Floor Statements

I ask unanimous consent that the order for the quorum call be rescinded.

Mr. President, I join in support of the Vitter amendment, which would preclude any funding in the CJS appropriations bill being used for the 2010 census, if the census does not include a citizenship question. Under current law, the census does not even ask the question about whether individuals in the United States are citizens or not. They ask people how many bathrooms and children they have, all kinds of things, but they don't ask a citizenship question. Congressional apportionment in the U.S. House of Representatives is based on that total population count, including people illegally in this country. I think representation in Congress should be based on the number of legal residents, and it should not be increased because persons here illegally, not eligible to vote, happen to be in that State. That is a matter I hear a lot about from my constituents. They ask how this is possible. They are shocked that is what might be happening. The truth is, it does happen.

So I think Senator Vitter is raising a good question, and I believe his amendment is valid. Our next census will determine the reapportionment of the House of Representatives and Electoral College votes each State has.

The 2010 census form lacks the simple question: Are you a citizen of the United States of America? How accurate can we in Congress expect to be about the composition of our population if we do not ask that question, especially when some estimate there may be as many as 12 million people illegally in the country? Indeed, I think that probably is an accurate figure, so it has an impact. Calculations using some of the interim census data estimates are pretty dramatic and point out the real impacts of this policy.

Using the American Community Survey of the Census Bureau, their estimates for State population, including noncitizen and citizen populations, is instructive. The discrepancy in numbers for reapportionment using those different figures is significant. For example, States that might otherwise expect to gain or expect not to lose population, lose congressional seats, would do so if these numbers are counted. For example, Indiana, Iowa, Michigan, North Carolina, Oregon, Pennsylvania, South Carolina, and Louisiana--all of those would be expected to stay the same or gain. And if illegals are counted, they will either not gain or lose seats.

So I think that is a pretty important issue. It is not something with which my State is directly involved. But having dealt with the immigration issue over some period of time, and trying to be informed about it, I hear a lot of people raising this fundamental question. I think it would be simple to fix constitutionally. We would simply say: Ask how many people are here legally and use that to be the basis of the apportionment of congressional seats, and not using people who are not here legally. It does not threaten people. It does not mean they will be arrested or anything like that or to be subject to deportation. It simply means when the numbers are all in, we will know how many U.S. residents exist in the various States, and from that number we will be able to apportion our House of Representatives and the Electoral College for the next Presidential election.

I think that is the right thing to do. We need to get away from this other process and urge the support of the Vitter amendment.

I thank the Chair and yield the floor.

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

Madam President, the American people are rightly very concerned about the reckless spending being conducted in Washington spending that has resulted in huge national deficits. People sometimes think that Republicans and Democrats are just bickering, but the truth is that we have never had deficits such as these in the history of our country--perhaps only during the peak of World War II, when we were in a life-and-death struggle with millions of men and women in combat from one end of the globe to the other.

The fiscal year 2010 deficit is $1.4 trillion. It is predicted to average $1 trillion for the next decade, without relief in the outyears. People often ask me: When are we going to start paying it back? There is no plan to do so. There is not even any plan to reduce the size of the deficit. In years 8, 9, 10, we are talking about over $900 billion in annual deficits. Interest today on our total debt is $170 billion, will rise to $800 billion in 1 year and that is just the interest on the money we must borrow in order to carry these deficits that are not being reduced in the outyears. It is unthinkable.

A lot of people think that the high deficit is due to costs from a health care reform bill. Health care reform will add to the deficit, but is not currently counted in the numbers I referenced because the Congressional Budget Office did its scoring before any health care bill was written. We don't have a final bill, so CBO couldn't score it accurately anyway.

The public debt will go from $5 trillion to $11.7 trillion in 5 years and triple to $17 trillion in 10 years, tripling the national debt. The total debt from the founding of the American Republic will be tripled. That is a big deal.

My colleague, Senator Durbin, and our Democratic colleagues have taken great pleasure in attacking President Bush. I was critical of President Bush's spending, but his average deficit was $250 billion, which was too much and big. However, this year's deficit is going to be $1.4 trillion. That is the deficit as of September 30, for this fiscal year. And we will carry an average deficit $900 billion annually in the coming years. You can blame the origins of the deficit on President Bush if you want to, but President Obama's budget for the next 10 years, scored by the Congressional Budget Office, continues to score deficits at $900 billion. Regardless, we are spending too much money. Republicans are guilty of it, and so are the Democrats. They promised to do better after they got elected this time, but I haven't seen any progress, frankly.

The media has reported recently that the valuation of the Finance Committee's health care bill by the Congressional Budget Office was quite positive. They said--you may have heard the phrase--that it was deficit neutral. How did that happen? How can you add millions of people to the rolls of insured, and subsidize insurance for low-income people, all without having a cost? We need to examine that.

The CBO says the Finance Committee bill would cost $829 billion over 10 years, but they say it is not going to increase the deficit. It will increase the number of people covered but not increase the deficit.

The Washington Post wrote:

The Finance Committee's bill is the only legislation on the

table that meets Obama's objectives [. . .] all for less than

$900 billion over 10 years, and without adding to the

deficit.

So that has been the spin. That has been the statement from the media.

The President said in his September address to Congress that he would not sign a health care reform bill that adds one dime to the deficit. Senator Baucus, the Finance Committee chairman, said:

Our balanced approach in the Finance Committee to health

reform has paid off once again.

He said the bill was ``a smart investment on the federal balance sheet.'' Would that it were so, but that is not an accurate statement. The American people know you cannot expand coverage for millions of the uninsured without incurring cost. There is no

such thing as a free lunch. Money borrowed has to be repaid. If you make obligations to expand the federal government's role in our health care system, you must have the money to back it up.

So how can the CBO make such a report? It is not because they are dishonest. It is because they scored the bill the Washington way, and the bill was written by Members of this body and staff who understand the Washington way. They write the bill in such a way to hide its true cost. Republicans have done this in the past, but we are reaching new levels of it today.

Under the Baucus plan, true costs are hidden. The bill's requirements that all individuals have insurance does not fully phase in, for example, until 2014. However, new fees on insurers, medical device companies, drug manufacturers and cuts to hospitals and doctors take effect almost immediately. For example, hospitals will take cuts and see more patients beginning in 2010, but individuals are not required to have insurance coverage until 2014. If you are an insurance company, you will face increased taxes and new annual fees beginning in 2010, but again--individuals are not required to have insurance until 2014. Doctors' pay is kept stable in 2010, but under the Finance Committee legislation, doctors are expected to take a 25-percent pay cut beginning in 2011.

Why have we been engaging in these budget gimmicks? Both parties have been guilty of doing this. Why don't we just make the difficult decisions? We have succeeded in balancing the budget in the past. But under the Sustainable Growth Rate formula as it applies today, our physicians the people that take care of us--would take a 25-percent cut in 2011. So, Congress fixes the formula, so to speak. We now call it the doctors' fix. We arrange for a short-term solution that keeps doctors' pay from being cut, but do not address the larger problem. If Congress were to fix the physician pay formula for 10 years, we would have about $300 billion more in costs to figure in to our budget as a deficit. The proposal that came out of the Finance Committee proposes to raise the doctors' fees for 1 year. It does not propose what is absolutely necessary: a 10-year fix for doctor pay. So, the Chairman acts as if an update to doctor pay will not happen in 2011 so that the bill does not have to reflect the true costs. And Congress will update doctor pay, as it has every year since 2002.

The bottom line is this: the true costs of the Finance Committee bill will not begin until the new provisions are all phased in in 2014.

The Senate Budget Committee estimates--and I am a member of the committee--show that the Finance Committee bill cost for 2014 to 2023 is actually $1.8 trillion. So although CBO says that it costs $829 billion from 2010 to 2019, if you look at numbers from 2014 to 2023, the cost is $1.8 trillion--twice as much--because the full benefits and expenses don't kick in until then that period.

Budget gimmicks used to offset the bill are misleading. This is not an honest way to represent the bill's costs, and it is designed for political reasons. It is designed to make the score look better than it is and to hide the true cost of enacting this legislation.

Let me use a chart.

I ask unanimous consent for 3 additional minutes.

The Senate Finance Committee bill is paid for in a number of ways. Perhaps one of the most unjustified claims is that we are going to produce $404 billion in cuts to Medicare and Medicaid to fund an entirely new program.

First, it is doubtful that Congress will actually vote to cut $400 billion from Medicaid and Medicare. However, CBO must assume we are going to cut it because that it included in the Finance Committee bill. CBO also assumed in their budget that we were going to raise a lot of tax money by being more efficient in tax collections last year, but those new collections did not materialize either. The IRS said they wouldn't get them, and they were right. Our number one priority, if we were to somehow make Medicaid and Medicare more efficient and more honest and more effective and more productive and save $300 billion, that money should stay in Medicare and Medicaid. Medicare is going broke. We know that to be true. Medicare experts and the trustees issued a dire warning that unless measures are taken to shore up the program, it will be insolvent by 2017. We have known that for a long time. These $400 billion in cuts is very unlikely to happen. The rest of these basically are new taxes. I do not have time to go into them now.

But imagine this scenario: your family is running in a shortfall and you do not have enough money for your business and you have agreed that you would take on a Saturday job to make more income, would it be smart to buy a new car? You have a debt. You are trying to pay it down.

You take on more taxes, take on another job to bring in more income, but, in the midst of that, you start a new spending program? That is exactly what the Finance Committee bill proposes. Instead of getting Medicare on a sound footing, this bill raises taxes to create a new program. Supporters act like we should be thankful because it is deficit neutral, they say. That is not accurate. I know it, and every Senator in this body ought to know it if they have been around here very long.

I am sorry about where we are headed. This sort of scoring is the kind of flimflam financial management that has put us on the road to tripling the debt of the United States in 10 years. It is an abomination. Our children will be paying interest on our debts for the rest of their lives. Indeed, the interest on our national debt today is $170 billion. In 10 years, CBO says it will be $800 billion a year. Yet we spend only $100 billion a year on education, by contrast.

So I say, somehow we have to slow down, make some difficult choices, and recognize that we do not have the money to do everything we would like to do. We do not have the money, and Congress must be more serious and more committed to improving Medicare, saving the program, and not going hog wild with new programs that we do not have the money to fund.

I thank the Chair for allowing me to go over and I yield the floor.

Mr. President, I see my colleague, the assistant majority leader. I know we have been talking about improvement in the sentencing process for crack cocaine. I have offered legislation for almost a decade that would substantially improve the sentencing process in a way that I think is fair and constructive and allows us to deal with serious criminals like drug dealers. I believe it is pretty close to being a good policy. Senator Salazar, now a member of the Obama Cabinet, and Senator Mark Pryor, my Democratic colleague from Arkansas, Senator John Cornyn from Texas, and I, all four former attorneys general, offered that legislation. Senator Durbin has some ideas too. I look forward to working with him. I do think it is past time to act.

I will not favor alterations that massively undercut the sentencing we have in place, but I definitely believe that the current system is not fair and that we are not able to defend the sentences that are required to be imposed under the law today.

I am a strong believer in law enforcement and prosecution of those who violate our laws, particularly criminals who really do a lot of damage beyond just dealing drugs. They foster crime and form gangs. People who use cocaine tend to be violent. Even more, in some ways, people who use crack cocaine, as opposed to powder cocaine, tend to be paranoid and violent. It is not a good thing.

We don't need to give up the progress that has been made, but at the same time we need to fix the sentencing. I oppose anything that represents a 50, 60, 70, or 80 percent reduction in penalties but a significant rebalancing of that would be justified.

Mr. President, I see my colleague, the assistant majority leader. I know we have been talking about improvement in the sentencing process for crack cocaine. I have offered legislation for almost a decade that would substantially improve the sentencing process in a way that I think is fair and constructive and allows us to deal with serious criminals like drug dealers. I believe it is pretty close to being a good policy. Senator Salazar, now a member of the Obama Cabinet, and Senator Mark Pryor, my Democratic colleague from Arkansas, Senator John Cornyn from Texas, and I, all four former attorneys general, offered that legislation. Senator Durbin has some ideas too. I look forward to working with him. I do think it is past time to act.

I will not favor alterations that massively undercut the sentencing we have in place, but I definitely believe that the current system is not fair and that we are not able to defend the sentences that are required to be imposed under the law today.

I am a strong believer in law enforcement and prosecution of those who violate our laws, particularly criminals who really do a lot of damage beyond just dealing drugs. They foster crime and form gangs. People who use cocaine tend to be violent. Even more, in some ways, people who use crack cocaine, as opposed to powder cocaine, tend to be paranoid and violent. It is not a good thing.

We don't need to give up the progress that has been made, but at the same time we need to fix the sentencing. I oppose anything that represents a 50, 60, 70, or 80 percent reduction in penalties but a significant rebalancing of that would be justified.

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

Madam President, I wish to address the nomination of Thomas Perez to be Assistant Attorney General for the Civil Rights Division at the Department of Justice.

That is an important position. It requires ability and experience and fairness. I think President Obama, as all Presidents, is entitled to some deference in selecting executive branch nominees such as this one. I have come to the conclusion after some contemplation that I am not able to support this nominee. I do not desire that his nomination be delayed unless there will be some additional matters that need to be looked at of which I am not now aware. So I am prepared to vote up or down. I know we have only one vote, and that is a question of cloture, whether to bring this nomination up for an up-or-down vote.

I guess I am at a point where I don't feel comfortable voting either way on that if we don't have any other votes. I will wrestle with that decision.

The Civil Rights Division of the Department of Justice is charged with protecting the civil rights of all Americans. It is an important division. As such, it is critical that the division be free from partisanship and not be used as a tool to further an agenda of one group or another, one ideology or another.

The President has chosen this nominee, someone who has a record of and a reputation for very strong political activity. That is not disqualifying, but it is a matter I am concerned about because I am concerned about this division.

In reviewing Mr. Perez's past statements and his record, I am concerned whether he is capable of putting aside partisan beliefs and whether he is, therefore, suited to head the Civil Rights Division of the U.S. Department of Justice.

Over the past several months, news reports have raised concerns that decisionmaking at the Department and the Civil Rights Division in particular have been based on politics and not on protecting civil rights. I hate to say that, but real objections have been raised.

In May, the Justice Department voluntarily dismissed a lawsuit that it had won against the New Black Panther Party. During the last election, two of that group's members had dressed in military-style uniforms and intimidated voters outside a Philadelphia voting place.

A long-time civil rights activist who was there and who saw it, Bartle Bull, called it ``an outrageous affront to American democracy and the rights of voters to participate in an election without fear.''

On July 30, the Washington Times reported that a political appointee, Thomas Perrelli, the Associate Attorney General of the Department of Justice, and third in charge of that great Department, approved the decision to suddenly reverse course and drop the complaint. Many people have seen the video of that utterly unacceptable activity by the New Black Panther Party. Mr. Perrelli's decision to allow this voter intimidation to go unprosecuted stands in stark contrast to his statements made during the nomination process when he stated:

I agree that both civil and criminal laws for governing the

conduct of elections should be enforced.

Of course, that is fundamental.

In May, the Members of the House Judiciary Committee sought an explanation from the Department. They had taken a judgment in the case, senior career prosecutors had, against this group. The question was, apparently they began a discussion of giving it away, setting it aside--a judgment they had already taken. Eventually that is what the Department did, through some maneuvers that I do not think are consistent with the normal processes of the Department of Justice. They found one group within the Department whose responsibility did not include making these kinds of decisions, they made a decision that it was okay to set aside the judgment against them, a civil judgment, I think, that they had taken. It was not good.

The House Judiciary Committee, our colleagues, demanded an explanation. The responses of the administration were vague and incomplete. In addition, the independent U.S. Commission on Civil Rights has demanded that the Justice Department explain the dismissal of that lawsuit, but the administration rebuffed the request, claiming that the Department decided to investigate the case internally through its Office of Professional Responsibility. The Department of Justice claims it cannot provide information to anyone on the outside until that internal investigation is complete.

Based on the lack of document production and lack of answers from the Department of Justice, on September 30, the Civil Rights Commission Chairman, Gerald Reynolds, wrote to Attorney General Holder, repeating his request for information on previous voter intimidation investigations so the Commission could determine whether the Department's reversal of course in this case constituted a change in policy and what the implications of this would be.

Chairman Reynolds also pointed out that:

[M]any aspects of the Commission's inquiry have no

connection with the matter, subject to the OPR jurisdiction .

. .

And that if the Department were nonresponsive, the Commission would be forced to propound interrogatories and interview requests directly on affected Justice Department personnel.

So even the independent Commission on Civil Rights is concerned about this. If you care about voting rights, how did this happen that we dismiss a case when there is a video of one of the most blatant intimidations you can imagine at a polling place? Serious questions have arisen. Was the dismissal of the case a blatant partisan political move by the Department of Justice? Was this Black Panther group protected because they were on the right side of the election? If so, it implicates serious dangers for voter intimidation prosecutions in the future, I suggest. Before we vote to approve Mr. Perez as head of the Division of Civil Rights, the Senate needs to know how he will conduct the office.

Unfortunately, this kind of issue is only one of the important issues he will be facing. In June, it became apparent that the Justice Department would work against commonsense measures by States to ensure that only citizens would be allowed to vote in elections. The Supreme Court has held that States can pass and enforce voter identification laws to protect the integrity of elections. Yet according to the Associated Press, the Civil Rights Division under Attorney General Holder has:

. . . rejected Georgia's system of using Social Security

numbers and driver's license data to check when prospective

voters are citizens.

Rather than working alongside the State of Georgia to ensure that only citizens are allowed to vote, which would be a good goal and role for the Department of Justice, the Department has worked to ensure that the system remains broken. As the Georgia Secretary of State has observed:

The Department of Justice has thrown open the door for

activist organizations such as ACORN to register noncitizens

to vote in Georgia elections, and the State has no ability to

verify an applicant's citizenship status or whether the

individual even exists. The Department of Justice completely

disregarded Georgia's obvious and direct interest in

preventing noncitizens from voting.

Clearly, politics took priority over common sense and good

public policy.

The Georgia Secretary of State said that. That is a serious charge. This is very troubling.

There seems to be a view by some that the more people who vote, the better elections are; that voting in itself is a good thing and we should want more and more people to vote. Of course, we want all eligible people to vote. It seems to be implicit in this argument that it matters little if the people who vote are illegal or the votes cast are fraudulent votes. But I contend, I think without much dispute, it is as damaging to a fair election to allow someone to vote who is not eligible or someone to vote twice, fraudulently, or someone to vote for someone who did not show up on election day and slip into the ballot box and say: I am John Jones and vote for that person--that does as much damage to the integrity of elections as if an individual somehow were wrongfully denied the right to vote in the outcome of an election.

I would be the first to acknowledge that in our past we have, and particularly in the South, had blatant examples, before the Voting Rights Act predominantly, when people were blatantly denied the right to vote. It was a stain on our election process and a stain on the integrity of that process. But this is a time we need to be working together to make sure every vote is honest and fair and not fraudulent.

Another example of apparent politics at play in the Civil Rights Division occurred in Missouri, where the Department has quietly refused to continue an existing ongoing lawsuit that was brought under the National Voter Registration Act. That lawsuit was brought 4 years ago to enforce a provision that required States to clean up their registration lists to prevent voter fraud. According to commentator Hans von Spakovsky:

When the suit was filed in 2005, one-third of the counties

had more registered voters than voting-age residents. One

county's list was 153 percent of the Census count. And the

State had done virtually nothing to clean up its rolls.

Fast forward to March. There remains no evidence that the

voter registration rolls in most Missouri counties have been

purged of their thousands of nonresidents and decedents.

Registration numbers from the November elections show that

there are still more than a dozen Missouri counties with more

registered voters than voting-age residents.

Yet rather than continuing the case to ensure that Missouri cleans up its voter registration rolls, the Department of Justice refused to pursue the case and dropped it, a distressing sign to me that it does not take the integrity of the voting process seriously--certainly not seriously enough. Is the Department of Justice committed to integrity in the process? Or just allowing anybody who wants to walk in and vote to vote? Of course, these decisions have been made by the Civil Rights Division before Mr. Perez has been confirmed, that is certainly true. He does not have any culpability in these actions. But it just raises concerns of mine about: Is he committed to fixing it? Will he correct these kinds of decisions? Is he committed to fairness, regardless of political impact in an election? There are important rules in voting. Those rules must be followed.

Will he reinstate the case in Philadelphia where there was a clear indication of threats and intimidation against voters? Will he correct the course that the Civil Rights Division has taken in undermining commonsense voter identification laws? Will he reinstitute National Voter Registration Act lawsuits to ensure that States clean up their voter rolls to prevent voter fraud?

The way this happens is you have a large number of names on a voter roll and a voting precinct and that creates a real danger, if you don't have identification, if you don't require the voter to produce any identification, the person walks in there and says: John Jones?

I am John Jones.

OK, you get to vote, and he votes.

He goes to the next voting place, he knows somebody's name is on the list who is not allowed or not in the district or not going to vote that day, and he says: I am Ralph Smith and he signs and votes and goes in again and again and again and people have been known to travel all over multiple precincts casting votes in the names of persons not their own name. It is fraudulent. It demeans the integrity of the entire election process as much as if the person had wrongly been denied the right to vote.

I am concerned where Mr. Perez will be in this. He has been pretty active politically. When he ran for the Montgomery, MD, county council he responded to a question asking ``What would you like the voters to know about you?'' Mr. Perez said: ``I am a progressive Democrat and always was and always will be.''

This is a free country and that is all right. I am just saying, in all fairness, that statement makes me a little nervous.

As a councilman, Mr. Perez expressed disdain for Republicans, at one point, according to the report, giving ``a 5-minute speech about how some conservative Republicans do not care about the poor.''

In an April 3, 2005, Washington Post article, Mr. Perez was described as ``about as liberal as Democrats get.''

I am also concerned Mr. Perez will not be committed to fully enforcing our Nation's immigration laws, some I have worked hard on. We need to create a lawful system of immigration. We cannot continue in this lawless method as we are, and one of the first things you do to reduce illegal immigration is you stop rewarding people who violate our laws to come here. He previously served as the President of the Board of CASA de Maryland, an immigrant advocacy organization that has taken some extreme views and been criticized by a number of people in the media. CASA de Maryland issued a pamphlet instructing immigrants confronted by the police to remain silent. CASA also promotes day labor sites. This is where people, often without lawful status, come and seek work and opposes restrictions on illegal immigrants receiving drivers licenses. He was President of the Board.

Mr. Perez, himself, has spoken in favor of measures that would assist illegal aliens in skirting U.S. immigration laws. For example, as a councilman in 2003, Mr. Perez supported matricula consular ID cards issued by Mexico and Guatemala as a valid form of identification for local residents who worked and used services, without having any U.S.- issued documents to prove their identity.

Of course, after a good bit of examination and public discussion, those matricula cards were shown to be unreliable, and that is an unworkable way to determine the legal status of someone. But he was a defender of the matricula cards, which I think is troubling given the position he will be seeking to assume.

He also supported a bill granting instate tuition rates to illegal immigrants in Maryland and stated:

We have a legal obligation to make the same commitment to

hundreds of immigrant high school students who have made

Maryland their home.

We don't have a legal obligation to give people who are illegally in the country tuition and certainly not cheaper instate tuition than our out-of-state tuition.

Although Mr. Perez has taken many of these positions while acting in a political capacity--and there is a distinction between that political advocacy and being the head of the Department of Justice's Civil Rights Division--I do think it is reasonable for us to be concerned about whether he will use the Department of Justice's resources to advance his ideas and an agenda that is not consistent with the highest ideals of civil rights.

I don't believe establishing lawful rules of immigration or lawful rules for voting is unfair and contrary to civil rights. Indeed, they are a cornerstone. The law is civil rights in a true sense.

So I am concerned, and we are going to be watching to ensure that the Civil Rights Division not be politicized. It must be above politics. It must work to protect the rights of all Americans regardless of their political party, their race, or background.

Given the very political decisions apparently being made now in the Department of Justice, I think it takes someone committed to rising above this kind of activity and to right the ship.

I have talked with him. I enjoyed that conversation. I certainly have no ill will toward Mr. Perez personally.

But I have to say, I think it is important that we have honesty in voting, I think it is important that we have a legal system that works with regard to immigration, and at this point I am not convinced Mr. Perez has demonstrated he has the will to do those things, and that is what troubles me about the nomination.

I yield the floor.

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

Madam President, I would like to discuss a matter that is unrelated to the pending nomination. I have been concerned about the competition for the Air Force's No. 1 acquisition priority, the KC-X replacement aerial refueling tanker. This competition was opened for a second time on September 25 with the release of the RFP to the two bidders. We know this has been a troubled acquisition program. People actually went to jail early on in the process for attempting to create a sole source lease agreement. That breach of the public trust caused the Senate and Congress to mandate that a full and open competition be held to replace the Air Force's aging tankers. Full and open competition language was included in the 2005 Defense Authorization Act explicitly to prevent one competitor from having an unfair advantage over the other.

A troubling fact has come to my attention regarding the second round of tanker competition. The Air Force released Northrop Grumman's proposed pricing for the KC-X tanker to Boeing, the other competitor, at the end of the first competition, a competition that resulted in Northrop Grumman being declared the winner. I am told that such a release of pricing data was within acquisition regulations and that it is customary that the pricing data for the winning proposal, in this instance the Northrop Grumman proposal, be shared with the other competitors. The Department of Defense has stated that the Air Force did disclose the winner's pricing information to the losing competitor after last year's source selection. The Department of Defense further stated:

. . . this disclosure was in accordance with regulation and

more importantly that it created no competitive disadvantage

because the data in question are inaccurate, outdated, and

not germane to this source selection.

That statement might sound reasonable if it were not your pricing data that had been given to your competitor, but it certainly flies in the face of even the simplest definition of fairness. Let's be clear. This round of the KC-X competition is based on the same capabilities development document, the CDD, as the last, and the winner of the last competition is going to be bidding using the same aircraft they won with last time. How is their pricing data not germane to this round of competition? If is it not relevant, why won't the Department give both competitors the same insight to each team's pricing from the last competition?

Earlier this year we passed the Weapons System Acquisition Reform Act of 2009 and dedicated an entire section of that act to the need for fair competition. A basic tenet of effective competition is transparency to all bidders. In both versions of the 2010 authorization bills currently pending in this session, there is language that directs a fair and open competition, as has been true in previous years as we considered this acquisition project. It is a big one. It is important. It is the Air Force's No. 1 acquisition priority.

I stand behind the Air Force in their recognition of the need to reestablish their credibility. It had been lost somewhat in the improprieties that turned up several years ago. But I am disheartened by the fact that they don't seem to understand this issue of not sharing the same pricing data between the two bidders undermines their credibility and fairness. The Air Force certainly can't take the Northrop team's pricing data back. It has already been given to Boeing. It is too late for that. There is a simple fix to this problem. Both competitors should have the pricing data from the last competition. That is the only practical way to level the playing field. It is the right way to go forward with replacing an aging tanker fleet, some of which are over 50 years old. By the time the new tankers are in place, some existing tankers will be 80 years old. Releasing this data is what a fair competition requires and what the Air Force should do.

I understand that the bill managers have selected a certain number of amendments to consider and this amendment will not be selected for a vote. I have some amendments that have been selected. I understand the managers' constraints, but I believe the Air Force should consider this simple step toward fairness and should be committed to making sure one side does not have an unfair advantage over the other.

I have talked with Senators Coburn and Vitter who have an interest in this nomination. They have agreed to vitiate the cloture vote and proceed to an up-or-down vote on the nominee.

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

Mr. President, I would like to speak about the Franken amendment if it is OK with the bill managers.

The amendment would impose the will of Congress on private individuals and companies in a retroactive fashion, in validating employment contracts without due process of law. It is a political amendment, really at bottom, representing sort of a political attack directed at Halliburton, which is politically a matter of sensitivity.

Notwithstanding, the Congress should not be involved in writing or rewriting private contracts. That is just not how we should handle matters in the Senate, certainly without a lot of thought and care, and without the support or at least the opinion of the Department of Defense.

Senator Franken offered this amendment because he apparently does not like the fact there are arbitration agreements in employment contracts. I would suggest that is common all over America today.

The Supreme Court of the United States has already resolved that arbitration agreements contained in employment contracts are not only valid but in most instances beneficial. In most instances, arbitration is considered to be beneficial. In fact, employees tend to win more arbitration disputes than they do lawsuits in court. So I think that is a matter we should consider.

This is what Justice Kennedy on the Supreme Court wrote in Adams v. Circuit City:

Arbitration agreements allow parties to avoid the cost of

litigation, a benefit that may be of particular importance in

employment litigation, which often involves smaller sums of

money than disputes concerning commercial contracts.

So I believe that instead of eliminating arbitration, we should probably be looking for ways to utilize mediation and arbitration more in these kinds of disputes.

Indeed, in a recent JAMS article published in June of 2009, entitled ``Arbitrators Less Prone to Grant Dispositive Motions Than Courts,'' the author made the following points:

[A]rbitrators are generally much more reluctant than courts

to grant dispositive motions--

That is, to wipe out a lawsuit altogether--

whether they are motions to dismiss a complaint or

arbitration demand, or motions for summary judgment. Indeed,

the rules of most major arbitration providers are silent

about whether an arbitrator may entertain dispositive

motions.

It goes on to say:

While courts have held that arbitrators have the inherent

power to grant dispositive motions, the lack of explicit

rules on the issue reflects the hesitance that most

arbitrators feel in granting dispositive motions without a

fact hearing.

It goes on to say:

There are at least three institutional reasons, which also

highlight some of the advantages of arbitration:

The article says:

First, while every litigant is entitled to appeal the grant

of a dispositive motion in federal or state court, a final

decision in arbitration is subject to far less review.

Moreover, appellant court review of such a grant is de novo,

with the allegations or evidence, as the case may be, read in

the light most favorable to the plaintiff. In addition, to

the extent that the trial court has interpreted the law, the

reviewing court is free to interpret and apply the law

differently.

Basically, they are saying a person who has filed a complaint about their employment termination or agreement has a better shake of getting to court and having their matter heard than if they had filed a lawsuit because the strict rules of summary judgment often toss a lot of these lawsuits at an early stage.

It goes on to say:

The second difference between courts and arbitrators that

explains why courts are more likely to grant motions to

dismiss [an employee's lawsuit] is a differing level of

concern about discovery. In the U.S. Supreme Court's recent

decision in Twombly, for instance, ``the Court placed heavy

emphasis on the `sprawling, costly, and hugely time-

consuming' discovery that would ensue in permitting a bare

allegation of an antitrust conspiracy to survive a motion to

dismiss, and expressed concern that such discovery'' will

push cost-conscious defendants

to settle even anemic cases. Discovery is much more limited

in arbitrations and, thus, a denial of a motion to dismiss is

less likely to result in such extensive discovery.

Finally, some commentators and judges have noted that the

pressure of the increasing caseload that federal and state

courts have seen over the last two decades makes the courts

more tempted to dispose of cases on a motion, instead of

after a trial on the merits. . . . [arbitrators have] reacted

in precisely the opposite way--by constricting, not

expanding, the use of dispositive motions.

In effect, allowing more cases to be fully heard.

There is no doubt that contracts are a property right. We do not have any allegations that the contracts Senator Franken is trying to invalidate were imposed on employees or that fraud or coercion was involved in creating them.

To invalidate these contracts would violate not only the due process rights of employers but the employees as well. Employees could, indeed, benefit from arbitration rather than having to go to Federal court. The Congress is in no position to determine whether an employee negotiated for additional compensation in exchange for signing an arbitration agreement----

Mr. President, I ask unanimous consent to have one additional moment.

Mr. President, I would conclude by saying that I do believe this is an important issue; that the Department of Defense is not asking for this. It is a reaction to some specific event, I assume, that has not justified changing Federal law. Arbitration in itself can be better for employees than filing an expensive lawsuit in Federal court. I believe we ought to at least dig into the issue far more in depth than we have before we up and pass such legislation as this.

I thank the Chair and yield the floor.

Mr. FRANKEN addressed the Chair.

Mr. President, first of all, with regard to this lawsuit, although it took some time, the court, the Fifth Circuit, has ruled that this matter is not arbitrable and this lady is entitled to a court trial because it goes outside normal employment matters.

The Department of Defense let me know to oppose this amendment. There are a number of reasons: because it goes far beyond the issue raised by my colleague from Minnesota. It eliminates arbitration for any claim under title VII of the Civil Rights Act, any claim resulting from negligent hiring, negligent supervision or retention of an employee-- virtually any employment dispute that is now resolvable under arbitration, which the U.S. Supreme Court has said is good. Statistics show that employees get final judgment and actually win more cases under arbitration than they do going to the expense of a Federal court trial.

I think we should listen to the Department of Defense and vote no on this amendment.

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

Mr. President, I was concerned to learn on September 17 of the President's decision to forgo the deployment of 10 long-range, ground-based interceptors in Poland and a radar site in the Czech Republic which was designed for the defense of Europe and the United States against long-range Iranian ballistic missiles.

Just a few days ago, the Iranians demonstrated their determination, even after they agreed to meet with the United States, to deploy such a system by launching their top mid-range missile. That is not long from, of course, a long-range missile.

The Senate Armed Services Committee held a full committee hearing on the subject last week, and it did little to quell my initial concerns and has, in fact, added apprehension about the lack of specifics in the plan we are hearing will now be employed. More important, the geopolitical implications of reneging on prior U.S. commitments to key allies should not be underestimated.

With respect to the so-called ``Phased Adaptive'' approach, President Obama would have us believe that ``this new approach will provide capabilities sooner, build on proven systems, and offer greater defenses against the threat of missile attack than the 2007 European Missile Defense Program.''

I will add, parenthetically that the Europeans did agree and NATO did agree to the deployment of ground-based interceptors in Poland and the radar in the Czech Republic.

The reality is more complicated than the President indicates. I have to say, frankly, first, it is not clear this new approach will provide capabilities sooner. In fact, it does not appear to.

Under the first phase of this new plan, which is essentially underway, the United States would defend our allies against short-range threats by providing ``SM-3 Block 1A capable warships when necessary for the protection of parts of Southern Europe.'' That would mean we would deploy an Aegis cruiser armed with SM-3 missiles. But this is no different from what the previous plan called for. To suggest that is some new plan is inaccurate. To be sure, even today, we have AEGIS ships with SM-3 missiles plying the waters of the Mediterranean, and Patriot units deployed in and around Europe for our defense against short-range missiles.

In phase 2 of this new plan, which is, we are told, going to be completed by 2015, a more advanced version of the theater SM-3, the IB, would be deployed at sea and on land. Likewise, under the old plan, the IB missile would be deployed and fielded by 2015, though perhaps not on land. But it had been discussed. In fact, the last budget prepared by the previous administration called for an increase in the inventory of THAAD and SM-3 missiles to over 440 missiles in the European area by 2015, 2016.

I have not seen any inventory projection for this new plan, but I would be surprised to learn their numbers are significantly greater than what was previously planned. In fact, the administration has not gotten off to a good start in this respect, as the fiscal year 2010 budget request includes no funding for a new SM-3 or THAAD purchases. This is the only budget year request we have been presented by the administration, and they are not requesting any new THAAD and any new SM-3 missiles.

The administration's request funds previous purchases of missiles but requests not a single new interceptor that would be deployed. By 2018, in the third phase of the new plan--2018, over 8 years from now--a newly developed SM-3 block IIA missile would be added to the inventory to protect all of Europe against intermediate-range Iranian missiles-- the kind of intermediate range the Iranians just tested Monday. This is by 2018.

Under the old plan, the plan we have been working on for quite a number of years, this SM-3 IIA capability was meant to complement the deployment of 10 ground-based interceptors in Poland, which would have provided protection for most of Europe and the United States against long-range Iranian missiles in the 2015 timeframe. In

other words, these 10 interceptors would have been capable of protecting all of Europe and the United States. If a missile were launched from Iran aimed at hitting the United States, it would fly basically over Poland and Central Europe. As a result, this would be a prime place to deploy a defensive missile system. The ground-based interceptor that would have been used would have essentially been the same missile we currently have deployed in Alaska. Our Presiding Officer, Senator Begich, has been very engaged in that, and I know we both are concerned to see the number of interceptors planned for that site being reduced. The key difference in the missiles is that our interceptors in Alaska and California are three-stage missiles, while two-stage missiles would be used to fit our needs in Europe.

Finally, the new plan would call for the development of IIB missiles by 2020, which would ``further augment the defense of the U.S. homeland from potential ICBM threats.'' That is what they are telling us would happen. But I have been around here a while, and we don't have this SM- 3 IIB missile even on the drawing board. They just conjured up this idea a few days ago--at least that is the first I have heard about it. So we have to build this new missile--not build on the one we have already emplaced in Alaska and are building now, but build a whole new missile. That will take 10 years. And who is to say the Congress will be faithful to this 10-year plan? I will tell you one thing: President Obama will not spend a dime of his money on it. This is in the distant future. That worries me because my experience is that plans like this don't always come to fruition. When you abandon a proven technology, that we are almost ready to deploy now, after some hope in the future, this makes me nervous.

The two-stage GBI intended for Poland in the old plan would have been fielded by 2015, 5 years earlier than this vision of a IIB, if the ratification of all the agreements had occurred and we pushed for that. The 2015 date is important because Iran may have, by then, long-range missiles capable of reaching all of Europe and the United States.

In March of this year, General Craddock, then-commander of U.S. European Command, testified before Congress,

By 2015, Iran may also deploy an intercontinental ballistic

missile capable of reaching all of Europe and parts of the

United States.

That was his testimony, given under oath.

In May of this year, 2009, an unclassified intelligence report issued by the National Air and Space Intelligence Center stated:

With sufficient foreign assistance, Iran could develop and

test an ICBM capable of reaching the United States by 2015.

In the final analysis, it is not clear that the new plan will field capabilities any sooner--and indeed it appears later than the previous plan--which may leave us with a gap in coverage in Europe for at least 5 years if we were to move forward with the plan to develop this missile. So forgive me if I am not buying into this. This plan sounds like an excuse for giving up on the European site for the GBI.

The President also claims that his approach is based on proven technology--the assumption being, perhaps, that the previous plan was fraught with technological risk. Again, that claim is not correct.

The administration argues that its approach to providing defense of Europe with SM-3 block IIA, and ultimately augmented with this IIB system in 2020, is based on proven technology of the currently deployed SM-3 IA missile. Well, that is just not accurate. The SM-3 that would be effective against an ICBM is much larger in diameter. It is an entirely new missile. Just because the SM-3 is performing very well for theater defense doesn't mean they can build an entirely new SM-3 and it is going to be as effective. I assume they could, and move forward with it, but it is not a sure thing.

While I have confidence in the ability of the SM-3 missile to eventually evolve into an ICBM interceptor, I would note that the two- stage GBI intended for Poland is also based on proven technology of the three-stage GBI now deployed in Alaska and California, which, according to General Cartwright, has a 90-percent probability of intercepting a rogue missile--presumably coming in from North Korea.

This is a great system. We have invested decades of effort in it, over 20 years. Thirty-plus years have gone into developing an antimissile system. We have finally got it so that we have a 90-percent chance of having one of these interceptors--knockdown, hit-to-kill technology--in space over the Pacific Ocean to obliterate an incoming missile. We have the radar system designed to pick up these missiles on launch, to track them, and to guide the missile into that kill system.

It is certainly questionable to me whether the SM-3 block II variant, which requires new boosters and a new kill vehicle, is less technologically risky than a two-stage GBI, which is scheduled for flight testing in the coming years.

Finally, the President contends that his approach would offer greater defense than the previous approach. Here he assumed the old approach included only 10 ground-based interceptors in Poland and that his new approach would provide more theater defense on land and on sea.

I would just say that this bothers me because that has never been our plan. Our plan always has been to emplace ICBMs or theater missiles in Europe, as well as the 10 interceptors in Poland that would protect us from a rogue attack from a country like Iran, which seems determined to do this.

So this is where we have been. And I am pleased to see my colleague, Senator Lieberman, who throughout his time in the Senate has maintained a superb understanding of national missile defense as part of his duties on the Senate Armed Services Committee. He is probably the most knowledgeable person in the Senate on that issue, and I think he shares some of my concerns.

I thank the Senator for coming, and I would be pleased to join with him in an amendment that could improve our situation today. I will be glad to yield to my colleague. The only thing I see new in this plan is the abandonment of the Polish site, the ground-based interceptor, which indeed is capable of knocking down a missile from Iran.

Mr. President, I yield the floor, and I would be pleased to hear Senator Lieberman share some of his thoughts.

Mr. President, I would like to say how much I have enjoyed the clarity and integrity with which Senator Lieberman has stated the situation in which we find ourselves. It comes from great experience over a number of years, both on the technical matters of missile defense and on the geopolitical threats this Nation faces. I certainly value his opinion.

I would share one thought with my colleagues. I hope my colleagues will understand this. What happened in this year's budget request was a major shift from a very long lead plan to develop a very robust missile defense system.

We can disagree about some of the details of this or that. But let me give some examples of what has occurred: In this year's budget request, the President canceled the Kinetic Energy Interceptor, the KEI. It was a high-speed missile that would be less expensive and have great capability, particularly in the ascent-phase of an attack against the United States. The president's budget zeroed that out. We have been working on that for quite a number of years.

They also are working toward and doing research on an MKV, a Multi Kill Vehicle, in which you can put on a single ground-based interceptor booster three or more kill vehicles, that could knock down multiple missiles or decoys. The budget zeroed that out.

We had a plan we have been developing for a number of years to develop an airborne laser, have a laser on an airplane that can fly in an area where you may expect a launch to occur. It does not have to be very close but in the region. They catch a missile in the boost phase. The laser can hit it and knock it out of the sky. It is a remarkable capability. That has been debated, I will admit, but it has been funded for a number of years. It will be tested this year.

The Defense Department expects that test to be successful. We did have enough money, or there was enough money in the bill to at least test it. But after that, zeroed out. No funding for ABL.

So what about our ground-based interceptors and GMD system that we have been working on for 30-plus years, spent over $20 billion on, that was planned to implant 44 interceptors in Alaska--most of them in Alaska and some in California? That has been cut from 44 to 30.

What about the plan to deploy 10 in Poland and Europe to give us redundancy and protect Europe? Zeroed out.

So this is not just a little nibbling away in missile defense. This is an erroneous policy that makes me nervous. Because we have a system that is ready to go forward. We stop it. We promise we are going to have a new system out here 10 years from now. There's many a slip twixt the cup and the lip. I am not sure whether we will ever get that done waiting on some new system to come along.

As Senator Lieberman noted, the administration requested $151 million to be obligated for a long-range missile

defense system in Europe. They requested that that money be used for research and development and testing of this two-stage system.

This amendment that Senator Lieberman and I have proposed would prohibit the diversion of that away from what the Obama administration initially requested and to require it to be spent on the two-stage GBI, including options for deployment in Europe and elsewhere. So why is it necessary? Well, the mark we are dealing with on the floor today cuts the $151 billion from the BMD test and targets program element, and, though the language itself does not expressly target this cut against testing for the two-stage GBI, the Missile Defense Agency understands this is what the Senate Appropriations Committee intends. Hence, they have submitted to us an appeal letter and asked us not to do it.

MDA argues this cut will require cancellation of fiscal year 2010 testing activities related to two planned two-stage GBI flight and intercept tests. We have proven the technology of the three-stage interceptor. Therefore, it is simpler to have a two-stage one. We have to test it and develop it.

Such a cancellation, as occurs in this bill, will also impact data collection applicable to the three-stage GBI requiring further testing in the future at additional costs.

Reduced funding would increase, risk, and delay the proving out of the two-stage GBI avionics capabilities required for the European component and future three-stage avionics capabilities. Slowing the development and testing of the two-stage GBI is inconsistent with the administration's intent to continue such development as a hedge against developmental problems for the SM3 Block IIa and IIB, the ones that are intended in the distant future for Europe.

So General Cartwright, our commander in Europe, has indicated, by 2015, this would be a potential threat against the United States. That is why we have offered this language. I believe it is the right thing to do, to keep this program at least ongoing and not to waste the effort we have expended so far and complete the testing of the GBI, which can also be used in the United States as part of a layered defense against incoming missiles also.

In the appeal submitted to the committee from the Department of Defense, they note this language:

Cancelling fiscal year 2010 activities for these tests

would have a major impact on the test program and on data

collection applicable to two-stage and three-stage ground-

based interceptors and associated M&S.

So they say it would have a major impact on the program and the administration has asked us to keep it. That is the purpose of this amendment. I was hoping we could reach some sort of accord that we could work on with the committee. I am not sure we have been able to do that at this stage. But the matter is important. I hate to have to come to the floor and offer this amendment. I like to respect our committees. It is important. However, the concerns Senator Lieberman and I have explained today are why we felt it necessary to do so.

I thank Senator Lieberman. I have confidence in the chairman and the ranking member on that committee. Of course, it is not much different than what the mark is today. It is below what President Obama requested. I think he has unwisely cut too much already from Defense. So I am uneasy about it.

But I am being a practical person, and knowing my colleagues would like to go home, Senator Lieberman, I think that is maybe something I would agree to. Perhaps you and I could talk briefly if we have a quorum call.

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

Mr. President, I want to speak today once again concerning the really astounding, irresponsible, unjustified increases in spending we have seen in this Congress. I don't believe this Nation has ever seen anything like it in the non-defense area, and it is threatening this country's long-term financial health. So I am going to focus today on some of the appropriations bills considered in this Chamber as well as the next highway trust fund bailout, which is in the works.

I have some prepared charts, and my staff will bring those here in a minute, which will show the runup in appropriations spending we are seeing today, which is pretty much unprecedented in the history of this Congress.

Take for instance the agricultural appropriations over the past 8 years. They are dramatic. We passed that recently. Agricultural appropriations increases were 14.5 percent in this year's appropriations bill over last year's. That would double the agricultural budget in 5 years if we maintained those increases. That is a stunning number. The average increase in agriculture spending was 2.1 percent compounded over the 7-year period from 2003 to 2009. Yet we now jump up, in this time of unprecedented deficits and debt, to where we have a 14-percent increase. The 2.1-percent average we had from 2003 to 2009 was criticized by many as being excessive, but it was about the rate of inflation. As we know today, inflation is virtually nonexistent, and yet we end up with a 14-percent increase.

If you look at the Department of the Interior, those changes over the past 9 years are also dramatic. We just passed the Interior appropriations bill. Interior and EPA, the Environmental Protection Agency, have now been put together. Their increases were 16.6 percent in over the previous year in the 2010 Senate bill.

This chart just shows in graphic detail how agricultural spending has gone. I know my colleague from Nebraska believes in agriculture, and I do, too, but this is one of the few times I have not been able to support an agriculture bill. We don't have the money to increase spending 14 percent.

President Bush, they said you spent too much on agriculture. We heard that a lot, didn't we, I say to Senator Nelson. But it was pretty frugal over the years. Here we have, in 2009, a 15 percent increase, and in 2010 a 14.5 percent increase in spending. Our debt today is so much greater than what we had in those years, it makes us wonder how did we get here.

If you look at Interior, as I just mentioned, we see the same thing. The Environmental Protection Agency has not always been a part of this funding mechanism, but we worked hard to try to make sure we are comparing apples to apples, and you see less than 1 percent in 2002, 5.6, 1.6, a minus 1.3, minus 4.0, then 16 percent this year. I couldn't vote for that. I do not think our colleagues are listening to their constituents back home. They know something is going awry up here. They think we are detached from reality. Doesn't this chart suggest that they are correct?

I will just mention the Environmental Protection Agency. Their increase this year is 33 percent. That would double EPA's funding in 2 to 3 years.

Let me add, these funding levels do not count the largest appropriations bill in the history of America, which we passed in February--wait a minute. I hear my wife right now: Jeff, would you quit saying ``we'' passed, when you voted against it? The Senate passed $800 billion. If you add the stimulus funding the Interior bill agencies received, that would add another $11 billion to their spending and take it to over a 50-percent increase.

So Interior got a lot of money out of the stimulus bill. This chart is not including the stimulus spending; this is baseline spending. So next year, they will want an increase again and it will be on a much higher baseline, a 16-percent higher baseline than the previous year.

I will get to this one next, the T-HUD appropriations, as we call it around here, Transportation, Housing and Urban Development.

Since the Transportation-HUD bill has only been around for 3 years in this configuration, together, this is what we have been able to graph out for those two bills. The average of all discretionary appropriations increases for all appropriations bills that we have had, from 1995 to 2009, 15 years, averaged 5.2 percent compounded. So when you see a 23-percent increase this year in the fiscal year 2010 bill, that is over four times the 15-year average of appropriations for discretionary spending in our cup. At a 23-percent rate, spending on T- HUD would double every 3 to 4 years.

Next, let's look at Commerce-Justice-Science. Although CJS has also only been around for the past three years, we were able to reconstruct the funding levels for all agencies going back to FY2003. What we discovered was surprising. The average spending increases from 2003 to 2009 for CJS was 4.4 percent. However, this year we have a 12.3-percent increase in the baseline funding for the CJS bill. At that rate, spending in that CJS--Commerce-Justice-State spending would double every 6 years, and that doesn't include the $16.9 billion CJS accounts got from the stimulus legislation.

Finally, there is the State and Foreign Operations bill. The State and Foreign Operations has only been around together in this configuration for 3 years, and that is all we have been able to graph. However, we can once again compare it to the average of all appropriations increases for all the bills from 1995 to 2009, which I said was 5.2 percent.

So the 33-percent increase in the fiscal year 2010 State and Foreign Operations bill is over six times the 15-year average increase for discretionary spending. At a 33-percent rate, the spending would double every 2 to 3 years, at a time of unprecedented deficits.

This week, we are going to have the Legislative Branch appropriations bill, our budget. It increases spending at a 5.9-percent rate compared to fiscal year 2009. That is four times the rate of inflation excluding food and energy, which, according to the Bureau of Labor Statistics, is 1.4 percent for the last 12 months. So, excluding food and energy, we have inflation at the rate of 1.4 percent, and we are funding our own selves in the legislative branch at a 6-percent increase. If you include the cost of food and energy--and there is some good news here: inflation has gone down, actually. We are in a period of deflation. It has gone down 1.5 percent when you figure that over the entire year, including food and energy prices, which have dropped considerably from the huge gasoline prices we remember not long ago. So if you add the stimulus and the supplemental funds from fiscal year 2009 to fiscal year 2010 instead, you come up with an 8.2-percent increase.

So what is wrong with spending 23.2 percent or 16 percent more on these bills than last year, or on the average? The simplest way to put it is, we don't have the money. We are going to have to borrow money to do this spending. We borrow the money. It is not free money. We don't have the power just to spend money. When we go into debt, we borrow the money, and people buy Treasury bills and notes, and we use that money to pay the debt, the shortfall between what we spend and what we take in in taxes. We are going to have to borrow money from a lot of people, but China is our biggest loaner of money. Other countries lend as well.

Shortly after President Obama's inauguration, he released a budget entitled ``A New Era of Responsibility.'' Here are some quotes from his passage in that document:

Therefore, while our Budget will run deficits, we must

begin the process of making the tough choices necessary to

restore fiscal discipline, cut the deficit in half by the end

of my first term in office, and put our Nation on sound

fiscal footing.

That is a good statement. I just have to say that I am still looking to where those tough choices are going to be made. According to the Congressional Budget Office, our independent source of information, the President's budget doubles the debt in 5 years and triples it in 10. This is the Congressional Budget Office. This is a nonpartisan group, although our Democratic majority on the Budget Committee, of which I am a member, has the votes to select the Director. Since the history of the founding of this Nation, we ran up a total debt, national debt, of $5.8 trillion. According to the Congressional Budget Office, the President's budget would double it in 5 years, by 2013, to $11.8 trillion, and in 2019 it would be $17.3 trillion, thus tripling the national debt in 10 years. I know people do not think that is true, but those are the numbers we have, and we are on track to get there. This does not include unprecedented increases in discretionary spending that we are seeing on the floor of the Senate. It also doesn't include health care. This number was scored before we talked about spending $1 trillion or more on health care additions.

I have to mention interest on the debt because the numbers are so large that people have difficulty comprehending them. People tell me that all the time: A trillion dollars, I have difficulty understanding how large that is.

What about interest? We know what it takes when you pay your mortgage interest or your credit card interest. You have to pay the underlying debt and then you pay the interest on top of that. Sometimes interest can put you in the poorhouse.

This year, 2009, the interest on our total national debt is $170 billion. That is a lot of money. Alabama's State budget, including education, is about $15 billion. We are about one-fiftieth of the Nation in size. Interest this year will be $170 billion, and it will go up dramatically. CBO scores the annual payment of the United States to people we owe money to at the end of 10 years, as almost $800 billion. If interest rates go up a little higher than they had projected, and many have projected interest rates will go up higher, particularly the Blue Chip Forecast, which is a highly respected group of economists who forecast various things, they forecast it would be $865 billion because they forecast a higher interest rate. And if we have what some people fear will occur, which is a surge in interest rates, as we had in the late 1970s because of our irresponsible spending, it could hit $1.29 trillion or $1,290 billion in interest.

So we spend about $40 billion a year on highways, we spend about $65 billion in this Congress on aid to education, and we are going to see from $170 billion to $800 billion or more we have to pay in interest? There is no free lunch. You can't borrow your way out of debt. When you spend money you do not have, you borrow it and you have to pay interest on it.

We have low interest rates today. That seduced some of our masters of the universe to say: Let's run up a little debt right now. Running up a little debt is one thing, but the interest rates are going to go up, as CBO projects. They are pretty low today because of the slow economy.

I am very concerned about this. What I am concerned about is our spending in these appropriations bills indicates we are oblivious to this. This is reality. I am not making this up. This is reality, and the American people intuitively understand it and they are really worried about it. I think they should be. We are the ones who seem to be not connected to reality.

The President also stated these words in his budget submission documents:

Then there are the years that come along once in a

generation, when we look at where the country has been and

recognize that we need a break from the troubled past, that

the problems we face demand that we begin charting a new

path. This is one of those years.

It does seem apparent that we are having a break with our past. We are definitely seeing increases in spending, the likes of which we have never seen before in our basic baseline appropriations bills. Even the deficits I have mentioned assume not a recession in the next 10 years but robust growth in the next few years and solid growth in the last 5 years. Basically, the projections on the deficit and the interest rate we are going to have to carry are greater.

And the deficits--let me share this with my colleagues. I get asked this at townhall meetings: Well, when do we pay back the debt? When do we pay it off? I am paying my mortgage. I pay principal and interest. When is the Federal Government going to pay back its debt? The answer is: We have no plan to do so. The only plan we have is to pay interest and increase the debt.

For example, this year the budget deficit has been estimated to be $1.8 trillion, the largest ever. Last year it was $450 billion. It is $1.8 trillion this year. The CBO forecasts that the lowest deficit, annual deficit, we will have in the next 10 years is over $600 billion.

How can you pay any debt down when the lowest deficit you are going to have is $600 billion? The best year they are projecting, we increase the debt by $600 billion. Indeed, what is even more troubling is in the outer years, years 8, 9, and 10, the deficit is growing. In the 10th year, they project that the deficit that will result from the President's spending policies would be over $1 trillion.

So there is no plan to pay this back. It is only a plan to increase the total debt, which inevitably increases the interest burden that is going to fall on our children and grandchildren. We are reaching into the future to pour money into today to satisfy our current needs because some say we are in a crisis and we have to get out of this crisis; let's just spend money.

We are using that as an excuse to increase our legislative branch spending, our interior spending, our agriculture spending that, at baseline level, is higher than anything we have ever done in recent memory. Let's hope the scenarios I mentioned do not happen. I think it is possible. I have a lot of confidence in the American people that somehow, some way their voice is going to be heard. There are going to be some changes in Washington. If we do not do it ourselves, they are liable

to send someone up here to replace us who will do it.

But it appears that some of our major creditors are taking note of the debt we are running up. Our creditors are looking at these numbers. They are not oblivious to what is going on. There is a special kind of Treasury Bond that we sell to get people to loan the government money called treasury inflation-protected securities or TIPS. Unlike regular bonds that would be at a certain interest rate and that could be devalued when inflation increases, TIPS adjust their value if inflation goes up. So if people with a lot of money looking at these numbers, are they betting that we will see inflation go up or are they expecting inflation to go down? It is pretty clear that they expect inflation to go up because investor interest in the TIPS is soaring.

The Dow Jones Newswires reported September 13 that prices on TIPS have risen 8.7 percent this year; whereas, the prices of regular Treasury bonds have shrunk by 2.6 percent.

Smart Money magazine reported September 23 that investors poured $8.5 billion into TIPS in the second quarter of this year alone, double the amount for the same period last year. The Wall Street Journal reported the same day that investors have poured $17 billion into TIPS so far this year; whereas, they purchased only $10 billion in TIPS all last year.

Meanwhile, the Chinese, who are some of our biggest creditors, with more than $800 billion in Treasury bonds, have expressed concerns about inflation here and have shown a corresponding interest in buying TIPS. According to the Wall Street Journal, they discussed TIPS at high-level talks in Washington at the end of July.

The United Kingdom's Daily Telegraph, in an article entitled ``China Alarmed by U.S. Money Printing,'' on September 6, even quoted a top Chinese Communist Party official lecturing the United States on spending and then quoting Benjamin Franklin to the Americans.

He said: ``He who goes borrowing goes sorrowing.'' How ignominious is that, to be lectured on spending by Communists. Due to interest from both the Chinese and others, the spread in the interest rates between the 10-year TIPS and the regular 10-year Treasuries has grown from about zero--they both had about the same rate of interest at the beginning of this year--to nearly 2 percent.

That means one can get nearly a 2-percent better rate by buying regular Treasuries. But people still want TIPS. Why? Because they believe and are afraid that as the years go by, inflation is going to rise, and they will get more interest back by buying TIPS, even though it is 2 percent below the basic Treasury rate.

Meanwhile, the dollar is hovering at a 1-year low, partially because the Fed recently decided to have interest rates unchanged at basically zero percent, and decided to extend through March its timeframe for purchasing $1.25 trillion in mortgage securities and $200 billion in government agency debt.

The dollar has slid 6.2 percent this year on inflation fears, while gold has soared 15 percent. Gold goes up on inflation fears in the future.

Confidence in the dollar has sunk so low that the U.N. proposed replacing the dollar as the global reserve currency in its U.N. Conference on Trade and Development annual trade report, published September 7. China has also expressed interest in an alternative currency.

Not only that, because of all this borrowing, we are about to hit our $12.1 trillion debt limit, which was last raised when? Not too many months ago, when we passed the $800 billion stimulus package in February.

Our debt has increased by $1.1 trillion just since President Obama was inaugurated. The Treasury Department has been holding record auctions of Treasury bills and notes to keep up with the deficit and the debt.

Another aspect of the continuing resolution that we will be considering this week is yet another bailout of the Postal Service. This is the third Postal bailout in 8 years. The Post Office was supposed to be completely self-funding by now. But they still refuse or are unable to pay for their outyear benefits and expenses.

According to the Congressional Research Service, they face about $95 billion in total unfunded liabilities--$95 billion--which is why they are supposed to make payments that are being suspended by the continuing resolution. They are scheduled to make $5.1 billion in payments this year for the unfunded pension liabilities. But in this bill, we are letting them only pay $1.1 billion.

There is nothing free here. OK? We will let them not pay the full amount. Those payments are to make their benefits actuarially sound. This $4 billion in relief is in addition to the $7.1 billion that was provided in 2003 and the $1.5 billion that was provided in 2006.

CBO, our Congressional Budget Office, says this is costly because it shifts money from future accounts to current expenses. But if we keep doing this without structural reforms from the Postal Service, taxpayers will wind up on the hook for a good portion of those unfunded liabilities.

Why is the Post Office in such a financially poor position? In terms of efficiency, labor costs consume 80 percent of their revenue; whereas, UPS and FedEx spend 65 and 45 percent, respectively, on their labor costs.

The Postal Service is nearly insolvent despite not paying any taxes. They have to have some reform in the Postal Service. I am not going to go into detail now, but a recent Federal Times article pointed out some of the inefficiencies. We cannot continue this.

Let's turn to the highway trust fund. We are going to be asked to pass an extension of the trust fund spending. It struck me as perhaps coincidental that our highway trust fund keeps running out of money year after year after year. What is happening here? Why is it always running out of money? After all, the highway program is supposed to be funded by the gas tax and to be deficit neutral.

However, last year we were told we had to borrow $8 billion from people who loan us money, including China and Saudi Arabia and others, to replenish the highway fund. This year, we have already borrowed another $7 billion to fix the shortfall.

Although the bill before us this week does not borrow additional money from the Treasury, it also does nothing to address the constant deficit the trust fund faces. I am told the fund has been facing and will face a deficit of about $10 billion a year, which means this bill is just kicking the can down the road, and we are going to be asked for either another bailout or a tax hike in the future.

We cannot savage the highway budget. We have to maintain a reasonable spending level for our highway budget. But we have not been going about this responsibly. We are basically funding it by increasing our debt. That is no way to go.

Some make the point that people are driving less and they pay less gasoline taxes. There is some truth to that. But the most recent authorization bill, the Safe, Accountable, Flexible, Efficient Transportation Equity Act, contained a timebomb in it that created the crisis we are in today.

It appears to have been written with the objective of drawing down the highway trust fund rapidly to zero and perhaps beyond. The previous highway bill had some safety mechanisms built into it to prevent declines in our revenue from bankrupting the trust fund. But the SAFETEA-LU weakened both of them, one known as revenue aligned budget authority and one known as the Byrd test, to the point that they are basically irrelevant today.

The combination of constantly increasing spending and disabled safety mechanisms to contain spending means that a crisis was almost inevitable. As early as April of 2006, the Congressional Budget Office was predicting significant negative balances in the outyears of Transportation spending. But did we take any action to confront that looming shortfall?

No, no action was taken either in the authorizing committees or the appropriations committees. The predictable gap between authorized spending and predictable revenue, a prediction that the highway trust fund will soon go bankrupt, which is where the balances hit zero and the timebomb goes off. Despite predictions from CBO that this would happen, to this day, no action has been taken by either the authorizers or appropriators to rein in spending or create the kind of revenues necessary to sustain the program.

Instead we are supposed to keep borrowing, borrowing, debt, debt, debt. The excuses we keep hearing to justify these bailouts is that the highway trust fund has been raided at various times in the past. But that is not accurate.

It is inaccurate. According to the GAO, an independent agency, the general fund paid for $39 billion in highway expenses from 1956 to 1996. Including interest, these payments were worth $164 billion. So it seems that at best, the highway trust fund isn't owed anything, and at worst, it perhaps actually owes money to the general fund. In fact, GAO determined in that report that as of 1998, if the highway trust fund had been forced to pay for all highway expenditures, it would have been in deficit $152 billion. We are not raiding the highway fund. We have been putting in extra money. Where did we get it? By borrowing more money and increasing our debt.

Those transfers didn't stop in 1997 either. Before the current series of bailouts began, Congress already provided for $31 billion in transfers over 10 years from the general fund to the highway trust fund as part of the 2004 American Jobs Creation Act.

As I mentioned before, we have before us this week a highway trust fund extension that does nothing to help with the constant deficit in the program except borrow more money to put into it. All it does is keep spending at levels we know we don't have the money to sustain. In fact, if we keep spending at the current levels, the highway trust fund will require $87 billion in bailouts from 2010 to 2019. I remember a few weeks ago, in a stunning vote, Senator Vitter from Louisiana offered a fine amendment. We were told that the stimulus package that had to be passed so quickly in February to save jobs was going to rebuild our crumbling infrastructure and our highway programs, creating permanent improvements that would benefit the Nation for years to come.

Most people perhaps missed the fact that less than 4 percent of the $800 billion that was appropriated in February went to highways. Hundreds of billions of dollars of the stimulus bill have still not been spent. Senator Vitter said: We said we were going to use this money for highways. We are having a shortfall in the trust fund. It is going to cause serious repercussions in the transportation industry. Let's take the money and fix it on a more permanent basis, 18 months, 2 years, and take the money from the stimulus bill that hasn't been spent.

I voted with Senator Vitter, but the amendment was voted down, the effect of which was to say that the Senate prefers to borrow the money necessary to fix the highway trust fund and increase our debt rather than using the money we basically told the American people we were setting aside for highways. That was a very irresponsible vote. It spoke volumes. Basically, with few exceptions, the Democratic majority made up their minds how they wanted to handle this shortfall which was increasing the debt. They refused to consider taking it from the already appropriated stimulus package.

Unfortunately, CBO scores are not the clearest when it comes to these bailouts. I am not sure that is all CBO's fault or the Budget Committees'. One would think a bill that allows billions of dollars in additional deficit spending would score as much. But according to the CBO, highway spending is discretionary; therefore, what matters in terms of the deficit is what is appropriated not what is authorized. Of course, if we ask the appropriators, they will simply say they provide what is authorized. For fiscal 2010, the appropriators provided what they expected to be authorized by simply assuming that this extension of spending and eventual general fund transfer would happen. That is one of the reasons there was an incredible 23-percent increase in spending in the Senate-passed bill.

The committees are playing a shell game with taxpayer dollars. Somebody has to step up and start taking responsibility for the seriousness of the situation. If we look at how much transportation spending has increased over the last 10 years and where it is expected to go, the 2005 highway bill provided $286 billion in spending over 5 years and allowed spending to increase 23 percent over that 5-year period. The 2007 spending it provided represented a 92-percent spending increase from 1997; 10 years, almost double. I offered an amendment in 2005 to reduce that spending and fund it properly. It failed 84 to 16.

The House Transportation Committee apparently wants the next major reauthorization to spend $500 billion over the next 6 years. That is a per-year increase in spending of 46 percent.

One thing we are pretty unified on is that we need to adequately fund highways. I thought we had unanimous agreement that the stimulus bill would emphasize highways and bridges and roads and infrastructure, but it did not. But we still spent the money.

The reason we are not getting nearly as much jobs impact from this Federal stimulus package is too much of it is going to amorphous things that don't create positive benefits and jobs. Regardless, the number we show on this chart of the debt of the United States, projected to triple in 10 years, is unsustainable. Everybody says that, but when do we get serious? We are not getting serious in this year's budget. It is an unprecedented increase in spending.

The long-term budget the President submitted to us and what was essentially approved by this Congress shows it tripling in the next 10 years, based on what their projections are for spending. I am troubled by it. We have to keep talking about this. We need to listen to what the American people are telling us. If we do, we will be acting in a much more responsible way than we are today.

I yield the floor.

Mr. President, I thank Senator Johnson for his comments and value his opinion on this nomination. I look forward to seeing this nominee confirmed.

The confirmation process we have in this country is a very important matter. Our Democratic colleagues are, understandably, inclined to be supportive of whomever the President puts up. It has been a recognized responsibility for the minority party, the party that is not of the President's party, to ask questions and dig into the backgrounds of these nominees and move the good ones and raise the proper questions if there are problems.

Mr. Jeffrey L. Viken has an impressive background. Early in his career, he was an Assistant and Acting U.S. attorney. He is a member of the trial lawyers plaintiff bar association in South Dakota. He has been in private practice for 22 years, and for the last 6 years he has been a Federal Public Defender where he defends criminal cases. So he has been a prosecutor and a public defender. I guess that is a pretty good match, and I am happy we were

able to work out this agreement with the majority and process this nomination very quickly. Actually, he was voted out after his first appearance before the Committee and is already on the floor.

But I would note for some people who say there has been a dragging of feet on the nominations that the President did not send this nomination forward, his first district court nominee to the Senate, until June 25, a few months ago, when the Senate and the Judiciary Committee were consumed with the Supreme Court nomination of now-Justice Sotomayor. Understandably, Chairman Leahy could not and did not report his nomination until after that confirmation process was over, until after Labor Day. We were then able to come to a time agreement and also to vote on the nomination of Judge Gerard Lynch, who is a highly able nominee but an activist judge with a philosophy too close, by my way of thinking, to Justice Brennan on the Supreme Court for whom he clerked. So I think it is healthy for us to ask questions. I voted for Judge Lynch for the Second Circuit, and he was confirmed by a very large vote.

We will continue to work with the majority party and the President and move the nominees at an appropriate pace.

I wanted to note a little bit more about the pace of nominations. You know, it is not possible for the Senate to confirm a nomination until the President has nominated someone. I have heard my colleague, the Chairman, Senator Leahy, say that we haven't had enough confirmations, but I would note that there is an 11-percent vacancy rate in the Federal courts. That is not an extraordinarily high vacancy rate. It takes some time to do background checks and for the President to consider the people he might want to nominate and to consult with Members of the Senate as he does so. I would note that at this moment there are 74 Federal District Court vacancies--Judge Viken is nominated for one--but there are only 9 nominees before the Senate. There are 28 circuit and district court seats that are deemed to be judicial emergencies, but only 6 nominees have been submitted to the Senate for those judicial emergency seats. We can't confirm people until they are nominated. We can't do a background check on nominees until they have been nominated. We can't have the information and their records and their FBI backgrounds and the bar association evaluations take place until they have been nominated.

I would just make my commitment that we will continue to move nominees like Mr. Viken in a timely fashion. I reviewed his record. I have also carefully reviewed his responses to questions from the Senate Judiciary Committee. One of his answers, I have to note, was troubling to me. He stated that he believes he fits President Obama's standard for the types of judges he will nominate to the Federal courts; that is, he meets the President's ``empathy standard.''

President Obama described that standard as follows:

We need somebody who's got the heart, the empathy, to

recognize what it's like to be a teenage mom, the empathy to

understand what it's like to be poor, or African-American, or

gay, or disabled, or old. And that's the criteria by which I

am going to be selecting my judges.

In 2005, when then-Senator Obama was in the Senate and he explained on the floor his vote against Chief Justice John Roberts, who I think is one of the finest nominees we have seen in decades and whose testimony before the Judiciary Committee was stunning in its impressiveness and his grasp of the legal issues, his comprehensive knowledge of how the Court worked, and cases--there was not a case brought up that he didn't seem to fully know about. Virtually every case the Supreme Court had ever written he seemed to be knowledgeable about. It was just a tour de force. Senator Obama voted against Judge Roberts and stated that 5 percent of cases are determined by ``one's deepest values and core concerns . . . and the depth and breadth of one's empathy.'' We can only take this to mean that the President believes that in 5 percent of all cases, judges should not set aside their personal beliefs, biases, or experiences. I think this is a radical and a dangerous departure from the most important pillar, the fundamental pillar of the judicial system--judicial impartiality.

Whatever the empathy standard is, it is not law, and we have courts of law in this country. Whenever a judge employs his personal beliefs, biases, or experiences to make a decision that favors one party, is it not true that he necessarily has, therefore, disfavored the other party as a result of his personal beliefs and biases? For every litigant who benefits from the judge's so-called empathy, there is a litigant who loses not on the basis of law but because the judge did not identify with them.

When people are nominated to our Federal bench, we ask them to take a judicial oath before they take office. The oath embodies the time- honored American tradition of blind justice. The oath says this:

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.

I am pleased to say the Supreme Court has not yet struck down ``so help me God'' in the oath, and hopefully they never will. I think the President's standard for judicial nominees plainly conflicts with that oath.

We have had a big discussion about that, and it is not a little bitty matter. It is not a small matter. Judges take the oath to be impartial. I practiced law in Federal court for many years, and I have always believed and expected that a judge who heard my case would rule on the law fairly and objectively. If I lost and did not have sufficient law or evidence and logic to support my position, I did not expect to prevail. That is the kind of concept that underlies American justice.

Aside from nominee David Hamilton, almost every one of President Obama's nominees, including Justice Sotomayor, has rejected outright the empathy standard. So at first blush, I found Mr. Viken's answer that he believes he fits that standard to be concerning. However, his answers to questions we submitted to him for the record provide maybe a more complete view. This is what he said in his answer in writing:

A judge's consideration of a case must always be governed

by impartiality, evenhandedness, attention to the facts

presented by the parties, and respect for established law.

Empathy is a personal characteristic which may assist a judge

in analyzing the human circumstances which bring people

before the court. But the law and not the personal

experiences of jurists is the path to justice in considering

each case.

I think that is OK. I am not sure how you can have any empathy-- empathy is a personal characteristic, maybe? I would hate to disagree with the President who nominated me, but that is a pretty good statement overall.

He also stated he believes that, ``The role of a Federal district judge encompasses diligent legal scholarship''--that is true--``a strong work ethic''--true--``impartial and dispassionate consideration of proven facts and reasoned legal arguments, fidelity to binding and persuasive precedent, and respect for all who appear before the court.''

I think that is good statement. I think if he will conduct himself on the bench according to those standards he will do well. And I believe he will.

I am glad to see he is an honors graduate, but he didn't go to some of these schools, Senator Johnson, he went to school in South Dakota; he has practiced law before judges over the years, a lot of practice; and in the course of that, you learn that judges really do--the good judges--consistently try to reach the right dispassionate result.

I think he may have made some statements about empathy that are not perfect, but my judgment is that he has been in the courtroom and he has been before good judges. I am hopeful he is going to be a very good judge.

We will see. I think the issues become even more problematic when someone is nominated for the Supreme Court or for a circuit court because those higher courts seem to be the ones who feel less compunction in allowing their personal views to influence cases. Because this nominee is nominated to a seat on the district court and is confined not only by the U.S. Supreme Court but also by his circuit, the circuit precedent, and because he stated he believes the role of a judge entails the impartial and dispassionate consideration of proven facts and reasoned

legal arguments, fidelity to binding and persuasive precedent, I would certainly give him the benefit of doubt and vote in favor of his nomination. I am hopeful he will follow through on those statements and will interpret the law as written, refraining from imposing personal views in his decision and will basically follow the oath to uphold the Constitution, first and foremost. Even if he didn't like it, he should uphold it.

In closing, I would like to quote from an essay by the former chairman of the Judiciary Committee, Senator Hatch, which was published on Constitution Day. He said this:

The Constitution--its words and their meaning--was

established by the people, can only be changed by the people,

and is sacredly obligatory upon all government, including

judges. That is why in the debate on judicial selection is

really a debate over judicial power. It is a debate over

whether the Constitution controls judges or judges control

the Constitution; over what the Constitution really is, with

nothing less than liberty itself at stake.

I think that is an eloquent statement of the role of a judge, and why at its most base level, policy in a democracy must be set by the elected branches who are accountable to the people.

Judges are supposed to be neutral arbiters of the law, deciding a case based on the law and facts, without allowing their personal, political, or ideological views or biases to enter into the decision- making process. That is why they put on a robe, to suggest their impartiality. That is why they take the oath I quoted from. And that is the key ingredient of our legal system, the greatest legal system the world has ever known.

I yield the floor.

The PRESIDING OFFICER (Mr. Lautenberg.) Who yields time? If no one yields time, time will be divided equally.

Madam President, I wish to share a few thoughts about the process we are going through and the impact it is having on spending by the U.S. Government. We are at a rate that everyone agrees is unsustainable.

Worse than that, I think it is irresponsible, and we do not need to be doing the things we are doing now. I object. The ramp-up in discretionary spending for the appropriations in fiscal year 2010 is unprecedented. We know we have the biggest deficits we have ever had in the history of the Republic. Now we are passing more appropriations bills that will take effect next year that will have unprecedented spending levels. For example, the agriculture bill; I have always tried to support Agriculture Appropriations in the Senate. I have not always been able to do so. It had an increase of 14.5 percent. At that rate, spending on agriculture will double in 5 years. The average increase in agricultural spending, compounded over the past 7 years, from 2003 through 2009, was just 2.1 percent. So we have 14 percent.

Now we have the Interior and EPA funding and their increases this year in the bill before us today, which is 16.6 percent. What is inflation? Two percent or less. That is a 16-percent spending increase in 1 year. At that rate, spending for Interior and EPA would double every 4 to 5 years. Within this bill, the increase for the EPA is 33 percent. I guess that would double in 2 to 3 years. Since EPA was added to the Interior financing in 2006, it is difficult to compare--at least prior to that. However, we have added EPA funding to the Interior funding to get a comparison over previous years. The average annual increase in Interior-EPA Appropriations, from 2001 to 2009, is 1 percent but this year 16.6 percent. And we have the largest deficit in the history of the Republic this year.

When we pass a stimulus bill that is huge, in terms of additional spending, that is not being counted in what I am making reference to today.

We also passed the Transportation HUD bill, commonly called the THUD bill. Looking at its configuration for the past 3 years, we are able to conclude how that developed. From 1995 to 2009, we have seen a 5.2- percent average increase in discretionary spending--5.2 over the last 8 years. This year, what do you think it is? It is 23 percent. At a 23- percent rate, spending for highways in America would double in 3 to 4 years.

Why is this important? Let me back up one more time and mention the stimulus package. We passed, this year--the President insisted on it, and he was able to force it through--an $800 billion stimulus package. It was supposed to be to fix our crumbling infrastructure, our highways and bridges. Did you know only 4 percent or less of that $800 billion went to highways and bridges? That was a flimflam. The number I am talking about in the basic highway budget we passed, I guess, a few weeks ago, that bill has a 23-percent increase, in addition to the money they got out of the stimulus package.

To show you how large that $800 billion is--the stimulus package-- spending only 4 percent on highways increased the Federal highway funding by about 40 percent. It may be more. You can say: Well, Jeff, the economy isn't doing well, so we need to spend more money. I submit that we are spending money to a degree that it is putting a cloud over the future of our Nation, and people who are involved in finance and investment and business are worried not about what is going to happen in the next year but about what is going to happen in the next 5 to 10 years. How can we sustain something that is unsustainable? The administration said this cannot be sustained and Democratic Senators have said it. Certainly, I say it.

In 2008, the entire national debt from the beginning of the founding of our Nation through 2008 was $5.8 trillion. According to our Congressional Budget Office, which I believe is a fair and impartial group, they calculated the President's budget and what it would mean to the deficit. They concluded that in 5 years--and the President submitted a 10-year budget--that would double to $11.8 trillion. That which we took over 200 years to accumulate--$5.8 billion--would be doubled in 5 years. By 2019, 10 years from now, it would triple to $17.3 trillion in debt.

The road we are on today will triple the national debt. I am not making up these numbers. These are the Congressional Budget Office numbers. It is stunning. In fact, it is based on the assumption that unemployment would top out at about 8 percent. What are we moving to now? About 10 percent. It also assumed a vigorous bounce-back in economic growth next year, which it doesn't look like we are going to get. So the results of those numbers can be worse than it appears here because the economy isn't coming back as rapidly as we would like it to.

It is hard to figure this. Some might say: I am unable to understand this, Sessions. How much money is this? A trillion dollars doesn't mean much to me.

Well, we spend less than $100 billion a year on education now. We spend about $40 billion on highways. Do you know how much we spend on interest on the debt? People think you can just print the money, and that is not what happens. We borrow. We sell Treasury bills and notes; people buy them and we have to pay them interest. Right now, interest rates are pretty low. It is expected those interest rates are going to increase from the financial sector on Wall Street, and the CBO, which calculates these numbers--everybody assumes the interest rates will go up some. How much, we don't know. They took a moderate increase in interest rates.

In 2009, this year, the interest on our debt is expected to be $170 billion. That is going to go up every year. Why? Because the deficit this year is going to be about $1.8 trillion. We have never had such a deficit in the history of the Republic. Last year, we had a $450 billion deficit, the largest deficit in the history of the Republic. This year, it will be $1.8 trillion. What does that mean? We have to borrow that money.

Over the 10-year budget window, as assumed by the CBO, the deficits will never fall below $600 billion. In fact, it will average over $900 billion--almost $1 trillion a year. That is how you get to $17 trillion after 10 years. So we have to borrow that money in the world marketplace. Countries such as China bought huge amounts of our Treasury. We pay them interest on that money. What does this mean over the 10 years? I think this can help the American people understand how sizable this debt is.

As I noted, we spend $100 billion on education federally and $40 billion on transportation. This year, 2009, we spent $170 billion on interest. In 2009, under the red line here on the chart, it will be $799 billion--$800 billion--money that we used to be in a position to do things with, such as build roads and do other things the Nation needs. That is now going to have to be spent every year--$800 billion-- to pay interest. That is why Alan Greenspan, Wall Street experts, Ben Bernanke, and others have said this is unsustainable; we cannot continue this course.

What do we get from the Appropriations Committee and the Senate leadership? We get an Interior bill that increases funding 16.6 percent. That is not acceptable. That is simply too much spending. As I indicated, a lot of money is being pumped into Interior and environmental appropriations from this $800 billion stimulus. I am not counting that. This is baseline spending. So next year, if somebody in this Congress were to have an epiphany and become frugal, and we cut the budget and don't increase it a bit, what will be the average increase over 2 years? It would be 8 percent. That is totally unacceptable.

In the last 3 years, spending for interior and the environment, 2007 had a 5.6-percent increase; in 2008, a 3.7-percent increase; last year, minus 2.9. So you are averaging far less than that. This is a thunderous increase in spending in this Appropriations bill. I cannot support it. There are a lot of good things in this legislation, and I would like to support it. But I will not vote for a bill that increases discretionary spending by 16 percent.

Has anybody been in a townhall lately and talked to their constituents? How concerned are they? They think we have lost our minds up here. Have we not? Is the message not getting through? Look at this highway bill--a 23-percent increase in HUD and highway spending. It is 23 percent, and that doesn't include the stimulus money, which amounts to a 40-percent increase on top of that. This is baseline spending. When you put it in the baseline and do not make it an emergency, stimulus spending, you have created momentum for continuing increases in the future. How many people think we are going to cut spending for next year? How many people think we will have spending for HUD and transportation that will be below or equal to the inflation rate?

Unless the American people get heard soon, we will have another budget with a big increase. We have never seen 23 percent and those kinds of baseline expenditures before. I don't want to go on anymore at length. I don't want to vote against these bills. I would like to vote for the good things in them. But we have to simply recognize what we are doing is unacceptable. The American people are furious with us. They are rightly furious with us. We need to get our act together. When we had a shortage, one of the most significant votes I recall we took-- it was so irresponsible--was when Senator Vitter, from Louisiana, offered an amendment that said the shortage in gas tax revenue that we find with the highway bill, that should be made up by taking money from the stimulus package. That had been unspent--$800 billion. If it only takes $20 billion or something such as that, that is what the bill was supposed to be for--crumbling infrastructure. He proposed that and it was voted down. Why? Because they did not want to take a dime out of the $800 billion stimulus bill, even if it was not spent, and they wanted to fill that gap with more debt. Since we are already in deficit, to find another $20 billion or so to complete the highway bill over the next year or two, we just have to increase the debt. That is what we have been doing. It is an unsustainable course.

I urge my colleagues to begin to say no. Let's vote no on this legislation. Let's start sending the American people a message that we hear their concerns, we know their concerns are legitimate and right, and it is time for us to be responsible.

I yield the floor.

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

Mr. President, I wish to speak today on President Obama's nominee for the Second Circuit Court of Appeals--a court one step below the U.S. Supreme Court--Judge Gerard Lynch.

I have carefully reviewed Judge Lynch's background and his rulings as a district court judge. He is a Columbia law graduate and a former Federal prosecutor in the Southern District of New York. For the most part, he has been a very good district judge. He is exceedingly capable and a man of high integrity.

After reviewing his record and responses to questions from the Senate Judiciary Committee, I decided to support his nomination. I do so because I believe he will adhere to his judicial oath which requires judges to administer justice without respect to persons, to do equal right to the poor and the rich, and to faithfully and impartially discharge and perform their duties under the Constitution and laws of the United States and not above it.

In responses to my questions, Judge Lynch affirmed that circuit courts have no greater freedom than district courts to decide law outside the bounds of precedent, but they must apply the law and the precedent to which they are bound.

Judge Lynch also stated that a judge is to ``apply the law impartially'' and ``should not identify with either side'' in a case.

Even though I will support Judge Lynch and admire him and enjoyed meeting with him, I want to share some concerns about his rulings and some statements he has made over the years that I think are matters that ought not go unremarked before his confirmation.

The role of a judge is to follow the law regardless of personal politics, feelings, preferences, or ideology. I think, for the most part, he has done that in his cases.

One case that is troubling, however, is U.S. v. Pabon-Cruz in which Judge Lynch attempted to get around the jury process and the sentencing process because he believed a mandatory minimum sentence required by Congress of 10 years for a conviction of receiving and distributing child pornography was unduly harsh.

He announced that he would tell the jury about the penalties in the case, which is not appropriate. In its order prohibiting Judge Lynch from informing the jury about what the punishment would be in the case, the Second Circuit, on which he now seeks to sit, expressly stated that Judge Lynch's ``proposed jury instruction regarding the penalties the defendant faces if convicted is a clear abuse of discretion in light of binding authority.''

Judge Lynch disagreed with the Second Circuit's decision, calling it a ``mistaken conclusion.'' Judge Lynch clearly believed he had the right to ignore precedent and established law and inform the jury about the penalties that were applicable upon their verdict of guilty so that the jurors, in effect, would have an opportunity to ignore the law and choose not to apply it because he did not think the penalty was fair, apparently.

I am disappointed by the fact that Judge Lynch appears to believe this sentence was inappropriate, but more importantly, that he should have been allowed to invite jury nullification, which is, in effect, to say to a jury: You don't find the defendant guilty if you think the punishment is inappropriate.

In response to one of my written questions, Judge Lynch said that while he accepts the ruling of the Second Circuit, he continues to believe his instincts were correct. He stated:

The rationale for this decision--

Of the Second Circuit which reversed him--

which I fully accept, in light of the ruling of the Second

Circuit, was erroneous--was that unlike most cases in which

the jury fully understands the seriousness of the crime

charged, in that case the jury may have misperceived the

relative seriousness of the two overlapping charges in the

case.

Judge Lynch's actions in that case are especially disconcerting when considered in light of his written remarks criticizing the textualist approach to constitutional interpretation.

In a 2001 speech on the Supreme Court's decision in Apprendi v. New Jersey, Judge Lynch stated:

I would like to welcome--

Talking here about Justice Scalia and Justice Thomas--

also to a more realistic, more flexible, and in the end more

honest way of protecting the constitutional values they

share.

Judge Lynch, in effect, endorsed this flexible judicial philosophy and advocated it previously.

Concern over his statements in previous years contributed to my vote against his nomination to the U.S. District Court on that occasion.

In a 1997 law review article entitled ``In Memoriam: William J. Brennan, Jr., American''--that is, of course, Justice William Brennan for whom he formerly clerked--Judge Lynch admonished the successors of Justice Brennan that they must also engage in constitutional interpretation ``in light of their own wisdom and experience and in light of the conditions of American society today.''

In that same article, Judge Lynch stated he personally believed it was a ``simple necessity'' that the Constitution ``be given meaning for the present.'' Judge Lynch's praise for Brennan's ``present-day meaning'' approach included the opinion that Justice Brennan's ``long and untiring labor to articulate the principles found in the Constitution in the way he believed made most sense today seems far more honest and honorable than the pretense that the meaning of those principles can be found in eighteenth- or nineteenth-century dictionaries.''

So I have a problem with that speech from 1997 and that strong statement of adherence to the doctrine that Justice Brennan was the foremost advocate of a living constitution and that words don't have fixed meanings; that you can make them say what you want them to say to affect the result you think is appropriate today.

The Constitution is a contract with the American people. We have every right to amend it through the amendatory process, but judges don't have a right to amend it based on what they perceive it to mean. Based on what? What information have they received that makes them think they have a better idea of what the Constitution ought to mean than how it has been interpreted for 200 years?

This is a serious matter because judges are unelected. They have a lifetime appointment, and we give them that because we want unbiased, objective analyses. But it doesn't mean they are empowered to update the Constitution to make it say what they would like it to say today. They are not empowered to do that. In fact, it erodes democracy when they do that because the elective branches, those of us in

this Senate, are accountable. Judges aren't accountable.

Another of Judge Lynch's cases that bears mention is United States v. Reyes. In that case, a police officer asked a defendant drug dealer, who had not yet been read his Miranda rights, whether he had anything on him that could hurt the officer or his field team. Even though the defendant had not been frisked, Judge Lynch concluded the defendant was the subject of a custodial interrogation under Miranda, and that before the police officer could ask whether he had anything to endanger the officers, he had to warn him of his Miranda rights. As a result, Judge Lynch excluded from the record statements that the defendant made at that time which implicated him in the crime.

The Second Circuit--the circuit which he will now serve on--reversed Judge Lynch, holding that the public safety exception was in fact applicable and that the cases Judge Lynch had relied upon in his ruling were distinguishable. The court noted that drug dealers often have hypodermic needles or razor blades on their person that could pose a danger to police officers. Additionally, the defendant was not handcuffed at the time of the arrest and could have reached for a concealed weapon. The Second Circuit also noted that the questions asked by the officer were ``sufficiently limited in scope and were not posed to elicit incriminating evidence,'' and the police ``cannot be faulted for the unforeseeable results of their words or actions.''

Judge Lynch has also advocated that Miranda warnings be administered for searches, which has never been the case. In a symposium commentary, Judge Lynch proposed a Miranda-type rule for searches that would invalidate consents to search unless the party whose consent is sought is first advised that he or she has the constitutional right to refuse such consent.

Well, Miranda was never required by the Constitution. It was a prophylactic protective rule the Court conjured up. Somehow the system has survived it, but it has done some damage in terms of not getting the kind of admissions and confessions you might otherwise get. That is just a fact. At any rate, to expand that now to searches, which has never been done, I think is an unhealthy approach.

You might say: Well, theoretically, if you are going to do these Miranda interviews you could do it on searches. But I would just note that Miranda itself is a protective rule, not a mandated constitutional rule.

I mentioned the foregoing issues because they are of great concern to me. It appears, notwithstanding, in the vast majority of his cases, Judge Lynch has been a very careful judge who has followed the law. He has stated that he understands that circuit judges are ``bound by Supreme Court and prior circuit precedent, and their job is to apply, fairly and accurately, the holdings and reasoning of such precedent.''

Given his commitment to do that, I will vote for him, and I hope he will continue his excellent service on the bench, but that he will interpret the law as written and will refrain from imposing personal views in his decisions.

It is unfortunate, and I am concerned also, that the President, in his nominations, is moving a number of people for the Federal bench that are clearly activists. Many of them don't have the length of time on the bench that Judge Lynch does, or his skills as a judge, frankly, and it is causing us some concern, and we will have some real debate about it.

The nomination of Judge David Hamilton for the Seventh Circuit Court of Appeals raises that issue and concern with me. The White House has said it intended to send a message with his appointment, and I would say that it did. Judge Hamilton's appointment is significant. Instead of embracing the constitutional standard of jurisprudence, Judge Hamilton has embraced President Obama's empathy standard. Indeed, he said as much in his answers to questions for the record following his confirmation hearing in the Judiciary Committee.

He rejects the idea that the role of a judge is akin to that of an umpire who calls balls and strikes in a neutral manner. Rather, he believes a judge will ``reach different decisions from time to time . . . taking into account what has happened and its effect on both parties, what are the practical consequences.''

Judge Hamilton also appears to have embraced the idea of a living constitution. The last time I was at the Archives Building, I saw a parchment from 1789--not breathing. It is a document. It is a contract. It guarantees certain rights to every American, and judges aren't empowered to rewrite it, to make it say what they think it ought to say today.

In a speech in 2003, Judge Hamilton indicated a judge's role included writing footnotes to the Constitution. When Senator Hatch questioned him about these comments in a follow-up question, he retreated somewhat, but then gave a disturbing answer to the next question about judges amending the Constitution or creating new rights through case law and court decisions. This judicial philosophy has clearly impacted Judge Hamilton's rulings during his time as a district court judge. He has issued a number of controversial rulings and has been reversed in some noteworthy cases.

For example, he ruled against allowing a public, sectarian prayer in the Indiana State Legislature and was reversed by the Seventh Circuit.

He ruled against allowing religious displays in public buildings and was unanimously reversed by a panel of the Seventh Circuit.

He blocked the enforcement of a reasonable informed consent law dealing with abortion matters for 7 years. He continued to block enforcement of that law and was eventually firmly and forcefully overruled by the Seventh Circuit for being in violation of the law.

Judges, the State, and other people spent all kinds of money, and attorney generals of the State spent money and time and effort to litigate these matters, and finally winning, but, in effect, the people of the State, for 7 years, were unable to enforce a constitutional statute their duly elected representatives had passed.

That is the power of an unelected Federal judge sometimes, and we need to be sure judges who go on the bench understand they are not allowed to do that. They are supposed to be a neutral umpire. If the case law and the Constitution say this is a good statute, they need to affirm it whether they like it or not, whether they would have voted differently or not. If he wants to be in the legislature and vote on the statutes, let him seek that office.

A Federal judge must be able to dispense rulings in a neutral fashion so the emblem that hangs over the Supreme Court, which has been embraced by the American people--equal justice under law--can be carried out in every aspect of a legal proceeding. A judge must put aside political views which may be appropriate as a legislator, executive, or an advocate, and interpret the law as it is written. He must keep his oath to uphold the Constitution first and foremost.

As I have said before, the Constitution is a contract between the American people, especially in a government of limited powers that is established by the people. It is a judge's duty to abide by the Constitution and protect and defend it and all the laws duly passed by Congress that are consistent with that Constitution. We have preserved our Nation well by insisting that our judiciary remain faithful to the plain and simple words of the Constitution and the statutes involved.

So, Mr. President, I am impressed with the skill, the legal ability of Judge Lynch, whose nomination is before us today. I have reviewed his record carefully. I have listened to his answers. I have seen some of his speeches. In a few cases, they cause me concern. But I think giving deference--and appropriate deference--to the President's nomination, he should be confirmed. I will ask my colleagues to support the confirmation.

But I want to say that all of us in this body, as well as judges, have a duty to preserve and defend our Constitution. You can erode the Constitution in a number of ways, and one way it can be changed and altered impermissibly is when judges redefine the meaning of words. So when a judge says we shouldn't resort to 18th century dictionaries, that makes me nervous. What does that mean? You just give a new definition to the word, the one that people ratified--the amendment they passed and ratified, which

had a certain meaning and was understood to have that meaning? Now that you are on the bench, and you think it shouldn't be enforced that way, and you would like to see a different result, you just sort of amend it or write a footnote to it? I don't think that is good judicial policy, and I feel an obligation--I think a number of us in this Senate do--to confirm good judges--men and women of character and ability and faithfulness to our laws and Constitution--but also raise the concerns that we have and to use every bit of our ability and strength to oppose nominees who won't be faithful to those high ideals that have made us a nation of laws and made us prosperous and free.

I thank the Chair, and I yield the floor.

I suggest the absence of a quorum.

Madam President, this nominee is a brilliant lawyer and an excellent, hard-working judge. He has made a number of speeches in the past which evidenced an activist philosophy. I voted against him in 1997 when he came up. And absent one or two opinions since then, it seems he has done an excellent job on the bench.

I remain concerned that we are seeing a pattern of nominees who believe they have the power to amend the Constitution. One--not this one--has said he can make footnotes to the Constitution. But this nominee is a man of good integrity, a proven record on the bench, and I will support the nomination.

I yield the floor.

Madam President, I ask for the yeas and nays.

Madam President, I wish to thank the Senator from California. Her courtesy is legendary in this body and I thank her for that.

I am taken aback and flabbergasted by the Obama administration's decision announced today to cancel the European missile defense site. I ask, what does that mean? What will be the consequences of that decision? I wish to share a few remarks about it and note that this shift is contrary to the sense-of-the-Senate language that we included in the Defense bill passed a few weeks ago by this Senate. It is a very significant decision. I want to give it more thought. I don't want to overstate the problem. However, I wish to be on record today as saying this is a surprising decision, one that I have been involved in the discussion of for quite a number of years, and I feel as if it is a big error.

What happens? We asked our allies in Central Europe, Poland, and the Czech Republic to stand with us and to agree to place a radar in the Czech Republic and to place our defensive missile interceptors in Poland. The heads of those governments agreed to that. There was a lot of opposition here in the United States to the proposal. Likewise, there was opposition expressed in Poland and the Czech Republic from the traditional European left, many of them Marxists or hard-line leftists who have opposed the West's and the world's defense program for many years. However, that opposition was overruled and these nations were proud to be and to stand with the United States of America. It did not bother them that their big neighbor, Russia, objected. They are a sovereign nation of which they are quite proud. They were proud to make a decision and reach an agreement with the United States of America that could defend this country from limited missile attack from a rogue nation such as Iran. If Iran were to launch a missile attack that could reach the United States, its path would take it over Europe, and European nations were not immune to the threat of such an attack on their soil.

So they felt they were participating both in the defense of Europe and in the defense of the United States, and it was a good government public interest decision that they were pleased to participate in and stood up with us. We made a commitment to Poland and the Czech Republic, of course, when we asked them to do this and go through this process to build a system.

For years, we have been moving forward with that plan in mind in the Senate. This year, we had quite a bit of discussion about it in the Senate and we reached an agreement that I think pretty much stated flatly what our position. There were some who objected, and this is how we modified the language to finally state:

It is the sense of the Senate that (1) the United States

Government should continue developing and planning for the

proposed deployment of elements of a Ground-based Midcourse

Defense system, including a midcourse radar in the Czech

Republic and Ground-based interceptors in Poland, consistent

with the Duncan Hunter National Defense Act of 2009.

Paragraph 2 says:

In conjunction with the continued development of the

planned Ground-based Midcourse Defense system, the United

States should work with its North Atlantic Treaty

Organization allies to explore a range of options and

architectures to provide missile defenses for Europe and the

United States against current and future Iranian ballistic

missile capabilities.

Any alternative system that the United States Government

considers deploying in Europe to provide for the defense of

Europe and a redundant defense of the United States against

future long-range Iranian missile threats should be at least

as capable and cost-effective as the proposed European

deployment of the Ground-based Midcourse Defense system; and

any missile defense capabilities deployed in Europe should,

to the extent practical, be interoperable with United States

and North Atlantic Treaty Organization.

Indeed, NATO endorsed this program.

For a while, some of our Members said, Well, I am not too sure about this. What does NATO say? NATO did endorse it. This action of backing down from our European-site Missile Defense system sends an overt signal to our allies that we don't fulfill our commitments, and it is bound to make our allies in Central Europe particularly nervous. This decision sends a message from the administration that we reward bad behavior.

The defense of this decision to abandon this program is that we are not doing this to curry favor with Russia, but that clearly is a State Department goal in this process because the Russians have objected to the deployment of this system--although it had virtually no capability with 10 interceptors in Poland to in any way defend against the massive arsenal that the old Soviet Union developed and that Russia now maintains.

So it does appear to be an attempt to placate Russia at the expense of our great allies, the Czech Republic and Poland. And we are walking away from a bipartisan commitment to national missile defense on a European site, as I noted, included in the National Defense Authorization Act for 2010. We accepted the sense-of-the-Senate language unanimously because both parties agreed to this. Senator Lieberman and I were the primary sponsors, along with Senator Begich and others on the Democratic side, and a strong contingent of Republicans.

Let me say this about the whole system. I am worried--and I hope my colleagues will take this point under consideration. We have spent approximately $20 billion developing something many people believed would never work; that is, the ability to intercept in space an incoming ICBM missile and hit it bullet to bullet. We don't even deploy or utilize explosives. The kinetic energy is so great that it destroys the target when it hits. Our military experts have said that if North Korea were to be able to successfully launch a missile, they believe they could knock it down. We are improving our system as we have a number of them deployed, and we plan to deploy more. Yet this year's budget was a stunning retrenchment in our missile defense system. Let me summarize the things that occurred.

Even though this language contemplated moving forward in Europe, this is what we did regarding the United States. For quite a number of years, we planned to deploy 44 interceptor missiles--most in Alaska and a number in California. We talked about what to do about the Iranian threat, to provide redundant coverage for those missiles coming over from the east. We agreed that we would seek the agreement of Poland and the Czech Republic to base assets there. Fifty-four interceptors were to be deployed, 10 at the European site and 44 on the West Coast of the United States. What happened in this year's budget was that the 44 to be deployed in Alaska and California have been cut to 30.

The next technological advance to our missile defense system, the MEV--multikill vehicle--would be the warhead which could take out multiple incoming missiles with one missile. We think that was very capable technology that would be developed. That was zeroed out.

We had an additional system of a smaller but very high-speed interceptor, called a kinetic energy interceptor, KEI, that has been on the drawing board for a number of years and is showing a great deal of promise. That was zeroed out after years of funding.

We had plans and were working on the airborne laser, ABL, an amazing technology that our Defense Department believes will work--and we will test it this year. The airborne laser can knock down missiles, particularly in their ascent phase from an airplane. That missile system, after this year, will be zeroed out.

The 10 missiles we intended to base in Central Europe have been eliminated, it appears. At least that has been the President's recommendation and decision that we heard about today.

So I would say this: We believe, looking carefully at the numbers and putting in some extra loose change, for $1 billion, we could fully deploy the full system--with the full compliment of 44 missiles in the United States and 10 in Europe. We have spent over $20 billion to get to this point. So it is unthinkable to me that we would eliminate any future advancements in the system. I think, from a cost point of view, it is an unwise decision.

I am concluding that money is not the problem. I can only conclude that the Obama administration has decided that they agree with the naysayers who opposed President Reagan when he said this could ever be a successful system. They opposed it, and it looks like a political decision to me. Some sort of judgment decision to cancel this is involved here more than a dollars-and-cents issue because in the scheme of a $500 billion-plus defense budget, $1 billion over several years to complete the system as planned is not the kind of budget-breaking number that should cause us to change our policy.

Senator Lieberman and I had offered this sense of the Senate amendment, and it passed the Senate just a few weeks ago. I believe it is the right policy. I think the administration is trying to do some, perhaps, good things. They think maybe they are attempting to placate or somehow reach out to Russia and gain some strategic advantage from that--although the Secretary of Defense, I understand, today said it didn't have anything to do with the Russian foreign policy, and I am not sure the administration acknowledges that either. ``The Czech premier, Jan Fischer, said Thursday''--this is in an Associated Press article--``that President Barack Obama told him Washington had decided to scrap the plan that had deeply angered Russia.'' It seems to me that is a part of it.

Let's go to the core of this Russian objection. As I have said on the floor, Russia knows this system poses no threat to their massive arsenal. They know that. Their objection to this system has been, in my view, a political objection, a foreign policy bluster and gambit to try to create a problem with the United States and extract something from us. They consistently oppose it.

Let's note the Reuters news article today by Michael Stott, which is an analysis of this. The headline of the article is ``Demise of U.S. shield may embolden Russia hawks.'' In other words, this weakness, this retreat, this backing down may well encourage them to believe that if they are more confrontational on other matters, they may gain more than by being nice to this administration.

The lead paragraph said:

Washington hopes that by backing away from an anti-missile

system in east Europe, it will get Russian cooperation on

everything from nuclear weapons cuts to efforts to curb

Iranian and North Korean nuclear ambitions.

But will Moscow keep its side of the bargain?

That is a good question.

Mr. Stott goes on in his perceptive article to say:

With the shield now on the back burner, both sides believe

a deal cutting long-range nuclear arsenals can be inked this

year and Russia has already agreed to allow U.S. military

cargos to transit across its territory en route to

Afghanistan.

That is something we have been asking them for some time, and they have dangled it out there. Apparently, a valuable but not critical ability to transport cargo may have been gained from this.

The author says:

Russian diplomacy is largely a zero-sum game and relies on

projecting hard power to forced gains, as in last year's war

with Georgia over the rebel regions of Abkhazia and South

Osettia or the gas dispute with Ukraine at the start of the

year.

Western concepts of ``win-win'' deals and Obama's drive for

21st century global partnerships are not part of its

vocabulary.

The Western idea that if you cut a deal, both sides will benefit-- that is not the way the Russians think.

Continuing:

Diplomats here say Moscow hardliners could read the shield

backdown as a sign of Washington's weakness. Far from doing

the bidding of the United States, they may instead press for

further gain to shore up Russian power in the former Soviet

bloc.

That is the Czech Republic, Ukraine, Georgia, Poland, the Baltics, Latvia, Estonia, Lithuania, and Hungary.

The author goes on to say:

Ukraine, Georgia, and other Kremlin foes in the ex-Soviet

Union may be the first to feel the consequences.

Poland and the Czech Republic are also nervous. In Warsaw,

the timing of the U.S. move is particularly delicate as it

coincides with the 70th anniversary of the Soviet invasion of

eastern Poland.

Analysts are particularly concerned about Ukraine, which

faces a presidential election next January. Most of Russia's

vast gas exports flow through its territory and the country

reluctantly hosts a large Russian naval base.

I don't know what the geopolitical goals are here. I think it is a mistake not to deploy this system we committed to deploying. I believe we are not going to be able to rely on the good faith of the Russians, and I think they may misread what we have done. Instead of leading to further accommodation, it may lead to emboldening them to go forward with further demands against the United States.

I thank the Chair and yield the floor.