thoughtful answers.

In many instances he declined to provide his views on the topic but gave general assertions that he would follow the law. In other instances he claimed confidentiality. I do not agree with his assertion of confidentiality in most of the instances where he raised that as a basis for not responding. In other circumstances, such a response would be unacceptable. In the past, such responses, or allegations of similar responses, have resulted in a failed confirmation or withdrawal of the nomination.

Based upon my review of his responses, I am more comfortable with the notion that Mr. Verrilli understands the duty of the Solicitor General. I believe, because of my questions and the time he spent contemplating the issues, he will be a better Solicitor General than he otherwise would have been. Mr. Verrilli has been exposed to decades of thought and experience by this review. On the whole, I concluded that Mr. Verrilli now has a greater sensitivity to the necessity of independence in the office. In numerous answers he provided a much better response than he did at his hearing. He indicated he would not lend his name or that of the office to carry out any order which he believed to be based on partisan political consideration or other illegitimate reasons. Rather than do so, he said he would resign from office. I will hold him to that pledge.

I want to be clear about my tepid support for Mr. Verrilli. He is nominated to an executive branch position, not a lifetime appointment. My lukewarm support is based largely on the nature of the office to which he will be appointed, if confirmed.

I will put the administration on notice, as well as Mr. Verrilli, the Senate, the media, and any other interested party. My less than enthusiastic vote for Mr. Verrilli to be Solicitor General of the United States is limited to that office alone. No entity or individual should presume my support for Mr. Verrilli for any other future office to which he may aspire or to which he may be nominated--be it in the executive, judicial, or legislative branch of government.

Furthermore, as ranking member of the Judiciary Committee, I will vigorously carry out my oversight responsibilities to ensure the Solicitor General and his subordinates are performing as they should. I will be watching to make certain Mr. Verrilli complies with his oath of office, with his obligation to the Constitution and statutes of the United States, with his duties of the office, and with the assurances he has given the Senate in his oral and written testimony. I expect nothing less from all officials of government. I have every expectation that Mr. Verrilli, if confirmed, will honorably live up to those duties, obligations, and assurances.

Mr. President, I, Senator Grassley, intend to object to the consideration of S. 520, S. 530, S. 871, and S. 1057. These bills would eliminate or modify current incentives for the production and use of domestic, renewable biofuels. I object to their consideration because they would lead to greater dependence on foreign oil, increased prices at the gas pump for

consumers, increased greenhouse gas emissions, and the loss of U.S. jobs. They also represent poor tax policy.

Mr. President, with sadness, I rise to pay tribute to the life of Air Force SSG Joseph J. Hamski who died in the Shorabak district of Kandahar Province, Afghanistan on May 26, 2011, of wounds suffered when enemy forces attacked his unit. My thoughts and prayers go out to his wife, SSG Maria Christina Hamski, his mother Mary Ellen, and all his other family and friends who are grieving his loss.

Staff Sergeant Hamski had served two tours in Iraq and was serving his second tour in Afghanistan. He was an explosives disposal specialist and was reportedly very good at his job. According to his mother, ``He loved life, but when he was working, he was intense.'' She also observed that, ``He was modest: He'd say, `I just do my job so everyone can do their job.' '' He also told a friend that if he didn't come back, he didn't want people to make it a big deal.

While I don't mean to go contrary to his wishes, I cannot fail to pay tribute to his selfless service and tremendous sacrifice. Where would our country be without humble, hardworking, self-sacrificing patriots like Joseph Hamski? We owe him and his comrades in arms nothing short of our freedom and our way of life, a debt we can never repay but must never forget.

Would the Chair inform me when I have spoken for 5 minutes.

Mr. President, I have been a long-time supporter of free trade. I believe it is always a good thing when American businesses, manufacturers, and farmers have more market access for their products.

I have also been a longtime supporter of specific free trade agreements that are waiting to be acted on by the Congress: the South Korea, Colombia, and Panama agreements. We have had too many years of talking about being long-time supporters of free trade agreements. Yet we have not had an opportunity to back up our talk with votes because we can't vote until the President presents them to Congress.

The time to present these free trade agreements is long overdue. The administration needs to stop moving the goal posts every time we are about to kick the ball through.

Take the Panama agreement as an example. The United States and Panama reached an agreement in principle in December of 2006. However, congressional Democrats expressed concern regarding certain labor issues that existed in Panama at the time. The Bush administration negotiated a deal with the congressional Democrats who had newly taken over the Congress in an agreement that was announced on May 10, 2007. As a result, then-President Bush addressed the labor issues in the trade agreement that the United States signed with Panama in late June of 2007.

If there were a big news conference on May 10, 2007 that there has been an agreement reached, wouldn't one think these agreements would be passed by now? Not so 4 years later.

Despite the fact that the demands made by congressional Democrats were incorporated in the signed trade deal, congressional Democrats would not allow a vote on the agreement. Instead, they moved the goal posts by demanding more changes be made by the Panamanian Government.

After President Obama took office, the trade issue was sidelined. Along with others, I made a case that trade agreements needed to be a part of America's economic recovery effort. I got an opportunity to make the case directly to the President in December of 2009. Then in January 2010, the President said in a message to Congress that he wanted to double exports within the next 5 years. That is a very worthy goal.

Well, it is pretty hard to double exports and help employers create jobs while ignoring these trade agreements. Supporters of free trade and the jobs supported by trade average about 15 percent above the national average. We are talking about good jobs, so there are reasons to keep the pressure on.

Finally, after many months of waiting, the trade ambassador went back to work to get the Panamanian Government to agree to meet the additional demands set out by congressional Democrats in the Obama administration. The ambassador also set out to gain further commitment from South Korea and Colombia.

The Panamanian Government has addressed the additional demands by making the necessary amendments to their laws. The additional concerns the administration had with the South Korean and Colombian deals were addressed as well. Earlier this May, Ambassador Kirk indicated all three trade agreements were ready for Congress to consider. But the Obama administration decided to move the goal posts once again. Instead of moving these agreements forward for swift approval to help the economy move along and the swift approval which I believe they will receive when they get a vote, the administration now has another requirement: approval of trade adjustment assistance.

While U.S. manufacturers and businesses and farmers risk losing more and more market share in these countries, Democrats keep coming up with reasons for holding up these trade agreements by moving the goal posts. There is simply no reason to keep on moving the goal posts. The administration has said these three trade agreements are ready. One of the best things we can do right now for U.S. businesses, farmers, and workers is to implement these trade agreements which will give a much- needed boost to our economy.

I am not suggesting we do nothing on trade adjustment assistance, because I support that 40-year-old program, but reaching an agreement on that program should not be used as another excuse for moving the goal posts. All three of the pending trade agreements need to be sent to Congress without further delay.

I yield back the remainder of my time, and I yield the floor.

Madam President, I support a clean reauthorization of the expiring provisions of the USA PATRIOT Act and against Senator Paul's amendment on firearms records. Over the years, I have always supported and defended the second amendment. I have consistently voted to ensure that the Federal Government does not limit the constitutional rights of the millions of American gun owners. I cannot support the amendment offered today by Senator Paul because it will damage the prospects of ensuring that critical national security laws are not reauthorized and could potentially hurt the second amendment rights of American citizens. In fact, the National Rifle Association said today in a vote alert, ``While well-intentioned, the language of this amendment as currently drafted raises potential problems for gun owners, in that it encourages the government to use provisions in current law that allow access to firearms records without reasonable cause, warrant or judicial oversight of any kind.''

Senator Paul's amendment actually removes protections from firearms owners. Currently, under the PATRIOT Act, in order to obtain firearms records, investigators must first go through a rigorous application process and then seek a Federal judge's approval. Senator Paul's amendment would remove this judicial review.

If Senator Paul's amendment became law and removed judicial review, investigators would then use a grand jury subpoena in order to obtain the records. A grand jury subpoena is a process that has neither a rigorous approval process, nor judicial review. Thus, Senator Paul's amendment, while intending to protect second amendment rights, actually backfires in that effort.

First, let's talk about the rigorous approval process that controls whether firearms records can be obtained under the PATRIOT Act. And remember, this process does not exist under criminal law when using a grand jury subpoena. To obtain gun records under the PATRIOT Act, a section 215 order is used. The use of section 215 orders has been reviewed by the Department of Justice Office of Inspector General, which issued a report in March 2007 that outlined the existing process; that is, the 10 layers of review before it is even sent to a Federal judge are as follows:

No. 1, the FBI field agent.

No. 2, the FBI field office supervisor.

No. 3, the field office's Special Agent in Charge.

No. 4, the field office's District Counsel.

No. 5, it is then forwarded to FBI headquarters, where it is reviewed by a National Security Law Branch lawyer.

No. 6, the National Security Law Branch Supervisor.

No. 7, the request is then sent to the Department of Justice's Office of Intelligence for review by a lawyer.

No. 8, if the request survives these seven approvals, the request is sent back to the field office for an accuracy review.

No. 9, the request is then approved by an Office of Intelligence supervisor.

No. 10, then one of the three highest ranking officials in the FBI must personally approve the request, either the Director, the Deputy Director, or the Executive Assistant Director for National Security.

After approval by the field office, the FBI's National Security Law Branch, the DOJ's Office of Intelligence, the field office again, and finally by one of the three highest officials of the FBI, then an Office of Intelligence lawyer presents the application package to the court for approval.

A federally appointed district judge, serving on the Foreign Intelligence Surveillance Court, FISA, reviews the request and holds a hearing. At this hearing, the court can ask questions and make any changes the independent judge deems appropriate. If approved, the signed order is then returned to the FBI field office to be served by the agent.

This is a very long process, and it takes, on average, over 140 days to get

a section 215 order. It requires 11 separate approvals before any records could be obtained. Yet Senator Paul's amendment will completely eliminate this investigative tool. A section 215 order provides greater protections of second amendment rights than the alternative, which is a grand jury subpoena as part of a criminal investigation.

The alternative method of obtaining firearms records is a grand jury subpoena. It is rarely used as an alternative in the national security context. First, investigators must have a criminal nexus before it can seek a grand jury subpoena. This means there must be either criminal activity or a Federal firearms violation. Sometimes, when investigating terrorism, no criminal nexus exists. Senator Paul's amendment would prevent obtaining gun records in foreign intelligence investigations that have no criminal nexus.

More often, a suspected terrorist comes across our radar long before he ever does anything that would rise to the level of a criminal violation. Senator Paul's amendment would mean that the FBI could not get information that a suspected terrorist is legally buying firearms until after he actually takes the shot or does something else criminal. At this point, it is too late to prevent an act of terrorism from occurring.

It does not make any sense to allow criminal investigators access to firearms records but prohibit terrorism investigators the same access. That scenario is why we in Congress acted to amend the law following 9/ 11. This is simply another attempt to rebuild ``the wall'' between intelligence and criminal law that caused the failure connecting the dots prior to 9/11.

Remember, these sorts of records are crucial to the early stages of a terror investigation. It allows the government to connect the dots. This authority can only be used with prior approval from a Senate- confirmed, lifetime-appointed, independent, article 3, Federal district court judge. I am not sure how many more times I need to repeat the fact, that records are only provided after judicial review.

Those who claim that there are no controls have not read or have not understood the law.

I trust an independent judge who can, and will, say no if legal requirements are not met, if a request appears to over-reach, or if the law does not allow it.

Judicial review is one very important safeguard in place every time a section 215 order is requested, which is the tool to request firearms records. This safeguard is over and above those that exist in criminal cases. A vote for the Paul amendment is a vote to take away this judicial review.

No judge reviews a grand jury subpoena before it is issued. Yet, in more serious, national security cases, to obtain firearms records, a judge must approve the request and issue an order. That means it is more difficult to obtain records with a section 215 order in a national security case than it is in a less serious criminal case with a grand jury subpoena.

I don't know why we insist on making it harder to investigate acts of terrorism than to investigate fraud and illegal drugs.

Section 215 orders offer more protection than what the Constitution requires. The Supreme Court, in U.S. v. Miller, has held that business records, such as banking deposit slips or car rental records or firearms records, are not subject to fourth amendment protections because the customer has no reasonable expectation of privacy in documents that are in the possession of third parties.

The constitutional argument that a section 215 order is an unreasonable search in violation of the fourth amendment is completely contrary to what the Supreme Court has been saying for over 35 years. Thus, section 215 orders offer greater protection than what the Constitution requires.

There are no reported abuses of section 215 orders. And if this tool was being abused, people know that I would be eager to hold investigators accountable.

In fact, I will pledge to work with all groups and supporters of the second amendment, such as the National Rifle Association, to ensure that PATRIOT Act authorities are not used to circumvent existing prohibitions on obtaining U.S. citizen gun records. I support the goal Senator Paul is trying to achieve, namely protecting the constitutional rights of all gun owners. However, his amendment goes too far.

I urge my colleagues to oppose amendment 363 and support a clean extension of the expiring PATRIOT Act authorities.

Mr. President, the Federal Bureau of Investigation is on the front line in defending our country from terrorists, spies, and criminals. The FBI has a long history dating back over 100 years. The FBI started as an agency formed during President Theodore Roosevelt's administration when seven Secret Service agents were sent to the Justice Department to create a new investigative bureau. Since that start, the FBI has developed into a

cadre of talented agents who have pioneered new investigative tools advancing law enforcement across the country.

For example, the Bureau agents developed advancements in forensic science, such as fingerprint technology and DNA analysis, now utilized to build investigations from the smallest of clues obtained at crime scenes. Such advancements have allowed the FBI to combat organized crime and international terrorists across the country and around the globe.

Despite these successes, the FBI has also had its share of failures. These include maintaining secret files on elected officials, the investigation of civil rights leaders, the tragedies at Ruby Ridge and Waco, missing internal spy Robert Hanssen, the corruption and misuse of mob informants in the Boston field office, and the failure to connect the dots leading up to the 9/11 attacks. The FBI has also had problems in failing to manage high-profile projects, such as the procurement of information technology upgrades. They have failed to address personnel problems, such as the double standard for discipline that the Justice Department inspector general found agents believe exists. And there were the serious issues that required reform at the FBI crime lab. These are black marks on the history of the FBI.

I have been an outspoken critic of the FBI's culture for many years because of its unwillingness to own up to mistakes. Too often, officials sought to protect the agency's reputation at the expense of the truth. My concerns are magnified by the way the FBI treats internal whistleblowers who come forward and report fraud and abuse. All too often, instead of owning up to problems and fixing them, they circle the wagons and shoot the messenger. The FBI is all too often the exact opposite of an agency that can accept constructive criticism, from both those inside and out.

That said, I must give credit to the FBI when it is due. Following the tragedy of 9/11, the FBI has worked to fix the problems that have occurred. There has been a top-to-bottom transformation at the FBI moving it from a pure law enforcement agency to a national security agency. Chief among those lending this transformation has been FBI Director Robert Mueller. Sworn in as Director just 1 week prior to 9/ 11, Director Mueller has led the charge to ensure that the FBI is updated into a modern national security agency. This transformation includes upgrading the workforce from an agent-driven model to one that includes an ever-increasing number of intelligence analysts. Director Mueller has taken the transformation head-on and has done an admirable job. I applaud the hard work that has been done, but more work remains. That is why we are here today introducing legislation that will extend the term of FBI Director Mueller for 2 additional years. I join my colleagues from the Judiciary and Select Intelligence Committees in introducing a one-time statutory exemption that will extend the term of FBI Director Mueller's term by 2 years. I do this recognizing the good work of Director Mueller and against a backdrop of heightened alert to terrorist attack following the death of Osama bin Laden. However, I do this with a heavy heart because I believe the 10-year term is a good thing for both the FBI and the country.

Currently, the law requires that the FBI Director be limited to one single 10-year term. This limitation was put in place in 1976 following a 1968 change in the law making the Director a Presidential appointment. Congress included this term for two main reasons: one, to ensure that the Director was insulated from political influence of the President; two, to ensure that no one individual serves as FBI Director for such a long period of time to amass too much power. The inclusion of a term was part of a series of reforms to government agencies following the Watergate scandal and following the death of former Director J. Edgar Hoover, who had served a 48-year term.

The current term limit has been in place for 35 years. In that time, no Director of the FBI has ever served an entire 10-year term and no President has ever suggested the term limit should be extended. However, on September 4, 2011, FBI Director Mueller would be the first to reach the 10-year mark. President Obama has indicated it is his desire to have Director Mueller stay on for an additional 2 years and has asked us to extend the term.

While I join my colleagues in introducing this extension, I have also asked that we have a hearing in the Senate Judiciary Committee to address this extension. There are significant constitutional concerns that must be addressed, such as whether Congress has the authority to extend the term of a sitting appointee. A concern of this magnitude needs to be discussed in a formal hearing. Additionally, this would be the first time the Congress will be extending the term of the Director in over 35 years and nearly 37 years since a hearing was held on the term of the Director in the Judiciary Committee.

Director Mueller has done an admirable job of reforming an agency under difficult circumstances. While I have my concerns with the precedent that this will set for future Directors--namely, that the term can be extended--I do think that making a one-time exception is warranted in this limited case and with the current existing threats. But I do not want this to become a regular occurrence. This legislation is narrowly tailored to ensure that the intent of Congress is to create only a one-time exception. Further, we will be holding a Judiciary Committee hearing in the near future to address this important, limited, one-time extension. Against that backdrop, I support this extension and look forward to an open debate and discussion surrounding this legislation.

Mr. President, the Federal Bureau of Investigation is on the front line in defending our country from terrorists, spies, and criminals. The FBI has a long history dating back over 100 years. The FBI started as an agency formed during President Theodore Roosevelt's administration when seven Secret Service agents were sent to the Justice Department to create a new investigative bureau. Since that start, the FBI has developed into a

cadre of talented agents who have pioneered new investigative tools advancing law enforcement across the country.

For example, the Bureau agents developed advancements in forensic science, such as fingerprint technology and DNA analysis, now utilized to build investigations from the smallest of clues obtained at crime scenes. Such advancements have allowed the FBI to combat organized crime and international terrorists across the country and around the globe.

Despite these successes, the FBI has also had its share of failures. These include maintaining secret files on elected officials, the investigation of civil rights leaders, the tragedies at Ruby Ridge and Waco, missing internal spy Robert Hanssen, the corruption and misuse of mob informants in the Boston field office, and the failure to connect the dots leading up to the 9/11 attacks. The FBI has also had problems in failing to manage high-profile projects, such as the procurement of information technology upgrades. They have failed to address personnel problems, such as the double standard for discipline that the Justice Department inspector general found agents believe exists. And there were the serious issues that required reform at the FBI crime lab. These are black marks on the history of the FBI.

I have been an outspoken critic of the FBI's culture for many years because of its unwillingness to own up to mistakes. Too often, officials sought to protect the agency's reputation at the expense of the truth. My concerns are magnified by the way the FBI treats internal whistleblowers who come forward and report fraud and abuse. All too often, instead of owning up to problems and fixing them, they circle the wagons and shoot the messenger. The FBI is all too often the exact opposite of an agency that can accept constructive criticism, from both those inside and out.

That said, I must give credit to the FBI when it is due. Following the tragedy of 9/11, the FBI has worked to fix the problems that have occurred. There has been a top-to-bottom transformation at the FBI moving it from a pure law enforcement agency to a national security agency. Chief among those lending this transformation has been FBI Director Robert Mueller. Sworn in as Director just 1 week prior to 9/ 11, Director Mueller has led the charge to ensure that the FBI is updated into a modern national security agency. This transformation includes upgrading the workforce from an agent-driven model to one that includes an ever-increasing number of intelligence analysts. Director Mueller has taken the transformation head-on and has done an admirable job. I applaud the hard work that has been done, but more work remains. That is why we are here today introducing legislation that will extend the term of FBI Director Mueller for 2 additional years. I join my colleagues from the Judiciary and Select Intelligence Committees in introducing a one-time statutory exemption that will extend the term of FBI Director Mueller's term by 2 years. I do this recognizing the good work of Director Mueller and against a backdrop of heightened alert to terrorist attack following the death of Osama bin Laden. However, I do this with a heavy heart because I believe the 10-year term is a good thing for both the FBI and the country.

Currently, the law requires that the FBI Director be limited to one single 10-year term. This limitation was put in place in 1976 following a 1968 change in the law making the Director a Presidential appointment. Congress included this term for two main reasons: one, to ensure that the Director was insulated from political influence of the President; two, to ensure that no one individual serves as FBI Director for such a long period of time to amass too much power. The inclusion of a term was part of a series of reforms to government agencies following the Watergate scandal and following the death of former Director J. Edgar Hoover, who had served a 48-year term.

The current term limit has been in place for 35 years. In that time, no Director of the FBI has ever served an entire 10-year term and no President has ever suggested the term limit should be extended. However, on September 4, 2011, FBI Director Mueller would be the first to reach the 10-year mark. President Obama has indicated it is his desire to have Director Mueller stay on for an additional 2 years and has asked us to extend the term.

While I join my colleagues in introducing this extension, I have also asked that we have a hearing in the Senate Judiciary Committee to address this extension. There are significant constitutional concerns that must be addressed, such as whether Congress has the authority to extend the term of a sitting appointee. A concern of this magnitude needs to be discussed in a formal hearing. Additionally, this would be the first time the Congress will be extending the term of the Director in over 35 years and nearly 37 years since a hearing was held on the term of the Director in the Judiciary Committee.

Director Mueller has done an admirable job of reforming an agency under difficult circumstances. While I have my concerns with the precedent that this will set for future Directors--namely, that the term can be extended--I do think that making a one-time exception is warranted in this limited case and with the current existing threats. But I do not want this to become a regular occurrence. This legislation is narrowly tailored to ensure that the intent of Congress is to create only a one-time exception. Further, we will be holding a Judiciary Committee hearing in the near future to address this important, limited, one-time extension. Against that backdrop, I support this extension and look forward to an open debate and discussion surrounding this legislation.

Madam President, I ask unanimous consent to speak to my colleagues as in morning business for 30 minutes.

Madam President, on February 14 President Obama delivered his budget to the Congress. I often describe to my constituents that Washington is an island surrounded by reality. Nowhere is this more apparent than with President Obama's February 14 budget. In presenting and defending his budget, President Obama and his staff have said his budget ``lives within our means'' and that ``it will not add to the debt,'' and that ``we are not going to spend any more money than we are taking in.''

Obviously all you have to do is study the budget and you come to the conclusion that these astonishing statements do not equal the facts. The Congressional Budget Office recently projected the deficit for fiscal year 2011, the year we are in, will exceed $1.5 trillion. This is on top of a $1 trillion-plus deficit in 2009 and 2010. Today, of every dollar spent, more than 40 cents is borrowed. Our country is on an unsustainable path. But you would not realize that by looking at the President's budget proposal. It does not recognize the serious fiscal crisis our country faces. What it represents is the status quo.

Over the 10-year period, President Obama's budget adds more than $10 trillion in publicly held debt and $14 trillion in gross debt. Does that sound like on February 14 he put before us a budget such that we are going to live within our means and not spend any more than we take in?

During this period of time, going up to 2021, debt held by the public would reach 87 percent of GDP, compared to a 50-year average of 35 percent. According to the Congressional Budget Office, ``If those trends were continued beyond 2021, the resulting path of the Federal debt would be unsustainable.''

In fact, CBO estimated that by the year 2040, under President Obama's budget, debt held by the public would be 117 percent. Is this the budget the Senate Democrats will support? Is this the fiscal path we are going to endorse? While President Obama claims we are living within our means, the smallest annual deficit will be $748 billion. His budget does not even begin to put our country on the right path. The final 3 years of his budget have annual deficits totaling over $1 trillion.

As former Comptroller General David Walker has stated, our country was founded on principles such as limited government, individual liberty, and fiscal responsibility.

The President's budget falls short on each of these three principles. It increases spending. It grows government as a percentage of our economy. It is clearly fiscally irresponsible, and because of the legacy of deficits and debt it creates, it will undoubtedly infringe upon the liberties of future generations.

In 2006, then-Senator Obama argued against raising the debt limit. He believed, at that time, the very need to raise the debt limit was a sign of leadership failure. By his own standard then, President Obama is not living up to his standard. So is that leadership failure? Would he admit that today? His ``no'' vote in that year was to make a point about needing to get serious about fiscal discipline. We are in the third year of President Obama's Presidency. We are in the midst of the third consecutive year of $1 trillion of annual deficit. Deficits have gotten larger, not smaller.

Of course, I recognize many of my Democratic colleagues will come to the floor and argue they support the policies President Obama put forth in a speech later on--I guess in April--at George Washington University. Unfortunately, for the Democrats, the leader of their party doesn't deliver speeches in legislative text. Speeches alone aren't going to solve the big problems we face in this Nation. We need serious solutions to our country's very serious problems. We need real leadership. The future generations of this country deserve no less, and that is what House budget Chairman Ryan has offered. That is what our colleagues on our side of the aisle, such as Senator Toomey and Senator Paul, are going to offer to the Senate.

What have the Democrats offered to address the looming fiscal crisis? The answer is no resolution at all. So I have a blank page, representing the fact that they have no plan whatsoever. Are they going to allow a debate so they can offer their ideas to address our fiscal calamities? We just heard the Senator from Nebraska postulate that is not going to happen; that we are having a series of votes, but they are for show, not for real. The American people have sent 53 Democratic Senators to Washington. A budget can pass the Senate with just 51 votes. It doesn't take the supermajority 60 votes that so many issues on the floor require if we are going to get to finality. So far, we can see they have shirked their responsibility--nothing.

It has been more than 750 days since Senate Democrats offered a budget. What is the delay? I want to ask them: Where is your budget? I suppose they will argue that our Nation's fiscal situation doesn't require a budget or, perhaps, they have simply run out of ideas to address our deficits and our debt.

ADM Mike Mullen, the Chairman of the Joint Chiefs of Staff, said earlier this year that our debt--meaning our national debt, our accumulative debt--is the greatest threat to our national security. Surely, the Senate Democratic leadership would want to put an honest plan forward to address that threat. They don't even want to debate a budget.

This exercise is on a motion to proceed to a number of budgets, none of which were written by the Democratic majority. I guess they intend to vote against proceeding. They don't even want to debate a budget. Well, by this time, most of the time in the last 35 years, we have had a budget through the Senate. Instead of leading, they would rather demagogue the serious efforts put forth by Republicans. They are not going to stand and defend the defenseless budget their President submitted to Congress just 3 months ago. They are not going to write their own budget. It is still blank. They are not even going to vote to allow debate on budgets that were drafted by others. So are we witnessing a leadership failure similar to the one Senator Obama referred to in 2006, in his speech on the Senate floor? The Democratic majority would rather demagogue Medicare than produce and defend their own budget.

I presume there will be a lot of speeches in this town today, with

Democrats hitting their chests saying: We ran an election in New York State yesterday based upon the fact that Republicans want to kill Medicare. Well, I wish to put forth the fact that if we do nothing, as the trustees have said recently, there isn't going to be any Medicare in 9 years. I can put forth ample evidence that ObamaCare puts Medicare on a path to the rationing of care and reducing the number of doctors who are going to take Medicare patients. Already, Medicare is on a path to destruction if we don't intervene and do something about it. The sooner we intervene, the better. We ought to be intervening now in a bipartisan way instead of all the talk about partisanship and destroying it. There are some people in this Congress who know Medicare is a problem and the sooner we deal with it, the easier it will be to deal with it.

Medicare is a very important part of America's social fabric. It was intended to be that in 1966, and it is still that today. I intend to work to make sure it stays as a part of our social fabric. It is a commitment made to seniors today, and it is a commitment made to people who are not yet seniors today. It is a commitment made to all for the future. So it is very important that we, as stewards of the Medicare Program, take serious our charge to make sure it remains for future seniors.

With that in mind, I come to the floor to call out the most dangerous threat to the Medicare Program we face on the floor this week. Let's be clear. It is not the budget resolution authored by Congressman Paul Ryan and passed by the House of Representatives. The most serious threat to the Medicare Program this week is those who propose to do nothing or offer no plan whatsoever for saving Medicare. Doing nothing is the most serious threat to Medicare. For all the talk about killing Medicare as we know it, the Democrats' do-nothing budget I have held up so often--the do-nothing budget--is the surest way to kill Medicare as we know it.

The folks coming to the Senate floor with nothing in their hands but criticism of these budget resolutions are irresponsible. By attacking the House budget resolution while proposing absolutely nothing, the Democrats are plunging their collective heads into the sand such as these ostriches sometimes are described as doing--ostriches acting as though everything with Medicare is fine and that doing nothing is a viable option.

Let's look at the facts. Last week, the CMS Actuary--and this is a professional person. He is not a political person but the President's Actuary--submitted his annual report on the fiscal health of the Medicare Program. Frankly, his conclusions are very disturbing. The Actuary confirms that the Medicare Program is already contributing to the Federal deficit. It is spending more than it takes in, and it will continue to do so throughout the coming decade. The Actuary found--this professional person, this person that is the President's Actuary--found that Medicare will run out of money by the year 2024--5 years faster than his projection last year. For the sixth straight year, the report issued a funding warning showing that the Medicare Program is taking a disproportionate share of its funding from general revenue, thus crowding out programs such as defense and education. The situation is only going to get worse.

In 1965, when Medicare was created, baby boomers retiring today were then just teenagers. Today, we have 10,000 baby boomers retiring every day, with fewer and fewer workers paying into Medicare to support these additional retirees. The average couple turning 65 today paid over $109,000 into Medicare over their lifetime but will receive over $343,000 in benefits. Stop to think of that. Everybody wonders why Medicare might be in trouble today. The average person retiring today has paid in $109,000 but will receive about $343,000 in benefits. That just does not add up as a sustainable program. Anybody who says we don't have to do anything about Medicare and it will take care of itself--well, we can see how misleading that is.

When Medicare was created in 1966, the average American lived to be age 70. Today, thanks to incredible advances in medical care, the average American lives to be 79. These are the facts. So now, knowing these facts, is the time for Congress to recognize the reality of Medicare's fiscal crisis--and not just recognize it but recognize it and then do something about it.

Put simply, Medicare is unsustainable without serious, thoughtful action. This blank sheet of paper, a budget not being offered, is not a serious, thoughtful action. To say otherwise is to ignore the facts and to stick your head in the sand.

The Ryan budget, as it relates to Medicare, has had much discussion lately. It is simply a blueprint. Even if this page were filled in, a budget never becomes law; it never goes to the President of the United States. It is a discipline for the Congress of the United States. It does not become law. So anybody who says voting for a budget is voting to do something to Medicare is crazy. Actual policy, as we know, is going to be determined by other committees, other than the Budget Committee. In the House, it is most often the Ways and Means Committee. In the Senate, it is the Senate Finance Committee. Those are the committees that write the bill and that can say what is happening or not happening to Medicare. Anyone telling the public that if this budget blueprint is adopted, it will be a law doesn't understand how the legislative process works.

But this vote isn't even about a budget blueprint. The debate we are having is about a simple motion on whether we ought to even debate a budget. If the Democrats were willing to proceed to an honest and open debate, we could talk about where we want to go with the Medicare Program at that time. If the Democrats were willing to proceed to an honest and open debate, we could debate steps to save the program. If the Democrats were willing to proceed to an honest and open debate, we could have amendments to improve the resolution as offered. Of course, the Democrats are not willing to proceed to an open and honest debate.

I agree that changing the nature of Medicare is a significant step. Requiring people who are 10 years away from retirement to expect to pay more for their health care in retirement is a significant change in policy. It should be thoughtfully considered, however, in the context of Medicare's serious fiscal difficulties. They aren't going to go away.

Describing this policy as ending Medicare for seniors is irresponsible and factually false. People who engage in this type of demagoguery are endangering coverage for the very people whom they claim to support because they continue to propose nothing. Where is the Democrats' bill? So far, this is it: a blank piece of paper, producing nothing.

I have great respect for the chairman of the Senate Budget Committee. I know he has tried to produce a budget. But, apparently, his leadership thinks that demagoguing Republican budgets is far more politically profitable than standing behind one of their own plans, so they have squashed all his efforts to produce a budget. Even though we know the Democrats have turned into ostriches when it comes to saving Medicare, we are fortunate to have a record over the past several years to examine.

So let's look at ObamaCare, passed solely in a partisan vote in 2010. It took a little more than $500 billion right out of the Medicare Program to fund a new entitlement. So Medicare is in trouble. Take away $500 billion from it, and start up a new program. Does that sound fiscally responsible? I have no doubt some folks may come to the floor to argue that the Medicare savings extended the life of the Medicare Program. But every reputable source that has analyzed that claim has appropriately tagged it as double counting.

The CMS Actuary, whom I referred to in the past, today continues to call some of the productivity cuts made by the Democrats in their health care reform bill unsustainable and unrealistic. And I say--he does not say it--I say it is going to bring rationing. So down the road, what sort of health care are seniors going to have? It is not going to be what they know today.

Of course, we all know the Democrats failed to resolve the sustainable growth rate problem, which is a formula for doctors' reimbursement, so the problem of physician payments continues to haunt the fiscal future of Medicare. If we do not do anything this year,

Medicare physicians will face a 30-percent pay cut. Imagine that. Today many Medicare patients already are being denied the care and personal choice they deserve because the AMA, the American Medical Association, has said one in three primary doctors is limiting Medicare patients, and more than one in eight of those doctors is forced to deny Medicare patients altogether.

Our seniors already face the pain of a broken Medicare system. Yet the Democrats remain ostriches with their heads in the sand because they have no Medicare solutions they want to offer.

Perhaps I am being too hard on the Democrats. President Obama-- perhaps speaking for the Democrats or perhaps not--has put an option on the table for addressing Medicare spending. He did it in a speech at George Washington University on December 13. Of course, we will not be able to vote on that here today because, as Senator McConnell said yesterday, you cannot vote for a speech. But at least we should consider the option the President put on the table.

In his speech, President Obama suggested we should control costs in Medicare by tasking the Independent Payment Advisory Board that was set up under ObamaCare to do even more than what we proposed a year and a half ago when the bill was passed.

You might ask, What is the Independent Payment Advisory Board in ObamaCare? Well, it was created by the Democrats' health care bill. It is a 15-member panel of unelected advisers who would make binding recommendations on how to reduce Medicare spending when spending is projected to exceed a certain level. Effectively, their recommendations have the force of law without congressional intervention to replace the cuts they might suggest and that under the law would take a 60-percent majority. And you know it is very difficult to get 60 votes in this body for any one thing.

That law says the board cannot make decisions that directly relate to premiums, deductibles, or copayments that Medicare beneficiaries pay. It says the board cannot change the eligibility criteria for Medicare benefits. So then, what can the board do, you may ask? Well, it is going to zero in on provider payments, doctor payments.

I want to repeat a statistic I quoted earlier because after the payment review board gets done, you are going to have more than the one in three primary doctors not taking Medicare patients that presently is the situation. We have one out of eight doctors denying Medicare patients altogether. In other words, they are not going to see Medicare patients; and that is today. It is going to get worse when this payment review board gets done.

According to the Joint Economic Committee, today Medicare allows medical providers to collect 89 percent of the cost of services provided to seniors. Under the President's proposal, by 2022, Medicare providers will only be allowed to collect 66 percent of the cost of services provided to seniors. Reductions will clearly restrict seniors' access to quality health care.

Let me sum up what we do know about the Democrats' actions on Medicare because it is already on a path to destruction. So, of course, I get a little bit upset when I hear people on the other side of the aisle saying Republicans want to do away with Medicare, when it is part of the social fabric of America and we want to keep it as part of the social fabric of America and we want to do it not only because it is a Federal program, but we want to do it because it is tied in with a lot of corporate retirement health plans where it becomes a primary payer and the corporate health plan becomes a secondary or additional payer.

I sum up by saying, they have enacted already $500 billion worth of cuts to fund a new entitlement called ObamaCare. Many of those cuts are described by the independent CMS Actuary as unsustainable. They have yet to find a way to fix the doctor reimbursement formula called the sustainable growth rate. And still, the President has proposed further reducing payments to providers.

Of course, what is that going to do for seniors in America? It is going to reduce access. This will make it harder for seniors to find providers willing to treat them. This will drive some providers out of the business of providing services to seniors. In other words, they cannot afford it.

There is one simple word to describe this approach, and it is a word I do not take lightly. The word is ``rationing'' of health care for seniors in America. It may not be direct overt rationing, but you have to have your head buried very deeply in the sand not to realize that is going to be the outcome of policies already put in place by this President through ObamaCare. And then they want to accuse us of destroying Medicare?

So I get back to what today's debate is all about. I think we ought to seriously be having a legitimate floor debate rather than a series of political show votes today. I will vote for the Senate to begin debate on the Ryan budget and the other Republican budgets as they are offered because I do not have a chance to vote on anything from that side of the aisle because, see, it is a blank sheet of paper. There is nothing there that the majority party--not the minority party; they are the majority party--has suggested. I will vote to begin debate, not that I support any of their budgets in their entirety. I will vote to begin debate because our fiscal situation demands serious efforts or giving serious considerations, and in no area, as I have made clear in my remarks today, is this more critical than in Medicare because Medicare is on a path to bankruptcy.

People who support the Medicare Program and care about those who will count on that program today and for many years to come are willing to put serious plans on the table for debate. It is our responsibility to ensure Medicare's survival for future seniors. Doing nothing is worse for Medicare. The surest way to kill Medicare as we know it is the Democrats' do-nothing plan. Demagoguery is irresponsible. So I would suggest: Pull your head out of the sand and join a real debate to save Medicare for the future.

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

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

Mr. President, we find ourselves again in the situation of extending key provisions of the PATRIOT Act. These three provisions are roving wiretaps, section 215 business record orders, and the lone wolf provisions. These are all very important tools used to investigate and prevent terrorist attacks. They have been reauthorized a number of times, but it seems that in recent years we have been discussing only very short term extensions of these critical tools.

That is why I will support the cloture motion on moving to S. 1038 today. This legislation provides a 4-year extension of the three expiring provisions without any substantive changes to the existing authorities, and I believe there do not need to be changes to existing authorities.

Regardless of my support for today's cloture vote, and support for the 4-year extension, I wish my colleagues to know that I support a permanent extension of the three expiring provisions. Having this debate year after year offers little certainty to agents utilizing these provisions to combat terrorism. It also leads to operational uncertainty, jeopardizes collection of critical intelligence, and could lead to compliance and reporting problems if the reauthorization occurs too close to the expiration of the law, and we are getting very close to that.

If we believe these tools are necessary--and I clearly stated I believe they are necessary--we need to provide some certainty as opposed to simply revisiting the law year after year. Given the indefinite threat we face from acts of terrorism, it is my view that we should permanently reauthorize these three expiring provisions.

This position is supported by agents on the ground using these tools every day. I have letters of support from the Federal Bureau of Investigation Agents Association supporting a permanent reauthorization of the three expiring provisions. The Federal Law Enforcement Officers Association also supports a permanent extension of the provisions. In fact, a very important passage of that letter states:

Crimes and terrorism will not sunset and are still

targeting our nation and American citizens. Just like

handcuffs, the PATRIOT Act should be a permanent part of the

law enforcement arsenal.

Then we have another letter from the Society of Former Special Agents of the FBI, and that letter says:

We urge Congress to reauthorize the expiring provisions of

the PATRIOT Act permanently and without restrictions as the

three expiring provisions are essential to the security of

our country.

I ask unanimous consent that these letters be printed in the Record.

Mr. President, in addition to agents on the ground, we have heard strong support for extending the expiring provisions of the PATRIOT Act from members of the Bush and Obama administrations. We have heard testimony from the Director of the FBI, the Attorney General, and the Director of National Intelligence about the strong need to reauthorize these provisions. These same offices have recommended extending the provisions regardless of political ideology as both Republican and Democratic administrations have backed the extensions.

The 4-year extension we are voting on today is a step in the right direction. Extending the three expiring provisions without any substantive amendment that would restrict or curtail the use of these tools is very important, given the recent actions that led to the death of Osama bin Laden. Now is not the time to place new restrictions and heighten evidentiary standards on critical national security tools.

A lot has been said about these provisions and, unfortunately, most of what has been said is incorrect. Congress enacted these provisions and reauthorized them in 2005 following the 9/11 Commission Report, which criticized the way our agents failed to piece together clues; in other words, to connect the dots. Since that time, the three expiring provisions have provided a great deal of information to agents who have helped thwart terrorist attacks.

Let's be very basic. What is terrorism about? It is about killing people living in Western Europe and North America. They don't like us, they want to kill us, and we have to prevent that. They can make continuous mistakes and not get their job done, but once the FBI makes a mistake and lets one of them get away it is a victory for the opposition. We can't afford a failure.

Examples along the lines that we can't have these failures: In testimony before the House Judiciary Committee, Subcommittee on Crime, Terrorism, and Homeland Security, Robert Litt, the general counsel of the Office of the Director of National Intelligence, testified that a section 215 order was used as part of the investigation by the FBI into Khalid Aldawasare, who was arrested in Texas recently. It was later revealed in a criminal case that he was purchasing explosive chemicals and bombmaking components online and had scouted targets in Texas.

Mr. Litt also testified that section 215 orders were utilized to obtain hotel records in the case where a suspected spy had arranged lodging for intelligence officers. He also discussed the roving wiretap provision and how it is used to help agents track foreign agents operating inside the United States who switch cellular phones frequently to avoid being caught. These examples are limited not because the authorities aren't valuable, but because of how sensitive the investigations are that utilize these authorities.

While the need for keeping personal and national security matters classified may prevent the open discussion of further examples in this setting--on the floor of the Senate--it is important to note that these provisions are constantly under strict scrutiny by the inspector general at the Department of Justice and by congressional oversight. In fact, in a March 2008 report, the Justice Department inspector general examined the FBI's use of section 215 orders and found: ``We did not identify any illegal use of section 215 authority.'' Further, there are no reported abuses of the roving surveillance authority, and the lone wolf provision has not yet been utilized, so it is without abuse as well.

While I agree these three provisions should be subject to strict scrutiny from inspectors general and Congress, that oversight authority already exists in the law and does not require amendments to these tools to achieve the goal of oversight. As such, it is important that Congress reauthorize these provisions quickly and without amendment.

I urge my colleagues to vote in support of the cloture motion on the motion to proceed to S. 1038 because it provides a clean reauthorization of these very vital tools for 4 years without substantive changes. In other words, if it ain't broke, don't fix it. While 4 years is a far cry from the permanence that I believe is necessary on these provisions, it does provide more certainty and predictability than continuing to pass short-term extension after extension.

Mr. President, I yield the floor.

Mr. President, I ask unanimous consent that Dayle Elieson and James Cook, detailees on my Judiciary Committee staff, be granted floor privileges for the remainder of the 112th Congress.

If the Senator is done, that is OK.

Madam President, I come to the floor to speak on the nomination of Goodwin Liu to be Circuit Judge of the Ninth Circuit.

I have said many times over the past 2 weeks--and perhaps for longer than the last 2 weeks--that by any fair measure we are moving judicial nominees at a very brisk pace. This month alone, we confirmed 7 judges in 10 days. In the short time we have been in session this year, we have confirmed 24 judges. That is a rate, almost, of one judge every other day. This year, the committee has favorably reported 51 percent of President Obama's nominees, yet it seems the more we work with the majority on filling vacancies, the more complaints we hear.

Furthermore, as we work together to confirm consensus nominees, we are met with the majority's insistence that we turn to controversial nominees, such as the one before us today--Goodwin Liu--because this seems to be the most controversial of President Obama's nominees we have had to this point. I have pledged, and indeed I have demonstrated, cooperation in moving forward on consensus nominations. There is no doubt that Mr. Liu does not fall into the category of being a consensus nominee.

My objections to this nominee can be summarized in five areas of concern: his controversial writings and speeches, an activist judicial philosophy, his lack of judicial temperament, his troublesome testimony and lack of candor before the committee, and his limited experience.

Mr. Liu describes his writings as critical, inventive, and provocative, and that is what they are. He states he is simply a commentator and his role is merely to poke, prod, and critique. The problem I have with that is his legal scholarship goes well beyond simple commentary. The nominee argues the 14th amendment creates a constitutional right to some minimum level of public welfare benefits. That is a real reach. He has said:

The duty of government cannot be reduced to simply

providing the basic necessities of life. . . . The main

pillars of the agenda would include . . . expanded health

insurance, child care, transportation subsidies, job

training, and a robust earned income tax credit.

There is no doubt those may be policy issues Congress ought to deal with, but it is a real stretch to say that they are constitutionally protected rights.

Mr. Liu is a strong proponent of affirmative action and the constitutionality of affirmative action. Celebrating the Supreme Court's decision in Grutter v. Bollinger, he said:

. . . [a]chieving racial diversity throughout our leading

[educational] institutions is not merely constitutionally

permissible, but morally required.

He believes bans on gay marriage are unconstitutional. The nominee was one of several law professors who filed a brief with the California Supreme Court in a suit seeking to have the California same-sex marriage prohibition declared unconstitutional.

These statements, just a sample of his works, are not merely a scholarly reflection on the state of law. Instead, they are a prescription for change--big change. He stated, following President Obama's election in an interview with NPR's ``Weekend Edition'':

Whereas I think in the last seven or eight years we had

mostly been playing defense in the sense of trying to prevent

as many--in our view--bad things from happening. Now we have

the opportunity to actually get our ideas and the progressive

vision of the Constitution and of law and policy into

practice.

Mr. Liu holds a view of the Constitution that can only be described as an activist judicial philosophy. The centerpiece of his judicial philosophy--a theory he describes as ``constitutional fidelity''-- sounds nice until you learn what it actually means. Here is what he means by fidelity:

The Constitution should be interpreted in ways that adapt

its principles and its text to the challenges and conditions

of our society in every single generation.

Continuing on, he states:

On this approach, the Constitution is understood to grow

and evolve over time as the conditions, needs, and values of

our society change.

That is not a far cry from the unwritten constitution of Great Britain, where the Parliament is supreme and makes a determination from time to time on what the policies are, as opposed to in this country where the natural law--or the laws that are the rights we have given to us by our Creator, not by government--are the basis of our law.

When I questioned the nominee at his hearing regarding his position, he stated his book respects the notion that the text of the Constitution and the principles it expresses are totally fixed and enduring. I must admit some confusion with this contradiction. Either the text and the principles are fixed and enduring or they are adaptable--something that grows and evolves, as it happens with the Constitution of Great Britain. Mr. Liu is, apparently, comfortable with this contradiction. I am not. It is a pattern I find throughout his testimony.

I am concerned by his apparent lack of appreciation for the proper role of a judge in our system of checks and balances. His philosophy leads to an inevitable expansion of the power of the judiciary. For example, according to Mr. Liu, courts should play a role in creating and expanding constitutional welfare rights. He argues that once a legislative body creates a welfare program, it is the proper role of the courts to grasp the meaning and the purpose for that welfare benefit. He states the courts can recognize welfare rights by ``invalidat[ing] statutory eligibility requirements or strengthen[ing] procedural protections against the withdrawal of benefits.'' That is forthrightly an attack on the legislative branch of government, and on its power to make statute and law. The courts are supposed to be interpreting, not making law.

The nominee also seems to favor a social needs-based view of living constitutionalism. His scholarly work argues that judicial decisionmaking should be shaped by contemporary social needs and norms, rather than the certainty of the Constitution. Notably, he has said:

. . . the problem for courts is to determine, at the moment

of decision, whether our collective values on a given issue

have converged to a degree that they can be persuasively

crystallized and credibly absorbed into legal doctrine.

It is just as if what the writers of the Constitution in 1787 thought ought to be the basic law of this land means nothing today. So as you know, I think this is very troublesome. Our constitutional framework puts the legislative function in the Congress, not the courts. It is the legislative function, through the political process, where the people rule, that determine when a particular value is to become part of our law. This is not the duty of judges. The judiciary is limited to deciding cases and controversy, not establishing public policy.

I would note further that this view of constitutional interpretation does not rely on the acts of the legislature or on the precedents established by higher courts. Rather, it is based on a concept of what he prefers to call ``evolving norms.'' Furthermore, as he testified before the committee, it is those ``evolving norms'' that inform the Supreme Court's elaboration of constitutional doctrine.

Mr. Liu tried to sound like a mainstream jurist when he stated the duty of a circuit judge was to faithfully follow the Supreme Court's instructions on matters of constitutional interpretation. Who is going to argue with that? Again, that sounds nice, doesn't it, but what does it mean? If we accept his premise that the Supreme Court's instructions are based upon evolving norms, it follows that such ``evolving norms'' will shape the circuit courts' decisions as well. This activist theory leads to a judicial system substituting the whims of individual judges over the text and original meaning of the U.S. Constitution. This is not the duty of any circuit judge.

Mr. Liu's legal views and judicial philosophy are clearly out of the mainstream. A small example illustrates this point. I questioned four of President Obama's district judge nominees who followed Mr. Liu on the day of his hearing. I asked each of them concerning a specific point about Mr. Liu's philosophy. Each and every one of them flatly rejected Mr. Liu's position.

This included his view on judges considering ``collective values'' when interpreting the Constitution; on using foreign law; on interpreting the Constitution in ways that adapt its principles and its text; and on considering ``public values and social understandings'' when interpreting the Constitution.

Based on his out-of-the-mainstream views, it is no surprise that his nomination is opposed by so many. Included in that opposition are 42 district attorneys serving in the State of California. They are concerned, among other things, about his views on criminal law, capital punishment, and the role of the Federal courts in second-guessing State decisions.

My third area of concern is that the nominee has made a number of critical statements which indicate a lack of judicial temperament. He has been very openly critical of the current Supreme Court.

In one article, he said that the holding in Bush v. Gore was ``utterly lacking in any legal principle.'' He has claimed that the current Court as a whole is unprincipled, saying that ``if you look across the entire run of cases, you see a fairly consistent pattern where respect for precedent goes by the wayside when it gets in the way of result.''

Mr. Liu was highly critical of the nomination of Justice Roberts. He published an article on Bloomberg.com entitled ``Roberts Would Swing the Supreme Court to the Right.'' In that article, he acknowledged that Roberts was qualified, saying ``[t]here's no doubt Roberts has a brilliant legal mind. . . . But a Supreme Court nominee must be evaluated on more than legal intellect.'' He then voiced concerns that ``with remarkable consistency throughout his career, Roberts ha[d] applied his legal talent to further the cause of the far right.'' He also spoke very disparagingly of Justice Roberts' conservative beliefs:

[b]efore becoming a judge, he belonged to the Republican

National Lawyers Association and the National Legal Center

for the Public Interest, whose mission is to promote (among

other things) ``free enterprise,'' ``private ownership of

property,'' and ``limited government.'' These are code words

for an ideological agenda hostile to environmental,

workplace, and consumer protections.

Let's think about what he just said there, about Judge Roberts, now Chief Justice Roberts. He said private ownership of property, limited government, and free enterprise are code words for an ideological agenda hostile to environment, workplace and consumer protections? Does he think we are Communist-run China, that the government runs everything, that their system of government is a better one? When they bring online a coal-fired plant every week? Plants that pollute the air and put more carbon dioxide into the air than we do in the United States? Where children are dying because the food is poisoned and consumers aren't protected? Where every miner is in jeopardy of losing their lives? That is how far off base this nominee is when he refers to free enterprise, private ownership of property, and limited government as being bad. But if you get government more involved, as they do in China, it is somehow a better place?

The nominee has been very publicly critical also of Justice Alito in particular. He believes it is a valid criticism of Justice Alito to say that ``[h]e approaches law in a formalistic, mechanical way abstracted from human experience.'' And we are all familiar with Mr. Liu's scathing attack at Justice Alito's confirmation hearing. When asked about his testimony, Mr. Liu admitted the language was unduly harsh, provocative, unnecessary, and was a case of poor judgment. That is one statement of Mr. Liu with which I can I agree.

I can appreciate that Mr. Liu now understands the unfortunate language he uses. The trouble I have with this, however, is that it shows that even when stepping out of the academic world, the nominee promotes extreme views and intemperate language. Even if I accept his rationale for the tone of his work in the academic world, that does not explain his congressional testimony. That was one opportunity where he could demonstrate a reasoned, temperate approach. Yet he failed that test. I think it may also indicate what we might expect from a Judge Liu, should he be confirmed--the same thing. To me, that is an unacceptable outcome.

The fourth major area of concern is Mr. Liu's testimony and candor before the committee, which was troubling at times and lacked credibility. Even before he appeared before the committee, the nominee had difficulty providing the committee, with materials required by his questionnaire. As Senator Sessions said at the time:

At best, this nominee's extraordinary disregard for the

Committee's constitutional role demonstrates incompetence; at

worst, it creates the impression that he knowingly attempted

to hide his most controversial work from the Committee.

During his testimony, the nominee said, in reference to his past legal writings, ``whatever I may have written in the books and the articles would have no bearing on my action as a judge.'' Oh? Trying to paint himself as a judicial conservative, the nominee attempted to walk away from his previous positions. He tried to distance himself on the proper role of a judge, on the use of foreign law, on the appropriateness of racial quotas and from his previous views on free enterprise and private ownership of property. Even the Washington Post found his testimony a bit hard to believe. The Post's editorial stated:

Mr. Liu is unlikely to shunt aside completely the ideas and

approaches he has spent years developing. But the real

problem, of course, is not that he adheres to a particular

judicial philosophy, but that he--like so many others before

him--feels the need to pretend not to have one.

We have often heard the term ``confirmation conversion'' applied to nominees who appear to have a change of legal philosophy when they are nominated to a Federal judgeship. As I review the record, I think this nominee has taken that concept a step further--I would use the phrase ``confirmation chameleon.'' It seems to me that Mr. Liu is willing to adapt his testimony to what he thinks is most appropriate at the time.

I have discussed other contradictions already, but let me give you a clear example. Senator Cornyn of Texas asked him about his troubling record contained in his work-product that expressed opinions on issues such as the

death penalty, same-sex marriage, and welfare rights. Senator Cornyn then stated ``You are now saying, `Wipe the slate clean because none of that has any relevance whatsoever to how I would conduct myself as a judge if confirmed by the Senate.' Is that correct?'' Mr. Liu responded, ``That is correct, Senator.''

A few minutes later I asked him, ``If we were to, let us just say, wipe the slate clean as to your academic writings and career, what is left to justify your confirmation?'' The nominee responded, ``I would hope that you would not wipe my slate clean, as it were. You know, I am what I am.''

Mr. Liu cannot have it both ways. Either his record stays with him or we wipe the slate clean. Perhaps in the long run it doesn't matter, because either way it leaves us with an individual who should not be given a lifetime appointment. If you include his record as a law professor, then we are left with the evidence of a left-leaning, judicial activist. If you do not include it, then we are left with a 2- year associate with law clerk experience and little else.

That leads me to my final point. I am concerned about the nominee's lack of experience. After graduating from law school in 1998, he clerked for Judge David S. Tatel on the U.S. Court of Appeals for the District of Columbia. When his clerkship ended, Mr. Liu became special assistant to the Deputy Secretary of Education for 1 year.

In 2000, he worked as a contract attorney for the law firm of Nixon Peabody, LLP, where he ``assisted with legal research and writing.'' From 2000 to 2001, the nominee clerked for Justice Ruth Bader Ginsburg on the Supreme Court. After his Supreme Court clerkship, he became an associate at O'Melveny & Myers, where he remained for less than 2 years. According to his questionnaire, he appeared in court only ``occasionally.'' He also reported that his other work as an attorney has not involved court appearances. He has not tried any cases to verdict, judgment, or final decision, Since 2003, the nominee has been a full-time law professor at UC Berkeley School of Law, and in 2008 he became associate dean.

After his nomination last year, the ABA Standing Committee on the Federal Judiciary gave Mr. Liu the rating ``Unanimous Well-Qualified.'' I am somewhat perplexed by this rating. According to the standing committee's explanation of its standards for rating judicial nominees, ``a prospective nominee to the federal bench ordinarily should have at least twelve years' experience in the practice of law.''

Further, ``the Committee recognizes that substantial courtroom and trial experience as a lawyer or trial judge is important.'' At the time of his nomination and rating, the nominee had graduated from law school less than 12 years prior. He has been a member of a State bar only since May 1999. As noted above, he has no trial experience and has never been a judge.

I will conclude with this thought. Given his record and testimony, I do not believe the nominee has an understanding and appreciation of the proper role of a judge. I believe, if confirmed, he will bring a personal agenda and political ideology into the courtroom.

It is ironic that in commenting on the Roberts nomination, Mr. Liu sad ``the nomination is a seismic event that threatens to deepen the Nation's red-blue divide. Instead of choosing a consensus candidate [the President] has opted for a conservative thoroughbred who, if confirmed, will likely swing the Court sharply to the right on many critical issues.''

If confirmed, I am concerned that Mr. Liu will deeply divide the Ninth Circuit and move that court even further to the left--if that is possible. If confirmed, his activist ideology and judicial philosophy would seep well beyond the Berkeley campus--and it seems that is difficult. Sitting on the Ninth Circuit, his opinions and rulings would have far reaching effect on individuals and businesses throughout the nine-State circuit, including places like Bozeman, MT; Boise, ID, and Anchorage, AK.

For the reasons I have articulated--No. 1, his controversial writings and speeches; No. 2, an activist judicial philosophy; No. 3, his lack of judicial temperament; No. 4, his lack of candor before the committee, and No. 5, his limited experience--as well as many other concerns which I have not expressed today, I shall oppose this nomination.

I yield the floor.

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

Mr. President, I come to the floor to address my colleagues and the public on the nomination of Susan Carney, nominated to the Second Circuit, and which we will soon vote. Today's vote marks the 24th judicial confirmation this year and the 16th for a seat designated as a judicial emergency. This also marks the fourth vacancy to the Second Circuit that has been filled by an Obama nominee.

Over the past 2 weeks, nominations-related work has taken up the vast majority of the Senate's time. In fact, after today, we will have confirmed seven judges in just 9 days. Last week alone, we had a cloture vote on the nominee to be Deputy Attorney General, debate and votes on three district court nominees, and two Judiciary Committee markups. This year, the committee has reported 51 percent of President Obama's nominees. Yet it seems the more we work with the majority on filling vacancies, the more complaints we hear. Furthermore, as we work together to confirm consensus nominees, we are met with the majority's insistence that we turn to controversial nominees. So I wish to address some of the complaints we have heard.

I think about the American Constitution Society blog and some of my colleagues in the Senate who say we are not moving fast enough on President Obama's nominees. I wish to point out to them that is intellectually dishonest. They may be ignorant about some of the statistics that involve the nominees we have approved so far versus what has been done in other administrations, but I wish to show that it is an outright, flat lie that we are not processing nominees fast enough. Given the pace of activity in our committee and on the floor, there is no credibility to the arguments that we are not moving fast enough.

Last week, it was stated that the Senate is well behind on President Obama's nominations, so I would like to provide perspective on that assertion. For comparable time periods, we have processed and confirmed a greater percentage of President Obama's nominees. When we complete the vote we are going to have in about 30 minutes, we will have confirmed 33 percent of President Obama's nominees nominated this year. That compares to only 28 percent of President Bush's nominees confirmed in a comparable time period.

Furthermore, President Obama's nominees are moving much faster through the committee process. President Obama's circuit court nominees have waited only, on average, 72 days from nomination to hearing. President Bush's had to wait, on average, 275 days during his first term. For his entire Presidency, that average was almost 247 days. President Obama's district court nominees are also faring better, waiting, on average, only 70 days for their hearings. President Bush's district court nominees had an average wait of closer to 100 days during his first term, and an average of 120 days throughout his entire Presidency.

These statistics, and our continued action to move on consensus nominees, refutes the argument made by those who continue to falsely claim there is a systematic delay and partisan obstruction of judicial nominees by Republicans in the Senate. I hope those who continue to make dishonest comments take note of the statistics I just gave.

Today, we are going to vote on the nomination of Susan Carney, and this will be for a U.S. circuit judge for the Second Circuit. Ms. Carney received her A.B., cum laude, from Harvard University in 1973 and her juris doctorate, magna cum laude, from Harvard Law School in 1977. Upon graduation from law school, she clerked for Judge Campbell on the First Circuit and then entered private practice. After 8 years of private practice, Ms. Carney was self-employed for the next 6 years, engaged in contract legal work and consulting. In 1994, the nominee returned to legal practice as a counsel to Bredhoff & Kaiser here in Washington, DC. In 1996, she moved to the Peace Corps, where she served as Associate General Counsel for 2 years. In 1998, she joined the general counsel's office at Yale University, where she has been the deputy general counsel for the past 9 years.

My concern with Ms. Carney's nomination is her lack of experience. She has no judicial experience and has limited litigation experience. She has never authored any scholarly legal works of note, and much of her work product provided to the committee consists of presentations about various legal issues faced by research universities.

Her qualifications for the court of appeals and, indeed, the reason for the President's decision to nominate her to the Second Circuit remains somewhat of a mystery. According to her questionnaire, Ms. Carney appeared in court occasionally over the course of her career, and the word ``occasionally'' is her own. She has never tried a case to verdict, judgment, or final decision--an absence she explains by saying that she ``spent [her] law career as an appellate lawyer and in-house counsel.'' Her questionnaire suggests she has never argued a case in any appellate court.

During her most recent legal job, Ms. Carney has focused largely on contractual issues such as scientific research partnerships between academic researchers and for-profit industry, international partnerships involving Yale, and intellectual property ownership issues. Her questionnaire reveals no litigation experience in the last 15 years of her career, and it is unclear how her position with Yale University might have prepared her for the Federal judicial appointment, much less one on the court of appeals.

The American Bar Association Standing Committee on the Federal Judiciary gave her the rating ``substantial majority qualified, minority not qualified.'' Even though the reasons behind the ratings are not released, I suspect the ``not qualified'' rating stems from her lack of litigation experience.

This nominee does not have the concrete judicial experience I favor. I know others share this view. The Judiciary Committee reported this nominee by a vote of 15 to 3, with three Republicans in opposition, not including this Senator. I take their views seriously and fully understand why Senators would not support this nomination.

Nevertheless, with little enthusiasm for her nomination, I will give her the benefit of the doubt and support the nominee.

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

Mr. President, American consumers are hurting. Unemployment remains stubbornly high at 9 percent. And, energy costs are escalating, and increasing the cost of many other goods and services, such as groceries, clothing and other household necessities.

During the 2-week Senate recess in April, I met with Iowans at meetings in 33 of Iowa's counties. One issue that came up at every single meeting was the high cost of gasoline at the pump. Iowa is a State that depends heavily on energy. Our rural families commute many miles to go to work, take kids to school, and do their household shopping.

During the spring planting season, farmers use hundreds of gallons of diesel fuel and gasoline in their trucks and tractors as they work to get the crops in the ground. Iowa's manufacturers are also heavily dependent on energy.

Prices at the pump are near $4 a gallon. All of our constituents are crying out for action to lower these prices. So, it makes sense that Congress would consider steps to address the rising energy costs and work to drive down the costs to consumers at the pump.

Unfortunately, that is not what the bill before us would do. This bill would not drive down the cost at the pump at all, and it would very likely lead to higher prices for consumers.

The bill before us would increase taxes for the five largest domestic oil producers. It won't lead to the production of any more oil and gas. It won't create a single job. It very well could lead to less domestic energy production and less employment in the U.S. energy sector.

At a time of $4 gas and 9 percent unemployment, why would the other side push a bill that will increase the cost of energy production, reduce domestic energy supply, and lead to job losses? The fact is, this bill is not about reducing prices at the pump. The bill before us is not about reducing our dependence on foreign oil. It is about raising taxes. And one thing is for certain, if you raise taxes on an activity, you get less of it.

What this Congress should be doing is increasing the domestic production of energy as a way to increase jobs, increase domestic investment, and lower prices at the pump. This bill does none of those things, and actually does quite the opposite.

That is why I will oppose this tax hike bill, and support Senator McConnell's alternative bill that will enact measures that will lead to the development and production of domestic oil and gas. We can lower gas prices through increased supply. We can lower our dependence on foreign oil by opening up and providing permits for the development of resources that God gave us here in our country. It makes no sense to close off vast areas of resources here in the United States, only to go hat-in-hand to dictators and oil Sheiks in Venezuela, Libya or Persian Gulf countries.

In closing, I would like to mention that a number of my colleagues have argued against the tax hikes on domestic energy producers as an unfair attack on just a handful of companies. I noticed with amusement that the President of the Petrochemical and Refiners Association released a statement on this bill that, ``Imposing what would amount to a multibillion-dollar energy tax would be bad for American consumers, for the American economy and for America's national security. It would hurt American companies producing energy and fuels in our own country and give foreign competitors an unfair advantage, endangering American jobs and making America more reliant on foreign energy.'' Yet this same person, along with many supporters of the oil industry, hypocritically believes targeting biofuel tax incentives is just fine.

Singling out and targeting domestic biofuels, a critical piece of our energy supply, will do nothing to reduce prices at the pump. It will do just the opposite. And, it will cost jobs and increase our dependence on foreign oil. I only hope that the Senators who believe it is unfair to target the oil industry with punitive tax hikes will also recognize that the same is true when they suggest targeting domestic biofuels production.

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

Mr. President, I wish to address the Senate on the nomination of Michael Urbanski to be a U.S. district judge for the Western District of Virginia.

Since we have returned from the April recess, we have done very little else other than consider judicial nominations. This will be the third judicial nominee to be confirmed in the last 3 days and the 23rd confirmed this year. In fact, after today, we will have confirmed six judges in just 8 days. I know the liberal interest groups have been pressuring the other side to consider more nominees even though we have been moving at a very brisk pace this entire Congress, but it is surprising to me, with all the issues facing the Nation at home and abroad, that we would spend 2 weeks on the floor considering little else.

Our economy continues to struggle. Millions of Americans remain out of work and are unable to find jobs. The unemployment rate remains at approximately 9 percent. Those who do have jobs are finding it more and more difficult to get to work as gas prices are over $4 a gallon and inching even higher. Our Nation is facing significant national security issues. Every single day, our national debt continues to climb to unsustainable levels. These are incredibly important issues. I would not go so far as to say the majority does not care about the issues facing our Nation. Perhaps they are simply out of ideas. But as Americans continue to struggle in this economy, it is difficult to understand why we would spend 2 weeks voting on hardly anything but judicial nominations.

As I said, the Senate has been moving swiftly this year on those nominations. We have confirmed 23 nominees in just 49 days. That is a rate of one judge almost every other day the Senate has been in session since convening in January.

However, the Senate must not place quantity confirmed over quality confirmed. These lifetime appointments are too important to the Federal judiciary and the American people for the Senate to simply rubberstamp these nominations.

I was surprised during one of our recent debates to hear one of my colleagues on the committee come to the Senate floor and imply otherwise. During the debate on the confirmation of Edward Chen, a reference was made to what was characterized as the Senate's longstanding tradition--a deference to home State Senators with regard to the Federal district court nominations. That Senator stated that in his time in the Senate, where a Federal district court nominee is backed by the two home State Senators, it is usually almost pro forma that the nominee is confirmed.

The fact is that home State Senators do have a great deal to say in who should serve the country on the bench. That is part of the advise- and-consent process. But there are 100 voices in this body, and we speak for the American people who come before these jurists. We must ensure they are fit to serve as impartial arbiters.

I do not consider the confirmation process for a Federal judicial nominee to be a pro forma process. I will continue to give scrutiny to all nominees regardless of home State support. I do not consider it delay or obstruction to fulfill that duty. If the other side chooses to do so, of course, that is up to them, but I will not simply rubberstamp those nominees. We will continue to process the nominees fairly and with the standard to which the people rightly hold us.

I support today's nominee. Michael Francis Urbanski is nominated to be a U.S. district judge for the Western District of Virginia. He presently serves as a U.S. magistrate judge in the same district.

Judge Urbanski received his BA with high honors from William & Mary in 1978 and his juris doctorate from the University of Virginia School of Law in 1981. Upon graduation, he served as a law clerk to the Honorable James C. Turk of the U.S. District Court for the Western District of Virginia. From 1982 to 2004, Judge Urbanski worked in private practice, first as an associate at the Washington, DC, office of Vinson & Elkins and then with the firm of Woods Rogers, where he became a principal in 1989. In 2003, the nominee was appointed to his present position. In 2010, Chief Judge James Jones appointed the nominee to chair an advisory committee on the new local rules adopted in the Western District.

The American Bar Association Committee on the Federal Judiciary has given Judge Urbanski their highest rating--unanimously ``well qualified.''

I am pleased to support this experienced nominee, and I urge my colleagues to do the same.