Floor Statements

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 President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. President, today the Senate continues its very rapid pace to confirm another of President Obama's judicial nominees. The Judiciary Committee's workload has not slowed since this Congress convened. I am pleased to report we are ahead of the pace of the 108th Congress. With this vote, the Senate will have confirmed 22 nominees in just 47 days. That is a rate of one judge almost every other day of Senate session. We have confirmed 32 percent of President Obama's judicial nominees this Congress compared to only 29 percent of President Bush's confirmed during the same time period.

We have also reported out of committee another 11 nominees. We have reported out of committee 46 percent of President Obama's nominees sent to the Senate this year. That exceeds the 38 percent of President Bush's nominees reported out during a comparable period.

Furthermore, we have held hearings on 10 nominees. Some of those, I expect, will be reported out of committee at our markup scheduled for tomorrow. In total, we have taken positive action on 43 of 71 judicial nominees submitted this Congress or approximately 61 percent of all nominees. I hope these facts will put to rest, once and for all, any complaints that we are delaying or obstructing judicial nominees.

There are currently 89 vacancies before the courts. Yet the President has not sent nominees for 51 percent of those vacancies. He has, however, sent the Senate four nominees for seats which are not yet vacant. This is perplexing to me since the current vacancy rate is 10 percent. I would think

the White House would concentrate on current vacancies. Nevertheless, we simply cannot confirm nominees who do not exist.

I have a few remarks regarding the nomination we are voting on today--Arenda Lauretta Wright Allen, who is nominated to be U.S. district judge for the Eastern District of Virginia. Mrs. Allen received her B.A. from Kutztown State College in 1982 and her juris doctorate from North Carolina Central University School of Law in 1985. Following law school, she was commissioned into the U.S. Navy as an ensign. She served there as legal intern in the Naval Legal Service, Office of Judge Advocate General's Corps. In the same year, she was promoted to lieutenant and became a defense attorney for the Navy. In 1988, the nominee became the staff judge advocate at the Naval Air and Engineering Center, where she was the sole legal advisor to the commanding officer.

Leaving the Navy in 1990, Mrs. Allen joined the U.S. Attorney's Office for the Western District of Virginia as an assistant U.S. attorney. In 1991, she moved to the Eastern District of Virginia, where she remained for the next 15 years as an assistant U.S. attorney. In 2005, the nominee left the U.S. Attorney's Office to become an assistant Federal public defender with the Federal Public Defender's Office for the Eastern District of Virginia. The American Bar Association Standing Committee on the Federal Judiciary has given her the rating of majority ``qualified'', minority ``well qualified.''

I congratulate the nominee and her achievement and public service. I urge my colleagues to support this nomination. Hopefully, it will be supported unanimously.

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, I know we are in morning business. I ask unanimous consent to speak on the nomination of James Cole to be Deputy Attorney General.

Mr. President, I rise in opposition to the motion to invoke cloture on the nomination of James Cole to be the Deputy Attorney General at the Department of Justice. I oppose proceeding to a vote on the nominee for a number of reasons.

I have concerns regarding Mr. Cole's qualifications and am troubled by President Obama's recess appointment of Mr. Cole to this position. I have been consistent in my opposition to recess appointments over the years. Whenever the President bypasses the Senate by making recess appointments, such nominees will not receive my support. We have a process in place for nominations and if the President is not willing to work with Senators to clear nominations, the nominee should not get a second bite at the apple.

In addition to my general opposition to recess appointments, I have consistently warned this administration that I would not cooperate in moving nominees for the Department of Justice, until they cooperated with my request for oversight materials. Last month, I went to the floor to describe what I have learned in the course of my investigation into whistleblower allegations at the Bureau of Alcohol, Tobacco, Firearms, and Explosives, ATF. According to whistleblowers, guns found at the scene of the murder of Border Patrol Agent Brian Terry had been purchased illegally by a known straw buyer a year earlier, with the blessing of the ATF as part of an operation known as Fast and Furious.

I first asked about this issue on January 27. On February 16, I requested specific documents from the Justice Department. I reiterated that request on March 3.

When the Justice Department failed to produce any responsive documents, I partnered with House Oversight and Government Reform Chairman Darrell Issa, who first requested documents and then issued a subpoena to the ATF after his voluntary request was ignored. On April 13, my staff learned that the Justice Department was making certain documents available for Chairman Issa's staff to review at the Department. Not only did the Department fail to notify me of this document review, when I sent two of my staff members to participate, they were turned away at the door of the Justice Department.

To this day, the Justice Department has still not produced a single page of documents in response to my inquiries and has provided only previously released public documents in response to Chairman Issa. I received a letter on May 2, 2011, declining to provide my staff with access to the documents on the grounds that ``the Executive Branch . . . has taken the position that only a chairman can speak for a committee in conducting oversight work.'' According to the DC Circuit Court of Appeals, however:

It would be an inappropriate intrusion into the legislative

sphere for the courts to decide without congressional

direction that, for example, only the chairman of a committee

shall be regarded as the official voice of the Congress for

purposes of receiving such information, as distinguished from

its ranking minority member, other committee members, or

other members of the Congress. Each of them participates in

the law-making process; each has a voice and a vote in that

process; and each is entitled to request such information

from the executive agencies as will enable him to carry out

the responsibilities of a legislator.

That is from Murphy v. Department of the Army, 1979.

I said on the floor on April 14 that if the Justice Department did not cooperate and provide the information we need, I would consider exercising my right to object to unanimous consent requests on a nomination. Since that time, I have received nothing but stonewalling from the Department. As the chief operating officer of the Department, Mr. Cole is in a position to ensure the Justice Department meaningfully cooperates with my inquiries and complies with my document requests. He has failed to do so.

I also am troubled by the Department's continued resistance to oversight requests from Senator Chambliss, the vice chairman of the Select Committee on Intelligence. Senator Chambliss has requested that the Department of Justice share important documents with Congress regarding the Guantanamo Bay Detainee Review Task Force. This task force reviewed the case files of many detainees that were released or transferred from U.S. custody. Unfortunately, we now know that over 25 percent of those detainees later returned to fight against us or our allies.

These documents are part of a legitimate exercise of our constitutional duty to conduct oversight. The Department's repeated stonewalling of Senator Chambliss's request should not be rewarded with a cloture vote on a controversial nominee.

The Deputy Attorney General is the second in command at the Justice Department and responsible for overseeing the day-to-day operations of the Department. Managing this vast bureaucracy is a difficult task that requires a serious commitment to protecting our national security, enforcing our criminal laws, and safeguarding taxpayer dollars. We need a qualified individual to fill this slot, an individual who possesses the ability to not only provide leadership for the Department but also an individual who has the smarts, capability and willingness to manage Department programs and root out inefficiencies and abuses in those programs. After reviewing all his responses and his hearing testimony, I concluded that I could not support Mr. Cole's nomination to be the Deputy Attorney General.

In particular, I am seriously concerned about Mr. Cole's views on national security and terrorism. Back in 2002, Mr. Cole was the author of an opinion piece in the Legal Times. In that piece, he stated:

For all the rhetoric about war, the Sept. 11 attacks were

criminal acts of terrorism against a civilian population,

much like the terrorist acts of Timothy McVeigh in blowing up

the Federal building in Oklahoma City, or of Omar Abdel-

Rahman in the first effort to blow up the World Trade Center.

The criminals responsible for these horrible acts were

successfully tried and convicted under our criminal justice

system, without the need for special procedures that altered

traditional due process rights.

He added that, ``The acts of Sept. 11 were horrible, but so are . . . other things.'' The other things he referred to were the drug trade, organized crime, rape, child abuse and murder. Mr. Cole's opinion piece argued that

notwithstanding the involvement of foreign organizations, such as al- Qaida, we have never treated criminal acts influenced by foreign nationals or governments as a basis for ``ignoring the core constitutional protections ingrained in our criminal justice system.''

Mr. Cole concludes his opinion piece by arguing that in addition to stopping future terrorist attacks, the Attorney General is a criminal prosecutor and that he has a special duty to apply constitutional protections engrained in our criminal justice system to everyone, including terrorists captured on a foreign battlefield.

Mr. Cole wrote this opinion piece 2 days short of the first anniversary of the September 11 attacks. Given the close proximity in time to the September 11 attacks, we must understand this opinion piece to be Mr. Cole's true beliefs about the application of the civilian criminal justice system to terrorism cases, including those who masterminded the 9/11 attacks.

From the opinion piece and his responses to our inquiries, it appears that if given a choice of prosecuting high ranking terrorists in civilian courts or military commissions, Mr. Cole would likely favor civilian courts based upon his longstanding belief in the role the Attorney General plays in protecting the principles of the criminal justice system. Absent a clear statement from Mr. Cole about what factors would warrant selecting a civilian or a military forum, it is hard to look at his entire record of past opinions, his testimony, and responses to our questions and reach a different conclusion.

Military tribunals have many advantages to civilian criminal courts and are better equipped to deal with dangerous terrorists and classified evidence while preserving due process. I am troubled that Mr. Cole does not appear to share this belief. Based upon his responses and testimony, I have serious concerns about Mr. Cole's support for civilian trials for terrorists captured on a foreign battlefield given that the Deputy Attorney General oversees the national security branch at the Justice Department.

Second, I have concerns about Mr. Cole's abilities relative to oversight of government programs. First, in his responses about oversight of DOJ grant programs, Mr. Cole failed to commit to a top to bottom review of the programs.

We have had enough examples of the tremendous inefficiencies, duplications, and waste in these programs. I am disappointed that Mr. Cole has failed to recognize that there is a need for comprehensive review of the Department of Justice's grant program, not only for the sake of saving taxpayer dollars but also to ensure that grant objectives are being met in the most efficient and effective manner possible.

Third, I do not have confidence regarding Mr. Cole's abilities based on his performance as an independent consultant tasked with overseeing AIG. By way of background, the Justice Department provided copies of the reports Mr. Cole issued when he was overseeing AIG, but they were labeled ``committee confidential.'' Consequently, I cannot discuss in a specific manner the context of those documents publicly.

Nevertheless, when taken into context with the public responses provided by Mr. Cole to my questions, a troubling picture develops about Mr. Cole's performance in his independent consultant responsibilities. The responses and reports do not dispel the serious questions raised about Mr. Cole's independence and completeness. Further, they reveal what appears to be a level of deference to AIG management one would not expect to see from someone tasked as an ``independent'' monitor.

In order to clarify a number of questions on this matter, Senator Coburn and I sent a followup letter seeking additional answers from Mr. Cole. Mr. Cole's reply clarified that DOJ, SEC, and the New York State Attorney General's office were aware of his practice of seeking input from AIG and making modifications to the reports. He indicated that the changes AIG made were often factual changes, such as AIG employee names, dates of materials, and events. He also indicated that some of the changes requested by AIG were included in a section of the report entitled ``AIG Response.'' However, he said that ``on a few occasions'' AIG would ``suggest a stylistic change of phrasing in the analytical section of the report.'' He stated that while he included the edits made by AIG, he ``did not believe that a detailed presentation of this factual review was necessary to an understanding of each party's position.'' As a result, the report did not necessarily show which edits AIG made that were incorporated. Instead, he said that those changes were available in working papers that were ``available to the SEC, the DOJ, the New York Attorney General's Office.'' Unfortunately, he added, ``the agencies--which were aware of this practice--did not request such documents.''

While I appreciate Mr. Cole's responses to these clarifying questions, they raise concerns about how independent his monitoring was, what changes were ultimately requested by AIG, what changes were included, and how much the SEC and the DOJ really knew about edits AIG was making to the ``independent'' reports.

Finally, I have serious concerns about Mr. Cole's decision to suspend the compliance review at AIG's Financial Products Division following the government bailout. In his testimony, Mr. Cole acknowledged that following the government bailout of AIG, he scaled back his efforts until the future of AIG as a corporation was determined. After Mr. Cole suspended his monitoring, AIG restructured its compliance office and terminated a number of staff overseeing the company's compliance with the Securities and Exchange Commission regulations. Mr. Cole said that after it was determined that AIG's Financial Products Division would not be dissolved, the compliance and monitoring were ``revived and are being reviewed and implemented where applicable.'' Under Mr. Cole's watch, AIG not only got $182 billion of taxpayer money, it was able to talk the independent consultant--Mr. Cole--out of monitoring what the company was doing.

Based upon these factors, I am concerned about Mr. Cole's ability to perform the duties required of Deputy Attorney General. He would be in a position to potentially influence future compliance monitors appointed under settlements between the Justice Department, the Securities and Exchange Commission, and other corporations that have violated the law. Independent monitors need to be truly independent and completely transparent. They are selected and appointed to ensure that the interests of the American people are protected.

I cannot support the nomination of Mr. Cole to be Deputy Attorney General and, therefore, will vote against cloture. I urge all of my colleagues to join me in opposing this cloture vote to send a message to the Justice Department to stop the stonewalling of legitimate oversight inquiries from Members of the Senate.

I yield the floor.

Mr. President, I yield 10 minutes to the Senator from North Carolina.

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

Mr. President, I ask for the regular order.

Madam President, I rise to oppose the cloture motion on Jack McConnell, who has been nominated to be U.S. district judge for Rhode Island.

In the first few months that I have been ranking member of the Judiciary Committee, I have worked in good faith to move forward with consensus nominees. We have taken positive action on 68 percent of the judicial nominees submitted in this Congress. Despite my efforts, friends on the other side of the aisle and the President's top lawyer continue to claim we are not moving fast enough. There are additional consensus nominees the Senate could turn to. We could confirm additional district judge vacancies, as we have been doing. But rather than continuing to move forward with consensus nominees, the majority leader chose to throw up a detour and proceed to one of the President's most controversial nominees, Mr. McConnell. It seems no good deed goes unpunished.

Before turning to Mr. McConnell's record, I want to say a few words about the use of extended debate in considering judicial nominations. My friends on the other side have made some comments on this issue that are pretty difficult to understand given the record there.

First, with respect to district court nominees, and contrary to what my colleagues have suggested, there have been in the past filibusters of district court nominees. Most recently, the Democrats successfully filibustered a district court nominee in 1999, Mr. Brian Stewart by a vote of 55 to 44. Judge Stewart was ultimately confirmed.

But the fact of the matter is that district court nominees have been filibustered, and it was Democrats who first took the step. On circuit court nominees, the record is far worse. I would note that I do not necessarily like to

vote against cloture on judicial nominees. I do not take these votes lightly. But these are the rules that the other side instituted.

Under the precedent and threshold that the Democrats first established, Members must decide whether they believe they should move forward to a vote on confirmation of this nominee. By any fair measure, Mr. McConnell qualifies as a very extraordinary circumstances. I have reached this conclusion based on a number of factors. I want to discuss a couple of these reasons now.

I am particularly troubled by the way Mr. McConnell handled himself before the committee. I believe Mr. McConnell at best misled the committee when he testified about his familiarity with a set of stolen legal documents that his law firm obtained during the lead paint litigation. When asked about these documents during his committee hearing, he testified that he saw the documents ``briefly'' but that he was not familiar with them ``in any fashion.''

But several months after his hearing, Mr. McConnell was deposed under oath about those same documents. In his sworn deposition, Mr. McConnell testified that he was the first lawyer to receive the documents. He drafted a newspaper editorial citing information that came directly from those documents. He testified that he reviewed and signed a legal brief that incorporated the stolen documents. And even though he told the committee that he was not familiar with the documents ``in any fashion,'' during his deposition he testified that he did not see any indication on the documents that they were confidential or secret.

How could he know the documents were not confidential or secret if, as he testified before the committee, he was not familiar with them ``in any fashion?''

Given these facts, it is hard to square Mr. McConnell's testimony before the committee with his sworn deposition testimony a couple of months later.

The litigation over these documents remains ongoing. We do not know how it will conclude. We do not know whether Mr. McConnell and his law firm will be held liable for the theft of these documents. But what is the Senate going to do if we confirm this individual but at some later date he or his law firm are found liable for theft? At that point, it will be too late. Members will not be able to reconsider their votes.

The Wall Street Journal recently opined that Mr. McConnell's ``changing story about his lead paint advocacy is enough by itself to disqualify him from the bench.'' I could not agree more.

There are other aspects of Mr. McConnell's record that concern me a great deal, which I will outline later. I will just conclude by saying this. I have supported the overwhelming majority of President Obama's judicial nominees. If it were up to me, I would not have nominated many of those individuals. But I supported them nonetheless. Mr. McConnell is in an entirely different category. I believe that he misled the committee when he testified before us. For that reason alone, I do not think he should be rewarded with a lifetime appointment to the Federal bench. But even if I did not have that concern, I could not support this nominee.

I yield back the time that was allotted to me.

Mr. President, I rise today to speak in opposition to one of President Obama's most controversial nominees, Mr. Jack McConnell, who has been nominated to be U.S. district judge for the District of Rhode Island.

He has dedicated his professional career, and enriched himself in the process, by bringing dubious mass tort litigation. I believe he has demonstrated a result-oriented view of the law. He has repeatedly demonstrated that he is highly partisan. And given his history of intemperate and highly partisan remarks, I do not believe he is capable of being an impartial jurist.

First, Mr. McConnell is an active partisan, a little more so than most nominees recently before the Senate. Mr. McConnell and his wife have donated at

least $700,000 to elect Democrats, over $160,000 in 2008 alone. He has served as treasurer of the Rhode Island Democratic State Committee. He is a member of Amnesty International USA and has served as a director at Planned Parenthood of Rhode Island. Partisan political activity is not disqualifying on its own. My concern is that Mr. McConnell is so steeped in political activity and ideology that it may be impossible for him to be an impartial jurist--even if he earnestly believes that he can.

We can legitimately question whether his partisanship will influence his judicial philosophy. He has made a number of sharp partisan political statements, including one in which he indicated that only Democrats fight for ``economic and social justice and opportunity for all.'' He has called for a more ``active government'' and redistribution of wealth, and claimed that ``health care should be a right of citizenship.'' When Republican Gov. Lincoln Almond kept the Rhode Island government open during a snowstorm in 1996, Mr. McConnell commented to the press that the decision was ``typical of the cold- hearted Republican attitude of disregarding workers' needs.'' He went on to argue against the Governor's appeal to the cost efficiency of keeping agencies open by saying that ``[we] could bring child labor back, which would be cheaper, too.''

Mr. McConnell has often portrayed his mass tort cases as movements against societal injustices. He has said that these cases represent ``wrongs that need to be righted and that is how I see the law.'' He has said that he is ``an emotional person about injustice at any level--personal, societal, global.'' These statements indicate an activist viewpoint. This is not what I want in a Federal judge.

Second, Mr. McConnell has a view of the law that I believe is outside the mainstream of legal thought. Much of McConnell's career has been devoted to bringing some of the most controversial mass tort litigation of recent years. He has pursued the manufacturers of asbestos, tobacco, and lead paint, whose actions he believes to be ``unjust.'' In bringing many of these cases, Mr. McConnell has often stretched legal argument beyond its breaking point. An example is the ``public nuisance'' theory he pursued in the Rhode Island lead paint case. Well-respected attorneys have said Mr. McConnell's theory ``just [did not] mesh with centuries of Anglo-American law'' and a former attorney general called the lead-paint cases ``a lawsuit in search of a legal theory.''

The Rhode Island Supreme Court unanimously ruled against him in State v. Lead Industries Associates, Inc. In a well-reasoned opinion, the court found that there was no set of facts that he could have proven to establish that the defendants were liable in public nuisance.

Mr. McConnell's reaction to that opinion illustrates my third major concern--that he lacks appropriate judicial temperament. Although the opinion was based firmly in the law, Mr. McConnell saw fit to publicly and harshly criticize the court's decision in a Providence Journal editorial. But his criticism made little reference to points of law. Rather, his major complaint was simply that, in his view, ``justice was not served.'' His op-ed lambasted the court for ``let[ting] wrongdoers off the hook.'' Not only were these statements intemperate, even for an advocate, but they reflect a results-oriented view of judging. Mr. McConnell did not focus on the court's analysis or argue that it wrongly applied the law. He argued that the ``wrongdoers'' weren't punished. In other words, the result didn't fit with his notion of justice, so it was the wrong result.

Mr. McConnell was also deeply involved in State lawsuits against tobacco companies. However, beyond litigation, he has shown an open hostility to tobacco companies. He told the press in 1999 that he would ``like Congress to put the Cigarette makers out of business.'' He has even gone so far as to compare people who opposed smoking bans in restaurants to the supporters of racial segregation, saying ``some people might like having all-White restaurants so they don't have to sit with Blacks, but we don't allow it.''

A fourth concern relates to the manner in which Mr. McConnell conducts his business. I am not suggesting illegal or unethical behavior, but it is a bit unseemly. He and his firm, Motley Rice, have often brought these controversial mass tort litigations cases while representing State attorneys general on no-bid contingency fee contracts. According to an April 24, 2009, Wall Street Journal editorial:

Mr. McConnell and his firm helped pioneer the practice of

soliciting public officials to bring lawsuits in which

private lawyers are paid a percentage of any judgment or

settlement. The law firms front the costs of litigation and

are compensated if the suit is successful. But such

contingency-fee arrangements inevitably raise questions of

pay to play. And private lawyers with state power and a

financial stake in the outcome of a case can't be counted on

to act in the interest of justice alone.

There are numerous examples of campaign contributions by Mr. McConnell and/or his wife in States where he or his firm was conducting or soliciting litigation. These include Rhode Island, Ohio, Washington, Vermont, and North Dakota.

In another instance, as part of a settlement in the Rhode Island lead paint case, DuPont was to pay $2.5 million to the International Mesothelioma Program at a Boston hospital, which is run by a former Motley Rice expert asbestos witness, Dr. David J. Sugarbaker. According to press reports, the payment was intended to satisfy a $3 million pledge previously made by Motley Rice to Dr. Sugarbaker to secure a seat on the executive advisory board of the program.

My problem with this is the way the facts have dribbled out and the spin that Mr. McConnell has tried to put on this payment. Although both Rhode Island and DuPont claimed that the agreement was not a legal settlement, the agreement involved a commitment by DuPont to contribute over $12 million to charity and a commitment by the State of Rhode Island to dismiss the case against DuPont. DuPont refused to pay any attorneys' fees because they were disputing the permissibility of the State's use of private counsel on a no-bid contingency-fee contract. Nonetheless, DuPont agreed to make a sizeable donation to charity to settle the case.

In my view, the donation to the Boston hospital is highly suspect. Settlement money that was supposed to help reduce lead poisoning in Rhode Island in effect was diverted to offset a debt of Mr. McConnell's law firm. The chairman of the Rhode Island Republican Party described the problem as follows: ``McConnell's law firm had a $3 million obligation to a Boston hospital, and so as part of the settlement, $2.5 million of that obligation was paid by DuPont.''

Mr. McConnell does not dispute this characterization of the $2.5 million payment. Despite claims by Attorney General Lynch that the payment would not satisfy Motley Rice's obligation to the hospital, he said ``I don't see why it shouldn't, and I don't see anything nefarious or wrong with that.'' The controversy regarding the settlement intensified when attorneys from another firm who had worked on the case on a contingency fee basis disputed the payment, claiming it was a ``legal fee'' that they were not being allowed to share in.

Fifth, I am concerned that Mr. McConnell has approached this confirmation process with either a lack of diligence or a lack of candor. I am particularly troubled by the way Mr. McConnell handled himself before the committee. I believe Mr. McConnell, at best, misled the committee when he testified about his familiarity with a set of stolen legal documents that his law firm obtained during the lead paint litigation. When asked about these documents during his committee hearing, he testified that he saw the documents ``briefly,'' but that he was not familiar with them ``in any fashion.''

But several months after his hearing, Mr. McConnell was deposed, under oath, about those same documents. In his sworn deposition, Mr. McConnell testified that he was the first lawyer to receive the documents. He drafted a newspaper editorial citing information that came directly from those documents. He testified that he reviewed and signed a legal brief that incorporated the stolen documents. And, even though he told the committee that he was not familiar with the documents ``in any fashion,'' during his deposition he testified that he did not see any indication on the documents that

they were confidential or secret. How could he know the documents were not confidential or secret, if, as he testified before the committee, he was not familiar with them ``in any fashion''? Given these facts, it is hard to square Mr. McConnell's testimony before the committee with his sworn deposition testimony a couple months later.

The litigation over these documents remains ongoing. We do not know how it will conclude. We do not know whether Mr. McConnell and his law firm will be held liable for the theft of these documents. But what is the Senate going to do if we confirm this individual, and at some later date he or his law firm is found liable for theft? At that point, it will be too late. Members will not be able to reconsider their votes. The Wall Street Journal recently opined that Mr. McConnell's ``changing story about his lead paint advocacy is enough by itself to disqualify him from the bench.'' I could not agree more.

In another instance, I asked in written questions the degree of awareness or notification that he or his law firm had regarding rallies that were held outside or near the Superior Court in Providence during the lead-paint trials in September 2002. He replied ``None.'' However, there is email traffic that indicates Mr. McConnell was, in fact, aware of the demonstrations. This email was produced in the lead paint litigation as part of Sherwin Williams's motion for a new trial. In other words, Mr. McConnell and his firm had this in their possession when he was asked about it by the committee.

Inconsistent answers were provided with regard to Mr. McConnell's relationship with the ACLU as well. In response to the question ``Did you, in fact, represent the ACLU in the matter?'' Mr. McConnell said ``I entered an appearance as counsel.'' Yet in response to another question regarding any matters in which he provided legal services to the ACLU or any affiliate thereof, he replied, ``I have never provided legal services to the ACLU or any affiliate thereof.'' I find this answer confusing at best.

These types of responses indicate, at a minimum, a careless approach in his response to the legitimate inquiries of this committee. They could also be viewed as indicating a lack of candor. Either way, they do not reflect the standard we should expect from an individual who seeks confirmation to the Federal judiciary.

These concerns lead me to believe this nominee is not qualified to serve as a U.S. district judge. Finally, I note Mr. McConnell received a low rating from the ABA--a rating of substantial majority qualified, minority not qualified.

My concerns are shared by the U.S. Chamber of Commerce, and I take their views very seriously because the Chamber only rarely takes positions on judicial nominations. In a letter to this committee, the Chamber wrote:

Mr. McConnell's actions during his career as a personal

injury lawyer and past statements demonstrate his disregard

for the rule of law, an activist judicial philosophy and

obvious bias against businesses.

For the reasons I have articulated--one, his active partisanship which I believe he will carry with him into the judiciary; two, his legal theories being outside the mainstream; three, his lack of judicial temperament; four, his questionable business practices; and five, his lack of candor with the committee--and other concerns which I have not expressed today, I shall oppose this nomination.

I will conclude by saying this. I have supported the overwhelming majority of President Obama's judicial nominees. If it were up to me, I would not have nominated many of those individuals, but I supported them nonetheless. Mr. McConnell is in an entirely different category. I believe he misled the committee when he testified before us. For that reason alone, I do not think he should be rewarded with a lifetime appointment to the Federal bench. Even if I did not have that concern, I could not support this nominee.

Mr. President, I ask unanimous consent to speak for a much longer period of time, for 45 minutes. I may not use all that time, but I would like to have permission to speak for that time.

Mr. President, it is not going to surprise any of my colleagues or the public at large that a lot of times I come to the Senate floor to speak about agriculture and to speak about ethanol. What brings me to the floor today is the ongoing crusade by the Wall Street Journal, in an intellectually dishonest way, to put out a lot of facts about ethanol that are not true.

The latest barrage comes from an interview published last Saturday in the Wall Street Journal with C. Larry Pope, CEO of Smithfield Foods. In this article, there are a lot of misstatements about ethanol and about ethanol causing the price of food to rise dramatically. I take the floor now to rebut some of those misstatements and also to set the record straight so that when a very fine CEO such as Mr. Pope, even though I disagree with him on this article--he is a decent person, and he is a good corporate executive--the next time, he will not speak. But I can also say I do not like to have confrontations with Smithfield Foods because they do provide a lot of good-paying jobs in the Middle West, and they do a good job of adding value to agriculture.

There has been a tradition at Smithfield to kind of not appreciate American agriculture. It goes back to some conversations I had with the previous CEO by the name of Joe Luter. I remember Joe Luter coming to my office to try to explain to me some things he thought I had misinterpreted of what he was really talking about regarding the family farmer and about the production of hogs and whether he was wanting to put the family farmer out of business.

I remember just as if it was said to me yesterday a statement he made when I said: You are running the family farmer, the family producer, the independent producer out of the hog business, and you want to control everything. He said to me something along the lines: I do not want to put your farmers out of business; I just want them feeding my pigs. He was basically saying he wanted the family farmer to be an employee of Smithfield and not be an independent producer.

Another point he tried to argue with me--and I am referring to Mr. Pope's predecessor, Mr. Luter--he also argued that Iowa farmers in a sense were not smart enough to run a packing plant. In fact, he offered to give a plant to a group of farmers and guaranteed it would be out of business within 6 months.

I do not know whether I have fault with Mr. Pope as CEO of Smithfield and ethanol in this case as opposed to Mr. Luter, his predecessor, and who is going to raise pigs, but there may be an institutional bias within the corporation of Smithfield.

Anyway, with that as background, I want to go to this article I pointed out that was in the Wall Street Journal. The article says: ``It is Getting Hard to Bring Home the Bacon.'' Basically, what the paper is saying in that headline is that because so much corn is used for ethanol, we are raising the price of corn and that is driving up the price of food.

Well, I am on the floor to say that is a bunch of hogwash. This article was in the April 30 edition of the Wall Street Journal, so if people want to read it and check it against what I have to say, I am happy to provide that information. The article was based on an interview with C. Larry Pope, CEO of Smithfield Foods, the largest pork producer and the largest pork processor.

The opinion piece was intended to share Mr. Pope's view on rising food prices and also on the price of pork. Mr. Pope puts much of the blame on the Federal ethanol program. But I wish to address a number of the claims made by Mr. Pope, and claims made in the opinion piece presumably based on statements by Mr. Pope.

Mr. Pope claims, and I quote:

Now, 40 percent of the corn crop is directed to ethanol,

which equals the amount that is going into livestock food.

Right there, statistically, he is wrong. Let me point out how he is wrong. In 2010, 4.65 billion bushels of corn were used to produce 13 billion gallons of ethanol. But ethanol production uses only the starch from a corn kernel. So I want to hold up a bag of corn kernels. It would be better if I brought in an ear of corn, but this is the best way to transport it. These are corn kernels.

When ethanol uses only the starch from the corn kernel, the result is that more than one-third, or 1.4 billion bushels of corn--and it is called dried distiller's grain, and this is what dried distiller's grain is--was available as a high-value livestock feed. In fact, what is left over after you produce ethanol is of much more value than if you would take the original corn kernels and use that by itself for animal feed.

Let's go back to that quote.

Now, 40 percent of the corn crop is directed to ethanol,

which equals the amount that is going into livestock food.

Well, on a net basis now, ethanol production used only 23 percent of the U.S. corn crop--far less than the 40 percent that ethanol detractors claim. So once again, you have a bushel of corn--56 pounds. Out of that 56 pounds of corn, you get 2.8 gallons of ethanol. When you get done making the ethanol, you have 18 pounds of dried distiller's grain that is left over. Anybody who isn't ignorant about ethanol understands there is still an animal feed product left over. So you can't say you are making ethanol out of corn and using it all for ethanol and nothing for food, because this is a very efficient process.

By the way, let me say this. You can tell about the ignorance over ethanol in this town because a lot of people pronounce it E-E-E-T-H-A- N-O-L. It is ethanol. But people who are ignorant about it don't even know how to pronounce it. I don't know whether Mr. Pope pronounced it right or not.

According to the USDA, feed use consumes 37 percent of the U.S. corn supply, much more than the 23 percent consumed by ethanol production. So I hope Mr. Pope will put that in his pipe and smoke it, because he is wrong on that point. Ethanol is not diverting corn away from feed use.

Next, Mr. Pope claims:

Ethanol policy has impacted the world price of corn.

I am glad Mr. Pope raised that issue. He clearly has no idea how little an impact ethanol has on the global grain market. In fact, U.S. ethanol use represents a mere 3 percent of the world's supply of coarse grain. In addition, the global grain supply in 2010 to 2011 is 11 percent larger than the 2000 to 2001 supply.

U.S. farmers happen to be the most productive in the world. Since 1975, American farmers have doubled U.S. corn production from under 6 billion bushels to over 12 billion bushels last year, and they have done it using essentially the same number of acres. Corn farmers today grow five times as much corn as they did in 1930 on 20 percent less land.

So for all those people out there who think there isn't enough productivity in the American farmer or in our land or in the efficiency of producing, I hope you understand that we are producing five times more corn than we did in 1930 but doing it on 20 percent less land. Let me explain it another way. In 1910, you know what powered agriculture? Horses and mules. And in that day, it took 90 million acres of land to grow the food to keep the animals that powered agriculture alive and productive. That 90 million acres is equal almost to the 92 million acres that will be planted to corn in the United States this year.

Farmers are continuing to meet the growing demand of ethanol, livestock feed, and exports. So I hope that Mr. Pope will put that in his pipe and smoke it, because he needs to understand how productive the American grain farmer is.

The author of the opinion piece then makes a claim that has absolutely no basis in fact, so I guess I can't attribute this to Mr. Pope. The article states:

The EPA has found ethanol production has a neutral to

negative impact on the environment.

I have always said that ethanol is good for the environment, but here we have the EPA being quoted stating it has a neutral to negative impact on the environment. The fact is, under the renewable fuels standard created in 2007, corn ethanol was required to reduce greenhouse gas emissions compared to gasoline by at least 20 percent. Corn ethanol has exceeded that threshold. In other words, the law says such and such, and ethanol exceeds what the law even requires.

A reduction of more than 20 percent compared to gasoline is not neutral. So the EPA has found ethanol production has neutral to negative impact on the environment. Not so. If you remove EPA's use of murky science surrounding emissions from what is called indirect land use--and that is kind of complicated, so I won't go into that--ethanol reduces greenhouse gas emissions by 48 percent compared to gasoline.

I have heard Senators in the last 2 months on the floor of the Senate telling all of us that ethanol was bad for the environment, but a recent peer-reviewed study published in the Yale Journal of Industrial Ecology--all those Ivy League people in the Senate ought to have some allegiance to anything done by Yale University--says that ethanol reduces greenhouse gas emissions by up to 59 percent compared to gasoline.

Mr. Pope also asserts that Pilgrim's Pride went bankrupt because of ethanol. Pilgrim's Pride was a food processor. He stated:

The largest chicken processor in the United States,

Pilgrim's Pride, filed for bankruptcy. They couldn't raise

prices, so their cost of production went up dramatically.

Again, facts are stubborn things. On December 1, 2008, analysts cited the primary cause of bankruptcy was their large debt load, the result of the acquisition of a $1.3 billion rival they purchased in 2007. Other factors included low chicken demand and prices resulting from the recession and poor commodity hedging. But it had nothing to do with the price of ethanol and corn prices being high. So I hope Mr. Pope will put that in his pipe and smoke it.

Another statement by Mr. Pope seems to place all the blame on corn farmers for rising food prices. He said:

You eat eggs, you drink milk, you get a loaf of bread, and

you get a pound of meat. All of those are based on grains.

That last part of the statement is accurate. But let me tell you what is wrong with the relationship between rising food prices and the price of grain. Let us look at the U.S. Department of Agriculture. The farm value of every food dollar is 19 cents. In other words, if you spend $1 on food at the supermarket, only 19 cents of that goes into the pocket of the farmer. Of that 19 cents, the corn value of that farmer's income is 3 cents.

So let us look at some of these prices. You buy a box of corn flakes--12.9 ounces. Only 5.6 cents goes to a farmer if the corn is $4 a bushel. If corn is $6 a bushel, the farmer gets 8.6 cents out of a whole package of corn flakes.

Soft drinks: $4 a bushel, the farmer gets 6.6 cents. If it is $6 a bushel, he gets 10 cents.

Beef: The farmer gets 18.2 cents at the low end of corn prices, and 27.8 cents at the higher end.

I could go on with pork and chicken and turkey and eggs and milk. But the

point is, don't blame the farmer when you buy a box of corn flakes because the farmer gets a little over a nickel, or at most, if corn is higher priced, 8.6 cents. So the farmer gets 19 cents in a global way. Corn only accounts for 3 cents out of $1 of food that you buy. The other 81 cents of that $1 goes to labor, goes to energy, goes to transportation, goes to marketing, and goes to packaging.

The World Bank, in 2008, stated that biofuels were a large contributor to rising food prices. And you know what, 2 years later, in 2010, they released a more thorough analysis that essentially dismissed that idea. So I want to quote from the World Bank report.

. . . the effect of biofuels on food prices has not been as

large as originally thought. . . . the use of commodities by

financial investors may have been partly responsible for the

2007-2008 spike.

So, for Mr. Pope, I hope he puts that in his pipe and smokes it because he is wrong about the amount of corn and the price of corn and the impact on food prices, and the World Bank dismisses that as well. We even have the United Kingdom--I like to say Great Britain instead of United Kingdom--their Department for Environment, Food and Rural Affairs concluded in 2010 that ``available evidence suggests that biofuels had a relatively small contribution to the 2008 spike in agricultural commodity prices.''

In 2009, the Congressional Budget Office evaluated the increasing demand for corn to produce ethanol on food prices. Maybe I better start with the 5.1-percent increase in food prices for the year 2009. Of that 5.1 percent, just one-half of 1 percent, between that and eight-tenths of 1 percent--I better say it more accurately. We have a 5.1-percent increase in food prices. Only one-half percent, maybe up to .8 percent of that 5.1 percent was due to the demand for ethanol, and about 10 percent of just the increased price of food was because of ethanol.

In 2007, Informa Economics concluded that ``it is statistically unsupported to suggest that high and/or rising corn prices are the causative reason behind high and rising retail meat, egg and milk prices.''

Another point raised in this article by Mr. Pope needs to be addressed. He said, ``Over the last several years, the cost of corn has gone from a base of $2.40 a bushel to today at $7.40 a bushel.'' While true, this all needs to be put in context. Over that same period of time, crude oil prices went from $50 a barrel to nearly $150 a barrel. Today, it is over $110 a barrel. Gold prices went from $500 an ounce to $1,500 an ounce today.

Mr. Pope would rather pay $2.40 a bushel for corn rather than $7.40. I understand that. But does he know what impact that would have on agriculture? If corn were only $2.40 a bushel, every farmer today would be out of business because the cost of production is around $4 a bushel.

I can see he wants the farmers to subsidize Smithfield if he wants to continue getting corn for $2.40 a bushel, but a farmer cannot subsidize the big corporations. Perhaps Mr. Pope would rather have us support government subsidies so long as they would allow him to buy corn below the cost of production.

I can tell you this: A lot of people say ethanol is the reason corn prices are high. It might be part of the reason. But let's suppose you didn't have any ethanol and you had $2.40 a bushel for corn. You know darn well that a lot more would be coming out of the Treasury to make sure the safety net for the family farmer was working than we give for an ethanol subsidy.

Regardless, at $7.40 a bushel, the corn costs in a gallon of milk is about 46 cents; the cost of corn in a pound of chicken is about 34 cents; 1 pound of beef takes about 92 cents worth of corn; and relative to Smithfield because they are big in pork, 1 pound of pork requires about 39 cents of corn. So if that $4.54-a-pound for bacon in the grocery aisle contains only 39 cents worth of corn, perhaps Mr. Pope should explain to all of us--and, most important, to the people who buy it, the consumer--where the other $4.15 or 91 percent of the retail cost is going.

In addition, after the steep rise in commodities in 2008, prices of corn and other commodities retreated very significantly. I don't recall seeing from people like Smithfield, that when corn was $7 3 years ago and it went down to $3.58--I didn't see a very dramatic drop in prices at the grocery store after the corn prices dropped, which leads me, as I have so often said on the floor of the Senate, that these food processors need to scapegoat something to increase the price of their product to the retailer and the consumer. Then when the price goes down, they have increased their price but the price doesn't go down accordingly.

Mr. Pope claims rising corn prices are hurting his business. He said, ``Rising prices are already squeezing food producers 2 to 3 percent earnings margins.'' That is his quote. The statement is rather surprising given the contradictory earnings report for Smithfield Foods that came out March 10, 2011. Smithfield reported net income for the quarter of $202 million, an increase of $165 million over the same quarter in 2010. Mr. Pope stated at the time of the earnings report: ``We are extremely pleased with the record performance of our company in the third quarter. Year to date, our earnings have surpassed that of our record year.''

The reality of Smithfield's record profits fails to validate the rhetoric. According to the article--and here I am quoting the article and not Mr. Pope:

Smithfield's economists estimate corn prices would fall by

a dollar a bushel if ethanol blending wasn't subsidized.

I guess if it is Smithfield's economists, it must be coming directly from the company, then. Smithfield may want to invest, then, in better economists.

According to an April 2011 study issued by the Center for Agricultural and Rural Development at Iowa State University, only 14 cents or 8 percent of the increase in corn prices from 2006 to 2009 was due to ethanol subsidies. The study also found that without the ethanol subsidy, corn prices would have averaged only 4 percent less over the same period of time.

Finally, the article calls into question the value of ethanol to our Nation's energy supply. It states:

The ethanol industry would supply only 4 percent of the

nation's annual energy needs even if it used 100 percent of

the corn crop.

This is a straw man. No one is arguing that ethanol will replace our Nation's entire energy needs. Using just 23 percent of the corn crop, we are displacing nearly 10 percent of our Nation's foreign oil dependence. Domestic ethanol production ranks behind only the United States and Canadian oil production in terms of domestic transportation fuel supply.

It is obvious that Saturday's opinion piece in the Wall Street Journal was just another coordinated effort to undermine and scapegoat homegrown ethanol and America's corn farmers to help deflect criticism from big food producers. Make no mistake, Smithfield's CEO, Larry Pope, is concerned with only one thing--Smithfield's bottom line.

While companies such as Smithfield perpetuate a smear campaign to boost their profits, American farmers and alternative-fuel producers are working hard to produce a reliable and safe supply of food, fiber, and feed for the Nation and the world.

That is the end of my reaction to what he, Mr. Pope, said, but I would like to end by saying that the marketplace will take care of this. You know, 30 years ago when we started an ethanol program, we produced about 100 bushels of corn to the acre on average. Today, nationally, I think it is about 155 bushels of corn to the acre. In Iowa, I think it is about 168; the year before, it was 182.

People who are experts in genetics can say we will be able to double the production of corn over the next 50 years. That is one way we can solve this problem. The other way is that there is a massive amount of land in a lot of places on this Earth, and a great part of it is in West Africa, South Africa, and parts of East Africa, where, if people would establish law guaranteeing property rights, title to land, there would not be governmental disincentives to growing food, there would not be a cheap food policy--there would be a massive production of foodstuff in this world.

In the United States, we are going to continue to produce more. There are going to be 4 million more acres of corn grown this year than last year.

There are even some odd things being done because the price of corn is $7.

From the Des Moines Register, this headline, from a northern small community of Iowa: At the Whittemore Golf Club, the golf course is going to be plowed up and planted with corn. There are some extreme measures that will be taken here to respond to the demand for food or fiber or fuel.

Just remember, agriculture in America has the capability--the demonstrated capability to produce it all. We don't grow crops just for food. We have always grown for food and fiber, and for the last 30 years, food, fiber, and fuel. We can continue to do it, and we are going to do it successfully, and the consumers of America are not going to pay for it. In fact, if we do not continue to do that and keep the family farmer of the United States healthy and strong--and ethanol is a contribution to that--then we are not going to be able to meet the needs of our society.

I yield the floor.

Mr. President, I am pleased today to be joined by a number of my colleagues in introducing the Domestic Energy Promotion Act of 2011, an important piece of legislation that I believe is a good starting point in how tax policies for ethanol should evolve. I am joined in this effort by Senators Conrad, Johanns, Klobuchar, Franken, Tim Johnson, Harkin and Ben Nelson.

Over the years, I have supported domestic ethanol production as a means to improve the environment, reduce our dependence on foreign oil, increase our national security, and bring economic activity to rural America. Those efforts have undoubtedly been an enormous success. Domestic biofuels now supply more than 13 billion gallons of homegrown fuel, accounting for nearly 10 percent of our Nation's transportation fuel needs.

In 2010, Congress enacted a one-year extension of the Volumetric Ethanol Excise Tax Credit, or VEETC, also known as the blenders' credit. This 1-year extension has allowed Congress and the domestic biofuels industry to determine the best path forward for Federal support for biofuels. The legislation we are introducing today is a serious, responsible first step to reducing and redirecting Federal tax incentives for biofuels.

This legislation will reduce VEETC to a fixed rate of 20 cents in 2012, and 15 cents in 2013. It will then convert to a variable tax incentive for the remaining 3 years, based on the price of crude oil. When crude oil is more than $90 a barrel, there will be no blenders' credit. When crude oil is $50 and below, the blenders' credit will be 30 cents. The rate will vary when the price of crude is between $50 and $90 a barrel. When oil prices are high, a natural incentive should exist in the market to drive ethanol use.

It also would extend, through 2016, the alternative fuel refueling property credit; the cellulosic producers' tax credit; and the special depreciation allowance for cellulosic biofuel plant property. The bill would modify the alternative fuel refueling property credit to allow the credit for ethanol blends from E20 to E85. The credit would apply to 100 percent of the cost of the property, so long as dual-use pumps are used partly for alternative fuels. Finally, the bill would extend the ethanol import tariff, through 2016, stepping it down to 20 cents for 2012 and 15 cents for 2013 through 2016.

This legislation is a responsible approach that will reduce the existing blenders' credit and put those valuable resources into investing in alternative fuel infrastructure, including alternative fuel pumps. It would responsibly and predictably reduce the existing tax incentive, and help get alternative fuel infrastructure in place so consumers can decide which fuel they would prefer. I know that when American consumers have the choice, they will choose domestic, clean, affordable renewable fuel. They will choose fuel from America's farmers and ranchers, rather than oil sheiks and foreign dictators.

Some of my colleagues have argued that it is time to end the incentives for biofuels immediately and entirely. Not only is this bad energy policy, poor tax policy, and dangerous to our national security, it is also intellectually dishonest. I believe a discussion concerning our Nation's energy and tax policy should be debated in a comprehensive manner. Biofuels are not the only form of energy that receives incentives or supportive policies from the Federal Government.

How about the incentives for wind, oil, natural gas, nuclear, and geothermal? If the Senate intends to consider reforms to biofuels incentives, it should be in the context of a comprehensive review of all energy tax incentives. This bill is meant to serve as a first step in the process. This bill demonstrates a significant reduction in biofuels incentives over the next 5 years. I challenge my colleagues to find any other energy source that is contributing as much to our economy and energy supply that is willing to step up and do that in the current legislative debate.

Now is not the time to pull the rug out from under the only domestic renewable energy source that is making significant contributions to our energy supply. I thank my colleagues for their support, and I look forward to a comprehensive discussion to advance sensible, responsible energy tax policies.

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

Madam President, I have had the privilege over most of my tenure in the Senate of serving on the Finance Committee and working with a good Senate leader such as Senator Baucus. I now have the privilege of serving on the committee but not as ranking member or chairman, just as a member. I compliment Senator Baucus for his leadership on this whole business of tax reform and for holding the hearings he is holding.

Today, a very important hearing is being held on the question of is the distribution of tax burdens and benefits equitable. The topic of today's hearing--whether the distribution of tax benefits and burdens is equitable--is very appropriate and is a very important topic. However, I would argue there is a more important question we should be debating, and we should be answering this question: What is the purpose of the Federal income tax? We can't talk about whether taxpayers are paying their fair share if we don't know why we want them paying taxes in the first place.

We are in a situation now where people are talking about increasing taxes on higher income people because, supposedly, they can afford it. Probably they can afford it, but I get sick and tired of the demagoguery that goes on in Washington not just by Members of Congress but by too many people who think higher income people ought to be paying more taxes. According to the Joint Committee on Taxation's latest analysis, 49 percent of households are paying 100 percent of the taxes coming in to the Federal Government, while 51 percent are not paying any income tax whatsoever.

How high do taxes have to go to satisfy the appetite of people in this Congress to spend money? In particular, how high do marginal tax rates have to go to satisfy those clamoring for higher taxes from the wealthiest; how high

to satisfy you? And you know who you are.

There is an article by Investors Business Daily to which I want to refer. According to this article--not talking about the taxation of a certain amount of income--if the government confiscated all the income of the people earning $250,000 a year or more, that money would fund the Federal Government today for a mere 140 days. Do you know what you would have? You wouldn't have those people trying to maximize their income because why would they maximize it if the government was going to confiscate it.

So that is a very basic question: How high do taxes have to go to satisfy the appetite of people in this Congress to spend money?

Funding the government should be one of if not the primary goal of our income tax laws. Of course, that leaves out this whole business of whether the Federal Government's purpose is the purpose of redistributing income.

Note here that I am specifically focusing on the income tax. This is because payroll taxes are not used to fund the government. Social Security and Medicare taxes are, in fact, insurance programs. Because they are insurance programs, the taxes they pay are insurance premiums because individuals who pay them expect to benefit when they reach a certain age.

It is clear some believe the Tax Code should be used to reduce the growing income disparity between the lowest and highest income quintiles. This assumes a key objective of the Federal Government, through the Federal income tax laws, should be to ensure that income is distributed equally throughout our citizenry. In other words, these folks actually believe the Federal Government is the best judge of how income should be spent. That is not what our Founding Fathers or original authors of the tax laws intended.

In addition to considering the purpose of tax revenue, we ought to, in fact, have some principles of taxation by which we abide. These principles of taxation would be a much stronger foundation than the day-to-day decisions about whether we ought to raise taxes on a certain number of people. So I abide by the principle that has been a fact of our tax laws for 50 years--that an average of 18.2 percent of the GDP of this country is good enough for what the government needs to spend.

Now, I say that because with a 50-year average it hasn't been harmful to the economy, as we have seen this country expand and expand and expand economically over that period of time.

Quite frankly, it ought to be clear that 18.2 percent of the GDP of this country coming in for us to spend is not a level of expenditures that taxpayers have revolted against. So we take in that 18.2 percent for 535 of us to decide how to spend, and the other 82 percent is in the pockets of the taxpayers to decide how to spend or to save. If 535 Members of Congress were to decide how to divide up the resources of this country, we would not have the economic growth that we have had in our economy. With 137 million taxpayers deciding how to spend or how to save, and how much of each, the economic growth of this country is enhanced tremendously because of the dynamics of the free-market system. If we were going to go the greater route of increasing that 18 percent very dramatically, we would be moving increasingly toward the Europeanizing of our economy, and I think that would be very bad.

In evaluating whether people are paying their fair share, experts frequently look at whether a proposal improves the progressivity of our tax system. Critics of lower tax rates continue to attempt to use distribution tables to show that tax relief proposals disproportionately benefit the upper income. We keep hearing that the rich are getting richer while the poor are getting poorer. This is not an intellectually honest statement because it implies that those who are poor stay poor throughout their lifetimes, and those who are rich stay rich throughout their lifetimes. And that is just not the case.

To illustrate this point, I quote from a 2007 report from the Department of the Treasury titled, ``Income Mobility in the U.S. from 1996 to 2005.'' I quote the key findings:

There was considerable income mobility of individuals in

the U.S. economy during 1996 through 2005 period as over half

of the taxpayers moved to a different income quintile over

this period.

Roughly half of taxpayers who began in the bottom income

quintile in 1996 moved up to a higher income group by 2005.

Among those with the very highest incomes in 1996--the top

1/100 of 1 percent--only 25 percent remained in this group in

2005. Moreover, the median real income of these taxpayers

declined over this period.

The degree of mobility among income groups is unchanged

from the prior decade.

The prior decade meaning the prior study by the Treasury Department from 1987 through 1996.

Economic growth resulted in rising incomes for most

taxpayers for the period of 1996 to 2005. Median income of

all taxpayers increased by 24 percent after adjusting for

inflation. The real incomes of two-thirds of all taxpayers

increased over this period. In addition, the median incomes

of those initially in the lower income groups increased more

than the median incomes of those initially in the higher

income groups.

Therefore, whoever is saying--and we hear it every day on the floor of the Senate--that once rich, Americans stay rich; and once poor, they stay poor, is purely mistaken. The Internal Revenue Service data supports this analysis. A report on the 400 tax returns with the highest income reported over 14 years shows that in any given year, on average, about 40 percent of the returns were filed by taxpayers who are not in any of the other 14 years.

In other words, 40 percent of those people who are in the highest brackets are not in the highest brackets ever in that 14-year period of time. So once rich, not always rich.

I welcome this data on this important matter for one simple reason: It sheds light on what America is all about: vast opportunities and income mobility. Built by immigrants from all over the world, our country truly provides unique opportunities for everyone. These opportunities include better education, health care services, and financial security. But, most importantly, our country provides people with the freedom to obtain the necessary skills to climb the economic ladder and live better lives.

We are a free nation. We are a mobile nation. We are a nation of hard-working, innovative, skilled, and resilient people who like to take risks when necessary in order to succeed. Bottom line, we have an obligation as lawmakers to incorporate these fundamental principles into our tax system instead of just asking: Are the rich paying enough?

Madam President, I yield the floor.

Madam Presdient, it is with a solemn heart that I must honor the life and service of a soldier from my home State today, SSG James A. Justice of Grimes, IA. He was killed by enemy small arms fire in Kapisa Province, Afghanistan, at the age of 32. Staff Sergeant Justice died trying to rescue the crew of a downed helicopter that made a hard landing in Alah Say District, Kapisa Province, Afghanistan.

Staff Sergeant Justice has served in the U.S. Armed Forces since September of 1998. He was assigned to Troop A, 1st Squadron, 113th Cavalry, Camp Dodge, Johnston, IA. He was deployed to Kuwait as part of Operation Desert Spring in 2001, the Multinational Force Observer peacekeeping mission in the Sinai Peninsula, Egypt in 2003-2004, and Operation Iraqi Freedom in 2005-2006. He volunteered to deploy to Afghanistan in November of 2010. In Afghanistan, he was one of approximately 2,800 members of the 2nd Brigade Combat Team, 34th Infantry Division.

Staff Sergeant Justice is survived by his wife Amanda Jo and daughter Caydence Lillian; his father and mother Larry and Lillian Justice; a brother and two sisters; as well as many other family and friends.

Sergeant Justice's family remembers him as a caring individual who was proud of the work he was doing for his country. He wanted nothing more than to serve side by side with his brothers and sisters in arms. His fellow soldiers remember him as a charismatic, natural leader and an integral part of his unit's community. The loss of Sergeant Justice is one that will be felt not only by his family and loved ones but by the entire Iowa Army National Guard and all those that were privileged enough to have known him.

My thoughts and prayers are with the Justice family in this incredibly trying time. While words cannot express the debt that we as a Nation owe to Sergeant Justice and his family, I would like to take this time to remember the sacrifice that he made so that we can enjoy the freedoms that this Nation provides.

Mr. President, today, the Senate will confirm two more of President Obama's judicial nominees. I continue to work with the chairman of the committee to ensure nominees are afforded a fair but thorough process and in a timely manner.

Today's vote marks the 19th nominee to be confirmed in just 42 days the Senate has been in session this Congress. The Judiciary Committee is holding a nominations hearing on Wednesday. On Thursday we will report additional judicial and executive nominees to the floor. Thus far we have taken positive action on 43 of 63 nominees submitted this Congress, or 68 percent of all nominees.

Let me repeat that, because I am going to say something that makes it very disgusting to me, some things that are coming out of the White House. Thus far we have taken positive action on 43 of 63 nominees submitted to this Congress, or 68 percent of the nominees. With this progress, I was then surprised at the recent remarks of the White House Counsel before the American Bar Association members this past April 14.

This counsel addressed the group and complained about the pace of judicial appointments. He encouraged the group to escalate the general sense of urgency regarding judicial appointments. Press reports indicate that he asked them to play a larger role to ``bring home the impact or the effects of gridlock.''

So, Mr. President, not only do I think these remarks are unjustified, given the pace of confirmations this year--and that is the 68 percent I have referred to--but they also reflect a failure on the part of the White House Counsel to acknowledge where the problem begins. It begins with the President of the United States and his staff--the White House Counsel particularly.

This brings me to the point: If we are acting so slowly, why has the President failed to send to the Senate a nomination for 55 percent of the current judicial vacancies? This statistic certainly does not indicate any sense of urgency on the part of the White House, and it brings further attention to the intellectual dishonesty of the White House in its speech to the ABA members that we are not acting fast enough on the Hill.

Well, having said that, I want to say a few words about the two nominees we are going to be voting on today. Roy Dalton, Jr. is nominated to be U.S. District Court judge for the Middle District of Florida. Mr. Dalton received

his BA with high honors and his JD from the University of Florida.

Following law school, he joined the firm of Dean, Ringers, Morgan & Lawton as an associate where he later became a principal of the firm.

In 1982, the nominee founded his first law firm, Roy B. Dalton, Jr., P.A. He would later form other practices where he would serve as a principal. In 1999 he began working as ``of counsel'' for the firm Gray, Harris & Robinson, where his practice area grew to include civil litigation, government relations, appellate practice, and business practice for individuals. As a former Senate staffer, Mr. Dalton spent most of 2005 serving as counsel to his former legal partner and U.S. Senator, Mel Martinez. Mr. Dalton has also practiced in appellate matters as ``of counsel'' for the Carlyle appellate law firm, a post he has held since 2004. The ABA Standing Committee on the Federal Judiciary gave him the rating of: substantial majority ``Well Qualified''; minority ``Qualified.'' I am pleased to support Mr. Dalton today.

I also rise in support of Kevin Sharp to be U.S. District Court Judge for the Middle District of Tennessee. Mr. Sharp enlisted in the U.S. Navy following high school and received an honorable discharge in 1986. The nominee received his B.S. from Christian Brothers College and a J.D. from Vanderbilt University School of Law. He began his legal career as an associate with the firm of Stokes & Bartholomew. After a yearlong stint working as an attorney for the U.S. Congressional Office of Compliance, Mr. Sharp returned to Stokes, Bartholomew, Evans & Petree, eventually making partner. Since 2003, he has been a shareholder and partner at Drescher & Sharp, where he has focused his legal practice on employment, labor, and disability law. The ABA Standing Committee on the Federal Judiciary has rated him ``Qualified'' and I urge my colleagues to support this nominee.

I note that the vacancy Mr. Sharp will fill was created by the retirement of Judge Echols in March of 2007. A few months later, on June 13, 2007, President Bush nominated Gus Puryear to fill the vacancy. Mr. Puryear waited 8 months before he had a hearing. That was the last action the committee took on the nomination. His nomination languished in committee for another 10 months before being returned to the President in January 2009, at the end of President Bush's term. It is both unfortunate and unnecessary that this seat has remained vacant for so long.

I congratulate each of these men for their achievements and commend them for the public service they have given and that they will provide to the people of this country, and particularly to their respective States in the future.

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

Mr. President, it is with deep regret that I must inform the Senate about the passing of a soldier from my home State, specialist Donald L. Nichols of Shell Rock, IA. He was 21 years old. Specialist Nichols enlisted in the Iowa National Guard in March of 2008 and was assigned to the Iowa Army National Guard's Headquarters and Headquarters Company, 1st Battalion, 133rd Infantry, 2nd Brigade Combat team, 34th Infantry Division, based in Waterloo, IA. Specialist Nichols was killed by an improvised explosive device that struck the armored vehicle while he was patrolling in the Mehtar Lam District, Laghman Province, Afghanistan.

Specialist Nichols is survived by his mother Becky Poock; his father Jeff Nichols; his fiance Chelsey Bliss; two brothers, and many other family and friends.

The family and friends of Specialist Nichols remember him as a dedicated soldier who truly loved serving his country. His fellow soldiers remember him as a ``studious soldier who took his duty with zeal.'' Donald had decided that he wanted to join the Armed Forces even before he graduated high school. He showed a dedication to service that is typical of all of the men and women fighting for our Nation but one that is so rare in the common man. The memory of his sense of humor and his love for family, friends, and country will remain constantly with his loved ones.

SPC Donald L. Nichols will be missed by all that were privileged to know him and my thoughts and prayers go out to his loved ones in this incredibly difficult time.

Madam President, I ask unanimous consent for 5 additional minutes.

Since January, I have been investigating allegations from whistleblowers at the Bureau of Alcohol, Tobacco, and Firearms. The allegations I have received are shocking, but sadly they appear to be true. Praise the Lord for the whistleblowers in this government because we don't know where the skeletons are buried, and they help us to do our constitutional role of oversight and the checks and balances of government.

The ATF, which is supposed to stop criminals from trafficking guns to Mexican drug cartels, was actually making that trafficking of arms easier for them. That would be bad enough if it happened because of incompetence or turf battles, but it looks as if the agency was doing this on purpose. The government actually encouraged gun dealers to sell multiple firearms to known and suspected traffickers.

Two of those guns ended up at the scene of a murder of a U.S. Border Patrol agent in Arizona. His name was Brian Terry. His family deserves answers from their very own government. I have been fighting for those answers. I have written eight letters to the Justice Department. I have asked for documents. I have asked that specific questions be answered.

At first, the Justice Department simply denied the charges. Then one of the whistleblowers went on television. He risked his career to tell the truth on ``CBS Evening News.'' He had a sense of duty to Agent Terry's family and, in turn, to the entire population of this great country. He could not believe his own government refused to come clean and tell the truth when questioned by this U.S. Senator. He went public to set the record straight.

Other whistleblowers have confirmed what this whistleblower said. In fact, I received internal government documents that confirmed what he said. Anonymous patriots tried to ensure that the truth would come out. You know, that is about the only crime whistleblowers commit-- committing truth. Isn't that sad?

I forwarded many of those documents that I received clandestinely to Attorney General Holder and Acting Director Melson. I asked them how to square the denials from that Department with the evidence I have received both orally and on paper.

At Attorney General Holder's confirmation hearing--now 2 years ago--I told him:

I expect that you will be responsive to my oversight work

and that my questions and document requests will be taken

seriously. . . . I hope that I have your assurance that if

you are confirmed, you will assist me with oversight

activities, be responsive to my requests, and help me make

the Justice Department accountable.

Now, the Attorney General, who was the nominee at that time, responded:

I will try to do all that I can to make sure that we

respond fully and in a timely fashion to the very legitimate

questions that I know you have propounded to the Department.

But now, ironically, I have provided more internal documents to the Justice Department in this investigation than the Justice Department has provided to me. Now, instead of issuing denials, do you know what happened? It happens all the time when you are doing oversight work, with almost any agency. But in this case, the Justice Department has circled the wagon. They have clammed up.

The President of the United States admitted on Spanish language television that ``certain mistakes'' may have been made here in the instance of this investigation. He and Attorney General Holder say they didn't authorize a policy change that allowed criminals to walk away with guns. But there was a change in policy that went tragically wrong. The prophecy of a lot of whistleblowers turned out to be fact, sadly. So Congress needs to find out what did the highest senior officials know and when did they know it.

The purpose of the policy change was to go after leaders high up in the chain of command and bring down a drug cartel. Nobody can find fault with that. But prosecutors didn't want to just go after criminals who just lie on Federal forms to buy guns for trafficking; they wanted to go after the really big fish. The problem is this: They let so many little fish keep operating that between 1,300 and 1,700 guns got away. That is just in this one case in Arizona that I can document. Hundreds of these guns have, in turn, turned up in crimes on both sides of the border--some in Mexico and some in the United States.

Federal agents often have to walk a fine line in trying to catch the bad guys. They sometimes have to allow a crime to progress to make sure everyone involved in the conspiracy gets caught. I understand that. That can be

legitimate, but you have to look at it this way. It is very serious business. It is quite a gamble, you might say. There have to be careful controls in an operation like I just described. Law enforcement should not cross the line into actually assisting criminals just for the simple process of gathering information. Operations should be carefully focused on stopping crime without risking public safety. Seizing contraband and making arrests are the most important goals. Big, headline-grabbing cases to advance some prosecutor's career should take a backseat in any of these gambles.

Yesterday, I sent a letter to Attorney General Holder with some more documents. So I am sending the Department documents I would like to have them send me. These are documents that maybe the Attorney General himself didn't know about.

There are e-mails between a federally licensed firearms dealer and the supervisor in this Arizona case known as ``fast and furious.'' In one e-mail, the dealer raises, for a third time now, his concerns about how the case is being handled. This time, he was prompted by a story on FOX News about the growing firearms problem on our border with Mexico. The dealer wrote--and this is a long quote which I will start now:

The segment is disturbing to me. I shared my concerns with

you guys that I wanted to make sure that none of the firearms

that were sold per our conversation with you and various ATF

agents could, or would ever, end up south of the border and

in the hands of the bad guys. I want to help ATF with its

investigation, but not at the risk of agents' safety, because

I have some very close friends that are U.S. Border Patrol

agents in southern Arizona.

Now, maybe one of those friends, for all I know, was Agent Terry, and he got murdered--or at least we think he did--with one of these guns. These guns were at the scene, at least. That e-mail I quoted was sent to the supervisor of the case 6 months before guns from that case were found at the scene of Border Patrol agent Brian Terry's murder.

The government put these firearms dealers in a completely unfair position. Let me explain that. On the one hand, these gun dealers rely upon the Bureau of Alcohol, Tobacco, and Firearms for their license to even be able to be in business. So of course these dealers want to cooperate with the government when they have this big club hanging over their head: Will you be licensed or not? On the other hand, the government asks these gun dealers to keep selling to the bad guys even after the dealers warned it might end in tragedy.

I am going to do whatever it takes to get to the bottom of this. The House Oversight Committee has joined in my effort and issued a subpoena for documents because it might duplicate the process in the House.

I have not sought any subpoenas or hearings in the Senate Judiciary Committee yet. I have not exercised my right to object to any unanimous consent request on nominations because of this issue yet. However, I want my colleagues and officials at the Justice Department to hear this loud and clear: If that is what it takes, then I will take those actions. I hope it doesn't have to come to that. I hope the Justice Department will decide to cooperate and provide the information we need, doing our constitutional responsibility of oversight, to make sure the checks and balances of the system of government under our Constitution is working. It has been nearly 3 months since I first raised this issue. It is past time for the Justice Department to come clean.

I ask unanimous consent to printed in the Record a copy of this letter to Attorney General Holder.

How much time do I have?