Floor Statements

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 President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. President, I am concerned that we in this Congress are not properly attached to reality. I spent time in my State over the recess, and people talked to me repeatedly about their concerns about excessive government spending. It is a real national issue.

We know our national debt, the total debt is on track to double in 5 years and triple in 10. That is the public debt this country owes, and we have to pay interest on it to countries such as China and individuals all over the world. We pay a lot of interest every year. The interest is going to surge over the next 10 years under this proposal.

I feel as if we are not connected, we are not hearing it. We think it is business as usual, and it is not business as usual. States throughout our country, cities throughout our country are cutting spending, trimming budgets, finding more ways to be efficient, looking for ways to save money and be within their budgets. Most States have a balanced budget amendment, and they have to stay within their budget. We do not. We came within one vote several years ago passing out of the Senate a balanced budget amendment, but it failed. Now we are proceeding on a stunningly reckless course of spending.

I have always tried to support agriculture. It is a big thing in my State. But I could not vote for the last agriculture bill we had. There was a 14-percent increase in agriculture spending. We know the rule of 7--most people do. If you increase something at the rate of 7 percent a year, it will double in 10 years; at 14 percent, it will double in 5 years. So the entire agriculture bill of the United States is on track to double in 5 years at that rate, and that does not include the extra money that came out of the stimulus bill, which is significant. If you include that, it would amount to a 67-percent increase in agricultural funding. I just bring that up. This is a bill I care about.

The transportation and HUD bill that is before us today is worse. It has a 23-percent increase in spending which is on top of a 13-percent increase in spending in the bill last year. That does not include the stimulus package spending. At a 23-percent rate, spending on Housing and Urban Development, and Transportation would double in 3 to 4 years. If you include the stimulus package money which we passed in February it is a 165-percent increase in spending from fiscal year 2008 to fiscal year 2010. That is a stunning increase, at a time when we do not have the money, and the American people know it.

That is one of the complaints about health care. It is all part and parcel of a concern by the American people. What I understand them to say to me is: Have you guys lost your minds up there? Do you no longer feel a sense of responsibility? You are going to triple the national debt in 10 years? How can you justify that? We have vote after vote and they fail. We need to be containing spending.

We had an amendment that was offered to deal with a shortfall in transportation money. We have a problem. We have a real problem. People are using less gasoline, and the taxes for our highways primarily come from people paying a tax per gallon. If they use less gallons, we have less money coming into the basic highway fund.

I would like to see that number lifted. How can we do it? Senator Vitter proposed a very commonsense amendment. He said: Let's put up, I think it was $18 billion, out of the stimulus bill--most of which was promised for roads anyway, but they have not been fixed--he said take that money and fix the shortfall in the transportation bill. I voted for that. It failed because they preferred to fix the shortfall in transportation by borrowing more on top of the stimulus bill; every penny of it is borrowed. We don't have the money. We have to borrow it. We pay interest on it. Somebody has to pay that for the indefinite future because the 10-year budget the President has submitted to us has no hint it will contain spending. In fact, the deficits grow in the out years, which is why we have such a terrible problem.

Earlier today we had an amendment by Senator Ensign that said: Let's freeze spending. Let's show some restraint such as our States are doing, such as our families are doing. No. Just flat spending. You see, transportation and these other programs that are in this bill, they are getting stimulus money out of the $800 billion on top of that. So why do they need a baseline increase of 23 percent? Next year, we will be hearing: We are only going to do a 15-percent increase on the baseline and be proud of that.

I don't like the way we are doing this. I don't think we are listening to the American people. It is not the right thing to do.

I have a few charts I would like to share that bear repeating because I am not making up these numbers. These are numbers by the Congressional Budget Office. They are basically a nonpartisan group of fine folks who try to give us honest data on which we can make decisions. The chairman of it is selected by the Congress. Of course, the Congress is a Democratic majority, and they were able to select a Director. This is what they scored President Obama's budget. This is the public debt of the United States of America, much of it held by China and other countries around the world, individuals around the world. They buy our T-bills, and we pay them interest.

This chart is in trillions. In the entire history of our country up through 2008, we had accumulated a public debt of $5.8 trillion. A lot of people think that is too high. I think that is too high. We are carrying a big debt, and we do not need it to continue. Under the budget that is before us today, that we passed, it looks like we are spending at least on that level, if not more, based on the bills we see coming forward. Our spending will double the entire national debt in 5 years to $11.8 trillion, and in 10 years, according to the Congressional Budget Office, it will be $17.3 trillion.

That is a stunning figure. It should put chills through the backbones of everybody in this Congress. How can we justify this? States are trimming their budgets, and we had a 14-percent increase in agriculture, which we not long ago voted on, and now we have a 23- percent increase in HUD. This is not responsible.

We came into this year with a deficit. The President said we had to rush through a stimulus bill, and they passed it by just a couple of votes--$800 billion, every bit of it borrowed because we did not have the money. We were already in debt. If you spend more money when you are in debt, how do you get it? You borrow it. You have to get people to buy your Treasury bills. The interest rate on 10-year Treasury bills was over 2 percent in January. In July, they reached 3.6 percent or so because people are getting worried. They think we might have an inflationary spiral. They think interest rates may go up. So they are not so willing to loan money at a low interest rate for 10 years like they were at the beginning of the year. This causes a problem.

Let me show this chart, which I think brings the numbers home in a way we can comprehend them because it is difficult to comprehend numbers this big. People assume, when I throw these billion-dollar figures around, surely people up there know what they are doing, and, Sessions, you are just exaggerating. You don't like to spend money, and you are exaggerating.

It is not an exaggeration. I am talking about the entire debt of America tripling in 10 years.

Look at the interest. We spend approximately $100 billion now on highways. I said $40 billion, but I think with the stimulus and the spending from gas taxes, we spend about $100 billion on our highways. We spend about $100 billion on education. On September 30, 2009, the estimate is that we will pay $170 billion in interest. We get nothing for it. It is just like paying interest on your credit card. The bank gets it. You don't get it. They loaned you money. You owe them money-- interest--to keep the money they loaned you.

As the debt increases and we have a modest adjustment in the interest rate--not a big adjustment but one the Congressional Budget Office projects will occur, a raising from the relatively low interest rates we have today--as those go up, the interest we will pay each year, the burden we pay first before we can buy anything with the taxpayers' money is increasing.

We see the numbers here. In 2019, 10 years from today, the Congressional Budget Office estimates the U.S. Government will be paying out $799 billion

a year in interest. We don't get anything for that. It goes out to people all over the world who bought our Treasury notes, and we send out this interest. We send it to some Americans who buy it. They get this interest. It is money we do not have to do things we want to do for our constituents. And, in essence, as a moral matter, we are reaching into the future and we are taking money from the future and spending it today to meet our desires today, without doing what our States and cities and counties are doing--figuring out how to get by with less in tough times and looking forward to the day they will be able to see growth again and be able to not have to be on such a spare budget. But that is life. We are not able to pass a law to reverse life and the challenges and difficulties and uncertainties we face every year in our personal lives and in our national lives and in our economic lives.

So that is the lower number. That is assuming things are going pretty well. Look at the interest rates that the blue chip forecast of economists, who are a good group of people--and they make forecasts that are pretty accurate. They have been more accurate than the government over the years. The Blue Chip Forecast says the interest rate is going to be more than CBO scores. They say the interest rate in the tenth year would be $865 billion. And interest rates could surge to the level of the 1980s, which would be 10 percent interest rates. If you had that kind of interest rate, we would spend $1.29 trillion on interest before we could do anything to purchase things for our constituents.

Remember, the highway money is about $100 billion; education is about $100 billion. We will be spending $800 billion on interest--$600 billion plus more than we spent this year, just on interest, because of irresponsible spending. So I would say, count me as somebody who is getting the message, both from my own study of what is occurring here, being on the Budget Committee, and from what I am hearing from my constituents. They say: It is time for you guys to get responsible. We are upset. And why shouldn't they be upset? Somebody comes to a town meeting and they are a little hot with their Congressman or their Senator. Are we supposed to think this is a threat to democracy, when we have this kind of behavior going on in the Congress? They ought to be hot. There is every reason to be hot. We do not need to be doing this.

You may say: Well, we are having a hard time economically, Senator. We have to spend a little money now to get this thing going. The outyear budget projection, according to the Congressional Budget Office, assumes robust growth. In 2012 and 2013 they are projecting over 4 percent growth. We may not have 4 percent growth. If we don't have 4 percent growth, we are going to have larger deficits than they are projecting. And in the outer years they are projecting a solid 2- or 3-percent growth out there. No recession in this. So this is not a projection based on the assumption of a recession putting us in this kind of debt.

How much do we spend each year? Well, it is about $3.5 trillion. That is how much a trillion dollars is. We have $1.8 trillion in debt this year. We will be short this year $1.8 trillion. We will spend $1.8 trillion more than we take in. That is $1,800 billion. And those are things that should cause us to think about what we are doing. We have done nothing like this before, I don't think, except maybe a life-and- death struggle in World War II, when people all over the country were drafted. I would note that 43 cents out of every dollar we are spending this year is borrowed. That is not acceptable.

We have heard from administration officials, from Alan Greenspan and other experts, that this whole budget picture is unsustainable. That is what they say. TV commentators, editorial writers say it is unsustainable, the debt cycle we are in. Let me ask this: What does unsustainable mean? It means just that. It cannot be allowed to continue.

I had somebody ask me recently in the airport: Well, when are you going to start paying it down? When are you going to start paying the debt down? The same way I have to do in my house with my credit cards, my mortgage. The answer is: There is no prospect of paying it down. Last year was the highest deficit we have had--$450 billion in 1 year. This year it will be $1,800 billion. In the next 10 years, according to CBO, the least deficit we will have--and they are projecting 2 or 3 years from now--is $600-plus billion. That is the lowest. Then it starts back up again, and in the tenth year it is over $1 trillion.

There is no prospect of a balanced budget anywhere out there, and we act as though it is business as usual. We can spend and spend--so 23 percent on this bill, 14 percent on that bill on top of the stimulus money we put in. What we should do is have at least level funding with the stimulus money piling into the economy--the $800 billion there.

In closing, I would say we are not getting it. We are not listening to the American people. We are not even reading our own budget numbers, and we are hurting our country. This $800 billion in interest every year? This will devastate our ability to fund the government. Not only that, it will require either more and more and more borrowing or more and more and more taxes, neither one of which is good for this economy. It is not good for America.

We do not have to do this. I don't mean to be partisan about it. Republicans' hands are not clean on this either. But the leadership in this Senate needs to understand these fundamental principles and needs to send some signals that they understand it and are prepared to do something about it. And that includes the President of the United States of America. He needs to understand what is happening to this country as a result of his budget and take some steps that will show in reality we are going to bring this ship back on course again.

You say: Well, you have this health care bill and that is what is driving it. The health care bill is not in there. This budget analysis was done before health care even came up. It will cost more, of course, and make these numbers look even bigger. So we have to grow up and be responsible. Our Republic is depending on us to lead and tell the truth, and the truth is we are on an unsustainable course. The truth is this administration and the leadership in this Senate and the House of Representatives has no plan to get us off this unsustainable course. The American people are the only ones, it looks like, who have sense enough to know what is occurring, and I hope they will continue to make their voices heard.

I thank the Chair, and I yield the floor.

Mr. President, I would like to take a moment to join with my colleagues, and I see quite a number on the Senate floor now, to pay tribute to Ted Kennedy. He was a truly remarkable force in the Senate, a champion of liberalism--perhaps the Nation's leading champion of liberalism. He believed government could serve the people, and it ought to do more to serve people. On that we sometimes disagreed, but he believed it with a sincerity and he battled for it with a consistency that is remarkable. He constantly sought to utilize the ability of government to do good for the American people, and that is admirable.

He also was a champion of civil rights. He was a force during the civil rights movement, and his activities, his personal leadership, truly made a difference in making this a better country. Without his leadership, things would have been much more difficult for sure.

I have a vivid memory of him--presiding as I did when I first came to the Senate, a duty given to the younger, newer Members--in the night, Ted Kennedy, alone on the Senate floor, roaring away for the values he believed in. It was just something to behold, in my view. I saw nothing like it from, maybe, any other Member. He had served so many years in the Senate--and I learned today from our chairman on Judiciary, Senator Leahy, that he served on the Senate Judiciary Committee longer than any other Senator in history. But even as his years went by, many years in the Senate, he did

not lose the drive, the will, the energy, the commitment to give of himself for the values he believed in.

As I told one reporter after his death, I would just hope to be somewhat as effective in promoting the values I believed in as he was in promoting those values. If we disagreed, and sometimes we certainly did, people continued to admire him, I think, to a unique degree. There were no hard feelings. You would battle away, and then afterwards it would be a respectful relationship between Senators. I think that is pretty unusual and something that is worthy of commenting on.

He talked to me about being a cosponsor, his prime cosponsor on a bill. He said he wanted to work with me on something important. It was a bill we commonly referred to as the prison rape bill. There was a lot of concern that in prisons, people who are arrested were subjected to sexual abuse. That, in my view, is not acceptable. I know the Presiding Officer, a prosecutor, knows people deserve to do their time in jail, but they should never be subjected to those kinds of abuses. So we passed a pretty comprehensive bill. I was proud of it and proud to be with him at the signing ceremony.

I also talked to him and we met and talked at some length about a major piece of legislation to increase savings in America, savings for the average working American who had not been able to share in the growth of wealth that so many have been blessed with in this country. I thought we had some pretty good ideas. Savings at that time had fallen below zero--actually 1 percent negative use of people's savings which were going away. I guess now we are at 5 or 6 percent savings rate after this turmoil we have had economically. I do not think the idea should go away. Maybe it lost a little steam in the fact that we have seen a resurgence of savings today, but I was very impressed with his commitment to it, the work of his fine staff, and his personal knowledge of the issue.

I see my other colleagues. I will join with them in expressing my sincere sympathy to Vicki and their entire family for their great loss. The Senate has lost a great warrior and a great champion of American values.

I yield the floor.

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

Madam President, the nominee to be Administrator of the Office of Information and Regulatory Affairs, Mr. Cass Sunstein, is before the body. He will be, if confirmed, a part of the White House Office of Management and Budget. He will have a number of responsibilities. It is certainly a very significant position.

This job has the responsibility of renewing all regulations proposed by all the Departments and agencies of the government. The regulations they issue are many. Laws are passed in this Congress, sometimes in haste, leaving the details of execution to the various agencies of our government--the Department of Defense, the Department of Homeland Security, the Department of Agriculture, all the agencies.

They have powers to effectuate the statutes passed by Congress. They set forth the details of how it is done. There are thousands of pages of regulations enacted every year. They are published in the Federal Register. No Senator or Congressman, to my knowledge, has ever sat down and read the Federal Register.

Federal regulations have much the same force as law. Indeed, people can go to jail for violating Federal regulations, and some do go to jail for violations of Federal regulations.

Some of this is, in fact, a product of necessity. For example, you create a park. When does the park open and close? And if people come in and litter, or people come in after hours, they can be punished, arrested, put in jail. Often those regulations and the punishment are set forth through regulation and not through the statute that created the park to begin with.

But it is a matter of real importance. Persons who produce these regulations are nameless and faceless denizens of the bureaucratic deep. They possess enormous power. As a prosecutor, I prosecuted cases. At the DEA, many of the drug regulations enforced by the Drug Enforcement Administration are based on regulations they pass, not what was actually required by the Congress of the United States. Major policy decisions are often set forth in that fashion, including environmental regulations, health care regulations, and reimbursement rules and hospital requirements. Financial institutions can be done through regulations and controlled through them. Truly, there is a concern about the disconnect between the democratic accountability we are known for in our country and this process of administrative regulations.

During President Reagan's time, I believe, Congress passed a law that created this position: the Administrator for the Office of Information and Regulatory Affairs, the idea being to have another unelected bureaucrat--and that is what this one is--but to be a central clearinghouse for all the proposed regulations and to question the lawfulness or the necessity or the cost of these thousands of regulations that get promulgated on a yearly basis.

It is an important position that can protect and at least somewhat ensure that our constitutional liberties are not being eroded.

Enter Mr. Sunstein. He is a most likable person, a national intellectual, always interesting, sometimes taking positions that those on the left--of which he clearly is a part--disagree. Indisputably, he is a man of the left. However, he has taken, over the years, quite a number of positions, some of which are pretty shocking. So I think he is not normally the kind of person you would appoint to this kind of green-eyeshades position--somebody who would be sitting down on a daily basis reading the regulations and studying them and researching them-- to be a free spirit, as our nominee is. So I have some concerns about it.

Over the course of his career in academia, Professor Sunstein has clearly advocated a number of positions that are outside--well outside--the American mainstream. While much of the criticism of his nomination rightly has focused on his animal rights advocacy, where he, in effect, and plainly said he thought animals should be able to have lawyers appointed to defend their interests--and these are controversial matters--but he has other legal writings that are controversial also and do not just deal with the question of animal rights. I would like to highlight just a few of those positions.

In his 2008 book titled ``Nudge: Improving Decisions About Health, Wealth and Happiness,'' Professor Sunstein advocates an approach to the law based on economic and behavioral principles which he dubs ``libertarian paternalism.''

Under Professor Sunstein's theory, the government can take steps to ``nudge'' individuals toward making what he would say are better decisions, and at least what the government considers to be more desirable social behavior.

Professor Sunstein argues that the government can achieve these goals while not being actively, or at least obviously, coercive. His theory operates on the assumption that the average person is ``lazy, busy, impulsive, inert, irrational, and highly susceptible to predictable biases and errors.''

So the government needs to be a little paternalistic, he suggests, and take care of them and issue regulations and pass laws that keep them from doing things that some bureaucrat or some Congressman thinks is not socially desirable.

As Professor Sunstein argues:

For too long, the United States has been trapped in a

debate between the laissez-faire types who believe markets

will solve all our problems and the command-and-control types

who believe that if there is a market failure then you need a

mandate. The laissez-faire types are right that . . .

government can blunder, so opt-outs are important. The

mandate types are right that people are fallible, and they

make mistakes, and sometimes people who are specialists know

better and can steer people in directions that will make

their lives better.

That is what he has said.

Presumably, in Professor Sunstein's view, the ``specialists'' who ``know better'' than ordinary Americans are government bureaucrats. He seems to believe Americans are ``lazy'' and ``inert,'' and I think this is not a healthy view. So I question whether anyone who thinks Americans are fundamentally lazy can perform his role as the gatekeeper of government regulation in the Obama administration.

Professor Sunstein's approach is consistent with much of what we have seen from this administration, I have to say, which seems to believe that government control of health care, the financial markets, and the business community generally is preferable to free market policies. Americans are not comfortable with this.

I have been out having townhall meetings. I know they are not comfortable with it. According to recent polling, 52 percent of voters worry that the government will do too much to ``help'' the economy.

That is from a Rasmussen poll of June 2, 2009. Fifty-nine percent of voters believe the financial bailouts were a ``bad idea.'' The masters of the universe thought it was going to be great. We spent $800 billion, the largest expenditure in the history of the American Republic, and every penny of that is going to the national debt because we were already in debt. We borrowed every penny of it. We have had very low stimulative effect from that. The American people are right about that.

Only 31 percent of voters believe this stimulus bill has helped the economy. And we do not need a poll to tell us how uncomfortable the American people are with the President's effort to overhaul health care.

So the American people ought to understand if we confirm Professor Sunstein, he will be the chief architect and gatekeeper over all of the regulations that this administration will be attempting to implement in a myriad of areas--not just health care and financial markets but agriculture, the

environment, energy, a host of areas that impact the people of our country. I think his views make him a person who should not be in this position.

Let's take another issue that is important to a lot of people. Professor Sunstein has taken an extremely aggressive position with respect to abortion. Under his views, laws restricting access to abortion ``co-opt women's bodies for the protection of fetuses.''

According to Professor Sunstein, such laws ``selectively turn women's reproductive capacities into something for the use and control of others.'' In his view, ``abortion should be seen not as murder of the fetus but instead as a refusal to continue to permit one's body to be used to provide assistance to it.'' Failure to accept this view, he wrote, is simply a product of one's accepting the preexisting baseline of women as child-bearers. The role of involuntary child-bearer, he argued, results ``only from government interference limiting the capacity to choose not to bear a child involuntarily.''

Well, I think this is a disturbingly far-reaching and excessive view on this important issue of abortion. It fails to recognize in any way the moral aspect of this debate which has divided America since the Supreme Court decision in Roe v. Wade. I think his view mocks those who have a different view based on their deep beliefs and analysis of what that life is that is within the mother.

What about the question of affirmative action? We talked a good bit about that during the Judge Sotomayor hearings in the firefighters case. Professor Sunstein has taken an extreme view, I think, in these issues, arguing that affirmative action programs ``should generally not be thought to raise a serious constitutional issue.'' In his view, ``the current distribution of benefits and burdens along racial lines is an outgrowth of a long history of discrimination.''

Professor Sunstein has returned to this theme repeatedly. In 1992, in an article, he again argued that existing law depends heavily on ``existing distributions of wealth and power.'' Specifically, he argued that the conservative objection to affirmative action programs--namely, that discrimination is discrimination regardless of the pretext--simply takes as a given existing distributions of wealth and power without considering the historical and legal context that led to those distributions.

Professor Sunstein further argues that the constitutional text imposes no clear ban on affirmative action. Well, the Constitution says everybody should be given due process and equal protection of the laws. When you advantage one person because of their race, you disadvantage another person because of their race. It is not a zero sum game.

He goes on to say that there is ``no clear moral argument [that] requires courts to treat affirmative action policies with great skepticism.''

In 1997, after the Fifth Circuit struck down the University of Texas School of Law's affirmative action admissions policy as a violation of the equal protection clause of the U.S. Constitution, Professor Sunstein dubbed the Fifth Circuit's decision in Hopwood as hubristic and compared it to Dred Scott v. Sanford, stating:

[A] court opinion outlawing affirmative action is closely

analogous to Dred Scott, and defective--abusive,

overreaching--for the same reason: It would be an amazing act

of hubris.

As we discussed in some detail during the recent nomination of Judge Sotomayor, the Supreme Court's jurisprudence in this area requires any government discrimination--and that is what happens when you have a quota--that any discrimination by the government be subject to strict scrutiny of the courts because on its face it seems to be unfair. We know that as a result of long-term systemic discrimination, particularly against African Americans, courts have found that to remedy that, it is perfectly all right to remedy this lack of equal protection by fixing it and imposing certain remedies that favor groups that have been discriminated against as a remedial act. But when you pass the remedial stage and you are in a stage of objectivity, as we have in most of America today, then if you favor one group over another, the Supreme Court says that has to be looked at under strict scrutiny. You have to be careful you are not overreaching here. It seems Mr. Sunstein has no sympathy for that whatsoever. And that is the Adarand decision basically by the Supreme Court. He seems to hold the view that such discrimination is not only permissible but that the strict scrutiny standard announced in Adarand and other Supreme Court cases is totally inappropriate. I question whether someone who holds these views should be put in a position to make the kinds of decisions he will be making as the regulations czar, some might say.

With regard to the nominations of Federal judges, he has taken some positions that I think have been unhealthy for the country.

Back in 2001, the New York Times had an article. It was a very significant little article. It wasn't a big article, but it was very important and significant. It reported that Professor Sunstein, along with Professor Tribe and Marcia Greenburger--lawyers all--attended a private retreat where they lectured Democratic Senators on how to block Republican judicial nominees by ``changing the ground rules.'' The title of the article by Neil A. Lewis was ``Democrats Readying for a Judicial Fight.'' And, indeed, they did. I think this Senate has been less healthy as a result of what they accomplished through the filibuster of judges on a routine basis.

Again, according to the New York Times, it was reported that they argued at the meeting that:

It was important for the Senate to change the ground rules

and there was no obligation to confirm someone just because

they were scholarly or erudite.

A month later, Professors Sunstein and Tribe, along with Ms. Greenburger, were invited to testify before the Judiciary Subcommittee on Administrative Oversight and the Courts in a hearing titled ``Should Ideology Matter? Judicial Nominations 2001.'' They argued at that hearing that political ideology of nominees is a legitimate issue for Members to consider in their record. I think that has been an unhealthy thing, and we have had a number of debates and hearings on it since.

I believe my Democratic colleagues, to their credit, have backed away from that. In other words, it is all right to dig deeply into a nominee's judicial philosophy and whether they are committed to the law and how they envision their process of interpreting the Constitution. But it is quite another to say that, if you have this political ideology or these views, that you can no longer be chosen to be someone who can decide cases fairly, because most judges have some personal views and they have to decide cases every day, setting aside those personal views.

At the hearing, I thought he made an odd statement. He said that the current Supreme Court ``has no left at all.'' He believes that the people who have been generally reported to be activists or liberals were centrists and that presumably, I guess, the bad folks on the Court were the judges who believe in enforcing the law as written regardless of their personal views. Indeed, he testified at that hearing that he ``can't think of a single nominee by President Clinton to the lower Federal courts who genuinely counts as a liberal.''

Well, Mr. Sunstein has a lot of ability. He has taken some positions on animal rights that are clearly shocking and that are troubling in light of how important it is to have a person in this position who has good judgment to render good decisions about the regulations that would impact every American in this country.

I don't have anything personal against this nominee. He has many friends. He is a prolific writer and commentator. But I think his views are outside the mainstream, and I will be voting against the nomination.

I thank the Chair and yield the floor.

Mr. President, I rise today to pay tribute to a wonderful Alabamian and American, LTC Mark Stratton, 39, of Foley, AL, who was killed in Afghanistan on Memorial Day this year and laid to rest among the heroes at Arlington National Cemetery in June. Lieutenant Colonel Stratton was serving as commander of a Provincial Reconstruction Team, PRT, and was killed when an improvised explosive device, IED, detonated as his convoy was passing.

Having had the privilege of attending Lieutenant Colonel Stratton's funeral and hearing the stories told by his family members and those who had worked with him, it is clear that Lieutenant Colonel Stratton was a man of honor who took great pride in his service to our Nation.

In my conversations with his mother, Mrs. Jan York, she described her son as ``good, determined, focused and he loved God, he loved America and loved the Air Force. He accomplished so much.'' She also described how proud he was, as a leader of his PRT, to have completed an important road project. He was proud because he knew it was a project of permanence that would benefit the lives of the people of the area. This is so typical of the patriotic selfless attitude of our magnificent military personnel.

His colleague and friend, Lieutenant Colonel Risner said of him, ``He put the airmen that he was supervising or leading first, every step of the way.'' This is the sign of a true leader who was dedicated both to the mission and to the development of his subordinates.

In admiration of his committed service and ultimate sacrifice, his colleagues on the Joint Staff in the Pentagon will pay tribute to him later this month by naming a conference room in his honor. I believe that it is a fitting homage to an individual who represented the best of what an airman and officer should be. It is good that our military leaders in the Pentagon will remember the sacrifice this great American made for his country and strive to honor his commitment in the way our military operations are carried out.

My thoughts and prayers are with his wife Jennifer; their three young children Delaney, Jake, and A.J.; his mother Jan York and her husband Buddy; his brothers, Michael Stratton and Frankie Little; as well as his many friends and fellow warriors as they continue to grieve the loss of this great man. This is an incalculable loss for them, but I know that they will be able to take wonderful lessons from the way he lead his life both publicly and privately. They will also be able to take comfort from the great heritage he leaves to his family and to his Nation.

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

Mr. President, I had the opportunity this morning to talk with Judge Sotomayor and congratulate her on her confirmation to the Supreme Court. It is an exceedingly important position. Her nomination initiated a national discussion about the role of a judge in American society. I hope it rose to the level of debate and discussion that was worthy of such a great occasion.

She is a wonderful person. She is going to give her best effort to be a great Justice on the Court. I hope and pray she will achieve that. I reached a conclusion, as did a number of my colleagues, that her statements and expressions of judicial philosophy were such that it caused concern and gave rise to a belief that her approach to judging was part of a growing idea that judges are not bound by the law and facts but are rightly able to allow their personal views to influence their decisions.

Her testimony was different, however, from what was reflected in her speeches. I am hopeful that her testimony will be the basis by which she conducts her business on the bench.

I congratulate her. I think our discussion was at a high level. It dealt with an issue that so many of us feel very deeply about; that is, that the law must be objective, that judges must show fidelity to the law as written, even if we in Congress have not written it so well and if they would like to see it differently. That is the cornerstone of the American legal system, and I am proud of it.

I received an e-mail a few days ago from Sarah Chayes who has written a book about Afghanistan. She was an NPR reporter, stayed in Afghanistan, fell in love with the country, has learned the language and works tirelessly to improve the lives of people in that country.

She told about being in the States and meeting with the relative of an individual who tried so hard in Iraq to promote law and justice. She said this lady, her relative, said what most impressed her in America was the law. She said it was not food, it was not technology, it was not wealth that we had, it was the legal system we had. It is a beautiful, wonderful thing. It is a heritage we have received. We have not earned it. We have inherited it, and we have a responsibility to make sure we pass it on in a healthy state, to those who will follow us.

So my congratulations go to Judge Sotomayor. I know her mother and

other family members are so excited this day. This was one of the shortest confirmation processes in recent memory. I know that she is pleased that it was completed before the August recess. It will allow her to move and get herself organized for the beginning of the term in October. So, again, my congratulations are to her.

I appreciate the Members of the Senate, Chairman Leahy, for allowing a full and robust debate on this issue. I will assure my colleagues, the issue of judicial activism is not going away. The American people feel strongly that judges must operate as their judicial oath says, in accordance with the Constitution and laws of the United States--not above them. They expect them to work diligently to determine the right answer to each case before them and to find and declare that right answer, even if the law they base it on is one they personally would like to see altered.

That is the ideal of American justice, and we will be continuing to battle for that as the months and years go forward. I think it is an important issue this country will be wrestling with.

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

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

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

Mr. President, before we leave for our August recess, I think it is good to maintain our watch on what is happening in the financial markets. I have reported on these matters several times this year because I think it is something we have to talk about. The reason we have to talk about it is because the United States is borrowing more money this year than any year in the history of the American Republic. It dwarfs anything we have ever done before, and it is an action that has consequences. We cannot borrow dramatically without having consequences occur, just as they do in our families. If your family goes more into debt, you are burdened with high interest rate payments that produce nothing but are monies you expend because you borrowed money. That is what interest is. It does not do you any good. It is a painful thing for no immediate benefit. The benefit comes when you borrowed it and bought something with it, but in the long run you carry that interest unless you pay the debt off in the future.

The problem this country has is that according to the President's own budget, in the next 10 years we have no plans whatsoever to pay down any debt. In fact, the debt is surging in the outyears. Growing the deficit for each annual accounting will increase in the outyears. So we are in an unsustainable rate of spending in America. We have heard those phrases, and ``unsustainable'' means just that: We can't keep it up in this fashion.

I will put this chart up that is not disputed by anybody who has been involved in the process. It represents what the Congressional Budget Office--a nonpartisan group, but in truth it is hired by the Democratic majority here in the Congress, in the Senate--has scored the President's budget and what it will mean for us in terms of debt over the next 10 years. It is a 10-year budget, and we are supposed to look out into those years.

In 2008, the total debt in America was $5.8 trillion. From the beginning of the American Republic until 2008, we had accumulated $5.8 trillion in debt. That is a lot of money; more than we needed to have been carrying as a debt. President Bush was criticized for having several deficits, one over $400 billion, and another one either at or around $400 billion. Other years were less: $100 billion, $160 billion, something like that. But he was criticized for that because it helped cause the debt to go up. But look what the Congressional Budget Office says we are going to be facing 5 years from now in 2013: a doubling of that debt to $11.8 trillion. Ten years from now it will triple to $17 trillion. The debt will increase in the out years. President Bush was rightly criticized for having added a $450 billion deficit in 1 year. We will not see in the next 10 years, according to the Congressional Budget Office, a single deficit year that low. The lowest they project is that it would be $600 billion plus. In the tenth year, out here in 2019, it is projected the deficit will be $1.1 trillion. This year, the deficit is projected to be $1.8 trillion. We will soon know. Some say it will be $2 trillion; $1 trillion, of course, is one thousand billion dollars--a lot of money. It has consequences. Where do you get this money?

Where do we get the extra $2 trillion we are spending today that we don't have? Where do we get it? Well, we go into the marketplace and we ask people to buy Treasury bills and loan us the money. It is basically a note. They give us their money and we give them a promise to pay, plus interest. If you don't have any plan to pay down those debts, and we don't--indeed, we continue to project a surge in borrowing even in the tenth year, with no recession being projected in this next 10 years, so it is a grim prospect to pay this kind of interest.

This chart deals with the interest payment. People think: Well, somehow we can borrow and it doesn't hurt us. That is not so. If you borrow, you have to pay interest on it. This country pays interest today on the debt of $5.8 trillion. We are sort of fortunate because in this economic slowdown interest rates are low, but they are not going to stay low, and that is the problem. Not only that, the size of the debt is increasing.

So in 2009, it is projected that the interest on our debt will be $170 billion. Well, the entire Federal education budget--what, $100 billion--the entire Federal highway budget prior to this stimulus package, at least, was $40 billion. So $170 billion goes out in interest to people all over the world and in the United States who have bought Treasury bills, including foreign countries such as the Arab countries who have so much of the American dollars because we buy their oil, and China, we buy their products and they have American dollars, and they have been buying our Treasury bills.

But look what happens over the 10-year window. This is according to the Congressional Budget Office--a fair, objective analysis of what we are looking at. Let's take the red numbers. This is what we would be paying out annually in interest. It goes up--by 2019, the interest we would pay at the originally projected rate of interest CBO used--to $800 billion in 1 year in interest we pay on the debt.

People are getting worried the interest rates are going to go up because we are borrowing so much money and people are going to be afraid that the dollar will be devalued, and our currency will be inflated. Therefore, they won't get as much return because they will be cheated because the dollars they get back from the United States in terms of interest aren't the same valuable dollars they were originally. The fundamental thing that is working up here in people's minds is that the interest rates could go up. If we use the Blue Chip economics forecast, the total payment in interest could be $865 billion. If it goes up higher to the rates we saw in the 1980s, it could be $1.3 trillion. That is just interest, in 1 year, that we would have to pay. Our total budget today is about $3 trillion. That would be more than a third of the budget.

I don't think the Members of this Congress understand the seriousness of this problem, because look at the bills that go through here. I am a big supporter of farm programs. I supported farm bills year after year, but I couldn't vote for the one this year. It had a 11-percent increase in discretionary spending under the agriculture bill--11 percent. You know, at 7 percent return, your money doubles in 10 years; at 11 percent, the agriculture budget will double in several years.

At a time when we are running up unprecedented debts, we have an 11- percent increase there. It is difficult for me to comprehend. I don't think we are serious about it. Now the House has put in three airplanes so Members of the Congress can take trips with them, presumably. Somebody somewhere needs to be asking: Where are we going to get this money? Every dime of it will be borrowed. The $800 billion we

passed earlier this year that was supposed to stimulate the economy, keep the unemployment rate from going up, and cause economic growth to occur, was borrowed. We didn't have that money. The first automobile clunker bill, $1 billion, was borrowed on top of that. It wasn't even paid for out of the stimulus bill. It was new billion dollars. Then the new clunker bill that passed here last night in the House, they said: Well, it was going to come out of the stimulus package and, therefore, it wouldn't add to the debt because we have already authorized this stimulus money to be spent, but that is not what the House leadership said. They promised they wouldn't reduce any of the spending that was provided for in the $800 billion stimulus package. Only 11 percent of the discretionary funds will be spent by October 1. They wouldn't take the money out of that to fund the clunker program. They promised without any equivocation that they would replenish that to borrow money. They are going to borrow that money so they don't have to reduce any of this spending in the stimulus package.

The Treasury issued a record amount of debt this past year--an unbelievable amount, actually. The Treasury Department said Wednesday it is going to sell a record $75 billion in Treasury bills just next week so we can pay all of these obligations, we have appropriated the money for. We don't have the money, so we have to borrow it. In particular, the Treasury officials need to ensure that demand from China--that is, China's purchasing of our Treasury bills--doesn't fall off. We want them to keep buying. There are several problems, however. China doesn't have as much money as they did because their sales are not going as they were, and they are using some of their surplus money to stimulate their own economy. So they are not going to have as much money to buy Treasury bills as they did, frankly. But at any rate, demand from China, the largest holder of U.S. Government debt, is shaky. We put out the Treasury bills by auction at an interest rate and people bid for them, basically, and the government has to raise the rate high enough to get people to give them the money so we can spend in Congress.

According to yesterday's Wall Street Journal, last week's auctions of fixed-rate Treasury notes saw lukewarm demand from China and other investors. They are getting worried. Chinese officials had indicated they want inflation-protected securities, especially as the U.S. economy starts to recover. Inflation-protected securities. That is the TIPS. Right now they are not paying much interest. It is pretty low interest. But if you have a TIP, inflation-protected securities, and the interest rate goes up, then you get paid more. The return on your Treasury bill goes up. It is not fixed.

``Inflation is the No. 1 worry,'' said Mark Chandler, global head of currency strategy for Brown Brothers Harriman & Company: ``This is the government saying, `We will take that inflation risk away from you.' ''

That is what a TIP does. It says, Don't worry about inflation; if the inflation goes up, we will pay you greater interest on the Treasury bill you buy.

And the spread--the difference between the 10-year TIPS--inflation- protected securities--and the regular 10-year Treasury note has risen from near zero at the beginning of this year to about 2 percent today. That means that one can get a 2-percent better rate by buying regular Treasuries, 10-year Treasury notes, but people still want TIPS. People with money want TIPS. Why? Because they are afraid in the next 10 years we are going to have a surge of inflation and a 3.7-percent 10-year Treasury bill. Well, they would rather have a 1.7-percent TIPS than get 2 more percent on the U.S. Treasury bill.

According to yesterday's Wall Street Journal, officials from the United States and China discussed TIPS issuance in high-level talks last week. U.S. officials assured their Chinese counterparts that they remain committed to TIPS sales, according to a person with knowledge of the discussions. China has accumulated more than $2 trillion in foreign exchange reserves and has invested about $800 billion in the U.S. Treasury. Meanwhile, interest rates on regular 10-year Treasuries have increased from 2.4 percent to 3.75 percent this year, an increase of over 50-percent.

So the interest rates on the 10-year Treasury has increased over 50 percent since January. Why? Because people are not willing to give the government money at the lower 2.4 percent rate because even though we are in a recession and interest rates are very low, they know with this kind of debt, this kind of future debt that the United States is facing, we are going to have a tremendous temptation to inflate the currency. And we are going to have that pressure because one way to beat your debt, of course, is to pay it back in dollars not worth as much as the dollar the person loaned. If they loan you a dollar today, and the dollar drops 20 percent, you can pay them back with dollars worth 80 cents rather than a dollar. That is a pretty good deal, if you can get away with it.

People are smart and they see this coming. They are demanding higher interest rates now, or they won't loan us the money--like any smart businessperson would. I say to my colleagues you don't get something for nothing. There is no free lunch. You cannot run up this kind of debt without consequences for the young people of this country in the years to come. They are going to be carrying a $800 billion-a-year annual interest rate in 10 years. Most likely, this number will be higher than $800 billion a year, whereas our generation today is carrying a $170 billion a year annual interest payment. I do not believe we have to do that to help this economy come out of recession. In fact, when you talk to people who are involved in the American financial sector, the biggest worry they have is interest and the debt. For everything else, they can see a way the U.S. economy will come out of it. If we burden ourselves with more debt than we can sustain--and we are clearly heading in that direction--long-term investors are worried. They don't see this coming out right. That is why they say it is not sustainable.

I wished to share these remarks before we recess for August. I don't think it should be forgotten. We have a responsibility to see that every dollar we spend produces something of value. While it can also have a stimulative effect, it needs to produce something of value; it cannot just be thrown away. We need to look for every possible way to contain this growth in spending. It is unacceptable and it cannot continue. Somehow, some way, Congress has to get the message; and I don't think we have gotten it. I don't think we understand that millions of people are losing their jobs. People who used to have overtime are not getting it today. Many who were working full time are working part time today. Families who used to have two wage earners now only have one.

This is serious. We are going to have to recognize we cannot spend our way out of it. We cannot borrow our way to prosperity, as one Alabamian told me at a townhall meeting.

Mr. President, I yield the floor.

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

Madam President, there are a number of letters from people and groups who have given great thought to this nomination and who have written to oppose it.

I ask unanimous consent to have some of these letters printed in the Record.

Those letters were from Fidelis, Defending Life, Faith and Family, outlining their opposition; a letter from the National Rifle Association; a letter from the National Right to Life Committee; a letter from FRCAction; the Women's Coalition for Justice; the SBA List, the Susan B. Anthony List; the American Association of Christian Schools; and the Ethics and Religious Liberty Commission of the Southern Baptist Convention. Those were one group of letters.

In addition, there are letters from the National Rifle Association, as I mentioned earlier. They have not often, if ever, weighed in on a judicial nomination. But this case, this nomination was so close to one of the most critical issues facing the country today. That is, whether the second amendment applies to States.

If the second amendment does not apply to States, then States and cities can completely ban guns within their jurisdiction.

Judge Sotomayor earlier this year, after the Heller decision, in the first case of its kind after the Supreme Court's decision in Heller, concluded the second amendment does not apply to the States.

She concluded in her very brief opinion that the second amendment does not apply to the States; they could eliminate firearms. She concluded it was settled law that this was the case when the Supreme Court in Heller--and as the ninth circuit concluded, which held differently--explicitly left open this question.

So I think any person who cares about the second amendment and the right to keep and bear arms has to be very troubled that the nominee, earlier this year, concluded that it does not apply and it is settled law, when the Supreme Court had opened it up, as the ninth circuit said.

If it is not reversed, her opinion is not reversed, then cities and counties will be able to restrict firearm possession completely.

Sandra Froman, who is the former president of the National Rifle Association, a Harvard law graduate herself, wrote that:

Surprisingly, Heller was a 5-4 decision, with some justices

arguing that the Second Amendment does not apply to private

citizens or that if it does, even a total gun ban would be

upheld if a ``legitimate governmental interest'' could be

found.

She goes on to say:

The Second Amendment survives today by a single vote in the

Supreme Court.

Heller was a 5-to-4 decision.

Both its application to the States and whether there will

be a meaningfully strict standard of review remain to be

decided by the High Court.

I have offered that letter and other letters that we have received into the Record. I also printed in the Record a series of op-eds I have written on the way I believe an analysis of a nominee should be conducted and what are the important principles.

Mr. President, I would like to express my appreciation to my staff whose assistance throughout this process was critical to the fair hearing that Judge Sotomayor received. The Senate Judiciary Committee held a hearing for Judge Sotomayor more quickly than it had for the last three Supreme Court nominees, despite the fact that she has been touted as having the most extensive legal record of any recent Supreme Court nominee. As such, my staff went to great efforts to prepare for the hearing on her nomination.

Our team was led by chief counsel for the Supreme Court nomination Elisebeth Cook; staff director Brian Benczkowski; chief counsel William Smith; deputy staff director Matt Miner; and general counsel Joe Matal. Their knowledge of the issues and wise counsel proved invaluable during this confirmation process.

In addition, I am grateful to our Supreme Court team, including counsels Ted Lehman, Seth Wood, Ashok Pinto, Ryan Nelson, and Isaac Fong; law clerks Chris Mills, Matt Kuhn, Anne Mackin, and Andrew English; and intern Jamie Sunderland.

I would like to acknowledge and extend my gratitude to the dedicated and talented members of my permanent staff who worked tirelessly on this nomination, all the while handling the regular legislative business and other nominations that came before the Judiciary Committee: counsels Danielle Brucchieri, Bradley Hayes, Nathan Hallford, and Phil Zimmerly; professional staff member Lauren Pastarnack; and staff assistants Sarah Thompson and Andrew Bennion.

I would be remiss if I failed to mention the important work done every day by my communications director Stephen Boyd, press secretaries Sarah Haley and Stephen Miller, and press assistant Andrew Logan.

The people I have mentioned bore the bulk of the workload, laboring tirelessly night after night, day after day, and nonstop through the weekends. They deserve our recognition as a tribute to their hard work, professionalism, and dedication to public service.

I also would like to acknowledge the great help we received from the Republican majority leader and his staff: John Abegg, Josh Holmes, and Webber Steinhoff; as well as the invaluable contributions of Republican Policy Committee counsel Mark Patton.

Finally, my thanks to the Judiciary Committee's chief clerk, Roslyne Turner and her assistant, Erin O'Neill.

All of these fine staff members contributed to this process and we would not have been able to conduct such a fair and thorough hearing without their hard work and their professionalism. To each of them, I extend my heartfelt thanks.

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

Madam President, we have heard a number of discussions from Senators throughout this confirmation process regarding judicial activism--what is it and what does it mean. I think our former Judiciary Committee chairman and great legal constitutional scholar, Orrin Hatch, has defined it clearly and fairly and in the right way. Orrin Hatch has said for years that judicial activism is when a judge is assigned a case and they allow their personal, political, moral, religious or ideological views to influence their decision, and not render a verdict based on the law and the facts. It is true of a conservative jurist with a conservative ideology as well as a liberal.

In truth, in recent years, we have had a pretty frequent national debate--for maybe 20 or more years--over this question. The intellectual defense of activism--the living constitutional view of activism--has come from the liberal side. Conservatives have said: No, that is not the role of a judge. A judge is supposed to decide the discrete issue before them in a way that handles that case because it may well provide precedent in the future. And that is what they should do and not be expansive in their rulings and set policy or to promote some long-term agenda they believe--rightly or wrongly--may be the greatest thing the country could ever do. They weren't elected to set policy. Judges aren't elected to declare to the United States how we ought to tax or regulate the environment or that kind of thing. That is what the legislative branch gets to do.

So I wished to raise that and discuss it a little further. It has also been mischaracterized that conservative jurists who show restraint are activists--they are not, but they have been accused of activism-- because they have actually seen fit to throw out and find unconstitutional a statute passed by Congress. Well, we passed an 800- page stimulus package, we passed a bailout bill last fall that nobody even got to read or to study. I am surprised there are not more pieces of legislation held unconstitutional than there are.

It is not activism for a judge, such as Chief Justice Roberts--who has been accused of being an activist--to declare a statute unconstitutional. What would be wrong is if he were doing so to promote his own personal views about policy. That would be wrong.

The second amendment to the Constitution says that ``a well-regulated militia being essential for the security of a free State, the right of the people to keep and bear arms shall not be infringed.'' That is what the second amendment says. It is in the Constitution. It is one of the Bill of Rights. Essentially, when the city of Washington, DC--a Federal enclave, a district--saw fit to almost completely ban the right of citizens in this city to have guns, Chief Justice Roberts and four other members of the Supreme Court found it violated the Constitution. It violated the right of the people to keep and bear arms. That is not activism, is what I am saying. Somehow we have gotten confused on this matter. Therefore, we need to be alerted to it.

Sometimes my colleagues, I think, have tried to say: Well, everybody does it. Everybody is an activist, so the Constitution is a malleable document. It gets redefined as the years go by. It is a living document, they say. But it is not living, is it? You can go over to the archives building and you can see it. It is a contract. The American people granted certain rights to this government and they reserved certain rights to themselves. Of the rights they reserved, for example, was the right of free speech, the right to assemble, and to criticize their incumbent politicians if they are not happy with them. They reserved the right to keep and bear arms.

I think we need to get our minds straight. Judges should see their role as a limited role, and they should not seek to impose their policy values on the country. They should see it as then-Judge Roberts said in his hearing so beautifully and so eloquently: A

judge is a neutral umpire. They call the balls and strikes. They do not take sides in the ball game. How much more basic can it be than that?

I wanted to try to clarify that point, and I think it is important. We have other constitutional rights--the right to keep your property unless it be taken for public use, such as a highway. That is a public use. But in the Kelo case, 5 to 4, and in the case rendered by Judge Sotomayor, they ruled that the government could take one man's drugstore--his property on which he was going to build a private drugstore--and the city could condemn it and give the property to another man to build a different drugstore on for personal profit. Where does the public use come from?

Justice O'Connor dissented in the Kelo case and ruled the other way. She ruled the other way, and it was okay to do that. The case dealing with Judge Sotomayor went even further than that. But it is not activism for a court to say that no city, or whatever, can take a man's property under some redevelopment scheme or plan so they can get more tax money, because if they take it and give it to this other private guy, he can build a big shopping center there and they will get more tax revenue. That is not a public use. The question is: Is the property used for a public purpose, not otherwise? The Constitution gives an individual the right to have their own property and people can't take it from you.

The Constitution, likewise, says every American citizen is entitled to equal protection of the laws and that they cannot be denied equal protection of the laws on account of their race. It is a big important constitutional issue. So we get into a situation where a city, New Haven, conducts a fair test, by all accounts; a carefully crafted test. No one criticized its validity. They conducted a test and 18 firefighters passed the test. They testified that they studied very hard to master the test which related directly to their firefighting ability. They go out and do the right thing and they are on track to be promoted. But not enough people of one group or another did well on the test, and the city--the government--decides they didn't get the results they liked on this test and so they threw it out.

It is not activism for the U.S. Supreme Court to say--really all of them to say--that this is not right, that this is not complying with the Constitution or even the civil rights statutes in America that require equal justice under the law, not favoritism based on one or the other because of their background, ethnicity, or race. That is just what it is all about.

The Justices on the Supreme Court, the ones who are known for showing restraint, should not be criticized if on occasion they declare the U.S. Congress did something wrong and it was unconstitutional. I am afraid we do it more often than we like to admit, the truth be known. Bills come through here late at night, nobody has done any constitutional research on most of what is in them to see if it is constitutional or not. The American people are entitled to have the final decision about constitutionality rest with a court that is prepared to defend their individual rights.

On the three cases I mentioned--the case of a property taking from a private individual, the case of 18 firefighters who passed the test and were ready to claim their promotion, and the question of the right to keep and bear arms--each one of those was an individual situation in which an individual American appealed to the courts and claimed they have a right in plain words provided to them by the Constitution and they are asserting that right and they are pleading their case in the Court and asking the Court to grant them that right. In the three cases I mentioned, unfortunately Judge Sotomayor ruled with the government, the power of the State, and against the individuals asserting their claims in three exceedingly important cases.

It is not activism to throw out a city's decision on forfeiture or guns; nor is it activism to throw out a decision that discriminates against American citizens based on their race.

That is one of the things we discussed a lot in this debate. I think it has been a good debate. I complimented Senator Leahy this morning again. He gave us all a chance to ask questions. We had 30 minutes, as we have done before. Some wanted to do less, but he said no, that is the way we do these things. We had 30-minute rounds and then 20-minute rounds and then 10-minute rounds to ask questions. I think pretty much the fundamental issues involved in this nomination got discussed in committee. Some written questions were filed in addition. Now that it is on the Senate floor, I believe the Members of the Senate have an adequate record from which they can make a decision on what they think is best for America.

I believe we should not have anyone on the Court who is not committed to the Constitution, not committed to putting aside their personal political agenda, and who will stay in strict adherence to the law and the facts of the cases that come before them. That is how I evaluated this case.

I am proud of Judge Sotomayor. She handled herself well and patiently at the committee. She was asked a lot of tough questions, but if you want to be a Justice on the U.S. Supreme Court you have to be prepared for that. You should not submit yourself if you are not prepared for that. But she handled it nicely and courteously.

I think the Senators conducted themselves well also. A lot of people wanted to vote for her but, as the hearings went by and they studied the record, they concluded they were not able to vote for her based on philosophy and her approach to the law. But I think the committee hearing did what it was supposed to.

There have been no delays. This will be one of the fastest confirmations in history. Within a few hours we will be having an up- or-down vote on her confirmation, unlike what happened when Judge Alito--a fabulous nominee, in my opinion--was subjected to a filibuster before he was confirmed. She is going to be given an up-or-down vote in just a few hours.

I thank the Chair for this time. I look forward to the rest of the debate and final vote in a few hours.

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

Mr. President, when President Obama nominated Judge Sotomayor to the Supreme Court, I pledged that we would treat her with respect and that our questions would be tough but always fair. It is an important office. I believe we have lived up to that obligation.

Again, I thank Chairman Leahy and the members of the Judiciary Committee for their efforts. I think it did help provide a basis for our full debate in the Senate. I thank Judge Sotomayor for her kind words regarding how the process has been conducted, and the way she conducted herself.

We have had a robust debate on the Senate floor over these past few days, and we have addressed many important questions and issues.

The debate over Judge Sotomayor's nomination began with President Obama's radical new vision for America's court system. According to the President, all nominees to the Federal bench would now have to meet an ``empathy standard.'' This standard requires judges to reach their most difficult and important decisions through the ``depth and breadth of [their] empathy'' and ``their broader vision of what America should be.'' This is a stunning ideology. It turns law into politics. The President of the United States is breaking with centuries of American legal tradition to enter a new era where a judge's personal feelings about a case are as important as the Constitution itself.

The President's empathy standard is much more than a rhetorical flourish. It is a dangerous judicial philosophy where judges base their rulings on their social, personal, and political views. It is an attempt to sell an old, discredited activist philosophy by marketing it under a new label. It is this activist philosophy, now under the guise of empathy, that has led judges to ban the Pledge of Allegiance because it contains the words ``under God,'' to interpret the Constitution on the basis of foreign laws, to create a new right for terrorists who attacked the United States while robbing American citizens of their own rights to engage in activities such as silent prayer.

That philosophy also helps explain why Judge Sotomayor's panel of Federal judges allowed the city of New Haven to strip 18 firefighters of their eligibility for promotion on the basis of their race. It explains why judges have interpreted the second amendment to permit cities and States to ban guns despite the Constitution's clear language: ``the right of the people to keep and bear arms . . . shall not be infringed.'' And it explains why judges have allowed government to seize private property for private commercial development despite the Constitution's guarantee that private property may not be taken except for ``public use.''

The empathy standard may sound nice, but in reality, it is cruel. It is, in truth, a bias standard. The power to rule on empathy is the power to rule on prejudice, and the power to deny the rights of some is the power to deny the rights of any or of all. A judge embraces empathy at the expense of objectivity and equality and fairness.

Eighteen firefighters in New Haven worked, studied, and sacrificed to pass the city's promotion exam. But when the results did not fit a certain racial quota, the city leaders unceremoniously scrapped the results. The firefighters put their faith in the system, and the system let them down. So they took their case to court. But Judge Sotomayor summarily dismissed their case in a one-paragraph order that did not even consider their civil rights claims. But the Judge Sotomayor who testified before the Committee did not effectively explain her ruling to deny these firefighters their day in court.

She also did her best to distance herself from the activist philosophy she has so long spoken of and championed. But it was an unconvincing effort. I believe she failed to offer a credible explanation for her critically important rulings that would eviscerate gun rights and property rights. She failed to offer a credible explanation of her policy role in an advocacy group that took extreme positions when pursuing racial quotas, advocating that the Constitution requires that the government fund abortions and opposing reinstatement of the death penalty. Her effort to rebrand her judicial approach stretched the limits of credulity. As one editorial page opined, her testimony was ``at times uncomfortably close to disingenuous.''

Nevertheless, I believe we have had a deeply valuable public discussion. By the end of the hearing, not only Republicans and not only Democrats but the nominee herself ended up rejecting the very empathy standard the President used when selecting her. This process reflected a broad public consensus that judges should be impartial, restrained, and faithfully tethered to the law and the Constitution.

I think it will now be harder to nominate activist judges. This is not a question of left versus right or Republican versus Democrat. This is a question of the true role of a judge versus the false role of a judge. It is a question of whether a judge follows the law as written or as they might wish it to be. It is a question of whether we live up to our great legal heritage or whether it is abandoned.

Empathy-based rulings, no matter how well-intentioned, do not help society but imperil the legal system that is so essential to our freedoms and so fundamental to our way of life. We need judges who uphold the rights of all, not just some, whether they are New Haven firefighters, law-abiding gun owners, or Americans looking for their fair day in court. We need judges who put the Constitution before politics and the right legal outcome before their desired personal political and social outcome. We need judges who understand that if they truly care about society and want it to be strong and healthy, then they must help ensure our legal system is fair, objective, and firmly rooted in the Constitution.

Our 30th President, Calvin Coolidge, said of the Constitution:

No other document devised by the hand of man ever brought

so much progress and happiness to humanity. The good it has

wrought can never be measured.

I certainly believe he is correct. That document has given us blessings no people of any country have ever known, which is why real compassion is not found in the empathy standard but in following the Constitution.

Judge Sotomayor, however, has embraced the opposite view. For many years before her hearings, she has bluntly advocated a judicial philosophy where judges ground their decisions not in the objective rule of law but in the subjective realm of personal ``opinions, sympathies, and prejudices.''

A Supreme Court Justice wields enormous power--a power over every man, woman, and child in our country. It is the primary guardian of our magnificent legal system. Because I believe Judge Sotomayor's philosophy of law and her approach to judging fail to demonstrate the kind of firm, inflexible commitment to these ideals, I must withhold my consent.

Mr. President, I see my colleague, Senator Leahy, is here. He has handled

many of these nominations over quite a few years. We did not agree on a lot of the things that came up in the hearings, but he committed to giving the opportunity to the minority party to have a full opportunity to ask questions and to raise issues and speak out. I thank the chairman. I think it did credit to the Senate.

I thank the chairman, and I yield the floor.

Mr. President, Senator Whitehouse's legislation would help American consumers bring civil claims against foreign manufacturers who produce faulty goods and send them into the U.S. market. Currently, it is nearly impossible for harmed American consumers to bring a tort action against foreign manufacturers of products that are flawed or even dangerous. Foreign manufacturers are often difficult to identify or locate and even if found, the process of seeking damages against them is extremely costly and burdensome. Without the threat of litigation, foreign manufacturers have little to no accountability to their American consumers, resulting in lower quality and often defective products. Furthermore, American companies who unknowingly buy shoddy products from foreign manufacturers and then resell them to consumers become the sole defendant in tort cases filed against them when foreign defendants cannot be located. According to the Consumer Product Safety Commission, Chinese manufacturers were responsible for 69 percent of all product recalls in 2007 and 53 percent in 2008. These numbers demonstrate the need for Congress to take action to protect American consumers. Senator Whitehouse's proposal is a positive step in the right direction.

I have witnessed the effects of this problem firsthand in my State. Mr. Chuck Stefan from Alabama testified before the Subcommittee on Administrative Oversight and the Courts, which Senator Whitehouse chairs and I serve as ranking member, about the hardships his business has faced in seeking damages against a foreign manufacturer. Mr. Stefan is a Senior Executive Vice President at the The Mitchell Company, a homebuilder in Alabama, Florida, and Mississippi. Forty-five of the houses he built have been identified as containing a defective type of Chinese sheetrock, which produces corrosive gases. These gases are not merely unpleasant. They damage the copper found in piping and wiring systems. When the problem was first discovered, The Mitchell Company could not even determine who manufactured the drywall as it was only stamped ``made in China.'' When the manufacturing parties were finally identified as both Chinese and German-based, it was a substantial and costly burden to serve them properly even though the companies had extensive operations in the United States. Mr. Stefan emphasized the fact that when foreign manufacturers cannot be held accountable, it hurts his company's bottom line and harms U.S. consumers.

Stores such as Mr. Stefan's are becoming all too common and it is incumbent upon Congress to work towards ameliorating the burdens that U.S. businesses and consumers face when seeking damages against foreign manufacturers. This issue is one that affects consumers nationwide. I am grateful to Senator Whitehouse for taking the initiative to ensure that Congress does its part in solving this problem.

Mr. President, Senator Whitehouse's legislation would help American consumers bring civil claims against foreign manufacturers who produce faulty goods and send them into the U.S. market. Currently, it is nearly impossible for harmed American consumers to bring a tort action against foreign manufacturers of products that are flawed or even dangerous. Foreign manufacturers are often difficult to identify or locate and even if found, the process of seeking damages against them is extremely costly and burdensome. Without the threat of litigation, foreign manufacturers have little to no accountability to their American consumers, resulting in lower quality and often defective products. Furthermore, American companies who unknowingly buy shoddy products from foreign manufacturers and then resell them to consumers become the sole defendant in tort cases filed against them when foreign defendants cannot be located. According to the Consumer Product Safety Commission, Chinese manufacturers were responsible for 69 percent of all product recalls in 2007 and 53 percent in 2008. These numbers demonstrate the need for Congress to take action to protect American consumers. Senator Whitehouse's proposal is a positive step in the right direction.

I have witnessed the effects of this problem firsthand in my State. Mr. Chuck Stefan from Alabama testified before the Subcommittee on Administrative Oversight and the Courts, which Senator Whitehouse chairs and I serve as ranking member, about the hardships his business has faced in seeking damages against a foreign manufacturer. Mr. Stefan is a Senior Executive Vice President at the The Mitchell Company, a homebuilder in Alabama, Florida, and Mississippi. Forty-five of the houses he built have been identified as containing a defective type of Chinese sheetrock, which produces corrosive gases. These gases are not merely unpleasant. They damage the copper found in piping and wiring systems. When the problem was first discovered, The Mitchell Company could not even determine who manufactured the drywall as it was only stamped ``made in China.'' When the manufacturing parties were finally identified as both Chinese and German-based, it was a substantial and costly burden to serve them properly even though the companies had extensive operations in the United States. Mr. Stefan emphasized the fact that when foreign manufacturers cannot be held accountable, it hurts his company's bottom line and harms U.S. consumers.

Stores such as Mr. Stefan's are becoming all too common and it is incumbent upon Congress to work towards ameliorating the burdens that U.S. businesses and consumers face when seeking damages against foreign manufacturers. This issue is one that affects consumers nationwide. I am grateful to Senator Whitehouse for taking the initiative to ensure that Congress does its part in solving this problem.

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

Mr. President, we had a number of Members discuss the second amendment issue that was dealt with by Judge Sotomayor in two different cases. It is an important question and I think her nomination raises very serious concerns about it. I would like to try as fairly as I can to analyze the circumstances in her dealing with these issues and why I think it is a problem that Senators rightly have objections to.

The second amendment is in the Constitution. It is the second of the first 10 amendments. It is part of the Bill of Rights. If you remember, the people were not so happy with the Constitution. They wanted to have a guarantee of individual rights that they as American citizens would possess no matter what the Federal Government or anyone else wanted to do about it. So they passed the right not to establish a religion, free speech, free press, the right to jury trial and other matters of that kind in the first 10 amendments, as adopted.

The second amendment was one of those, of course. It says:

A well regulated militia being essential to the security of

a free State, the right of the people to keep and bear arms

shall not be infringed.

The right of the people to keep and bear arms shall not be infringed.

Over the years, laws have been passed that caused difficulties and that began to overreach with respect to the second amendment right. The American people have gotten their back up, as the Senator from Alaska told us, Senator Murkowski. People in Alaska, people in Alabama, people all over America are concerned about this. It is a constitutional right. It has been there since the founding of the Republic.

I think most scholars have believed for some time that it is, in fact, an individual right, that the first clause regarding the well- regulated militia did not undermine the final declaratory clause which said:

The right of the people to keep and bear arms shall not be

infringed.

But no Supreme Court case had ruled on that squarely until last year when the Supreme Court took up the Heller case, which was in the Federal city we are in today, DC. The Supreme Court in the Heller case said it was an individual right and it prohibited the city of Washington, DC, from effectively barring any citizen in the District from having a gun.

It was an exceedingly broad ban on guns. But I would note something that ought to be remembered: It was a 5-to-4 decision--four members of the Supreme Court did not agree. Some people do not agree.

One of our Democratic colleagues yesterday said of the result in Heller, that it was ``a newly minted and narrowly enacted constitutional right.''

That is cause for concern. The Constitution, I don't think, is newly minted. I don't think the Court created a right. I think the Court simply declared a right that was plainly in the Constitution. So this is part of our concern.

I would suggest that it is a fragile right, however, based on the way some of the courts have been ruling and based on how Judge Sotomayor ruled.

Somebody had raised the point several times that it is somehow not right that the National Rifle Association here, at the end, after the hearings, declared that they think that Judge Sotomayor should not be confirmed. Certainly they were reluctant to be engaged in this debate. But for the reasons I would note--and Senator Murkowski and others have noted--I don't think they had much choice, because it is a critical thing we are dealing with here, the next appointment to the U.S. Supreme Court.

In a year after the Heller case was decided that the right to keep and bear arms is a personal or individual right and it cannot be abridged by the Federal Government, the case came before her as to whether the second amendment applied to States and cities.

What if other cities were to declare that you couldn't have a gun in the city, or a State were to declare you couldn't have a firearm, or if a State were to place massive restrictions on the use of personal weapons? She took that case, the first major case after Heller to deal with this issue. Anyone who is familiar with the appellate courts in America, as this judge would be, would know this was a big, big, big case, a case of great importance coming on the heels of the widely discussed Heller decision. In it, she rendered an exceedingly short opinion. In it, she found it was ``settled law'' that the second amendment does not apply to individual Americans in States or cities. The city or State could completely bar them from having any kind of gun.

In the Heller case, to be fair with her, this is what the circumstances were. There was an old 1800s case that basically held this way. It basically held that the second amendment did not apply to the States. I think the judge could rightly conclude that she may have been bound by that case. However, in the Supreme Court decision, they put a footnote in it and said: we are not deciding the question of whether the second amendment applies to the States because we are deciding a case in the District of Columbia, and the law in the District of Columbia is not city law. The law in the District of Columbia is U.S. Government law. They put a footnote and indicated that the incorporation doctrine was out there, but that they would review that in the future.

My first point is this: I don't believe it would be appropriate to say it is settled law that the second amendment does not apply to the States after the Heller case. That troubled me that she said that.

Judge Sotomayor made a decision in the Maloney case, the first major case after Heller. It was only eight paragraphs in a case that everyone knew was of great importance. And only one paragraph dealt with the question of whether the second amendment would apply to the States. Those who have supported Judge Sotomayor have correctly noted that the seventh circuit heard the same kind of case some months later and they agreed with the Maloney case and Judge Sotomayor. They spent, however, a number of pages on it. They spent 2\1/2\ pages on the question of whether it was incorporated against the States. But they concluded that even with the footnote in the Heller case, they concluded that the more clear authority was still this old case that is out there in the 1800s.

They did not say, however, that it was settled law.

The ninth circuit took up the very same case just a few months after Judge Sotomayor's Maloney decision. In a 19-page opinion that discussed in great depth the important constitutional issues, the panel said, when you read the Heller decision, when you consider the footnote of the Supreme Court's opinion where they said they didn't explicitly decide whether it applied to the States, they found differently. They found the second amendment does apply to the States and cities, and the States and cities must comply with it, and they can't ban all guns. They found not only that it was not settled law. To the contrary, they found that the footnote in the Supreme Court opinion ``explicitly left open this question.'' And because they found the question was left open by the Supreme Court, they felt they were authorized to consider the constitutional laws and questions that are important and render a decision that they thought was the right constitutional decision. That is why they went forward in that fashion.

At the hearing, the judge was asked a number of questions about this. I didn't find those questions answered very persuasive, frankly. In some instances, I found them confusing. There was no retreat that I heard from this untenable position. In answering questions from Senator Hatch, the judge said that:

The Supreme Court didn't consider [the second amendment]

fundamental [in the Heller case] so as to be incorporated

against the state. . . . Well, it not only didn't decide it,

but I understood Justice Scalia to be recognizing that the

[C]ourt's precedent held that it was not fundamental.

In the course of her decision she also found a critical question, that the second amendment is not a fundamental question. The judge was just wrong on that in a big, big case. It is the kind of thing you shouldn't make a mistake on. In the majority's footnote on this issue, the Court expressly reserved the question of whether the second amendment applies to the States. The footnote said this:

With respect to Cruikshank's

one of the old cases

--continuing validity on incorporation, a question not

presented in this case . . .

So they explicitly said that they didn't were addressing this issue. But it is pretty clear that the doctrine that allows the Bill of Rights, the first 10 amendments, to apply to the States. That doctrine has developed dramatically in the 20th century, over the last 100 years. Virtually every one of the 10 amendments has been incorporated against the States. But the Second Amendment has not yet been applied to the States. To me, that is an odd thing in light of the doctrine of the incorporating of the first 10 amendments as protections for individual Americans against both the Federal Government and State and local governments. That doctrine has developed great strength and power over the last 100 years. Few people would want to go back. I think most people would be awfully surprised to learn that the second amendment would not be one of those applied to the States. It certainly, in my opinion, is not settled law.

This case was dealt with in a most cursory manner. It dealt with a matter of huge national importance. It is the kind of case that legal scholars watch closely. It was an exceedingly short opinion, a few paragraphs. It showed little respect for the seriousness of the issue. It didn't discuss it in any depth. It incorrectly stated it was settled law that the second amendment would not apply to the States. These are the problems we have with it.

Judge Sotomayor now seeks to be on the Supreme Court. And with regard to the 5-to-4 decision in Heller and to the question of whether she should recuse herself, as asked by Senator Kyl, she indicated that if her case came up, she would recuse herself. It could come before the Supreme Court. It is that important. But if one of the other cases raising exactly the same issue came up, she refused to say she would recuse herself. Of course, if her case comes up, it is a matter of ethics that she would have to recuse herself. I thought that since having already clearly decided precisely the same issue the Supreme Court would have to deal with, she ought to have indicated to us that since she expressed her opinion on it, she wouldn't sit on the case. But that did not happen.

I will share likewise another concern we have about the firefighters case and how that was handled in such a short manner. The firefighters contended that they had studied hard. They had passed a promotion exam. They were on the road to being promoted. The city, because of political complaints about the fact that certain groups did not pass the test in a way that raised concerns, decided they would give up and not have the test and wipe out the test and not follow through with the test. The firefighters felt they had done everything possible, and they challenged that. Indeed, later the Supreme Court held that no evidence was ever presented that the test was not a fair and good test. Indeed, they had taken great care to get good people to help write the test in a way that would be neutral and fair to all groups of people and would not have any kind of unfair advantage.

When that case came before the judge, I was very disappointed that she and her panel treated it as a summary order. A summary order is reserved for cases that present no real legal question. Summary orders are not even circulated among the other judges in the circuit. Here, it was a summary order that did not even adopt the opinion of the lower courts that had ruled in this fashion. It just summarily dismissed the firefighters' claim and rendered judgment in favor of the city which had altered the plan for promotion. It was basically done because of their race.

The equal protection clause of the Constitution says that all American citizens are entitled to equal protection of the laws, regardless of race. That is what their complaint was, one of the complaints. I would note that this was not even an opinion. It was basically a line or two summarily dismissing this.

Then one of the other judges on the court apparently found out this opinion had been rendered in a case that struck him, apparently, as a matter of real importance, a case that ought not to be disposed of by a summary order, that the firefighters were at least entitled to an opinion. And by the way, they never got a trial. Basically it was dismissed prior to trial on motions. So after great debate within the circuit, a little bit of a dust-up within the circuit, by a 7-to-6 margin, Judge Sotomayor casting the decisive seventh vote, they decided not to rehear the case and any precedent that may exist in the circuit. But at that point, I guess as part of the process of confrontation that arose there, the panel issued an opinion that adopted the lower court opinion, a procuring opinion. They didn't write their own opinion but basically adopted the lower court's opinion.

It was from that decision, as a result of by chance another judge heard about it, not through the normal processes but, according to Stuart Taylor's article, from seeing it on television, that the case got some attention. And the Supreme Court agreed to hear it and reversed the case and rendered a judgment in favor of the firefighters. I think that was not responsible. That was a huge case of major constitutional import. It should have been written in detail. Any person, any judge should have done that, particularly one who would be considered for the Supreme Court.

So I will say those two opinions to me are troubling in that I think they were wrong, No. 1. And No. 2, they were exceedingly short, too short, when you consider the seriousness of those issues.

I yield the floor.

I appreciate the opportunity to speak. Before I do, I want to say that we had some disagreements as we went along about how to conduct the hearings. But Chairman Leahy made a commitment that we would have a fair hearing, that every Senator would have an opportunity to question the witnesses and have the time to follow up, and he complied with that. I think we had a good hearing.

Judge Sotomayor was voted out of the committee, and I appreciate her kind words to me and to our colleagues on how she felt she was treated. I think the hearings were fair and effectively discussed the important issues raised by this nomination.

Our confirmation process began with the President indicating that empathy was a standard that he believes should be applied to selecting judges. There is some disagreement about that. I am one of those who do not believe that is a legal standard. It is a kind of standard that is closer to a political standard, and we need to be careful that politics do not infect the judiciary.

I certainly do not profess to be able to say with certainty how Judge Sotomayor will perform if confirmed to the Supreme Court.

History shows that Justices, once confirmed, often surprise. I have previously expressed my evaluation and decision in this matter. I will just say I hope I am wrong. But I have concluded that the nominee has a fully formed judicial philosophy, one that is held by quite a few other lawyers and judges, but it is a philosophy contrary to the classical underpinnings of the American legal system, a system that has blessed us so much. Edmond Burke, in his famous speech ``On Conciliation with the Colonies,'' urged the King to avoid war, noting that the Colonies were simply asserting the rights to which they had become accustomed. He observed that almost as many copies of Blackstone's Commentaries on the Laws were being sold in America as in England.

From the beginning, Americans have honored law because, I suspect, it was the arena in which the poor individual citizen could and often did prevail against the powerful. Even before the Revolution, judges, juries, and English law decided cases. It was a people's power controlled by law that would prevail even over the political wishes of the powerful. Laws, Burke noted, were to be created by the people through their elected representatives, not judges. Law in the new Republic was not an abstract. It was concrete. The laws meant what they said. If by some loophole even an evil act was not covered by criminal law, the prisoner was to go free.

Importantly, our system rested upon a near universally held belief that law and order were necessary for freedom and progress to occur. It further rested on the firm belief that there was such a thing as objective truth and that if a real effort was put forth, truth could be ascertained. For most, this was an easy concept, since a belief in God, the ultimate truth, was widespread. Thus, the legal system was arranged to best discover truth. Rules of evidence, cross-examination, and the adversarial system were parts of the design to discover truth. Many nations have tried to replicate it without success. It is a national treasure, our legal system.

I believe our Federal courts are the greatest dispensers of justice the world has ever known. For 15 years, I practiced full time as a Federal attorney before Federal judges. I saw the system operate. I have seen State and local judges, Republicans and Democrats, serve faithfully day after day, adhering to the ideal of objectivity, fairness, and law. But many intellectuals in recent decades look upon such an approach as anti-intellectual. They conclude such thinking that judges actually do in an ideal way, they find this is hopelessly naive. They think it is unrealistic. The brilliant jurist and intellectual Jerome Frank, quoted favorably by Judge Sotomayor in a law review article, said as much in the early part of the last century.

Since then, many theorists have gone even further, moral relativists, postmodernists, deconstructionists, critical legal studies adherents, they all come from the same pond. They don't believe--some don't--that there is an ascertainable truth. They believe these ideals actually confuse thinking and mislead. They believe it is results that count.

I don't agree. The American people don't agree. Ideals are important. High standards can be reached. Not every time, I am sure, but most times. If the ideal is not ardently sought, it will be reached less and less. The American people are not cynics who settle for less than the ideal of impartiality and equal justice for the poor and the rich under the Constitution and the laws of this country. Each judge operates under the Constitution and laws of this country. They expect, rightly, that every judge will be fully committed to the heritage of law and the judicial oath they take to follow it.

That is why I have expressed the view since this process has begun, that we are at a fork in the road, perhaps. Will we continue to adhere to the classical ideal of American jurisprudence, or will we follow results-oriented judging, where judges cease to be committed to the law and equal justice because they know it is not possible. Do they believe words are just words? Do they believe the Constitution can be made to say what one wants it to say? In this world, the Constitution cannot bind a judge to what the judge considers an unwise result. Instead, we should see the Constitution as a flexible, living document. Under this view, judges are not just umpires. Judges are more powerful. Judges can make the Constitution and law say what they would prefer it to say. Judges can ensure that the right team wins. Judges can make policy. That is the seductive siren call of judicial activism, and judicial activism is an impropriety that can be embraced by conservatives as well as liberals.

Our former chairman, Senator Hatch, has often said: Activism is a tendency in a judge to allow their personal and political views and values to override the law and the facts of a case to achieve a result they think is desirable. That is what is not acceptable in our system.

That is why, at the most fundamental level, many have a problem with this nominee. It seems clear from her writings and speeches that she is a devotee of the new philosophy of judging. Her speeches, over the years, are quite clear on this matter, although her hearing testimony backtracked from it in a somewhat confusing manner.

Regrettably, I was not able to support her nomination in committee, nor will I support her nomination before the full Senate. I would like to discuss in greater detail a few of the reasons that lead me to that conclusion. There are more things that will be discussed later as we go along, but let me say a few things now.

Even before the nomination of Judge Sotomayor, I made clear what my criteria would be for assessing a Supreme Court nominee: impartiality, commitment to the rule of law, integrity, legal experience, and judicial temperament. Judge Sotomayor possesses the well-rounded resume I like to see in a Supreme Court Justice. She has a wonderful personal story. She was a prosecutor. She was a private practitioner. She was a trial judge, and she was an appellate judge. Those are good experiences for a judge on the Supreme Court. However, her speeches and cases she has decided are troubling because they reflect the lack of a proper sense of the clearly stated constitutional rights that are guaranteed to American citizens. Her testimony was her opportunity to convince us she would be the type of Justice we could vote for. Instead her answers lacked clarity, the consistency and courage of conviction one looks for in a nominee to the Supreme Court.

In many instances, she raised more questions through her testimony than she answered. Judge Sotomayor's expressed judicial philosophy rejects openly the ideal of impartial and objective justice. Instead, her philosophy embraces and accepts the impact that background, personal experience, gender, sympathies, and prejudices--these are her words--have on judging. A fair and plain reading of these speeches-- read in context--calls into question Judge Sotomayor's commitment to impartiality and objectivity. When given an opportunity to explain this philosophy, as was reflected in speech after

speech, year after year, Judge Sotomayor dodged and deflected. In many cases, her answers could not be squared with the facts.

It has been suggested we should disregard those speeches. It has been suggested they are just words, that they are merely meant to inspire. In short, it has been suggested the words of the speeches simply do not matter. But words do matter. Words are important. They must have meaning or the result is chaos. No one should know this more than a judge. Her speeches and academic writings were not offhand comments delivered without the aid of notes. They were carefully crafted to dispute the notion that impartiality is realistic, or even possible. These were not the musings of a second-year law student. They were all delivered after she was a Federal judge. They were delivered to a number of different audiences, a number of different forums, including a bar association.

In her speeches and academic articles, Judge Sotomayor describes other approaches to judging and her approach to the law. She describes the factors judges should consider when reaching decisions. She describes her fully formed judicial philosophy. She challenges the mainstream concept of judging.

Make no mistake, judicial philosophy matters. It guides judges. It tells them what to consider. Importantly, it tells them what not to consider. Judicial philosophy is quite different from a judge's personal, political, moral or social views that a judge is to set aside when they decide a case. That is what blindfolded justice means. When a judge puts on that robe, they are, in effect, saying to everyone in that courtroom that their personal biases and prejudices and so forth will not impact the fairness of the ruling they are called upon to make.

Judges in trial and appellate courts, of course, are constrained by precedent. Even if a trial or appellate judge harbors a radical approach to the law, the threat of reversal restricts that judge's ability to employ that philosophy. But on the Supreme Court, however, these restrictions are removed. On the Supreme Court, there is no additional review. On the Supreme Court, a judicial philosophy that is fully formed is permitted to reach full bloom. As a liberal law dean recently said in the Los Angeles Times: ``There's a huge difference between being a court of appeals judge who is bound by precedent and a Supreme Court justice who can rewrite those precedents.''

That is why judicial philosophy matters. Frankly, after reviewing her consistent speeches in preparation for the confirmation hearing, I expected Judge Sotomayor to defend her views. I expected her to defend her statement that ``[t]he law that lawyers practice and judges declare is not a definitive, capital `L' law that many would like to think exists.''

I expected her to defend the notion that the court of appeals is where ``policy is made.'' I expected her to defend her statements in favor of using foreign law to interpret American statutes and her statement that there is ``no objective stance, but only a series of perspectives.''

However, during her testimony, many of Judge Sotomayor's answers were inconsistent with her record and others were evasive and not adequate. On several occasions, Judge Sotomayor appeared to run away from the philosophy she had so publicly articulated. Other answers, I concluded, were not plausible.

It has been repeatedly suggested that Judge Sotomayor's words and speeches are being taken out of context. I have read the speeches in their entirety. Her words are not taken out of context. In fact, when one reads her speeches in their entirety, in context, the impact is more troubling, not less.

For example, Judge Sotomayor said, on repeated occasions, that she ``willingly accept[s] that . . . judge[s] must not deny the differences resulting from experience and heritage but attempt . . . continuously to judge when those opinions, sympathies and prejudices are appropriate.''

When I asked whether there was ``any circumstance in which a judge should allow prejudices to impact decision-making,'' she replied: ``Never their prejudices.''

This is quite the opposite of what her speeches said. In the hearing, she said her speeches discussed ``the very important goal of the justice system . . . to ensure that the personal biases and prejudices of a judge do not influence the outcome of a case.'' Well said. But that is not what her speeches said--in context or line by line. She was not urging that judges guard against their prejudices, as their oath calls on them to do. She was accepting that a judge's prejudices may influence their decisions.

Similarly, Judge Sotomayor repeatedly stated she accepts that who she is will ``affect the facts I choose to see'' as a judge--the facts she chooses to see as a judge. She accepts this. When I asked her about this statement, she said: ``It's not a question of choosing to see some facts or another, Senator. I didn't intend to suggest that.''

But that is what she said repeatedly. She accepts the fact that who she is will ``affect the facts I choose to see'' as a judge. The context of her speech states a clear philosophy. Judge Sotomayor was contrasting her own views with that of Judge Cedarbaum and Justice O'Connor, two women judges of prominence. Of course, Justice O'Connor was a former member of the Supreme Court. The context was her view that ``[i]n short . . . the aspiration''--I am quoting her--``the aspiration to impartiality . . . is just that, an aspiration.'' Such a statement evidences a lack of the kind of firm commitment to fairness and to the judicial oath of impartiality that is expected, in my opinion.

We have heard again and again that our concerns are based on three words: The ``wise Latina woman.'' That is not the case. We are talking about a judicial philosophy, as reflected in speech after speech, year after year. That is what is causing the problem here.

Senator Coburn, at the hearing, made a point that I think is worthy of emphasizing: that her refusal to effectively defend her own speeches and statements was almost as troubling as the philosophy contained within those speeches.

As the Washington Post, in endorsing her, on July 19, in their editorial, said:

Judge Sotomayor's attempts to explain away and distance

herself from [the ``wise Latina'' statement] were

unconvincing and at times uncomfortably close to

disingenuous, especially when she argued that her reason for

raising questions about gender or race was to warn against

injecting personal biases into the judicial process. Her

repeated and lengthy speeches on the matter do not support

that interpretation.

In Judge Sotomayor's opening statement, she said that her philosophy is ``fidelity to the law.'' But her record demonstrates that, if true, her view is far different than mine. For example, she has advocated for the use of foreign law by American judges. Once again, we are left with statements made at the hearing, though, that were in direct conflict with statements made before she was nominated.

As Judge Sotomayor noted in her April 2009 speech--April of this year--before the Puerto Rico American Civil Liberties Union, the current debate regarding the use of foreign law in the courts, she noted, pits two distinct views against one another. On one side sit Justices Scalia and Thomas, who believe that foreign law should not be used in interpreting the U.S. Constitution. That is correct, in my view. On the other side is Justice Ginsburg, who believes that courts should be more aggressive in their use of foreign law.

In this speech in April, Judge Sotomayor clearly indicated who she thinks has the better view of the issue, stating that she ``share[s] more the ideas of Justice Ginsburg . . . in believing, that unless American courts are more open to discussing the ideas raised by foreign cases, and by international cases, that we are going to lose influence in the world.''

Moreover, Judge Sotomayor talked approvingly about two recent Supreme Court cases in which Justices did look to foreign law precisely to interpret our Constitution. That is a very clear position. I think it is incorrect, but it is a clear one. Others adhere to it.

When she came before the Judiciary Committee, however, Judge Sotomayor articulated a very different view of foreign law, stating:

Foreign law cannot be used as a holding or a precedent or

to bind or to influence the outcome of a legal decision

interpreting the Constitution or American law that doesn't

direct you to that law.

Well, that is quite a different position from the theme and statements in her April speech.

So I agree with my colleagues who lamented Judge Sotomayor's tendency to avoid answering questions, with one colleague noting her ``extreme caution'' in answering. I do not think many would dispute that she was less forthcoming than Judges Alito and Roberts, our latest confirmations to the Court just a few years ago.

In addition to her stated judicial philosophy, I am also quite concerned regarding how Judge Sotomayor has approached the most important constitutional cases that have come to her court. Most of the cases a court of appeals judge considers are routine, fact dominated, and do not offer novel questions or require substantial legal discussion. Still, a few important cases that present new and critical issues do periodically come before the courts of appeals. These cases can give insight into how the nominee will handle the many such cases that regularly come before the Supreme Court.

Within the last 3 years, Judge Sotomayor has heard three monumentally important cases at the circuit level: the constitutional right to be free of racial discrimination, the right to keep and bear arms, and the fifth amendment right to keep one's own property.

In all three of these cases, Judge Sotomayor joined or authored very brief opinions--very brief opinions, oddly brief opinions--that avoided the kind of careful analysis we would expect of an appellate judge. In all three cases, individuals went to court with the plain text of the Constitution on their side. In each case, Judge Sotomayor reached conclusions that denied individual Americans their rights that they were asserting against governmental power.

When confronted with an appeal based on fundamental notions of equal protection of the laws, Judge Sotomayor, to be charitable, took a pass. By now we are familiar with the basic facts of the New Haven firefighters, the Ricci case. Eighteen firefighters brought suit against the city of New Haven after the city threw out the results of a promotional exam. It was thrown out because not enough of certain minorities did well enough on the exam. Judge Sotomayor's decision in the case is troubling. Her curious one-paragraph summary order, and the Supreme Court's subsequent reversal, are the starting points. But there is more. And there is a reason that so much attention has been focused on this case.

Her initial attempted disposal of the case by summary order was, quite simply, unacceptable and an embarrassment. A summary order is, by circuit rule, only for cases in which there is no legal principle worthy of discussion. In the end, every Supreme Court Justice concluded she applied the wrong legal standard in granting a judgment against the firefighters and for the city before a trial occurred, and a majority of the Supreme Court found that the firefighters' case was so strong that they were entitled to a verdict for their side on the evidence that already existed without a trial.

The Supreme Court understood the importance of this case--why we care about it as Americans. As they said of Judge Sotomayor's logic:

Allowing employers to violate the disparate-impact

liability would encourage race-based action at the slightest

hint of disparate impact. . . .That would amount to a de

facto quota system. . . .

That is the Supreme Court language.

I was struck by something one firefighter, Lieutenant Vargas, said to us--that his testimony before the Senate was the first opportunity he had to tell his story because the district court threw out the case before he even had a trial. On appeal, Judge Sotomayor initially dismissed the case by summary order, meaning that a hard copy of her order was never even delivered to the other judges on the court. Had one of her colleagues, Judge Cabranes, apparently, independently, not heard about the case and sought a full review--a rehearing en banc is what he sought through the whole Second Circuit--it is likely the Supreme Court would never have even known the case existed or considered the case. It is also likely Lieutenant Vargas would never have had the opportunity to tell his story, to explain to his children his profound hope that, as a result of his efforts, they would be judged on their merit and not on their race or their ethnicity.

In response to my questions, Judge Sotomayor also claimed that her Ricci decision was controlled by ``established'' Supreme Court precedent, saying ``a variety of different judges on the appellate court were looking at the case in light of established Supreme Court and Second Circuit precedent.'' But the Supreme Court did not see it that way. The Supreme Court noted that ``few, if any, precedents in the Court of Appeals'' discuss this issue.

As noted commentator Stuart Taylor has recently confirmed, even if Judge Sotomayor had believed her panel was bound by Second Circuit precedent, review and rehearing by the whole Second Circuit would have provided the opportunity to review those previous cases afresh and to overrule them if they were unsound. But Judge Sotomayor cast the deciding vote against rehearing this case by the full circuit. She defended her ruling and defended whatever authority existed at the time in the Second Circuit.

The case is also troubling to me because Judge Sotomayor had pledged to me during her confirmation, in 1997, that she would follow the Supreme Court's decision in Adarand--a well-known case--and subject any preference for one race over another race to the Court's established standard of strict judicial scrutiny. When I asked her about this promise she had made, I, once again, found her answer to be dismaying. She stated that the cases I asked about, the seminal equal protection cases--Adarand and so forth--``were not what was at issue in this decision.'' She was talking about the Ricci case.

But that is not right. There were two very clear claims made by the firefighters in this case--one based on a statutory right and one based on the equal protection clause of the Constitution.

One need only look at----

Madam President, I ask unanimous consent to have 5 additional minutes.

Madam President, we will discuss some of the other cases in more detail later. But one need only look at the papers filed in the district court and the court of appeals to see that the Adarand issue and the constitutional question were central issues in this case. Look at Judge Cabranes' decision, where one of the first cases he cites is Adarand. One does not expect this type of mistake or a lack of accuracy from a Supreme Court nominee in a case of this importance, when she understands she will have to discuss before the Judiciary Committee.

Judge Sotomayor repeatedly stated, including in her opening statement, that litigants deserve explanations; that she looks into the facts, delves into the record, and explains to litigants why she rules for or against them. I have read the one-paragraph Ricci opinion. Judge Sotomayor did not afford the firefighters the respect they deserved.

I have also considered very carefully Judge Sotomayor's views regarding the Second Amendment, and I am troubled by her record and not reassured by the answers she gave during the hearing.

In sum, she effectively held that the Second Amendment--the right to keep and bear arms--does not bind the States, and that means any city or any State in America, if her opinion is upheld, can ban all guns in those jurisdictions. If her opinion is not reversed, that is what will happen in America. I would note the Supreme Court, in ruling on the Heller case, held clearly for the first time that the Second Amendment is an individual right that applied to the District of Columbia, which effectively banned firearms in the District of Columbia. They said that was not constitutional, that the citizens of the District of Columbia have a constitutional right to keep and bear arms and it cannot not be eliminated.

So if the Sotomayor opinion is upheld, I can only say the Second Amendment might be viable in the District of Columbia but not in the other

cities and States throughout the country.

With regard to the takings case, one of the most significant takings cases in recent years, she ruled against a private landowner who had his property taken. He intended to build one kind of pharmacy on it. A developer who was working with the city utilized the powers of the city to attempt to extort money from that individual so he could build another private drugstore on that lot. When the owner refused, the city condemned the man's property, gave it to the developer, who then built his own kind of drugstore there. I believe this is in violation of the constitutional protection that private property can only be taken for public use.

So words have meaning. The Constitution and laws of the United States have meaning. People come to courts to assert their rights under the Constitution and laws. In these three cases I have mentioned, the litigants did not have their rights properly listened to nor protected, in my opinion. Is it because she would have preferred different results from the promotional exam for firefighters? Is it because she did not believe in the rights protected by the Second Amendment as set forth in the Constitution? Is it because she favors redevelopment?

We are left to wonder because the cases were certainly not decided based on the plain language of the Constitution, and she did not openly and thoroughly in any one of these cases engage in a serious discussion of issues raised. Each was just a page or two or three.

One of the most important tools of a judge is words. The meaning of words is obviously where the power of our Constitution and laws is found. When a judge feels empowered to redefine the meaning of words in our Constitution, they feel empowered to amend our Constitution. If they don't like the death penalty, maybe they will call it unconstitutional. If they don't like the right to keep and bear arms, maybe they will say the Second Amendment doesn't apply to States and cities.

In a recent speech before this nomination, Professor Allen C. Guelzo, a two-time winner of the Lincoln Prize, wisely noted that a constitutional system resides on a bedrock of shared assumptions. While it may seem to be a collection of laws and statutes, the most important thing is that ``those laws and statutes depend first on a reverence for words, for reason, and for orderliness.''

He adds that ``reverence must grow . . . from the confidence that words, reasons . . . really do protect'' the rights of citizens.

Citizens must know their rights, when clearly stated in the Constitution, will be steadfastly protected by the courts. It is here that I have significant qualms. The ease by which the nominee reconciled or attempted to reconcile fundamentally different statements in speeches at our hearing evidences a lack of respect for the meaning of words. Her explanation of controversial decisions lacked clarity, a very serious shortfall indeed for a Supreme Court Justice.

So I came to this process with an open mind regarding Judge Sotomayor. She has many wonderful qualities, and I truly mean that. And I like her. She was ever graceful in her testimony. But certain aspects of her record troubled me--whether, for example, she has the kind of deep commitment to the ideal of objectivity and impartiality that I believe necessary. I had hoped those concerns would be addressed effectively. Unfortunately, many of the answers did little to ease my concerns but, instead, reinforced them and led to more unanswered questions. Regrettably, I cannot support her nomination to a lifetime appointment to the U.S. Supreme Court.

I thank the Chair and yield the floor.

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

Mr. President, I believe there are a few minutes left on this side of the aisle. I would just like to share a few thoughts. I see Senator Brown is here and would also like to speak tonight. I think some others may also.

One of the things that has been discussed tonight from my Democratic colleagues is the great American ideal of equal justice under law. Those words are indeed chiseled on the face of the Supreme Court across the street, and it has been invoked as a reason to support this nominee. But I would suggest that at its most fundamental level that is one of the serious objections and concerns we have.

Lawsuits have parties. If you have empathy for one party, if you have a sympathy for one party, if you have a prejudice that favors one party, then that is not equal justice. In her own speeches and statements, Judge Sotomayor has said: I accept the fact that my background, my sympathies, even my prejudices--those are her words-- will affect the facts, affect how I decide cases--that her background will ``affect the facts I choose to see.'' These were not just speeches given one time but repeated over a period of a decade.

So it raises real questions about that because the oath that a judge takes is a powerful thing. The oath reflects the ideal of American justice. And the oath says a judge will not be a respecter of persons. The oath says a judge shall do equal justice to the poor and the rich alike. The oath says a judge will be impartial; that they will carry out their duties under the Constitution and under the laws of the United States--not above the laws of the United States. A judge is not above the law. They are not empowered to utilize any of their personal views, politics, morals, or values in the process of their judging to manipulate the law, to carry out an agenda they may believe is the greatest thing for all of America. They are not entitled to do that.

So from her speeches and her approach to the law, there is a great concern to the extent of which I have not seen before in speeches and expressions, in Law Review articles by this nominee that suggests an acceptance of the fact that her background and experiences, opinions, sympathies, and prejudices will affect her rulings.

She goes on to say: I accept the fact that my background will ``affect the facts I choose to see.'' For a lawyer like myself who has practiced a good bit in Federal court, tried quite a few cases, this is a stunning development that a judge is going to tell me: Well, I may not see those facts because of my background, my sympathies, and my prejudices. That is what a judge puts on that robe for. The robe is to symbolize they pull themselves apart from the everyday pressures that are on them, the everyday biases and prejudices; that they will be a neutral, fair, objective umpire and will call the balls and strikes, call the game without taking sides, without trying to achieve a given result. This is the ideal of American justice.

One of our colleagues said he objected because some of us were advocating a strange and strained conservative orthodoxy, that we would not vote for anybody who did not agree with some sort of philosophy like that. What I said at the opening of the hearing was that I would not vote for her, and no Senator should vote for any nominee, whether liberal or conservative, who was not committed--committed--as their oath commits them, to setting aside personal values, opinions, and so forth, and rendering true justice based on the law and the facts, whether they like the law or not.

So I think this is a big deal. They say: Well, you never confirmed a liberal Democrat, Sessions. You are a conservative Republican. But I would. And I voted for quite a number of them under President Clinton. I expect I will vote for quite a number under President Obama. I voted for 95 percent of President Clinton's nominees in the time I was in the Senate. It is not their politics. It is not the church they belong to. It is not whether they go to church. It is not what their moral values are. It is when they get on that bench and they decide cases, are they going to follow the law and the facts? That is the question, and that is what we are looking for.

It is sort of surprising to see a nominee express repeatedly over a period of years a contrary view. And to suggest that, well, it may be an aspiration to be unbiased, but it is just a mere aspiration--and to explicitly reject the classical formulation of a judge's role as expressed by Justice O'Connor, when she said: A wise old woman and a wise old man should reach the same conclusion--well, that is what we always have believed in America. Now we have this new theory that, well, you can bring to bear your background, and you might reach a better conclusion because you have different experiences you can bring to bear. That is not our goal in America, in my view.

Our legal system is built on a belief that there is a right answer to even the most difficult cases, and judges ought to give their absolute best effort to find that right answer. It is based on law and the facts and not what their personal views and values are. That is what we are all about. I think it is an important issue. And the activist, whether liberal or conservative, the activist judge allows those values and prejudices and political views and ideology to affect their rulings. It causes them to find some way to achieve a result that furthers an agenda they believe in. That is not justice, that is politics.

When President Obama says he wants a judge who will show empathy, I ask: Whom does he show empathy for? If you show empathy for one party, haven't you had a bias against the other? Who got empathy in the firefighters case? Was that equal justice under law--under law?

The Constitution says no one shall be deprived of equal protection of the laws on account of their race. But the firefighters who passed the test--a test that was never found to be defective, and the Supreme Court found it was not found to be defective--they had that test thrown out because they didn't like the racial results of it. Isn't that discriminating against the people who worked hard and studied and passed the test?

Lieutenant Vargas testified before our committee. I asked him, and he said if everybody had studied as hard as he had, a lot more of them would have passed. It was just a question of the commitment to learn the things necessary to be a leader in a fire department where you send people into life-and-death situations. This is not a little matter. You need to know things.

So I don't want anybody to think that what we are doing is some strange or strained approach to the law. I believe we are asking fundamental questions about law and justice in America and the Supreme Court of the United States. Aren't we entitled to expect that this nominee, such as every other judge who has ever taken the bench in any Federal court in America, should be not mildly committed to the oath but absolutely committed to the oath; committed to not being a respecter of persons; committed to equal justice for the poor and the rich; committed to impartiality; committed to conducting their office under the Constitution and under the laws of the United States and not above it.

I think that is what we need to be looking for. I am afraid this nominee, based on several important cases and a plethora of speeches over a decade, doesn't meet the standard. I wish it weren't so. I thought things would get better at the hearing. I don't think they did. That is my best judgment. So that is why I have concluded I cannot support her nomination.

I thank the Chair and yield the floor.

Mr. President, what is the time remaining on this side?

Mr. President, while Senator McCain is here, we were talking about the amount of money the government has spent. We talked about how a third of the money has been obligated from this stimulus package. But I advise, according to the CBO report in June, they only expected 11 percent of the money to actually be disbursed by the end of this year, at least the money that deals with highways, mass transit, and issues of that kind. That is stunningly low because we were told something quite different.

This Vitter amendment is exactly the kind of thing we need to be doing every single day: try to challenge the conventional thinking to figure out how we can deal with a need today without increasing America's debt.

What Senator Vitter says is when we passed this $800 billion stimulus package in January, nobody had a chance to read it. We were told repeatedly--and

the President himself said more than once--it was to build infrastructure, to complete highways, roads, and bridges. That is what the money was going to be for. He said in February: They are not going to be make-work jobs but jobs doing the work Americans desperately need done, jobs rebuilding our crumbling roads and bridges, and jobs repairing our dangerously deficient dams and levees so we won't face another Katrina.

I am not sure Congress can stop another Katrina from coming, but we can perhaps be better prepared for it. But what a lot of people do not know, is that less than 4 percent of the money in that bill was directed for highways and bridges. It was a game, a political trick, because the American people believe that when you need to create jobs, you might as well build something that is permanent, that will benefit the people for years to come and that creates real jobs. In their minds, I think most people envisioned stepping up our road projects. But only, as I said, 4 percent of the entire package went for that purpose.

Now we have a lot of that money not spent. Apparently, 89 percent will not be spent by the end of this fiscal year. Some of it is not obligated at all. We have a shortage in the foundational highway trust fund bill, and we need to come up with $27 billion. So which do we do? Do we take some of the money that was in the stimulus package that we were told was to be for roads and bridges and use that money and not increase the deficit because that money is already showing up as a hit to the U.S. Treasury or does the money come from some other source that will increase the debt by $27 billion?

The only reason not to oppose this, that I can see, is some people have already spent this $27 billion in their own minds. They don't want to see it utilized for this purpose, and they are undermining our ability to do so. We have a national crisis.

Let me show this chart. It is so stunning that people don't believe it, but it is based on the budget that President Obama submitted, his 10-year budget. It was analyzed by the Congressional Budget Office, our own group here who has a good reputation. Basically, the Director is elected by a Democratic majority in the Congress, and this is what they show about our deficit.

We have to stop doing this. We cannot sustain a deficit.

In 2008, the debt was $5.8 trillion. The debt of the United States, since the founding of the American Republic, was $5.8 trillion. In 5 years, according to the CBO, by following this budget, counting this stimulus package but not even counting the trillion dollar health care proposal and other things that might get added to it, they scored that in 5 years, the debt would be $11.8 trillion--double. In 5 more years, taking it to 10 years, the debt would triple to $17.3 trillion. This is the entire debt of the United States of America since the founding of the Republic--it will triple in 10 years. It is unacceptable. We cannot sustain this.

Let me show this chart. Trillions is difficult for people to comprehend, but when you borrow money and you go into debt, you have to pay interest on it. People buy Treasury bills. That is what we do to fund the deficit.

In 2009, this fiscal year, we will make interest payments of $170 billion on the debt and the money we borrowed. The total Federal highway program, I believe, is $40 or $50 billion, isn't that right Senator Inhofe? He is the expert. So this is four times the Federal highway bill annually. We spend approximately $100 billion on education. These interest payments increase every year. According to the Congressional Budget Office, 10 years from now, we will not be spending $170 billion on interest, we will be spending $799 billion. That is the red numbers, $799 billion in interest, for which we get not 1 foot of highway paved, not $1 to the classroom, not $1 for health care, just interest because we borrowed so much money.

I also point out the numbers do not get better. Over the 10-year budget, the Obama budget, the debt goes up rapidly in the outyears. I note that President Bush was criticized for having a big deficit. The highest deficit he ever had--which was unacceptable, I have to say--was $459 billion. According to the Congressional Budget Office, there is not 1 year in the next 10 that we will have a deficit that low. The lowest year is over $600 billion. They calculate the deficit as it grows, and in the 10th year, they calculate the deficit for that 1 year to be $1.1 trillion--$1.1 trillion--on an upward spiral.

What I wish to say is there is no plan to pay this debt off. The only plan we have is to see surging debts into the future. That is why you have heard this phrase repeatedly, ``This is not sustainable.'' And it is not. But when we cannot even use our stimulus money to fix the road problem we have, we are not serious about the challenges facing this country.

The bit about interest, if the interest rates go up higher than CBO has scored based on the amount of money we have to borrow--and that could happen--we could end up with an annual interest payment of over $1 trillion.

Yes, I will.

I appreciate that comment and my colleague's leadership. He has consistently been a champion for infrastructure and roads. We face a tight budget, and I feel strongly about this. I know I am raising my voice but somehow we have to break through the fog and let the American people know that every time we face a little problem we can't just spend more money. We have to look for ways to solve the problem that doesn't increase our debt.

By the way, in case anybody has any doubts, any new spending that we initiate increases the debt because we are running a deficit. So any new spending increases the deficit for the year because it is not offset or paid for.

So I am worried about where we are heading. I do believe infrastructure will pay for itself in the long run, but there is a limit to how much we can spend on it. However, I will concede that we certainly don't need to have a savaging of our highway bill at this point in time and have hundreds of thousands of people perhaps laid off from work because we don't have the money to finish projects that need to be completed. Instead, let's take the money that is in the stimulus bill. Let's take that money and use it now to fix the shortfall in the highway trust fund. Once we do that, we will create jobs. How many, I don't know, but it will create jobs, and that is a double benefit.

We get a permanent benefit for the American infrastructure, and we create jobs for Americans now. We take the money that is sitting there and not being spent and accelerate its use in the time we need it.

I would point out to my colleague the reason this is important, and the reason the administration was able to ram through this stimulus bill--the largest single expenditure in the history of the American Republic, almost $800 billion in one fell swoop, with hundreds of pages and people having no idea what was in it--is because they said we are facing rising unemployment, and we need to get this money out in a hurry so we can put people to work. Well, only 11 percent of it is going to be obligated by the end of this year.

Unemployment is already at 9.5 percent, and most experts are predicting it will probably continue to go up to 10, maybe 11 percent. Yet we can't get this money out, and we are cutting the highway budget? When we have this

shortfall, what do people come up with? Well, they are going to pay for it by adding more debt. We have an economic slowdown, so we no longer have to worry about the deficit. We don't have to worry about the deficit, they tell us. But we do.

Our children are going to be paying interest on these trillions of dollars for the rest of their lives, and the only people who are going to get the benefit from it are the people living today. That is a selfish thing. We should use the stimulus in an effective way to create jobs--and there are even debates about how wise some of those methods are economically. But the way this package is being managed, the money is not getting out, unemployment is surging, and there doesn't seem to be any hope for the short term for unemployment to abate. So I am worried about it. I do believe we can do better.

They will say: Well, President Bush had a deficit. We inherited all this. But President Bush didn't ask for the $800 billion in stimulus money that President Obama asked for this year. That is on top of the debt, and I think anybody who is president needs to be thinking about how to reduce spending not see it spin out of control. I don't believe President Bush would have submitted a budget that shows in 10 years--in that one year, 2019--it would be $1.1 trillion. We have never seen anything like that.

There will not be a year of President Obama's Presidency, according to this--if he serves 8 years--in which this deficit will be as low as President Bush's, and they are predicting growth. No recession is projected in the next 10 years, when CBO scored what the deficits might be. So this is a fair analysis of it.

Mr. President, I want to say I am pleased Senator Vitter has proposed a way that will allow us to meet the shortfall in the highway trust fund without increasing the debt this year, and it is consistent with what the people who proposed the stimulus bill promised all along--that the stimulus money would be used for highways and bridges. It is the right thing to do. I hope we can pass this, and I think the American people should watch closely on how the votes go on this bill.

I thank the Chair, I reserve the remainder of the time, and I yield the floor.

Mr. President, that would be my preference. I would be pleased to call up this amendment now. I do not know what the time agreement is at this point.

Mr. President, I ask unanimous consent to call the amendment up and to be able to speak for 2 minutes.

Mr. President, we have an opportunity to save $200 billion. It is time for us to do the right thing. We cannot keep spending more and more.

I thank the Presiding Officer.

We cannot keep spending more and more. We have several different problems--we have housing problems; we have a problem with unemployment insurance because more people are unemployed than had been predicted; and we have a problem with a shortfall in the highway fund.

Some Senators could argue we do not need to fix every one of these because we do not have the money. But in a way we do have the money because we passed $800 billion in a stimulus package earlier this year. It was supposed to be primarily, we heard, for roads. But only 4 percent went to roads. So we can fix the shortfall in the highway trust fund by using some of the $800 billion we have already spent. We can fix the other two problems--unemployment insurance and housing--in the same fashion. Those can be fixed out of this fund.

This amendment would do that. It would reduce the other accounts across the board. Of course, we will still be in session this year and next year. If we need to adjust other things in some way, we can. Don't let anybody tell you this is going to savage some other account because we can fix those accounts.

I will just say--I know my time is short--this is $200 billion that will either go to increase spending and increase debt, or we can meet these needs--which hopefully are all necessary--out of the funds we already have out there. If we do not start making these kinds of decisions soon, we are going to have a real problem. According to the scoring of the President's own budget, the total debt of America debt has gone from $5 trillion this year, to $11 trillion 5 years from now, to $17 trillion 10 years from now.

I thank the Presiding Officer and yield the floor.

Amendment No. 1907, as Modified

Madam President, among some of the things I think most Members would like to accomplish is fixing the highway trust fund, fixing the unemployment insurance shortfall, and to do something about the housing loan authority. Those are three matters we can address without increasing our deficit. There is $7 billion in the highway fund this amendment would fix, which is the short-term fix the House did; another $7 billion for unemployment insurance; and the $185 billion for the housing fix. Those things we can do within the stimulus package.

Only 11 percent of the $800 billion will be spent by the end of this fiscal year. We can use that money to fund these programs, take care of them as we planned to do from the beginning but without increasing the debt.

People say the underlying bill will not increase the debt. That is not accurate. If we agree to this amendment, we will prevent increasing the Nation's debt by $200 billion.

I urge your support for the amendment. At this point in time we need to save a few billion dollars.

Madam President, I ask for the yeas and nays.