Floor Statements

Mr. President, I ask unanimous consent that I be allowed to speak as in morning business.

The PRESIDING OFFICER (Mr. Kaufman.) Without objection, it is so ordered.

Kagan Nomination

Mr. President, I wish to speak on a very serious issue relating to the confirmation of Solicitor General Elena Kagan for the Supreme Court of the United States. As I was preparing for her hearings, I noted what struck me as a disturbing decision she had made as Solicitor General shortly after taking that position, in a case called Witt v. Department of the Air Force. In that case, a former member of an Air Force Reserve unit in Washington State sued the government to challenge the ``don't ask, don't tell'' law, which essentially says openly homosexual persons may not serve in the U.S. military. The case was dismissed by the district court, and the military was allowed to proceed with its policy. But when it was appealed to the Ninth Circuit, that very liberal court of appeals overturned the district court and said the case should go to trial and announced an unworkable legal test that the lower court must apply and that the government would have to meet for the ``don't ask, don't tell'' statute to survive constitutional challenge.

After that unprecedented ruling, the Solicitor General's Office, then manned by the Bush administration personnel, immediately authorized an appeal to the full Ninth Circuit, en banc, and the government asked the full court to take a look at it and overturn the three-judge panel. The full court of appeals declined to do so, over strong objections from several judges on the Ninth Circuit who thought their colleagues had clearly gotten the case wrong. In fact, the First Circuit in the Northeast had already reached a different conclusion in a very similar case, and had upheld the statute.

At that point, the government could have appealed the Ninth Circuit decision to the Supreme Court, as I think the Solicitor General's Office clearly was on track to do. First, they sought en banc review, and then they would seek interlocutory appeal to the Supreme Court. But as it happened, by

the time the case was ripe for appeal, the Obama administration had come into office and Ms. Kagan had become Solicitor General. She was now head of the office that makes this decision on whether to take cases to the courts of appeals or, if necessary, to the Supreme Court; the office that is charged with the great responsibility of defending before the Supreme Court the statutes passed by the United States Congress. Of course, don't ask, don't tell is a congressional statute, not a policy of the military. So it fell to her to decide whether to take the case to the Supreme Court. She refused.

I practiced law for 20 years--15 as part of the Department of Justice, as a U.S. attorney for 12 years--and I think I can make some commonsense evaluation of the judgments the lawyers made in this litigation. Ms. Kagan, at the time she made this decision, had only been Solicitor General--had only served in the Department of Justice-- for 6 weeks or so.

As I analyzed what I think happened, I asked some serious questions about why this Solicitor General failed to follow through on what appeared to be the direction of her predecessor. And I was struck by the distinct possibility that Ms. Kagan did not fulfill this fundamental responsibility of her office, which is to defend the statutes of the United States regardless of her personal policy views. So at the time of her confirmation hearing, just a couple of weeks ago, I asked her about this case and the facts that led up to it. I asked her to explain the decision, and I deliberately intended to give her time to explain it. Well, she took time, using notes for about the only time I saw in the hearing, and talked uninterrupted for about 10 minutes to explain how it was that she made the decision.

At the end of it, I thanked her for her answer and noted that I was going to have to review this because what she had done did not make good sense to me. I have to make a judgment. I am a Senator. I have to know whether the person who is being considered to sit on the highest Court of the land with a lifetime appointment--could serve 30, maybe 40 years on the Court--whether they understand that officeholders have duties and responsibilities that they cannot just fail to discharge, that they must do?

So I have conducted an examination, and I must say I am very troubled by what I have found about this case. I think the record shows that Ms. Kagan did not, in fact, fulfill her responsibilities in a good way and in a faithful way as Solicitor General and that she, in effect, violated a specific promise she made to the Judiciary Committee when she testified under oath during the hearing on her nomination a year or so ago to be Solicitor General. She had to be confirmed then and came before the committee.

Before I go further, I wish to provide some background. It is widely known by many that Ms. Kagan is personally opposed to don't ask, don't tell. She has been opposed to it for some time. While she was dean at Harvard, she blocked the military recruiters from the campus career services office because of her opposition to don't ask, don't tell. She called don't ask, don't tell ``a moral injustice of the first order.'' She spoke at a protest of students who protested while a military recruiter was in the next building, and she changed the Harvard policy from admitting recruiters to the career services office to denying them admittance, without legal authority, contrary to the law Congress passed and on which I worked, to force universities to treat our military men and women who come to recruit on their campus with the same dignity and respect as they would treat anyone else from some law firm who makes millions of dollars. At the recent hearing she openly admitted to me that her views remain the same about this statute.

When she came before the committee for the position of Solicitor General, she was specifically asked about this in written questions, in light of her strong opposition to this law. Congress passed three or four versions of the Solomon Amendment to finally require that colleges and universities treat our military on an equal basis, and some were forced to do so or lose Federal funding. She was specifically asked, in light of her strong opposition to this law, whether she would be able to defend it as the job of Solicitor General would require. This was not a mystery. We knew this matter was coming up through the courts of appeals and would be coming before the Solicitor General.

She was flatly asked: If you are going to take this job, as you have been opposed to this statute, will you defend it as you are lawfully required to do? Only the Solicitor General can represent the U.S. in the Supreme Court. If the Solicitor General does not defend an act of Congress, who will? There is no one else. So it was a good question.

She promised the committee under oath that she would, and she said that her ``role as Solicitor General would be to advance not my own views but the interests of the United States.'' Correctly stated.

She went on to say that she was fully convinced that she could ``represent all these interests with vigor, even when they conflict with my own opinions.'' She said her general approach to suits challenging a Federal law would be to make any ``reasonable arguments that could be made in its defense,'' and this would include ``challenges to the statute involving the don't ask, don't tell policy.''

A pretty specific promise. It was an important promise. I am sure had she not made that promise, even more people would not have voted for her confirmation.

She went on to say that she would ``apply the usual strong presumption of constitutionality to that law as reinforced by the doctrine of judicial deference to legislation involving military matters.''

As I mentioned earlier, it just so happened that immediately after she was confirmed it fell her lot to defend this very statute that she personally strongly opposed but that she had promised she would vigorously defend. She was given the opportunity to appeal to the Supreme Court from that terrible decision out of the Ninth Circuit, which refused to uphold don't ask, don't tell, and which ordered the military to go to trial in the middle of a war to justify the law under a newly-invented legal standard.

Faced with that choice, Ms. Kagan refused to appeal, decided to let the Ninth Circuit decision stand, and allowed this case to be sent back down to go through a trial. Clearly, to me, the military's interest was to have the issue decided as a matter of law--that this is a lawful policy and that they were empowered to carry it out in a lawful manner.

When I asked Ms. Kagan at her Supreme Court hearings recently why she blocked the Supreme Court review of the Witt case, she gave three reasons in her long answer. Some may have thought she gave a brilliant dissertation. She had notes, and she went through a long discussion.

First, she said she concluded, after conferring with her colleagues, that it would be better to wait to appeal to the Supreme Court until after the trial, because a trial would build a better factual record of the case. She said once the facts were better developed, the government might be in a better position before the Supreme Court.

Second, she said that allowing the case to go back to the district court would help the government in a future appeal because it would be able to show the Supreme Court just how invasive and ``strange'' were the demands of the Ninth Circuit that were being placed on the government in defense of the law.

I will say one thing: The Ninth Circuit demands were, indeed, strange and were utterly unworkable, as I will show.

Third, she said an appeal in the Witt case would have been ``interlocutory;'' that is, an appeal before the case had come to an end and before a final judgment had been rendered in the case. The Supreme Court prefers not to hear these kinds of appeals.

None of these explanations are credible. It is true that appellate courts, including the Supreme Court, prefer to hear appeals at the end of the case rather than in the middle, but that is a decision the Court can make for itself. It is not something the Solicitor General has to decide on the Court's behalf. And that consideration was clearly outweighed in this case.

I will note parenthetically that when the Third Circuit ruled on the Solomon Amendment, which required Harvard

and other law schools to allow the military equal access to recruit on campus, they took that as an interlocutory appeal and reversed the Third Circuit. That is exactly what should have been done here. The government had asked for an interlocutory appeal to the Supreme Court from the Third Circuit ruling that affected Harvard, and the Supreme Court agreed. It was a legal question, ripe for decision, and they decided the case. That is what should have happened.

Here we already had a split among the courts of appeals on this question. The First Circuit had already ruled as a matter of law for the government. The Ninth Circuit ruling squarely conflicted with the First Circuit, and it was also at odds with decisions from four other circuits on similar principles. Here we also had an opinion from the Ninth Circuit that presented clean questions of law--an opinion that had dramatically altered the legal landscape in 40 percent of the United States, because the Ninth Circuit encompasses 40 percent of the United States, and that was proposing to subject the military to an invasive trial process, while fighting a war, to defend the application of a nationwide military policy to an individual person.

Ms. Kagan's second explanation--that letting the case go to trial would allow the government to show just how painful a trial would be-- cannot be given serious consideration. The Ninth Circuit opinion was very clear about what the government would have to show in order for the don't ask, don't tell law to survive this lawsuit. In other words, one didn't have to go through all these steps at the lower court and show how dramatically disruptive it would be. The Court had set forth explicitly what would happen. It is easy to show the Supreme Court why this is not a workable approach.

The Ninth Circuit made it very clear in their opinion that the government was going to have to justify the application of don't ask, don't tell to this specific plaintiff--not justify the law in general but to justify its application to this specific plaintiff--to prove that this specific plaintiff was going to harm the military if she were allowed to remain in the Air Force. It was also clear that such a trial was going to be disruptive to the military and that it would harm the unit cohesion Congress had set out to protect when it passed the don't ask, don't tell law in 1994.

I am not alone in reaching this conclusion. Her predecessors in the Department of Justice and in the Solicitor General's Office, the office she took over, also knew the court orders did not make sense. That is why they immediately asked the full Ninth Circuit to reconsider en banc the three-judge panel's ruling when it first came down in 2008.

They said in their brief that the Ninth Circuit decision ``creates an inter-circuit split.'' That means the First Circuit had held differently. The Ninth Circuit held a different way. We had a split of circuits which is something the Supreme Court considers when they decide to take a case.

They went on to say it created ``a conflict with Supreme Court precedent, and an unworkable rule that cannot be implemented without disrupting the military.''

The Ninth Circuit's decision, they went on to say, made the constitutionality of a Federal law setting military policy for the entire Nation ``depend on case-by-case surveys, taken by lawyers, of the troops in a particular plaintiff's unit.'' They went on to say that immediate review was ``needed now to prevent this unprecedented and disruptive process.'' That is exactly correct. The lawyers who made that argument were clearly correct.

Most importantly, Ms. Kagan's decision to send this case back for trial and not appeal doesn't make any sense because she knew a trial was going to be massively disruptive to the military. I have studied the record of the case on remand to the district court, and I have seen what has been going on since it was sent back to be tried on an individual plaintiff basis. The lawyers for the government are struggling to defend the law under these difficult circumstances. From the very first hearing before the district court, these lawyers, career lawyers, professionals in the Department of Justice, are asking the court not to allow discovery, not to allow the plaintiff to depose the soldiers and plow through all these issues in the military unit.

Here is what the career attorney for the Department of Justice said at the first hearing before the district judge after the case went back down for this trial:

If we commence with discovery into the specific facts of

this case by looking at what unit members think, we are

threatening--we are jeopardizing the unit morale and cohesion

. . . that the Ninth Circuit said the government--the

military--has an important government interest in.

So the military is in a bit of a catch-22. By proceeding to

discovery, we may well have to sacrifice our important

government interest.

Remember, Ms. Kagan told the Judiciary Committee--she told us just a few weeks ago--that ``building a factual record'' would be good for the government's case. Remember? I just went through that. That is what she said--it would be good. We would have a better prospect on appeal somehow. Here, the career lawyers trying to defend the military are saying that building a factual record is bad for the government because the discovery process will threaten the military's interest in unit cohesion.

As a matter of fact, I will say as an aside that I think it is quite clear that if the Ninth Circuit theory of law were to be upheld, the ``don't ask, don't tell'' policy would be put in the situation where it would be difficult, if not impossible, to enforce because everybody dismissed under that policy would then be able to have a big trial. It could go on, as this one has, for months, and they would be able to call all the unit members to ask their opinion about what they thought about this, that, and the other, even about their personal sexual activities, perhaps. This is not a practical solution. It is bad for the government. How Ms. Kagan could now say it would be good for the case, I do not know.

So clearly the career lawyer is right. The plaintiff in this case, who is represented by lawyers from the ACLU, has asked for and received access to the personnel records of the plaintiff's military unit. So now the ACLU has the personnel records of the entire unit, it appears. They have demanded depositions with other soldiers who served with the plaintiff before she was separated from the military. They have demanded the right to interview soldiers about their private lives, their personal views of their former colleague, and their private thoughts about sexuality.

The district court has wrongly, I believe--well, I will just say it this way: The district court has allowed it at every turn because the district court says this is the only way to answer the questions the Ninth Circuit ordered them to answer before a person could be dismissed under this provision of law.

But this is not just a case of bad--astonishingly bad--legal judgment. I do not think Ms. Kagan accidentally sent her client, the U.S. Air Force, into a litigator's lion's den. I do not think it was an accident. I believe she understood this was going to happen and, for some reason, she wanted it to happen.

In the very first hearing the district judge held after Ms. Kagan refused to appeal to the Supreme Court and the case was sent back for trial, the plaintiff's lawyers argued they needed to get all this discovery in the case, and they made a very interesting statement to the district judge. They said this:

[T]he government just doesn't want any discovery. I have

heard that message from the government clearly--loud and

clear. [We] were asked to meet with the Solicitor General of

the United States in April, and we heard that message loud

and clear that discovery is a big problem; but we never heard

any specifics as to why, and it boils down to they don't like

the Ninth Circuit's decision.

So apparently back in April 2009, Ms. Kagan acknowledged what I think is indisputable: that discovery of this kind, where soldiers are deposed and asked about their personal views and activities, would be disruptive to the military and bad for her client, the Air Force. That is just undisputable. She was the Solicitor General then and acknowledged that.

Her decision to block an appeal to the Supreme Court was finalized in May of 2009. So before she made that decision, it does appear Ms. Kagan met with the opposing counsel in the case--the ACLU lawyers--and told them that ``discovery is a big problem.'' In other words, she told these ACLU lawyers for

the other side, who were trying to attack the military policy, that developing a factual record in this case would be bad for the government. But she told us at the committee that she thought it was going to be good for the government.

She knew in April of 2009 that a trial would be harmful to the interests of her client, but she made sure the case went back for a trial anyway. She knew that discovery would be harmful to the government's interests, but she told the Judiciary Committee, just 2 weeks ago, under oath, that she decided not to allow an appeal to the Supreme Court because she thought ``it would be better to go to the Supreme Court with a fuller record'' that would be developed at trial.

I do not know how to reconcile her testimony with the record in the case. I do not think it can be reconciled.

During this nomination process, I have expressed my concern about Ms. Kagan's record as a political lawyer--someone who has advanced a specific agenda as an adviser in the White House and someone who says she was ``channeling'' the Justice she clerked for on the Supreme Court when she encouraged him not to hear certain cases because she did not think a majority of the Court would rule the way she and her boss would like. But I do think this big decision she made as Solicitor General is, in many ways, more concrete proof--and from just a few months ago-- of the reason for our concerns that this nominee will have difficulties, and maybe find it impossible, to set aside her political views and decide cases objectively and fairly.

Faced with the hard task and the solemn responsibility of defending the laws of the United States--after having promised the Judiciary Committee under oath that she would be able to uphold that responsibility, even as to this specific law she personally opposes--I am forced to conclude that Ms. Kagan did not live up to that promise and did not fulfill a solemn duty of the Solicitor General of the United States.

This is not a statute, in my view, that is likely to be overturned by the Supreme Court. In fact, we know the law's opponents, in another case, did not want to see their case be appealed to the Supreme Court. Why? They felt they would lose, in my opinion.

Let me talk about duty. Maybe that is a bit old-fashioned today. But Ms. Kagan should not have had to make a promise before the committee that she would defend this law. It is a duty of every Solicitor General to defend the laws of the United States, whether they like them or not, whether they think it is a good idea or not. Who cares what they think? They have a responsibility. They are confirmed to a position high in the Department of Justice--the position that empowers her to appear before the Supreme Court and state the position of the United States. Indeed, the Solicitor General's job has often been called the greatest lawyer job in the world. Why? Because the Solicitor General has the honor to stand before those Justices and say: I represent the United States of America. What greater honor can someone have than that, to represent this great Nation before the Nation's highest Court? Much is expected of them.

So I say she did not have to make a promise to defend this statute. It was her duty, whether she liked it or not. And it does appear--I do not see how we can draw any other conclusion--that she did not like this law and that her strategy in the case was to not get a definitive Supreme Court ruling on the constitutionality of the statute and to allow these proceedings to be dragged out in lower court and to maybe influence Congress as to whether it repeals this act. I do not know. Certainly, she despised this law. She opposed it. She wrote briefs at Harvard attacking the Solomon amendment that said that Harvard Law School had to give the military equal treatment on campus and that access could not be denied simply because she did not agree with don't ask, don't tell, which is what she was doing at Harvard.

The result of her decision showed she was willing to allow the ACLU to prowl through the our airmen and soldiers in units throughout the Ninth Circuit--covering over 40 percent of America--turning those units upside down, harming the discipline and order of those units and damaging to the military. I do not see how it can be considered otherwise.

I think it was an abdication of her duty. We are Senators here. We are elected. We have one vote. And I know our nominee was articulate and had good humor and many thought she did very well with her testimony. I was not so impressed. But I do believe you have to fulfill your duty and your responsibility, particularly after you have explicitly promised to do so with regard to this specific case, and defend the law even when it runs contrary to one's own personal views.

What if the person is now confirmed to the bench for 30, 35 years? If she were to serve as long as the judge she is replacing, I think she would serve 38 years on the Supreme Court. We have to know before they are launched forth on the Court that the nominee has the ability and the character and the integrity to defend the legal system in a proper and effective way.

This nomination is further complicated by the fact that our nominee has no experience in the real practice of law. Our nominee has never tried a case, never stood before a jury, to my knowledge, never cross- examined a witness in a trial. She never had to deal with a judge who is not feeling good, maybe irritable one day, or dealing with lawyers on the other side who are clever and tough. That is something you learn. She has never been a judge. Well, they say, that is not necessary; some great judges haven't been judges. Of course, that is true, but she has never been a judge or a real lawyer. That bothers me. Then when I see the kinds of things I am seeing here, it makes me pause, frankly. I hope all of my colleagues will look at this and take it seriously.

There are other examples of positions taken by this nominee as Solicitor General and at Harvard that are very troubling. I think the evidence shows a lack of a clear understanding of the importance of the rule of law in our country. President Obama has said he wants judges with empathy. I don't know what he means by empathy. That is not a legal standard. It is something other than law. It is more akin to politics or bias than law. He has said he wants a nominee who will demonstrate that they, in the course of their duties, will have a broader vision for what America should be. Does that mean a judge gets to manipulate the meanings of words in statutes and in our Constitution to promote this vision that they have? Were they elected to promote any vision? I don't think so. I think a judge should be a neutral umpire who puts on that robe to evidence a commitment to impartiality and call the facts of the case as they see them, faithfully following the law and faithfully finding the facts of the case. That is what a judge is all about.

I am very concerned that our nominee, whose background has been more political. Her testimony to me was too much akin to White House spin than to a clear and intellectually honest explanation of what the law and facts are in complicated situations. I didn't feel good about it. Maybe others did, but I did not.

So those are concerns I have. I hope my colleagues will specifically look at the don't ask, don't tell matter. I think it raises questions about whether the nominee should be confirmed.

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

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

Mr. President, the week before last, we had the hearing on Elena Kagan for her nomination to the U.S. Supreme Court, which is a tremendously serious and important position. Five members of the Supreme Court--not just nine but only five--can redefine the meaning of words in our Constitution and really alter, in many ways, the very structure of our government. We have seen activist judges that I think have tended in that direction, and it is dangerous and harmful because judges are given lifetime appointments. They are not accountable to the public. They are protected. Even their salaries are not reducible while they serve in office. So we have to know and believe they will be neutral, impartial, unbiased, and will render judgments based on the law and the facts and not on any preconceived commitments they may have had.

Ms. Kagan is now the Solicitor General of the United States. She has taken some sort of leave of absence in recent weeks since this nomination occurred, but she holds that title. The Department of Justice Solicitor General represents the U.S. Government in Federal court, usually before the Supreme Court, and in important cases before the courts of appeals and often is involved in setting legal policy for the United States and helping to advise on that. So it is important that the American people know, before she is confirmed--if she is confirmed--that she has not been involved in matters that would bias her and cause her not to be able to serve impartially under the law and under the Constitution of the United States. That is an important question.

The day before yesterday, I believe, the Wall Street Journal had an editorial entitled ``Kagan and ObamaCare'' in which it raised questions about the objectivity she might bring to the Court and whether she had been involved legally in the discussions or drafting the ideas concerning the development and promotion of the health care reform bill so massively affecting health care in America. It raised the question: Should she recuse herself if that comes up, if she has been involved in that? I think that is a very important question.

The seven Republican members of the Senate Judiciary Committee wrote yesterday and asked Ms. Kagan to give detailed explanations as to what extent she may have been involved in any discussions regarding the promotion or legality of the health care reform bill. I think we are entitled to that. It is an important matter.

I see my friend Dr. Barrasso on the floor, who has been a great expert in our debates on health care reform. He has repeatedly explained how this legislation will impact health care throughout America. As a physician, he understands that, and he has been able to explain it to us in ways that any of us should be able to understand. In fact, he gave us some very serious warnings about the fact that the promises made for this legislation were not legitimate, weren't real, weren't accurate, and in study after study and report after report that has come out, Senator-Dr. Barrasso has been proven correct. The warnings he gave us that it is not going to reduce costs and that other difficulties will arise have been proven true--too much, in fact--and it is a matter of real seriousness.

So I guess I wish to say that a judge should recuse himself or herself if their impartiality might reasonably be questioned on any matter that came before them.

I believe Dr. Barrasso has raised previously his concern about what it really means if the U.S. Government tells an individual American citizen who is minding his own business that he has to have an insurance policy. I will recognize him at this point and ask him to at least share his thoughts on that important issue and why he believes having a fair judge on the Supreme Court is important.

Mr. President, let me ask the Senator, on that question, are the American people right or are the people who promoted this bill right? Are costs going up and is the quality of health care going down? What is the Senator's opinion?

This is a fundamental question. The Constitution gives the U.S. Government the right to regulate interstate commerce, that is true. The Supreme Court, at times, has taken a most minimal effect on interstate commerce and says the Federal Government can regulate it. But I am not aware of a circumstance in which an individual in Wyoming, or Alabama, minding their own business and not participating in an interstate commerce health insurance policy in any way, and the Federal Government waltzes in and says you must participate in this in interstate commerce--you are not participating in it and they require that you do participate in it.

If you believe--and there is only one view--that the Constitution is a government of limited power, it has only powers that are delegated to it--and they are enumerated powers--then have we crossed a divide here that we have not crossed before. That is why these lawsuits are being filed. They are very real. The one in Florida may be farther along than most of them; it is already out there. Ms. Kagan, at this very moment, sits as a Solicitor General of the United States--in title, if not fully acting--and was, I think, before this lawsuit was filed fully acting, and it impacts the Federal Government. The question we have asked that I think must be answered by her is exactly what kind of relationship and discussion she may have had concerning this legislation.

First, I ask Senator Barrasso--and not being a lawyer can be a benefit in this body, but I assume from the tone of his comments that he is a little uneasy that this high official in the Obama administration--an administration that has committed the whole of its resources to the passing of this legislation--is now about to rise to the Court and would be asked to decide what could be a deciding issue of whether this health care bill stays law or is struck down. So without the niceties at this moment on recusal issues, does that make the Senator nervous?

Well, I think that is exactly correct. I will say that whether or not being a high official in this administration, which is so committed to passing this legislation, whether that in itself legally requires a person to recuse themselves on the Supreme Court from hearing such a case, I am not prepared to say at this moment, but it makes me uneasy.

I believe a judge who decides that question must be impartial and cannot be corrupted by friendship or empathy or bias in favor of the person who appointed them. That is important.

Secondly, I ask Senator Barrasso, our question goes to a more specific situation that could mandate recusal, and that is whether the nominee has participated in any discussions, strategies, or making legal advice designed to promote this legislation. I think that would be a clear situation that would require recusal.

Also, specific questions could come up regarding to what extent have these lawsuits that have been filed affected her and has she expressed any opinions concerning the lawsuits.

Finally, I do not believe the President is entitled to launch onto the Supreme Court a political loyalist who will be a legal rubberstamp for anything that gets proposed, whether it is the takeover of AIG or of automobile companies or other things that may be decided. I think we need to be careful about this.

This nominee needs to answer those questions because what the Senator is hearing is what I hear.

I believe that is correct. The standard is, among other things, if your impartiality might reasonably be questioned--and many judges are very sensitive about this--if you own a bunch of stock and you have one share in a big company like GE, and a case involving GE comes before you, you are expected to recuse yourself, even though it is unlikely to have an impact on your finances. But it doesn't look good.

I think we are entitled to know how sensitive this nominee is going to be to the dangers of her impartiality being questioned, even if her actions are not such that clearly, as a matter of judicial ethics, mandates her recusal. I think we need to talk about that, and I feel like the American people that we meet with, who are concerned about governmental overreach, who wonder if we have lost all sense of the limited power of this government in Washington, I believe those people are entitled to have absolute confidence that

anybody confirmed to the Supreme Court will not sit on a case if they can't be impartial, or if their impartiality could even reasonably be questioned.

I thank the Senator for his leadership on the issue, and I am glad we had this colloquy. I hope we are going to get a complete answer from the nominee soon about any involvement she may have had explicitly, and then to perhaps also inquire further about to what extent she will be prepared to not participate if her impartiality can be questioned.

I think that is correct. I appreciate the way the Wall Street Journal expressed that. I think that is a legitimate position. I hope the nominee will take very seriously those concerns and will respond promptly to the questions we have asked of her.

I ask unanimous consent that the Wall Street Journal editorial be printed in the Record.

I thank my colleagues for their remarks. It is worthy of all of us giving most serious consideration. Perhaps we have been too silent in failing to criticize some of the activities of Russia. We want to be friends with them, but good friends tell friends the truth. I believe my colleagues are speaking the truth.

Mr. President, the Judiciary Committee is now reviewing the record of Elena Kagan, President Obama's nominee to the Supreme Court. The truth is, her legal record is thin. She has never been a judge and has very limited experience even in the practice of law. She has never tried a case, never cross-examined a witness or made a closing argument in a trial.

A lack of judicial experience is not a total disqualifier for the job of Supreme Court Justice, but it is true and fair to say this nominee has less real legal experience than any nominee confirmed to the Court in the last 50 years. That fact concerns me and many Americans. Ms. Kagan's lack of experience puts even greater emphasis on the central question in the nomination process: If confirmed, what kind of judge will Elena Kagan be? Will she take the traditional view that judges are impartial umpires who decide cases based on the rule of law under the Constitution? Or is she from the activist school, which teaches that judges may take sides and reinterpret the meaning of our laws to advance certain political agendas the judge may find acceptable or desirable or better? Are judges empowered to do that in the American system?

The American people have a right to know. This is no time for a stealth candidacy to the Court. We know one thing. We know her political views are leftist and progressive. That is clear from her record. She has a rather extensive political record. But with no judicial record and little legal record, clues to Ms. Kagan's judicial philosophy can be found perhaps by looking at people she admires, her mentors, judges she thinks represent the best way of conducting their office.

The three judges Ms. Kagan most often mentions are Judge Abner Mikva, Justice Thurgood Marshall, and former Israeli Judge Aharon Barak. Together I think it is fair to say these three judges represent the vanguard of a judicial activist movement that has certain intellectual roots and is quite afoot in our law schools and some of our legal commentators.

Each of these judges affirms the concept that a judge's own views, their personal views, may--sometimes even should--guide their interpretations of the law. In effect, this philosophy argues that the outcome of the case is more important than the legal process that guides the decisions, more important than fidelity to the Constitution. These Kagan heroes believe judges should have the power to make law. This results-oriented philosophy raises questions about whether Ms. Kagan may see judicial power as a way to advance her philosophy. It is a liberal, big government agenda for America. She has been active in that philosophy throughout her lifetime.

Let's look at some of her heroes in more detail. Judge Mikva is someone with whom she has been close. He was appointed to the bench by President Carter a number of years ago to the DC Circuit Court of Appeals.

She clerked for Judge Mikva in 1986 and 1987 and later worked for him in the Clinton White House. After he had resigned from the bench and came into the Clinton White House, she was hired to work with him in that office. On the day she accepted President Obama's nomination, Ms. Kagan noted that Judge Mikva ``represented the best in public service'' and that working for him was part of the ``great good fortune'' that had marked her career. He served five terms as a Congressman from Chicago, where he earned the reputation as ``the darling of American liberals.'' He has advocated for strict gun control, reportedly referring to the National Rifle Association as a ``street-crime lobby.'' He was a fierce opponent of the war in Vietnam and has said he supports the results in Roe v. Wade. The results.

Regarding how to interpret the Constitution or statute, Mikva has said that for ``most law, there is no original intent.'' The general view is that one should find out what the law was intended to mean when it was passed.

Some people dismiss that and are cynical about that, think that is an impossible goal. That is what Judge Mikva apparently believes. He has defined judicial activism as ``the decisional process by which judges fill in the gaps'' in the law and the Constitution. That is similar to President Obama's theory--which I think is flawed--that for ``the five percent of the cases that are truly difficult,'' the judge's decision depends on ``the depth and breadth of one's empathy.''

So the critical ingredient is supplied by what is in a judge's heart. Whatever a heart is, it is not the mind and it is not, therefore, objective judgment. It is more akin to something else. I have said this kind of thinking is more akin to politics than law. It is certainly not law, not in the American tradition of law.

Ms. Kagan also clerked for Justice Thurgood Marshall, whom she refers to as her hero. Indeed, Marshall is a historic figure. He was courageous at a time when courage was definitely needed and an effective leader in the civil rights movement. He was a great attorney and a fierce advocate for his clients and his ideals. He could be a hero of anyone as an American advocate and a person who played a fundamental role in the breakdown of segregation in America. But he also became one of the most active judges on the Court in our Nation's history.

In describing his own judicial philosophy, Marshall said that ``[y]ou do what you think is right and let the law catch up.'' He dissented in all death penalty cases because he and Justice Brennan declared the prohibition of ``cruel and unusual'' punishment that is in the Constitution barred any death penalty.

That might sound plausible in one sense. But in truth, this can never be a fair interpretation of the cruel and unusual clause in the Constitution, since there are multiple references in the Constitution to the death penalty and how it should be carried out.

How could you possibly construe the document as a whole to say that ``cruel and unusual'' prevents the death penalty? Well, they did not like the death penalty; Marshall and Brennan did not. They thought it was wrong. They thought the world had developed and moved forward to a ``higher land'' and they were just going to declare it and the law would follow.

Well, according to Kagan, in Justice Marshall's view, ``constitutional interpretation demanded . . . that the courts show a special solicitude for the despised and disadvantaged.'' Certainly the courts should be sure that the despised or disadvantaged have a fair day

in court. But the way this plays out, I believe, as suggested in the full remarks, is that it untethers the judge from the rule of law. I think it contradicts, in fact, the sworn oath of a judge, which reads ``I do solemnly swear that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me under the Constitution and laws of the United States, so help me God.'' Even so, Ms. Kagan said that showing ``a special solicitude'' for certain groups was Marshall's ``vision of the Court and Constitution. And . . . it [was] a thing of glory.'' Well, it certainly represents a great vision for an advocate, but I do think we need to be sure that the judge who puts on the robe is going to follow their oath to be impartial and to decide matters based on the law and facts.

But, interestingly, the judge Ms. Kagan praises the most happens to be perhaps the most activist judge on Earth: Aharon Barak, the former president--or chief justice--of the Israel Supreme Court. The respected Federal judge Richard Posner flatly described Barak as a ``judicial activist.'' Elena Kagan described him as her ``judicial hero.''

To judicial activists around the world, Aharon Barak is an icon. After inviting him to Harvard, Ms. Kagan called him ``a great, great judge'' who ``presided over the development of one of the most principled legal systems in the world.'' Her comments are troubling to anyone who believes in limited government and democracy and a limited role for judges. Under Barak, the Israeli court assumed extraordinary governmental power over the people of Israel. The basic democratic rights we take for granted in our country were ignored in his actions. The unelected court in Israel assumed the authority to set aside legislation and executive actions when there were disagreements about policy--not violations of the constitution, but disagreements about policy. It would alter the meaning of enacted laws and override even national defense measures.

Judge Posner wrote that Barak inhabits ``a completely different--and, to an American, a weirdly different--juristic universe.'' He goes on to say: ``What Barak created . . . was a degree of judicial power undreamed of even by our most aggressive Supreme Court justices.'' Judge Posner compared Barak's actions to ``Napoleon's taking [of] the imperial crown out of the Pope's hands and crowning himself.''

Well, is that what we want in the Court? Do we want someone who sees this judge as one of the most admirable judges in the world? Do we want to allow a disregard for the limits of governmental power to further infect our own government? Is that disrespect for the views of ordinary men and women something to which we should aspire? In other words, do unelected, lifetime judges, who are unaccountable to the people--are they entitled to this kind of power? Is this progressive idea that ``experts'' know best consistent with the American view of individual responsibility and popular sovereignty? I think not.

What is Judge Barak's judicial philosophy, as he expresses it? He has written that a judge's role ``is not restricted to adjudicating disputes'' between parties, as is required by the cases and controversies clause of our Constitution. Rather, he says:

The judge may give a statute new meaning. . . .

``The judge may give a statute new meaning''--

a dynamic meaning, that seeks to bridge the gap between law

and life's changing reality without changing the statute

itself. The statute remains as it was, but its meaning

changes, because the court has given it a new meaning that

suits new social needs.

Well, I would say that Justice Barak let the cat out of the bag. In America, activist judges firmly deny this is what they are doing, but in reality, often that is exactly what they are doing--just taking plain statutes and giving the words new meaning and making them say what they would like for them to have said had they written them in that given period of time.

I believe that to the American people, those words, are offensive and strike at the heart of our democracy. I do not know how you would describe that philosophy, but I do not think it is law, not the law in the great American English tradition of law, a tradition that has attracted people all over the world because they believe they have an opportunity to achieve justice here. Again, I think it is more akin to politics, which should not be a judge's role. There is no place for politics in the courtroom.

Perhaps we should not be surprised that Ms. Kagan--President Obama's nominee--so greatly admires someone who endorses a results-oriented approach, however, because President Obama's Press Secretary, Robert Gibbs, just recently described the President himself as ``results- oriented'' when it comes to law and judging. Amazingly, Gibbs said this about President Obama's view of judging:

The president is a very pragmatic person who is far less

wedded to the process and the mechanics of how you get

something done and more wedded to what will the results be.

He is results-oriented, Gibbs said. What do we mean by ``results- oriented''? Results-oriented judging can only mean that a judge enters the courtroom with a preconceived idea of what the results should be, even before he has reviewed the law or heard the facts of the case. And what kinds of conclusions do they have in mind before the trial starts? Well, it is based on the judge's political views or personal feelings about parties or issues in the case. What else could they be? He or she might suggest that those views are somehow provided to them as knowing better than anyone else and that they, therefore, have a duty to impose those ``wise'' ideas on the people and the parties in the case. But I think most of us are not so willing to acknowledge judges are any wiser than anyone else. And what if the Constitution does not support such a result? The judge simply would then declare the law to mean something other than it says.

So that is the philosophy, I contend, that has been endorsed, frankly, by the President. I fundamentally disagree with his philosophy, which is also a philosophy shared by the heroes of Ms. Kagan.

This nominee has a very slim legal record, and it is difficult to evaluate that. She does have a very clear liberal political record. What legal record she has seems to be outside the concept that a judge must serve under the law and under the Constitution.

So it is fair to ask, Does she agree with her heroes? Does she agree with her President? Does she see her lifetime appointment to the Court as an opportunity to promote ideas she desires and then let the law catch up? To that question, we cannot simply accept a confirmation testimony: I will follow the Constitution. Too often, nominees have testified before the committee like Chief Justice John Roberts and gone on to rule more like Aharon Barak. Lipservice to the rule of law is not enough. Activists who have a postmodern view of the law think the Constitution really has no set meaning, there is no way to honestly interpret what it means. So it is easy for them to promise to follow the law because the law, to them, is something that can be changed. It is malleable. It is inexact. It is not finite. They can make it say what they want it to say.

So the question is, Is that the approach Ms. Kagan will take at the hearing? And is that her basic philosophy of judging? She has written that judges should be forthcoming at the confirmation process, and I think we will need to talk about those issues. It is an important confirmation. It is not a coronation. This is a lifetime appointment. This young nominee could easily serve for more than three decades. Indeed, the man she is replacing is--if she lives to his age and serves to his age, she would serve 40 years.

So I think she is entitled to fair and respectful treatment. She is entitled to have an opportunity to discuss and respond to the questions I have raised and others will raise. That is absolutely true, and we cannot use unfairness to besmirch a nominee. But we do need to know: Is this her philosophy of law? What kind of judge will she be? Isn't it true that a person's heroes tell a great deal about who they really are? Few would dispute that these heroes of hers represent three of the most well-known activist judges in the world. So I think the questions are important.

As I have said before, I will oppose--and every Senator should oppose--any

nominee who does not understand and fully accept that their duty is to serve, as the oath says, ``under the Constitution and laws of the United States.'' That is why I think it is only fair to state these concerns before the hearing. I hope my colleagues will be following it. I know our committee members are working hard. It is being a bit rushed, but we are doing our best to be ready next Monday to commence the hearing. I think it will be a good time. I look forward to it, and I hope people who see it will feel as if it was fairly conducted and beneficial not only to Senators, who must vote, but to the American public at large.

I thank the Presiding Officer and yield the floor.

Mr. President, how much time remains on this side?

Mr. President, since Ms. Kagan was nominated, President Obama and his administration have attempted to defend not only her discriminatory treatment of the military at Harvard but to do so through misleading and even untrue statements. Indeed, Vice President Biden said Ms. Kagan's policy was ``right,'' and he suggested she was merely following the law, both of which were not correct.

The recent statements made by the White House after the release late Friday of relevant records on this matter are most troubling. The records not only prove Ms. Kagan deliberately obstructed military activity at the Harvard campus during wartime, but they reveal her actions were even more concerning than previously known. The White House continues to insist she worked to accommodate military recruiters--which is just the opposite of accurate--that she assiduously worked to follow the law--not so--and to ensure that Harvard law students could choose a career in the military service. Well, I guess they could, but she certainly was not furthering that opportunity.

The documents revealed late Friday night show these statements are not accurate and really seem to be part of a campaign to rewrite what happened there. The documents show that Ms. Kagan reversed Harvard's policy--which allowed the military to come and recruit, as any other group would--without basis or notice, in order to block the access of the recruiters, not to accommodate them. That is not disputed. It shouldn't be disputed.

The documents further show that she defied Federal law, forcing the Department of Defense to use its authority to bring Harvard into compliance. They had to threaten to cut off Harvard's money. They showed she did not ensure access to military careers and recruiters, but that the Office of Career Services prevented the military from even posting job openings on campus. They show that she sanctioned a demeaning second-class entry system for the military that the Department of Defense finally stood up to and said: No, that is intolerable and we will not accept it.

The documents also show that Ms. Kagan continued to fight military recruitment even when her defiance of the law meant that Harvard could lose $\1/2\ billion a year. In a memorandum we obtained from the Department of Defense, Larry Summers--then president of Harvard, now President Obama's chief economic adviser--approved the entrance of the military recruiters fully on campus over the objection of Dean Kagan. Now, that is the fact.

So this policy was designed to obstruct recruiters and not only to end recruiting on campus, really, but to punish and demean the military in an attempt to force them to change the ``Don't Ask Don't Tell'' policy. But that rule was not enacted by the military. It was enacted by Congress and Ms. Kagan's former boss, President Bill Clinton, in whose White House she worked for 5 years--without apparently any serious objection to his signing of the policy.

Ms. Kagan's actions, combined with the fact that she had little to say about recruiting policy while working with President Clinton, raise questions about whether this is just a hostility to the military. They were just saluting and following the policy of Congress and the President. Why should they be blamed for this? Why should people who risk their lives to ensure Harvard's freedom be given second-class treatment on the Harvard campus? It was absolutely unacceptable then; it is unacceptable now.

I was involved, and this Congress had to pass a new law, an updated Solomon amendment, to end this policy. And Dean Kagan was one of the leaders of the law school's efforts. That is just a fact. And to suggest otherwise is misleading.

Here are some quotes from some of the e-mails that were released.

Harvard Law School is delaying and providing a ``slow

role'' to Air Force's efforts to recruit during the Spring

recruiting season. Seems they have delayed sufficiently in

providing permission that the Season may already be ``too

late.''

That was in February 2005, when she was dean.

In March 2005, this memo was written:

The Army was stonewalled at Harvard. Phone calls and e-

mails went unanswered and the standard response was--we're

waiting to hear from our higher authority.

How about another one? This was in April of 2006:

We're all searching for a way to limit the polarizing

nature of the anti Solomonites--

Those are the people who were trying to have the Solomon amendment passed in Congress thrown out--

who now rattle sabers over an intent to shout down the

military. Dean Kagan is a case in point below as she

reportedly ``encouraged students to demonstrate against the

presence of recruiters . . . . (and to) express their views

clearly and forcefully.''

Indeed, she sent out e-mails to students explaining why she thought this was so important. She was a national leader in this effort.

Another e-mail, March 10 of 2005. This military person said he explained to Harvard that the Third Circuit opinion they were using as a pretext to not follow the law had issued a stay of injunction and the Solomon amendment remained current law. He goes on to say:

I asked him if I could at least post a job posting via

their office and he said no. He stressed that I could contact

interested students via the Harvard veterans Student Group

but that his office could not provide any support to us.

So we need a fair and honest evaluation. I, for one, have frankly been disappointed in this administration's obfuscation, deliberately attempting to hide the nature of what happened at Harvard, because it was, in fact, inexcusable. The administration should not defend this. They should give her a

chance. Maybe she would say she made a mistake; maybe she would defend it. But I can't imagine an administration would to want defend this kind of policy.

I thank the Chair, and I yield the floor.

Mr. President, I ask unanimous consent to have printed in the Record the e-mails I made reference to earlier.

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

Mr. President, I ask to be recognized to speak in morning business and to be notified at 7 minutes.

Mr. President, the legislation we have before us today and have been working on is problematic. It is just not healthy because it is going to increase the debt to a significant degree.

According to the Joint Committee on Taxation, the Democrats' first draft of the extenders bill--that is what we are calling this legislation--presented this week would have added $78.6 billion to the debt--another $78 billion.

Total spending in that bill was $126 billion. They claim that $47 billion of this amount had been offset, meaning paid for. However, what we were not told is they were double counting many of the items. It was a manipulation. The numbers were worse than that. They were double counting some of the money and hiding the extent of the debt. There were just too many budget gimmicks, and the total impact of the bill, in truth, would have vastly exceeded the $78.6 billion that had been in the score.

The Congressional Budget Office estimates the annual deficit for this fiscal year will be $1.5 trillion--$1,500 billion. This represents the largest annual deficit in the history of the American Republic.

The CBO estimates that deficits will average--average--$1 trillion per year over the next 10 years under the budget as presented to us by President Obama. The lowest projected deficit in the 10-year period-- the lowest year--would be $724 billion. That is in 2014. The way the economy is moving, I have my doubts that would occur. In fact, a fair analysis of the entire amount would indicate those numbers are less than likely to occur, unless we make significant changes, which we should do.

Last week, the gross public debt exceeded $13 trillion. This represents 89 percent of our GDP. So the debt of $13 trillion represents 89 percent of GDP. This is a serious matter. According to Carmen Reinhart's testimony before the Budget Committee--who studied this and has written a book about it--when gross debt exceeds 90 percent of GDP, growth in your country is reduced. What otherwise would be an economic growth of 3 percent would be reduced to 2 percent. You would have, in their estimation--Ms. Reinhart's and her partner, Mr. Rogoff's, book--it would knock off 1 percent of growth, which is huge. One percent of growth dragged down as a result of debt and interest is a huge matter.

Interest payments rise--interest payments on the debt we have to pay. We borrow the money, we have to pay interest on it in the form of T- bills held by people. China and other places and individuals buy these T-bills. We pay them interest. Interest in 2010 will be $209 billion. As of September 30 of this year, when fiscal year 2010 ends, it will be $209 billion.

The Federal highway bill is about $40 billion, the baseline highway bill. Just to give an indication, Alabama's general fund budget is less than $10 billion a year. We are an average-sized State, so $210 billion in interest is significant.

Well, what happens at the rate we are going, with budget deficits averaging a trillion dollars a year for the next 10 years? According to the Congressional Budget Office, that calculates this out carefully, they estimate that interest in 2020--for that 1 year--just 10 years from now, would be $916 billion--the largest single expenditure in the Federal budget, and our debt will have tripled in 10 years under the President's budget.

So this is clearly unsustainable; every witness, every economist, every

person on Wall Street, every talking head you see on television says it is unsustainable. But we have not seen any action to get us off this path. How much longer can we go before we do something? The bullet, as one person said a number of years ago about a bank that went bankrupt-- they found out the Atlanta housing market collapsed, and he said: It was too late. The bullet was in the heart. When will the bullet be in our heart? When will it be too late to fight back?

On Wednesday of this week, the Democratic majority--after having brought up their bill that I have referred to; and the Senate rejected this excessive debt and spending by a vote of 45 to 52--a number of Democrats said: No, we are not going for that, Mr. Leader. A vast majority of the Democrats supported the bill, but a significant number said: No, we are not going to keep doing this. So they have now proposed yet another version of the extenders bill, on Thursday, yesterday. This version would add $55 billion to the deficit instead of $78 billion. But the number is a distortion, and it is done as a result of double counting certain funds and simply shortening the time some of the provisions would take effect--not fixing it in a significant way.

To pay for some of this spending, the Democratic majority proposes to increase the oil excise tax that funds the Oil Spill Liability Trust Fund to 49 cents from its current 8 cents a barrel. So the Oil Spill Liability Trust Fund was created to have a fund to pay costs that might relate in the future to oil--

I thank the Acting President pro tempore and will wrap up.

There is so much to be said about this. But I just wish to point out how the Oil Spill Liability Trust Fund is a complete shell game. It is an absolute double counting of money, and it adds to the debt, and the debt of the bill in the way it has been scored hides the real impact.

The legislation would increase the tax on oil but does not set aside the increased revenue and save it in a fund to clean up the oil spill in the gulf or other such disasters as it is supposed to. Instead, it takes the money and creates a paper trust fund but sends the money directly over to the Treasury in order to pay some of the spending in this package and is used to reduce the amount of debt they say the bill will create.

Do you follow me? They claim they are creating a trust fund but at the same time using the money to fund the spending in this bill and claiming this money as income to justify that. Well, what is going to happen when the fund needs money to clean up a spill, which is what it was created for? Well, it is not going to be there because it is going to already have been spent. There is no dispute about this. This is absolute fact, and it is just another example of the recklessness and irresponsibility of the spending that is going on here. It is time for the American people to rise up and say to Congress: We need to have honest spending and restraint in spending.

I thank the Acting President pro tempore and yield the floor.

Madam President, I wish to thank Senator LeMieux for raising this matter.

I was at the Alabama gulf coast on Friday. We were told there was a batch of oil 30 feet wide, 2 miles long that they could see coming onto the shores of the beaches that had not yet been hit in any significant way. In my mind, a good skimmer, even at 1 or 2 miles per hour, could get every bit of that, virtually. I first thought skimmers wouldn't be that effective. I assumed the oil would be very thin and it would come in and be hard to skim, but apparently it is coming in patches and bunches, which makes it more skimmable than I had originally thought.

The admiral, whom we spoke to less than an hour ago, indicated that he was requesting of the Navy, as I heard what he said, a certain number of skimmers, and they had 400, and we haven't gotten them yet. Perhaps some plan somewhere calls for them to have skimmers in this bay or this harbor in case something happens, but when we have a national catastrophe as we have going on, every one that could possibly be spared should have already been moved to the gulf coast. I really feel as though this is a frustrating event. It is more serious than I had realized.

Also, I think there are several thousand worldwide that have not been asked for that could be asked for. So I think we can do better. I am going to find out if the decisionmaking process is so bureaucratic that for no good reason, we have been delayed in receiving help that could make a big difference on the gulf coast.

I asked him about President Obama's speech last night. As a result, he made comments----

Mr. REID addressed the Chair.

I would be pleased to yield.

Madam President, I ask unanimous consent to speak in morning business and be notified in 5 minutes.

Madam President, I know the majority leader has many challenges, and he certainly is entitled to respect to make this kind of announcement.

Our Governor has called up 300 National Guardsmen, and I think it needs to be done under title 32, which is Federal status under State control.

The President on Tuesday evening said:

I have authorized the deployment of over 17,000 National

Guard members along the coast. These service men and women

are ready to help stop the oil from coming ashore, clean

beaches, train response workers, or even help with processing

claims, and I urge the governors in the affected states to

activate these troops as soon as possible.

Well, the Federal status under State control is the procedure by which the Guard people operate under State control, which eliminates some of the prohibitions on military people being used, Federal military people being used for nonmilitary matters, and it allows payment by the Federal Government.

I guess I would just say that this is not worked out yet. As a matter of fact, Governor Riley has personally been engaged in this, and I have been so proud of his leadership. He has called these guardsmen for some time and has been requesting that they be approved under title 32.

The Admiral told me today that there are still bureaucratic problems--the Department of Defense says this and some law says this. I would just say that the Commander in Chief, the President of the United States, said: Call them up and let's get busy about it. And I hope somehow this can be taken care of promptly, as it is impacting the budget of the State of Alabama in a significant way.

Madam President, I thank the Chair. And I thank Senator LeMieux for driving home the problem that, to me, is most inexplicable; that is, our failure to maximize our ability to have skimmers available to protect our beaches.

I yield the floor.

Before the Senator leaves, I will ask a question to my colleague, because he has come to this lately. He might share with us-- the Senator has had personal conversations with Admiral Allen, the point person, about this for some time, has he not? We still have difficulty getting firm numbers, as the Senator pointed out, about how many might be available and what prospects we have for the arrival of more skimmers, is that correct?

Does the Senator understand that Admiral Allen has the power--or the President does--to enter into Jones Act waivers that need to be entered into, and that presumably could be done in a matter of minutes or hours? What is holding this up? Has the Senator been able to ascertain that?

Well, has the Senator ascertained that anybody in our government is scouring the world and the United States to try to move every single skimmer that could possibly be brought to the gulf coast? If not, we are awfully late, wouldn't the Senator think? Shouldn't that have been done weeks ago?

I thank the Senator. I yield the floor.

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

Mr. President, I want to speak briefly on the President's nomination of Elena Kagan to the Supreme Court. The more we examine her record, the more concerns there are that her legal judgments might be infected by her very liberal political views.

We see strong evidence of that in Ms. Kagan's memos as a clerk on the Supreme Court. In her work as Domestic Policy Adviser in the White House for President Clinton, we see those strong political views. We see strong evidence of this during her time as dean of Harvard Law School.

Perhaps to some in the elite progressive circles of academia it is acceptable to discriminate against the patriots who fight and die for our freedoms, but the vast majority of Americans, I think, correctly know that such behavior is wrong. It has an arrogance about it and, really, it is not ethical.

When Dean Kagan became dean in 2003, she inherited a policy of full, equal access for the military. But she reversed that policy in clear open defiance of Federal law. She kicked the military out of the campus recruitment office as our troops, at that very moment, risked their lives in two wars overseas.

Some have recently attempted to defend this conduct by arguing that she deigned to speak with the student veterans to discuss whether they would coordinate a sort of second-class system for the recruiters who would come on campus to seek young men and women to serve as JAG officers. This all happened after she had defied the law and had shut down those official channels of recruitment at the official recruiting office. But the Harvard Student Veterans Association plainly expressed to Ms. Kagan in a letter to the entire law school that they lacked the resources to take the place of the campus office now closed to the military.

The letter reads in part:

Given our tiny membership, meager budget, and lack of any

office space, we possess neither the time nor the resources

to routinely schedule campus rooms or advertise extensively

for outside organizations, as is the norm for most recruiting

events.

But Ms. Kagan was unmoved. Instead of welcoming the military recruiters on campus, she punished them, relegating them to second- class status, even leading student veterans to arrange recruiter meetings off campus. In fact, Dean Kagan's public comments contributed to a hostile on-campus environment for both recruiters and student veterans alike. In fact, she said she ``abhorred'' the military's recruitment policy--blaming soldiers for the decisions of lawmakers-- the Congress--and the President. She called it a ``moral injustice of the first order,'' and participated in a student protest opposing military recruiting on campus.

Stunningly, she expressed sympathy for students and faculty for whom she said ``the military's presence on campus feels alienating.'' Those alienated by the military's presence were not the ones who needed the sympathy, they needed a history lesson. They had the freedom to complain and protest from the safety of Harvard's campus because of the blood and sacrifice of the men and women who wear our uniform.

If you talk to student veterans who were on campus during 2004 and 2005, you will learn many of them felt exploited. Here were people who had just returned from battles in Iraq, dodging enemy gunfire, and they were supposed to quietly hustle the military recruiters through the back door and provide political cover for Dean Kagan.

In a report for NPR, one student veteran who was there summed it up this way:

Getting us to carry her water on military recruitment

through the back door was a bridge too far. I came to view

her as a very smooth political person.

Ms. Kagan said her mistreatment of the military was justified by her view that don't ask, don't tell was a ``moral injustice of the first order.'' But don't ask, don't tell was created and implemented by President Clinton. Where was her outrage during the 5 years she served in the Clinton White House? Why would she blame the military? They didn't pass the rule. It was Congress and the President.

So Ms. Kagan didn't take a stand in Washington when she was here, where the policy was adopted, but waited until she got to Harvard and then stood in the way of hard-working military recruiters who had nothing to do with establishing the policy.

Now information has come to light suggesting that Ms. Kagan may even have been less morally principled in her approach than has been portrayed. Around the same time that Dean Kagan was campaigning to exclude military recruiters--citing what she saw as the evils of don't ask, don't tell--Harvard University accepted $20 million from a member of the Saudi Royal family to establish a center for ``Islamic Studies'' and Sharia law. An Obama State Department report concerning Saudi Arabia and the Sharia law concept noted:

Under Shari'a as interpreted in [Saudi Arabia] sexual

activity between two persons of the same gender is punishable

by death or flogging.

Ms. Kagan was perfectly willing to obstruct the military, which has liberated countless Muslims from the hate and tyranny of Saddam Hussein and the Taliban, but it seems she was willing to sit on the sidelines as Harvard created a center funded by--and dedicated to--foreign leaders presiding over a legal system that would violate what would appear to be her position. She fought the ability of our own soldiers to access campus resources but not those who spread the oppressive tenets of Sharia-type law.

Perhaps her response was guided by campus politics, but certainly Ms. Kagan lacks any experience as a judge or as a lawyer, and not much as a scholar of law. She hasn't written much. Much of her career has been spent actively engaged in liberal politics not legal practice, and there are serious questions as to whether she would be able to set aside that political agenda that has defined so much of her career. I think that is the test we try to give a fair evaluation of this nominee.

So these are important issues, and she will have an opportunity to discuss her views. I expect many Americans will be listening closely, but it will be important that any nominee to the Supreme Court be able to assure with great confidence the American people--and this Senate-- that if confirmed, he or she would be faithful to the law, to serve under the Constitution, and not above it, and not have their political agenda infect their rulings, which must be nonpolitical.

I thank the Chair, and I yield the floor.

Mr. President, I know Senator Thune will be here in a moment. I saw him just a while ago.

One of the things hurting our economy is that Congress is sending no message whatsoever that we are serious about reducing the uncontrollable debt that every economist says is unsustainable, and that this is a cloud over our economic recovery. The sooner we quit thinking we can make the economy rebound by just spending a few more billion dollars and increasing our debt, the better off we will be and we will get on a sound track to go forward.

I know good people can disagree, but I believe very strongly in this, and I just wanted to share that thought.

Oilspill in Alabama

I would like to make a few brief comments about the oilspill in the Gulf of Mexico, and my home State of Alabama. I was there Friday and visited Orange Beach, Gulf Shores, Dauphin Island, and Bayou La Batre, examined the beaches and talked with our good mayors and other officials who are there. There are a few things I would like to share that indicate we are not where we need to be.

I have not been one who wants to run out and blame the President for everything. But I do believe as we are now going into day 57 that we need to understand our response is not working well. It could be much better.

For example, I visited Mayor Tony Kennon and his team in Orange Beach. Perdido Pass has a very strong current. You would think you could put up boom and stop oil from coming in. They told us oil was out there. They were expecting it to come in, maybe the biggest amount they had expected since the beginning of the spill. It was expected to hit the coast this past Saturday or Sunday, and it did indeed hit. The city is developing their own plan with their own engineer about how to deal with the currents and the flow of oil to keep it out of the estuaries that are inside of Perdido Pass.

It is complicated. They had a top engineer, Henry Seawell, one of Alabama's best. He was there working on it. I just happen to know him. But the Coast Guard was not there; BP was not there. The mayor said:

You know, we feel like we are not even at the table, we are

not at the children's table. They are not talking to us. But

we know more about how to deal with this pass than anybody

else in the U.S. Government because we have been working on

it, it is our area, and we are trying to protect it.

Sure enough, the oil came. We were behind schedule. They started late. Nobody had done anything until the city started, apparently a good bit of oil got in and that is not good. It also got on the beach. We can clean that up pretty quickly, however a lot hit the beach.

Then a little further down the beach, at Gulf Shores, we had a similar discussion. I went to Fort Morgan, across the mouth of the Mobile Bay where Admiral Farragut sailed in, and we went across to Dauphin Island. The mayor there, Jeff Collier, had some of the same concerns as Mayor Robert Craft in Gulf Shores. Then I went up and met with Mayor Stan Wright, the mayor of Bayou La Batre, himself a seafood processor. He noted to me, and has repeatedly stated, that Bayou La Batre probably represents the largest seafood processing on the entire gulf coast. They are basically being shut down, and a lot of people who work there are losing their jobs. They are low-income workers who do not have extra money to live on, and they are hurting, really hurting. If we are going to receive money from BP, they need to get it out there to the people right now, before they lose their homes or have their power cut off. The mayor told me how people are calling him about their electricity being cut off. It is not a little matter. The whole situation is a big deal.

I am glad the President has gone to the gulf coast. I am hopeful tonight we

will hear some good ideas for progress. I just wanted to share one thing that struck me very vividly. Mayor Kennon's team in Orange Beach told us they had seen a strip of compact oil from the air and a boat about 6 miles offshore. It had the red color, thick process--a strip about 30 miles wide and 2 miles long. This was Friday morning. It was expected to hit Friday night or early Saturday morning. Nobody knew for sure. But it had been out there for a number of days.

So we are asking, Why don't we put a skimmer there? This is the only thing coming in that threatens the beaches. Apparently there were two strips of this offshore at some distance. It represents a significant threat. You could see that threat getting closer and closer. The obvious thought--Mr. President, having been from Alaska, you know the importance of these matters--if you had a good skimmer--where two boats pull the boom and direct the oil into a central location, then you can get it out and put it in a barge or tanker.

There was not any. It would have been rather easy, I suggest, with a good skimmer, to have gone out, with plenty of time to scoop up almost all of that oil or at least a big portion of it. That was not done. It kept coming in, and coming in, and basically by Saturday it was hitting the beaches.

You ask, where are they? We are not talking with one another enough, it seems to me. It does appear there are more skimmers, more boom, more vessels, equipment, and pumps available around the world that could be called on to assist, and we have not accepted all offers of assistance. Nor have we, apparently, sought to lease, buy or purchase the boom, pumps, and skimmers that might help us.

I was just looking at a press release today that stated, Admiral Allen, the national incident commander, Provides Guidance to Ensure Expedited Jones Act Waiver Processing Should It Be Needed.''

He says he will process any requests for waivers of the Jones Act.

For some reason the admiral is still talking about waivers and offering to expedite them. Who is requesting them? Why doesn't he request it? If there is a ship that can skim, it can be brought down to the gulf coast, and it would make a big difference. In fact, I saw the admiral, I believe, the day before yesterday on the television say we need to do a better job. This would have been Monday. We need to do a better job of intercepting the oil between the spill site and the shore.

Good. I thought it might be harder to do. I thought it might be little splotches here and there, all over, and it would be impossible to scoop it all up. But if it is moving, and it tends to move in lines and fairly compact 30-foot strips, then with good equipment we can make a big dent and just stop it.

So I don't know what the problem is. But we do know 17 countries have offered to help, however we only have two skimmers, as I understand it, in the gulf, and those are from Mexico--which we are glad to have. Pumps have been offered. I do not believe we have taken advantage of that. It takes some pretty good pumping equipment to get this oil soaked up, and only 600,000 feet of boom have been received from abroad. The UK has also offered us dispersants, which we have not taken.

I don't know what all the details are, but it seems to me that we can and must do a better job of coordinating. We need to ensure people who need resources are paid now, and we need to understand that there is great potential for effective skimming to occur where the oil has formulated and configured in groups so it can be skimmed. That apparently is more feasible than a lot of people understand. We need to be focusing on that.

The people along the gulf coast are upset about it. One mayor told me: I am a man of good judgment. I am worried about BP's slow response. They talk about responding. They talk about paying, but not enough payment is actually getting out where we have clear cases of substantial losses. Of course, the economy is not where it has been and where we need to see it develop. The beach areas probably wouldn't have been as strong this year as previous years because of the economic downturn. But the testimony from people at public meetings I have attended is crystal clear that we have almost a 50-percent drop in reservations, a 50-percent drop in bookings, and this ripples through the entire community. We already have real estate problems. We already have a little decline in beach attendance. Now we have all this horrible news on the TV and large amounts of cancellations. Some people do need money now. This process needs to be accelerated, and I hope we will hear something in some of what the President tells us tonight. I think he has heard that. He has been down to the gulf coast. He has talked to people. He probably has a better understanding today, after we are 2 months into it, than he previously had.

Maybe we can make this system work a little better. I don't only want to complain. I am thankful the President is showing attention. I am thankful he has stepped out and is showing some leadership. But for some reason, there still seems to be a lack of connection between the talk up at the top and what is happening on the ground. I have been there. I have talked to people. People are not getting money. People are in serious crisis already, people who would be entitled to receive moneys. I don't think BP should pay out money fraudulently. They don't need to pay those who don't deserve it. They ought to be careful in how they handle these payments. But for the most part, people are making legitimate claims. Some of them are desperate now. I don't think we have a unified effective plan to intercept as much of the oil as we could offshore. Nor have we had the kind of support from the Federal Government we would like to see, with scientifically determined processes, placing boom and skimming equipment to stop the flow of the oil, particularly into our estuaries, including Mobile Bay.

Mobile Bay is not that wide of an opening. People thought we could stop it. You could put boom across and stop it. The truth is, with the tides, it is a strong current. Anchors won't hold it. When water moves in, it will go over or under or even break the boom. It is not an easy thing. We need some sort of Chevron-like layers of boom outside the entrance to try to catch as much as we can before it comes in. A little, but I don't think enough, effort has been made. In fact, we now had a significant amount of oil that have gotten into that great estuary.

I wanted to share those thoughts. I believe we can do better. I believe oil production in the gulf is essential for the national interest. I believe this spill, this accident should not have happened. I believe if people had been exceedingly careful and competent in what they did, this would not have happened. I believe after this accident, there is going to be a complete review by every company out there. I think we will have an even lower possibility of accidents in the future. But we need more confidence that blowout preventers work, and that we have safety mechanisms in place. We need more confidence that this will happen. We need to understand there is always a possibility that some sort of blowout or spill will occur, but we can do better to prevent it. We can do better about plugging the leak or capturing the oil where it comes out of the pipe. I believe all of these are possible.

I am not happy. I am disappointed that we weren't better prepared in case such an accident did occur. Very disappointed. I believe the oil industry, in particular BP's plan, as the Mobile Press Register has pointed out, was not well thought out. Their plan talked about what to do with walruses and things such as that. We don't have any walruses on the gulf coast. This was not a well thought out plan. Criticism is justified in many different areas.

I thank the Chair for the opportunity to share my thoughts. Again, I appreciate the President visiting the gulf coast. Hopefully, they are breaking down some of these dysfunctional areas to get us to a higher level of response and effectiveness, and maybe they will also be able to continue to make progress in reducing the amount of flow coming out of this well. Obviously, that is the most critical point.

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

Mr. President, I want to first say how much I support the Murkowski resolution, and I will be voting for it. But I want to point out, as ranking Republican on the Judiciary Committee, how it is we got into this circumstance and why it is not justified. Why it should never have happened, and why it is a product of the worst kind of judicial activism. And finally, why we need to see how we can work our way out of it.

In 1970, the Congress passed the Clean Air Act, and they allowed EPA to regulate pollutants. Rather than try to specifically define pollutants, they said it would be defined by the Director of the EPA, and he would have that decision-making authority. That is the way it was for many years.

Then years went by and people began to talk about global warming. Global warming developed a certain momentum and a number of scientists signed onto this idea. Even though CO2 is a plant food and the more CO2 that is in the atmosphere the better plants grow. And even though we breathe out CO2 and plants breathe in CO2 which produces the oxygen that we breathe in this wonderful system that we are a part of. They concluded that CO2 was increasing because we were taking carbon fuels mostly from our soils, burning it, and that was increasing the percentage of CO2 in the atmosphere. Presumably it had at one time been in the atmosphere and had been sucked up by plants.

So this argument arose that it would create global warming. In 1997 Congress had a vote on the Kyoto accord, to deal with whether we wanted to take these firm, aggressive steps to reduce CO2. By a vote of 97 to 0 we voted not to do that. We were not prepared to do that.

Someone filed a lawsuit. In 2007, it came before the U.S. Supreme Court. The Supreme Court was asked to decide on the prohibition of air pollutants, which passed in 1970 when nobody was thinking about global warming, instead they were thinking about particulate matter, NOX and SOX, acid rain, and those kinds of pollutants that go into the atmosphere. The question was, did that word ``pollutant'' include CO2?

To me, a responsible court would have said Congress had all these years to pass a law and specifically add CO2 as a pollutant if they wanted to. In fact, we have amended the law and never added it. They would have asked, Is this a big economic issue we are deciding? It is a huge economic issue, because it would give the Environmental Protection Agency the right to regulate every single emission of CO2--every automobile, every factory, every home, every hospital, every steel mill; everybody who emits CO2 would be under the regulation of the EPA.

They voted and by a 5-to-4 margin the Supreme Court of the United States just declared--just by dictate declared--that Congress intended to cover CO2 when they passed the Clean Air Act of 1970.

It is a stunning thing. It is a huge activist decision. In my opinion, it shows how dangerous judges are who are not committed to restraint and responsible action--how dangerous it can be when you give them the power to pass something Congress would not have passed. They didn't pass it then. And in my opinion, they would not pass it today. But the Supreme Court said so.

I support the Murkowski resolution.

I move to waive the applicable section of the budget resolution with respect to my amendment and ask for the yeas and nays.