Floor Statements

Madam President, I ask unanimous consent that the order for the quorum call be rescinded.

Madam President, the individual right to keep and bear arms--I think a fundamental right guaranteed by the explicit text of the second amendment of the U.S. Constitution--is at risk today in ways a lot of people have not thought about.

Although the Supreme Court recently held that the second amendment is an individual right, which is a very important rule, many significant issues remain unresolved, which most people have not thought about.

The Supreme Court, including whoever will be confirmed to replace Justice Souter, will have to decide whether the second amendment has any real force or whether, as a practical matter, to allow it to eviscerate its guarantees.

The second amendment says that ``the right of the people to keep and bear Arms, shall not be infringed.'' ``[T]he right of the people to keep and bear Arms, shall not be infringed.'' I know there is a preamble about a well-regulated militia being important to the security of the State, but the Supreme Court has ruled on that in Heller and said that does not obviate the plain language that the right to keep and bear arms is a right that individual Americans have, at least vis- a-vis the U.S. Government.

Not all the amendments, I would say, are so clearly a personal right. The first amendment, if you will recall, protects freedom of religion and freedom of speech. It talks about restricting Congress: Congress shall make no law with respect to the establishment of a religion or prohibiting the free exercise thereof.

So some could argue that does not apply to the States. It would apply only to the Federal Government because it explicitly referred to it. However, the Supreme Court has held it does apply to the States, and the right of speech and press and religion are applicable to the States and bind the States as well.

In the case of District of Columbia v. Heller, the Supreme Court recently held that the second amendment ``confer[s] an individual right to keep and bear arms.'' This is consistent with the Constitution and was a welcome and long-overdue holding.

Despite this holding, however, many important questions remain. For example, it is still unsettled whether the second amendment applies only to the Federal Government or to the State and local governments as well--a pretty big question. This question will determine whether individual Americans will truly have the right to keep and bear arms because if that is not held in that way, it would allow State and local governments--not bound by the second amendment--to pass all sorts of restrictions on firearms use and ownership. They may even ban the ownership of guns altogether.

So we are talking about a very important issue. Remember, the District of Columbia basically banned firearms. It is a Federal enclave, in effect, with Federal law. And the Supreme Court held that the Federal Government could not violate the second amendment, was bound by the second amendment, and that legislation went too far. But they, in a footnote, noted they did not decide whether it applies to the States, cities, and counties that could also pass restrictions similar to the District of Columbia.

President Obama, who nominated Judge Sotomayor, has a rather limited view of what the second amendment guarantees.

In 2008, he said that just because you have an individual right does not mean the State or local government cannot constrain the exercise of that right--exactly the issues the Supreme Court has not resolved yet. Can States and localities constrain the exercise of that right in any way they would like?

In 2000, as a State legislator, the President cosponsored a bill that would limit the purchase of handguns to one a month.

In 2001, he voted against allowing the people who are protected by domestic violence protective orders--because they felt threatened--he voted against legislation that would allow them to carry handguns for their protection.

So there is some uncertainty about his personal views.

Let's look at Judge Sotomayor, whom the President nominated, and her record on the second amendment. That record is fairly scant, but we do know that Judge Sotomayor has twice said the second amendment does not give you and me and the American people a fundamental right to keep and bear arms.

The opinions she has joined have provided a breathtakingly, I have to say, short amount of analysis on such an important question to the U.S. Constitution. And the opinions she has written lack any real discussion of the importance of these issues, in an odd way.

Judge Sotomayor has gone from sort of A to Z without going through B, C, D, and so forth. For example, in her most recent opinion in January of this year--Maloney v. Cuomo--which asked whether the Supreme Court's protection of the right to bear arms in DC--the Heller case--would apply to the States, she spent only two pages to explain how she reached her conclusion. Her conclusion was that it did not.

The Seventh Circuit dealt with this same question and reached the same conclusion, but they gave the issue the respect it deserved and had eight pages discussing this issue, at a time when Judge Sotomayor only spent about two pages on it and not very much discussion at all.

The Ninth Circuit reached a different opinion. They say the second amendment does apply to individual Americans and does bar the cities of Los Angeles or New York or Philadelphia from barring all hand guns because you have an individual constitutional right to keep and bear arms. So the Ninth Circuit disagreed, and they had 33 pages in discussing this important issue.

Further, in deciding that the second amendment applies to the people, the majority in the Supreme Court dedicated, in Heller, 64 pages to this important issue. Including dissents and concurrences on that decision, the entire Court generated 157 pages of opinion. Judge Sotomayor wrote only two pages in a very important case as important as Heller. Judge Sotomayor's lack of attention and analysis is troubling.

These truncated opinions also suggest a tendency to avoid or casually dismiss constitutional issues of exceptional importance. Other examples might include the New Haven firefighters case, Ricci v. DeStefano, which is currently pending before the Supreme Court on review, and the fifth amendment case of Didden v. Village of Port Chester, which was recently discussed in the New York Times. It dealt with condemnation of a private individual's property. All those were serious constitutional cases. They had the most brief analysis by the court, which is odd.

I do not think it is right for us to demand that we know how a judge will rule on a case in the Supreme Court. I am not going to ask her to make any assurances about how she might rule. But I do think it will be fair and reasonable to ask her how she reached the conclusions she reached and perhaps why she spent so little time discussing cases of fundamental constitutional importance.

I am not the only one who has been troubled by the second amendment jurisprudence of Judge Sotomayor. As I mentioned previously, the Ninth Circuit disagreed with her opinion and held that the second amendment is a fundamental right applicable to the States and localities.

Additionally, in a June 10 editorial, the Los Angeles Times--a liberal newspaper--disagreed with her view in Maloney as to whether the second amendment applies against States and localities.

Moreover, in a June 10 op-ed in the Washington Times, a leading academic argued that the decision in Maloney was flawed.

So these are critical questions that will determine whether the people of the United States have a fundamental right guaranteed by the Constitution to keep and bear arms. So I think it is important and it is more than reasonable for the Senators to analyze the opinions on this question and to inquire as to how the judge reached her decisions and what principles she used in doing so.

I would say we are moving forward with this confirmation process. It is a

difficult time for us in terms of time. There are now only eight legislative days before the hearings start. There is a lot of work to be done, a lot of records that have not yet been received. So our team and Senators are working very hard, and we will do our best to make sure we have the best hearings we have ever had for a Supreme Court nominee.

I see my colleague, Senator Hatch, in the Chamber, who is a fabulous constitutional lawyer and former chairman of this Judiciary Committee. I was honored to work for him, serve under him, when he was our leader. I know whatever he says on these subjects is something the American people need to listen to because he loves this country, he loves our Constitution, and he understands it.

I thank the Chair and yield the floor.

Madam President, I thank Senator McConnell for his thoughtful comments. He is a former member of the Judiciary Committee, a lawyer who has studied these issues and cares about them deeply, and I value his comments. I do think that, as Senator McConnell knows, and while he is here, once a nominee achieves the Supreme Court, they do have a lifetime appointment and these values and preferences and principles on which they operate go with them. So it is up to us, I think my colleague would agree, to make sure the values and principles they bring to the Supreme Court would be consistent with the rule of law. So I appreciate the Senator's comments.

I will yield.

I thank the Senator. I would note that there are only nine legislative days between now and the time the hearing starts, so we are definitely in a position where it is going to be difficult to be as prepared as we would like to be when this hearing starts. We still don't have some of the materials we need.

My staff and I have been working hard to survey the writings and records of Judge Sotomayor.

Certainly, the constitutional duty of the Senate to consent to the President's nomination is a very serious one. In recent years, we have seen judicial opinions that seem more attuned

to the judge's personal preferences than to the law, and it has caused quite a bit of heartburn throughout the country. We have seen judges who have failed to understand that their role, while very important, is a limited one. The judge's role is not policy, politics, ethnicity, feelings, religion, or personal preference because whatever those things are, they are not law, and first and foremost a judge personifies law. That is why lawyers and judges, during court sessions--and I practiced hard in Federal court for all of 15 years, so I have been in court a lot--when they go to court, they do not say even the judge's name and usually don't even say ``judge.'' They refer to the judge as ``the Court.'' They say, ``If the Court please, I would like to show the witness a statement,'' or a judge may write, ``This Court has held,'' and it may be what he has written himself, or she. All of this is to depersonalize, to objectify the process, to clearly establish that the deciding entity has put on a robe--a blindfold, according to our image--and is objective, honest, fair, and will not allow personal feelings or biases to enter into the process.

So the confirmation process rightly should require careful evaluation to ensure that a nominee--even one who has as fine a career of experience as Judge Sotomayor--meets all the qualities required of one who would be situated on the highest Court. As this process unfolds, it is important that the Senate conduct its evaluation in a way that is honest and fair and remember that a nominee often is limited in his or her ability to answer complaints against them.

So the time is rapidly approaching for the hearings--only nine legislative days between now and July 13--and there are still many records, documents, and videos not produced that are important to this process.

My colleagues and friends are asking: What have you found? What evaluations have you formed? What are your preliminary thoughts? And I have been somewhat reluctant to discuss these matters at this point in time, as we continue to review the record. In truth, the confirmation process certainly must be conducted with integrity and care, but it is not a judicial process, it is a political process. The Senate is a political, legislative body, not a judicial body, and it works its will. Its Members must decide issues based on what each Member may conclude is the right standard or the right beliefs.

I have certainly not formed hard opinions on this nominee, but I have developed some observations and have found some relevant facts and have some questions and concerns. It is clear to me that several matters and cases must be carefully examined because they could reveal an approach to judging that is not acceptable for a nominee, in my opinion. I see no need not to raise those concerns now. Discussing them openly can help our Senate colleagues get a better idea of what the issues are, and the public, and the nominee can see what the questions are now, before the hearings start. Unfortunately, the record we have is incomplete in key respects, and it makes it difficult for us to prepare.

As I review the record, I am looking to try to find out whether this nominee understands the proper role of a judge, one who is not looking to impose personal preferences from the bench. Frankly, I have to say-- to follow up on Senator McConnell's remarks--I don't think I look for the same qualities in a judge that the person who nominated her does-- President Obama. He says he wants someone who will use empathy--empathy to certain groups to decide cases. That may sound nice, but empathy toward one is prejudice toward the other, is it not? There are always litigants on the other side, and they deserve to have their cases decided on the law. And whatever else empathy might be, it is not law. So I think empathy as a standard, preference as a standard is contrary to the judicial oath. This is what a judge declares when they take the office:

I do solemnly swear that I will administer justice without

respect to persons, and do equal right to the poor and the

rich, and that I will faithfully and impartially discharge

and perform all the duties incumbent upon me.

So I think that is the impartial ideal. That is the ideal of the lady of justice with the scales and the blindfold, which we have always believed in in this country and which has been the cornerstone of American jurisprudence.

So what I have seen thus far in Judge Sotomayor's record--and presumably some of her views are the reason President Obama selected her--cause me concern that the nominee will look outside the law and the evidence in judging and that her policy preferences could influence her decisionmaking. Her speeches and writings outside the court are certainly of concern, some of which Senator McConnell mentioned.

I wish to discuss some other areas that I think are significant also. She has had extensive work with the Puerto Rican Legal Defense and Education Fund and been a supporter, presumably, of what it stands for. So that is one of the matters I will discuss a bit here. Also, I will discuss her decision to allow felons, even those convicted and in jail, the right to vote, overruling a long-established State law. Some other matters I will discuss include the New Haven firefighters case.

Looking at the long association the nominee has had with the Puerto Rican Legal Defense and Education Fund--an organization that I have to say, I believe, is clearly outside the mainstream of the American approach to matters--this is a group that has taken some very shocking positions with respect to terrorism. When New York Mayor David Dinkins criticized members of the radical Puerto Rican nationalist group and called them ``assassins'' because they had shot at Members of Congress and been involved in, I guess, other violence, the fund, of which judge Sotomayor was a part, criticized the mayor and said they were not assassins and said that the comments were ``insensitive.''

The President of the organization continued, explaining that for many people in Puerto Rico, these men were fighters for freedom and justice.

I wonder if she agreed with that statement and that the statements of the mayor of New York were insensitive. These Puerto Rican nationalists reconstituted into groups such as the FALN, which we have recently had occasion to discuss in depth. The FALN itself was responsible for more than 100 violent attacks resulting in at least 6 deaths. I find it ironic that once again we find ourselves discussing these murderous members of FALN, when not long ago we were considering whether to confirm Attorney General Eric Holder, who was advocating pardoning them and President Clinton did. Now we find ourselves wondering about this nominee to the Court and what her views are on these matters and how her mind works as she thinks about these kinds of issues.

We do not have enough information, unfortunately, to assess these concerns effectively. We requested information relating to Judge Sotomayor's involvement with the fund, a typical question of all nominees but critically important for a Supreme Court nominee. But we have not received information. Indeed, we have received 9 documents totaling fewer than 30 pages relating to her 12 years with the organization. So it is not possible for us to make an informed decision at this point on her relationship with an organization that seems to be outside the mainstream.

What we know, basically, is from publicly available information, and what has been provided this committee, is that this is a group that has, time and again, taken extreme positions on vitally important issues such as abortion. In one brief, which was in support of a rehearing petition in the U.S. Supreme Court, a brief to the Supreme Court, the Fund criticized the Supreme Court's decision in two cases that both the State and Federal Government should restrict the use of public funds for abortion--the question of public funding of abortion.

Incredibly, the Fund joined other groups in comparing these types of funding restrictions to slavery, stating:

Just as Dred Scott v. Sanford refused citizenship to Black

people, these opinions strip the poor of meaningful

citizenship under the fundamental law.

In their view, the equal protection clause of the U.S. Constitution prohibited restrictions on either Federal or State Government provision of funding abortions.

I think this is an indefensible position. We do not know how much Judge Sotomayor had to do with developing these positions of the Fund-- but certainly she was an officer of it, involved

in the litigation committee during most of this time--because we do not have the information we requested.

We do know the Fund and Judge Sotomayor opposed reinstatement of the death penalty in New York based not on the law but on what they found to be the inhuman psychological burden it places on criminals, based on world opinion, and based on evident racism in our society. What does this mean about how Judge Sotomayor would approach death penalty cases? I think she has affirmed death penalty cases, but on the Supreme Court, there is a different ability to redefine cases. These personal views of hers could very well affect that.

Recently, five Justices of the Supreme Court decided, based in part on their review of rulings of courts of foreign countries, that the Constitution says the United States cannot execute a violent criminal if he is 17 years and 364 days old when he willfully, premeditatedly kills someone. They say the Constitution says the State that has a law to that effect cannot do it.

Looking to ``evolving standards of decency that mark the progress of a maturing society''--this is what the Court said, as they set about their duty to define the U.S. Constitution; this is five Members of the Supreme Court, with four strong dissents: looking to ``evolving standards of decency that mark the progress of a maturing society,'' we conclude the death penalty in this case violated the eighth amendment.

There are at least six or eight references in the Constitution to a death penalty. If States don't believe 18-year-olds should be executed, or 17, they should prohibit it and many States do. But it is not answered by the Constitution. But five judges did not like it. They consulted with world opinion and what they considered to be evolving standards of decency and said the Constitution prohibited the imposition of a death penalty in this case, when it had never been considered to be so since the founding of our Republic. I don't think that is a principled approach to jurisprudence. That is the kind of thing I am worried about if we had another judge who will think like that on the bench.

I will ask about some other cases, too, that give me pause. For centuries States and colonies, even before we became a nation, have concluded that individuals who commit serious crimes, felonies, forfeit their right to vote, particularly while they are in jail. It is a choice that States can make and have made between 1776 and 1821. Eleven State constitutions contemplated preventing felons from voting. New York passed its first felon disenfranchisement law in 1821. When the 14th amendment was adopted in 1868, 29 States had such provisions. By 2002, all States except Maine and Vermont disenfranchised felons. For years, these types of laws have been upheld by the courts against a range of challenges. But in Hayden v. Pataki, in 2006, Justice Sotomayor stated her belief that these types of laws violate the Voting Rights Act of 1965, even though that act makes no reference to these longstanding and common State laws and even though they are specifically referenced in the fourteenth amendment to the Constitution itself.

In her view, with analysis of a few short paragraphs only, the New York law was found--or she found--she concluded that the New York law was ``on account of race,'' and therefore it violated the Voting Rights Act.

It was ``on account of race'' because of its impact and nothing more. Statistically, it seems that in New York, as a percentage of the population, more minorities are in jail than nonminorities. Therefore, it was concluded that this act was unconstitutional. I think this is a bridge too far. It would mean that State laws setting a voting age of 18 would also violate Federal law because, within the society or in most of our country, minorities would have more children under 18 so that would have a disparate impact on them.

I do not think this can be the law, as a majority of the colleagues on that Court explained, and did not accept her logic. Actually, her opinion was not upheld.

I look forward to asking her about that. I am aware that Judge Sotomayor would say she is acting as a strict constructionist by simply applying literally the 40-year-old Voting Rights Act of 1965. I do not think so. I remember when Miguel Estrada, that brilliant Hispanic lawyer whom President Bush nominated to the appellate courts and who was defeated after we had seven attempts to shut off a filibuster on the floor of the Senate but could never do so, said during his hearings that he didn't like the term ``strict construction.'' He preferred the term ``fair construction.''

He was correct. So the question is, Is this a fair construction of the Voting Rights Act, that it would overturn these long-established laws when no such thing was considered in the debate on the legislation? That historic laws, which limit felons voting, are to be wiped out, even allowing felons still in jail to vote? I do not think so and neither did most of the judges who have heard these cases.

With regard to the New Haven firefighters case, I will say we will be looking into that case in some length. Stuart Taylor did a very fine analysis of it when he was writing, I believe, at the National Journal. He recognized that no one ever found that the examination these firefighters took was invalid or unfair. As he has explained, if the ``belated, weak, and speculative criticisms--obviously tailored to impugn the outcome of the tests--are sufficient to disprove an exam's validity or fairness, no test will ever withstand a disparate-impact lawsuit. That may or may not be Judge Sotomayor's objective. But it cannot be the law,'' says Mr. Stuart Taylor in his thoughtful piece. The firefighters, you see, were told there was going to be a test that would determine promotion, that it would determine eligibility for promotion. The tests were given at the time stated and the rules had been set forth. But the rules were changed and promotions did not occur because the Sotomayor court, in a perfunctory decision, concluded that too many minorities did not pass the test, and no finding was made that the test was unfair. We will be looking at that and quite a number of other matters as we go forward.

I will be talking about the question of foreign law and the question of this nominee's commitment to the second amendment, the right to keep and bear arms. The Constitution says the right to keep and bear arms shall not be infringed. We will talk about that and some other matters because, once on the Court, each Justice has one vote. It only takes five votes to declare what the Constitution says. That is an awesome power and the judges must show restraint, they must respect the legislative body, they must understand that world opinion has no role in how to define the U.S. Constitution, for heaven's sake. Neither does foreign law. How can that help us interpret the meaning of words passed by an American legislature?

Oftentimes, world opinion is defined in no objective way, just how the judge might feel world opinion is. I am not sure they conduct a world poll, or what court's law do they examine around the world to help that influence their opinion on an American case?

This is a dangerous philosophy is all I am saying. It is a very serious debate. There are many in law schools who have a different view: there is an intellectual case out there for an activist judiciary or a judiciary that should not be tethered to dictionary definitions of words. Judges should be willing and bold and take steps to advance the law they would set and to protect this or that group that is favored at this or that time.

I think that is dangerous. I think it is contrary to our heritage of law. I am not in favor of that approach to it.

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

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

Mr. President, I wish to share a few thoughts about the E-Verify system. That is the system businesses are voluntarily using today in large numbers provided by the U.S. Government that allows a company to check the Social Security number of an applicant for a job to make sure they are lawfully eligible for employment. This system is growing and working very well. We have had some problems, I think, with Congress, and I attempted to offer an amendment to fix some of those problems on the tourism bill that is before us but was not able to do that. So I wish to share a few thoughts about it. I have been trying to get this situation fixed for some time.

E-Verify is an online system that gives very rapid identification of an individual through the Social Security Administration and Homeland Security to determine whether they are eligible for a job. A business just checks those numbers, and if they come back as clear and they hire the individual, it provides them protection from a charge that they may have knowingly hired someone who was illegally in the country or otherwise not able to be employed.

So it is a good system. As I said, as of June 13, this month, 130,000 employers are enrolled in the program. They have, among them, 501,000 hiring sites. It is free and voluntary, and it is the best means available to determine the eligibility of those who apply.

According to the Department of Homeland Security, 96 percent of the employees are cleared automatically, and growth continues at over 1,000 new users and participants each week as more and more businesses are using it. An employer, as I said, gets protection if they use it.

In 2009, this year, 5.6 million inquiries were run. In 2008, through the whole

12 months, more than 6.6 million inquiries were run, and they continue to grow.

In Alabama alone, there are 1,000 employers who use the E-Verify system. It has been proven effective, and I think it should be made permanent and mandatory for everybody who does business with the U.S. Government. As a matter of fact, that was what the law was supposed to be in January, but it is not. So the program is to expire in September unless it is extended.

Now, I am told the Homeland Security legislation the House passed--or will pass--will extend the E-Verify Program for 2 years. I am told the Senate Homeland Security bill may well report language that will extend it for 3 years. Why we don't make it permanent is beyond me. It is a cornerstone of the enforcement system of business and employers to ensure that they are attempting to comply with the law, and if they are not, to be able to identify them.

I was extremely disappointed when the economic stimulus package was up earlier this year and passed, where we spent $800 billion to stimulate the economy and create jobs, it was passed without any requirement that E-Verify be a part of the stimulus package. So a contractor who gets a job with the U.S. Government, with money paid from the stimulus package, legislation that was designed to create jobs for American citizens, could actually go out and hire people illegally in the country. That is not what the American people have a right to expect. That is not good policy. It should not be done.

We have surging unemployment, unfortunately. All of us hoped it would come in less than it is now. I know the President's budget, offered earlier this year, projected that unemployment would top at 8.4 percent. It is now 9.4 percent, the highest in over 20 years. It is continuing to go up, from what it appears. So we have an obligation to try to use what resources we are expending in a way that helps the American worker find work. Some of these stimulus jobs are good jobs. So the House has supported the extension of E-Verify. It passed in the House last July, 407 to 2. Yet it still hasn't become law to extend it past September.

One of the main purposes of the stimulus bill was to see that people got work. I think if we don't extend E-Verify, people have a right to question how serious we are about using that money--that huge amount-- wisely to create jobs for American citizens.

An amendment offered and accepted in the House on the stimulus bill was by Congressman Jack Kingston. It said that funds made available under the stimulus package could not be made available to any business that did not use E-Verify. They apparently accepted that without a single dissenting vote. It was in the House legislation. I offered it in the Senate stimulus bill and did everything I could to see that we could make that a part of the law and make it permanent. It was blocked in the Senate by the Democratic leadership.

I am worried that we talk a good game about doing something about this, but so far, we have been very ineffective in taking real action that will work.

Let me share one more thing about Executive order 12989. President Bush issued an Executive order, and that order called for the implementation of the E-Verify system for government contractors in January of this year. It mandates the use of E-Verify for all Federal contractors and subcontractors. It was supposed to take effect in January. I believed President Bush should have been stronger about that than he was, but they went into it carefully, and that is what they decided to do.

When President Obama came in, immediately he extended that and put it off and blocked its enforcement. So it is still not in the law. Now it is being delayed until September 8--that rule that a government contractor at least ought to check his employees to see if they are legally entitled to be employed. How simple is that? It takes a few minutes, and thousands of businesses are voluntarily doing it today. This decision, again, to delay it now until September 8 is the fourth delay this year by President Obama. I believe it signals the fact that this administration is not yet serious about their stated goal of making sure that employers comply with the law and not hire people illegally.

On January 28, it was pushed back to February 20. A few weeks later, the implementation was pushed back to May 21. Prior to that, it was pushed back to June 30, and now it is further delayed until September 8. This system is up and working. It has been up for years now. It is nothing unusual. I cannot imagine that if this Senate is allowed to vote up or down on whether to make this the law that we would not pass it. I am going to offer an amendment that will do just that. That is the right thing to do. It makes common sense.

What I am afraid may happen is that we will have, through maneuvering and chicanery, actions taken to block that vote. If the Democratic leadership in the Senate blocks a vote on this question, that can only be interpreted as their position is that we should not extend E-Verify and that we should not make it apply to government contractors.

It cannot be interpreted any other way because we have been talking about this for years. Everybody knows what the issue is.

I am concerned. I hope the President, who has had his staff on board now for 5 or 6 months--it is time for them to get their act together and let us know where they stand. Just delaying this is an indication to me they are not serious about it. It should not have taken 5 minutes to know that a government contractor should not be hiring people illegally in the workforce. How long does it take to do that? This is not a new issue. But they are studying it, they say. OK, let's study it. But sooner or later, it is time to act.

To me, there are no two ways about it. There is one logical answer to this question. If we want to make sure the government money that is going out--money taken from American taxpayers--provides jobs for American workers, we need to pass legislation to mandate that. I hope we will. I hope the President will be able to get this study complete, which they claim they are doing, and get on with doing the right thing. We have waited long enough.

I thank the Chair, yield the floor, and I suggest the absence of a quorum.

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

Mr. President, the nomination of a new Justice to the Supreme Court of the United States brings to our minds a core question, both for the Senate and the American people, and that is: What is the proper role of a Federal judge in our Republic?

Answering this question is not simply an academic task, it is fundamental to what we will be doing here. How the American people and their representatives and their Senators, the ones who have been delegated that responsibility, answer that question impacts not only the future of our judiciary but I think the future of our legal system and the American experience.

In traveling the world as part of the Armed Services Committee, I am more convinced than ever before that the glory of our American experience, our liberty, and our prosperity is based on the fact that we have a legal system you can count on. When you go to places such as Afghanistan or Iraq or Pakistan or the West Bank or Bosnia and you see people--and they cannot get a legal system working. It does not work, and people are not protected, in their persons, from attack, and their property is not protected, contracts often are not enforced properly. That just demoralizes the country. It makes it very difficult for them to progress.

I am so proud of the American legal system. It is something we inherited, we built upon. It is the bulwark for our liberty and our prosperity.

So we ask this question: What do judges do? Do they faithfully interpret our Constitution and laws as written or do they have the power to reinterpret those documents through the lens of their personal views, backgrounds, and opinions?

Is the Judiciary to be a modest one, applying the policies others have enacted, or can it, the Judiciary, create new policies that a judge may desire or think are good?

When the correct answer to a legal case is difficult to ascertain, is a judge then empowered to remove his or her blindfold, that Lady of Justice with the blindfold on holding the scales? Can they remove the blindfold and allow their personal feeling or other outside factors to sway the ultimate decision in the case?

I am going to be talking about that and addressing those questions in the weeks to come. But I do think we need to first begin at the source. We must return to the words and ideas of those who founded our Nation, whose foresight resulted in the greatest Republic this world has ever known and the greatest legal system anywhere in the world.

It is clear from reviewing these words and ideas and ideals, particularly as expressed in the Constitution itself, that our Founders desired and created a court system that was independent, impartial, restrained, and that, through a faithful rendering of the Constitution, serves as a check against the intrusion of government on the rights of humankind.

The Founders established a government that was modest in scope and limited in its authority. In order to limit the expansion of Federal Government power, they bounded the government by a written Constitution. Its powers were only those expressly granted to the government. As Chief Justice John Marshall famously wrote:

This government is acknowledged by all to be one of

enumerated powers.

Enumerated means the government has the power it was given and only those powers it was given. If you will recall the Constitution starts out:

We the people of the United States of America, in order to

establish a more perfect Union . . .

So the people established it, and they granted certain powers to the branches of government. But those powers were not unlimited, they were indeed limited. They were enumerated and set forth.

But our Founders knew these limitations, history being what it is, standing alone were not enough. So they created three distinct branches of the government, creating a system of checks and balances to prevent any one branch from consolidating too much power. The Constitution gives each branch its own responsibility.

Article I of the Constitution declares:

All legislative powers, herein granted shall be vested in a

Congress of the United States.

Article II two declares:

The executive power shall be vested in a President of the

United States.

And Article III declares:

The judicial power of the United States shall be vested in

one Supreme Court.

And such other Courts as the Congress creates.

These words are unambiguous. The Judiciary possesses no power to make law or even enforce law. In Federalist No. 47, one of our Founding Fathers, James Madison, cites the Constitution of Massachusetts which states:

The judicial shall never exercise the legislative and

executive powers, or either of them, to the end that it may

be a government of laws and not of men.

So Madison, in arguing for the Constitution, trying to convince the Americans to vote for it, quoted the Massachusetts Constitution--this provision in it, with approval stating that is essentially what we have in our Federal Government.

Madison was a remarkable man.

He went on to describe the separation of powers as the ``essential precaution in favor of liberty.'' Alexander Hamilton, in Federalist No. 78--written to encourage Americans to support the Constitution--quotes the French philosopher, Montesquieu, who said:

There is no liberty if the power of judging not be

separated from the legislative and executive powers.

The judicial branch, then, is limited to the interpretation and application of law--law that exists, not law they create. At no point may its judges substitute their political or personal views for that of elected representatives or to the people themselves--the people's will having been permanently expressed in the Constitution that created the judiciary.

To gain a deeper understanding of this role, it is instructive to look further in Hamilton's Federalist No. 78, widely regarded as one of the definitive documents on the American court system. In it Hamilton explains that ``the interpretation of the law is the proper and peculiar province of the courts. The constitution . . . must be regarded by the judges as a fundamental law. It therefore belongs to them to ascertain its meaning.''

Judges do not grant rights or remove them. They defend the rights that the Constitution enumerates. So it is thus no surprise that Hamilton says a judge must have an ``inflexible and uniform adherence to the rights of the Constitution.''

In order to ensure that judges would consistently display such adherence to the Constitution in the face of outside pressures, our Framers took steps to ensure that the judiciary was independent from the other branches and insulated from political interference. As was often the case, the Framers were guided by the wisdom of their own experience. They had a lot of common sense in the way they dealt with things.

In England, colonial judges were not protected from the whims of the King. Included in the Declaration of Independence's litany of grievances is the assertion, when Jefferson was setting forth the complaints against the King, he asserted that the King had ``made Judges dependent on his Will alone, for the tenure of their offices . . .''

That was a complaint. That was one of the things we objected to in the way the King was handling the people in the Colonies. That was part of the Declaration. When the Constitution was drafted, that matter was fixed.

In order to shield the courts from the threat of political pressure or retribution, article III effectively grants judges a lifetime appointment, the only Federal office in America that has a lifetime appointment. We have to answer to the public. So does the President. It also specifically prohibits Congress from diminishing judicial pay or removing judges during times of good behavior. So Congress can't remove a judge or even cut their pay. Hamilton referred to this arrangement as ``one of the most valuable of modern improvements in the practice of government.'' He went on to say that he saw it as the best step available to ``secure a steady, upright, and impartial administration of the laws.''

So Madison hoped the courts, set apart from the shifting tides of public opinion, would be better suited to act as ``faithful guardians of the constitution'' to stand against ``dangerous innovations in government.'' In other

words, courts are removed from the political process not so they are free to reinterpret the Constitution and set policy, but so they are free from the pressures of those who would encourage them to do just that.

The Framers also understood that the courts, as an unelected branch of government with a narrow mandate, would also necessarily be the weakest branch. Hamilton wrote that whoever looks at the ``different departments of power must perceive that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. . . .It may truly be said to have neither force nor will, but merely judgment. . . .''

So in light of this narrow mandate that judges have been given, judges have understood from time to time that they ought not to be drawn into the political thicket; that they ought to decline to answer questions that they felt were more appropriately to be addressed by the political branches of government. Typically, this distant approach has been invoked when the Constitution has delegated decision-making on a particular issue to a particular branch, when the court finds a lack of ``judicially discoverable and manageable standards'' to guide its decision-making, or when the court feels it best not to insert itself in a conflict between branches. That is what is happening. They are showing restraint and discipline. This is an example of judicial restraint because it respects the powers of the other branches and the role of elected representatives rather than the appointed judges in establishing policy.

This is not an academic exercise or an abstract hypothetical. Judicial activism has enormous consequences for every American because if judges who are given a lifetime appointment and guaranteed salaries are given the power to set policy, then that is an anti-democratic outcome because we have created someone outside the political process and allowed them to set policy for the country and they cease to be accountable to the American people.

The men and women of the Supreme Court hold extraordinary power over our lives. It takes only five Justices to determine what the words of the Constitution mean. You may think it is nine; it is really just five. If five of the nine agree that the Constitution means this or that, it is as good--hold your hats--as if three-fourths of the States passed a constitutional amendment along with the supermajority votes of the Congress. So this is a powerful thing a Supreme Court Justice possesses, the ability to interpret words of the Constitution.

When Justices break from the ideal of modest and restrained practices, as described by Hamilton, they begin creating rights and destroying rights based on their personal views, which they were never empowered to do. The temptation to reinterpret the Constitution leads judges, sometimes, to succumb to the siren call of using that opportunity they might possess to enact something they would like to see occur.

Maybe somebody will write in a law review that they were bold and courageous and did something great. We have seen some of these actions occur. Under the power to regulate business and commerce the government is given, our Supreme Court recently ruled that carbon dioxide, which is a naturally occurring substance in our environment--when plants decay, they emit carbon dioxide; when they live, they draw in from the air carbon dioxide; it is plant food--they ruled that it was a pollutant. As a result, regardless of how you see that matter, I think when the statute was passed they gave EPA regulation to control pollution in the 1970s long before global warming was ever a consideration; that Congress had no contemplation that it would be used to limit carbon dioxide some years later. But that is what the Court ruled.

I only say that because that was a huge economic decision of monumental proportions. It called on an agency of the U.S. Government to regulate every business in America that uses fossil fuels. It is a far-reaching decision. Right or wrong, I just point out what five members of the Court can do with a ruling, and that was five members. Four members dissented on that case.

At least two members of the Supreme Court concluded that the death penalty is unconstitutional because they believe that it is cruel and unusual as prohibited by the eighth amendment to the Constitution. They dissented on every single death penalty case and sought to get others to agree with them. Some thought others might agree with them. But as time went by, they have now left the bench and no other Judges have adhered to that philosophy. But I would say that it is an absolutely untenable position because the Constitution itself makes at least eight references to the death penalty. It is implicit in the Constitution itself. It says the government can't take life without due process. So that contemplates that there was a death penalty, and you could take life with due process.

The Constitution also refers to capital crimes and makes other references to the death penalty. Every single Colony, every single State at the founding of our government had a death penalty. It is an abuse of power for two Judges to assert that the eighth amendment, which prohibited drawing and quartering and other inhumane-type activities, actually should be construed to prohibit the death penalty. That is judicial activism. They didn't like the death penalty. They read through the Constitution, found these words, and tried to make it say what it does not.

So the question is not whether these policies are good or bad, whether you like the death penalty or not. That is a matter of opinion. And how one believes that global warming should be confronted is not the question. The question is whether a court comprised of nine unelected Judges should set policy on huge matters before the country that we are debating in the political arena.

Should that not be the President and the Congress who are accountable to the voters to openly debate these issues and vote yes or no and stand before the people and be accountable to them for the actions they took? I think the Constitution clearly dictates the latter is the appropriate way.

A number of groups and activists believe the Court is sort of their place and that social goals and agendas they believe in that are not likely to be won at the ballot box, they have an opportunity to get a judge to declare it so. We have the Ninth Circuit Court of Appeals en banc ruling that the Pledge of Allegiance to the Constitution is unconstitutional because it has the words under God in it. Actually, that has never been reversed. It has been vacated in a sense because the Supreme Court rejected it on, I think, standing grounds. But at any rate, those are the things that are out there. It is not in the Constitution. This is a bad course for America.

If the judiciary heads further down that path, then I think we do have dangers because we are actually weakening the Constitution. How can we uphold the rule of law if those who weigh the scales have the power to tip them one way or the other based on empathy, their feelings or their personal views? How can we curb the excess of Federal power if we allow our courts to step so far beyond the limits of their legitimate authority? How can the least among us depend on the law to deliver justice, to protect them, to steadfastly protect their liberties, if rulings are no longer objective and if a single judge has the power to place his or her empathy above the law and the evidence?

So with these fundamental questions in mind, I hope the comments I make in the weeks to come will be of some value as we talk about the future of the judiciary, what the role of a judge ought to be on our highest court, and to uphold our sacred charter of inalienable rights.

So let me repeat, I love the American legal system. I am so much an admirer of the Federal legal system I practiced in for 15 years before fabulous judges. They were accused sometimes of thinking they were anointed rather than appointed. But I found most of the time--the prosecutor that you are--they did follow the law and they tried to be fair. I think the independence we give them is a factor in their fairness and something I will defend. But there is a responsibility that comes with the independence judges get. And that responsibility is that when they get that bench

and they assume that power, they not abuse it, they use integrity, they are objective, and they show restraint.

Mr. President, I yield the floor.

Mr. President, I see my colleague from Ohio is here. I am wondering if we are in an alternating situation. I wish to speak for about 5 minutes. Would that be all right?

Mr. President, my colleague from Illinois, Senator Durbin, is such a fine lawyer and an excellent Senator. I would respectfully talk about some of the ideas he suggested.

One, he raised the question about the case of Brown v. Board of Education where the Court held that separate was not equal, and that somehow this is a justification for a judge setting policy. He thought it wasn't good policy. I would see it differently. I would say Brown v. Board of Education was the Supreme Court saying that the Constitution of the United States guarantees every American equal protection of the laws. They found that in segregated schools, some people were told they must go to this school solely because of their race, some people must go to this school solely because of their race, and that, in fact, it wasn't equal. So there are several constitutional issues plainly there, and I don't think that was an activist policymaking decision. I think the Supreme Court correctly concluded that these separate schools in which a person was mandated to go to one or the other based on their race violated the equal protection clause of the United States, and, in effect, they also found it wasn't equal, which they were correct in doing.

With regard to the Lilly Ledbetter case, Senator Durbin and my Democratic colleagues during the last campaign and during the last several years have talked about this case a lot. I would just say that everybody knows it is a universal rule that whenever a wrong is inflicted upon an individual, they have a certain time within which to file their claim. It is called the statute of limitations. If you don't file it within the time allowed by law, then you are barred from filing that lawsuit. It happens all over America in cases throughout the country.

The U.S. Supreme Court heard the evidence, and it was argued in the U.S. Supreme Court. This one lady, Lilly Ledbetter, took her case all the way to the Supreme Court. They heard it, and they concluded that she was aware of the unfair wage practices that she alleged long before the statute of limitations--long before--and that by the time she filed her complaint, it was way too late. In fact, one of the key witnesses had already died. So it was years after. So they concluded that.

The Congress, fulfilling its proper role, was unhappy about it and has passed a law that I think unwisely muddles the statute of limitations on these kinds of cases dramatically, but it would give her a chance to be successful or another person in that circumstance to be successful.

So this wasn't a conservative activist decision; it was a fact-based analysis by the Supreme Court by which they concluded that she waited too long to bring the lawsuit, and it was barred. Congress, thinking that was not good, passed a law that changed the statute of limitations so more people would be able to prevail. It is not wrong for the Court to strike down bad laws.

We just had a little to-do with Attorney General Holder today in the Judiciary Committee in which the Office of Legal Counsel of the Department of Justice had written an opinion that he kept down and has still kept it hidden that declared that the legislation we passed to give the District of Columbia--not a State but a district--a U.S. Congressman was unconstitutional. He didn't want that out since he and the President supported giving a Congressman to the District of Columbia. But I think that case is going up to the Supreme Court, and I would expect it will come back like a rubber ball off that wall because I don't think that was constitutional. And I don't believe that is activism or an abuse of power; it is simply a plain reading of the Constitution.

If the Congress passes laws in violation of the Constitution, they should be struck down. There is nothing wrong with that if the Court is doing it in an objective, fair way, not allowing their personal, emotional, political, cultural, or other biases to enter into the matter.

So I think we are going to have a great discussion about the Supreme Court and our Federal courts. I look forward to it.

I really appreciate Senator Durbin. He is a superb lawyer. If I were in trouble, I would like to have him defending me.

I thank the Chair, and I yield the floor.

Health Care Reform

Mr. President, about 2 weeks ago I spoke on the floor about the unprecedented budget deficits this country is now facing and the fact we are spending money we do not have. I specifically discussed the impact that is having on Treasury yields.

What we know is that President Obama's budget has been scored by the Congressional Budget Office, which is our group, and I think they do a pretty good job. They take pride in being independent and fair. The head of it was selected by the Democratic majority in the Senate. It is certainly not a Republican organization. They are just fair, trying to do the best they can to try to calculate the numbers.

What they calculated was that at the rate of deficit spending we are now undertaking, the total American debt will double in 10 years, from $5.7 trillion to over $11 trillion. In 10 years it will triple to $17 trillion.

That is a lot of debt. You might ask how do you do that? How do you spend more money than you take in? The way we do it is we borrow it, just like other people do. The Government borrows it. The way it does is, it puts out an auction or sale of Treasury bonds or bills, T-bills they call them, and people buy those things if they choose to do so, and the Government pays them a certain interest rate, whatever the interest rate is at the time.

On short-term debt instruments--short term are under a few months-- those interest rates are still rather low because people are panicked over the economic situation. They are afraid to put their money in the stock market, so they bought Treasury bills. Other people around the world did too. They are not getting much interest, but they believe the Government will pay them back in dollars, eventually.

So what has been happening to the 10-year Treasury bill, one of the foundations of our borrowing, is the rate has continued to go up. Two weeks ago, I pointed out that the 10-year Treasury yield had increased 54 percent this year, at that time from 2.4 percent in January, to 3.7 percent. Barron's, a major financial publication, predicted a few weeks ago that Treasury yields could top 4 percent this year.

Well, guess what. Treasury yields topped 4 percent last week. The Wall Street Journal in a front-page article on June 11 said that the 10-year Treasury yield briefly hit 4 percent yesterday afternoon before closing at 3.94 percent. That would be a 67-percent increase in the Treasury bill interest rate just this year.

Why are the rates going up? It seems there is some disagreement between Washington and Wall Street. The Wall Street Journal article says this:

Many policymakers see the rise in Treasury yields as a sign

that investors are optimistic that the economy is on the

mend. But many market participants say higher long-term bond

yields indicate investors are increasingly worried about

inflation.

So I interpret that to mean that the Washington politico crowd, looking to see a positive vision here, say it is because the economy is doing better. And that could be a factor. But the folks on Wall Street, who are buying the T bills, say differently.

Is the government responsible for this increase in interest rates? It seems that is a real possibility. The Federal Reserve is creating inflation concerns through its massive asset purchase program. The Fed plans to purchase $1.25 trillion in mortgage-backed securities, $200 billion in Freddie Mac and Fannie Mae debt, and $300 billion in Treasury bills this year. Since there are not enough people who want to buy the Treasury bills, the Federal Reserve is stepping in and buying them in an attempt to keep the rate down.

So far the Fed has purchased $481 billion in mortgage-backed securities, and $130 billion in Treasuries. The intention of the program is to reduce the Treasury yield and interest rates, but it may be backfiring. A Forbes.com article on May 28 quotes former Federal Reserve Governor Lawrence Meyer on how this kind of action could actually have a different impact. It could actually cause inflation and even cause a rise in the Treasury bond yield.

This is what he said:

This can become counterproductive. To the extent that you

stoke inflation fears and you

get an inflation risk premium built in [to the bond yield]

you can't ease that away. You do have to be careful and more

measured than that.

In other words, when there is a perception which may be reality that not enough people are willing to buy these Treasury bonds at lower rates, because they think even 4 percent may not be enough because they may fear that inflation is going to be 6 or 7 percent down the road, they do not want to lock themselves in for 10 years at a 4-percent interest rate that is below the inflation rate. So the Fed steps in and buys some of this to keep it low, and that may be having the perverse incentive of causing a belief to occur in the marketplace that inflation is on the way, and scares people even more.

Also let me say this about the voluntary purchase of Treasury bills by citizens of the United States, people in China, the Middle East, and around the world. They do not have to buy Treasury bills. We are going to be offering amounts, these kinds of bills, in volume we have never offered before in the history of the Republic.

So the question is, who wants to buy them? Who wants to hold a mortgage on the United States? What if we inflate our currency? Maybe 4 percent is not enough. Maybe they want more. Maybe China, which had a huge trade surplus a few years ago, is deciding they are not going to buy so many Treasury bills in the United States. Maybe they decide they need to invest in their own economy, which is not doing as well as it has done in the past.

The same about the Middle East. They used to have huge reserves of American money as a result of the high price of gasoline and price of oil on the world market. That price dropped some. So perhaps they do not have as much money to buy our Treasury bills either.

So who is going to buy them? We are not talking about a little bit, we are talking about going from $5 trillion in total debt today to $11 trillion in 5 years, and $17 trillion in 10 years. So we are talking about over $10 trillion in new debt we have to sell to someone in the world market.

Also, what is the impact of the Federal Reserve, that entity we have created by law, when they buy Treasury bills? What occurs there? I remember hearing Mr. Bernanke, the Federal Reserve Chairman, talking about this on ``60 Minutes.'' Some of you may have seen him being interviewed on that program. I went back and had the transcript of that program called up, and we reviewed it. It is what I thought he said. In response to reporter Scott Pelley's question, Chairman Bernanke said about the Fed's programs:

It's much more akin to printing money than it is to

borrowing.

Mr. Pelley replied:

You've been printing money?

And Mr. Bernanke replied:

Well, effectively.

And he added:

And we need to do that, because our economy is very weak

and inflation is very low.

So if you want to know the definition of printing money, that is it. Some people say that is not a fair thing to say; we are not printing money. Mr. Bernanke says we are printing money. He is the Chief of the Fed. He is the guy who does it.

Why does this matter to the average American? Even those who are not planning to buy a Treasury bill any time soon will be affected. That is because mortgage interest rates--what we pay to borrow money to buy a house with--track the 10-year Treasury yield. So as the 10-year Treasury goes up, mortgage rates go up too, and it is much harder for people to buy a home or to refinance. Or if you want to sell a home, it is harder for the person who wants to buy it to borrow the money. He has got to pay considerably more for a house in the interest rate. In fact, according to the Wall Street journal, 30-year mortgage rates have gone up 16 percent in the past 2 weeks, from 5 percent to 5.79 percent. This is the money, when you go out, you have to borrow money to buy a house with. What we need to happen in America is people buying homes and taking them off the market.

There is a huge difference between 5 percent and 6 percent. On $100,000, 5 percent interest would be $5,000 a year you pay in interest; $400-plus a month. On 6 percent interest, it is $6,000 a year, or $100 more a month on $100,000. For a $200,000 mortgage it would be twice that. It would be $2,000 or $3,000 more a year you would pay in interest alone because the rate went up a bit.

We were hoping that the interest rates would stay low to encourage people to buy homes, encourage people to refinance, and be able to live a better life. The Wall Street Journal article said that this increase--from 5 to almost 6 percent--will cut the number of people with an incentive to refinance their homes and save money by paying less interest by half.

Let me mention one more thing. One of the things that is interesting in all of this is the impact our spending has had on the economy. We all hoped it would have a pretty dramatic impact. But it is not being nearly as effective as people thought. Even I thought we would have some impact in the short term.

But I believe that CBO is correct. When we passed the $800 billion stimulus package that was supposed to put money out into the economy to build roads and bridges, we found out only 4 percent of the money went to roads and bridges, 96 percent went to other kinds of government spending, but that $800 billion was supposed to create a good bit of jobs and get this economy moving.

I want to say things are not going as well as we would like. I remain optimistic. The Fed is doing all of these things, the spending is coming along. Surely we are going to have a benefit from that in the near term.

But this shows the deficit surge. The deficit, by which I mean how much more money we are spending than we take in. This goes through March of this year. You can see how the deficit is increasing, how much our shortfall is. And by March, it has already topped $953 billion.

That is more than twice the biggest deficit President Bush ever had. And he was criticized for his deficit. That is twice. We have not gotten to the end of the fiscal year yet.

What the CBO projects--this is our own Congressional Budget Office, their numbers, and they are running the tally of how much we are spending and how much is coming in. They calculate by the end of the year the deficit will be $1.8 trillion, which is about four times the highest deficit President Bush ever had.

I say that because people say: Well, President Bush had deficits too. Yes, he did. A lot of that was not justified, in my opinion. But we never had deficits like this in the history of the American Republic. And you do have to borrow this money.

This is in March. By September 30, we are looking at a deficit of $1.8 trillion this year alone. And the whole debt of the American Republic, since its founding, is about 5.7 trillion before this year started. What is that? That is one-third in 1 year.

We hoped that spending and this activity would help improve the unemployment rate. But you can see, it is going up. It was 6.6 and it has gone up to 8.5. Well, it is not 8.5 percent. That was in March. The latest number is 9.4 percent.

So I do not know how much real boost we have gotten from this reckless spending. So much of it we knew was not job creating, and we debated that. It was clear that a lot of this was the kind of spending that would not create jobs. As I said, you heard about roads and bridges. Well, only 4 percent of the money went to roads and bridges. A lot of it went to all kinds of programs that are not job-creating programs. So I am concerned about that.

This is a vibrant country, and I think we have the capability of bouncing back from hard times. I will just say, we are at 9.4 percent unemployment. Unemployment in the early 1980s, under President Reagan, when they had to break the back of surging inflation, they broke the back of 13-percent inflation. Unemployment hit 10.8 percent. So it is not as bad as it was in the 1980s, and we bounced back from that, and we can bounce back from this.

But I have to say to my colleagues, if we do not have fiscal sanity in how we do our business, if we do not have a possibility of showing growth in revenues from economic growth and the containment of spending--and our deficits are surging for as far as the eye can see-- then I am not sure we will have the kind of healthy, robust resurgence we would normally expect to occur after a recession.

Look at these numbers. This is very disturbing. We borrow all this money, and we spend it today. I know a great lawyer who has written a book, ``The Case for Character.'' He said: This is a question of character, what I am going to talk to you about here. It is a question about the moral character of the Congress and the President of the United States and how we approach our duties in a responsible manner.

In 2009, this year, we expect that the taxpayers of the United States--on the $5.7 trillion we have borrowed--will pay $170 billion in interest. That is a total loss. That is money that goes out to people who have loaned us money. It is interest, just like on your credit card or on your mortgage--$170 billion. And look how it goes up. This is a chart I have of the interest each year. And 10 years from now, if we follow the President's budget, it will be $806 billion, according to the Congressional Budget Office.

All right. That is just money. How much is that? How much is $806 billion? Let me tell you what we do today. The Federal highway bill is about $40 billion. The Federal aid to education in all its forms is about $100 billion. So now, since we take money from the future, and we spend it today in a reckless way, I think, to get some sort of hope for stimulus we have not seen much of, we are going to saddle the people in 2019 with an annual debt payment of $806 billion--10 times the Federal education budget, 20 times-plus the highway budget. So we do need to be focused on this issue.

Let me say one more thing. According to the Congressional Budget Office, the deficit is supposed to drop down in 2 or 3 years, but already it looks as if we will not meet those numbers. The economy is not as strong as they were projecting. It was a rosy scenario. But they project about $600 billion is what the deficit will be 2 or 3 years from now--30, 40 percent higher than anything President Bush ever had-- $600 billion. Then it starts up again, and it goes up to the 10th year. And in the 10th year, under the scoring of the President's budget by the Congressional Budget Office, the deficit will be over $1 trillion in that year--$1.1 trillion.

That is not sustainable. And they are not projecting an economic slowdown. They are projecting modest growth over that period of time, solid growth for the last 5 years during this period. If we have a recession, presumably the deficits would be even larger than that.

I guess I would say to my colleagues, this is a matter we need to start thinking about. It cannot be ignored. Nothing comes from nothing. If you get money to spend today, you must spend every dollar of it with care because you have borrowed it from the future, and somebody has to pay it back. It is not free money. Maybe it feels as if it is free today because we did not have to pay higher taxes or we did not cut some other spending program to get the money to do what we would like to do with it. We just borrowed it. But borrowing has consequences.

Every year from here on out, that $806 billion will go up probably because in 2019 they expect not a balanced budget but an annual deficit of that year to be over $1 trillion. So the thing is going to continue to worsen. If we do not make some changes, this will continue.

By the way, this does not include the spending we are talking about on health care, which you heard a speech about earlier. I will say this about it: the Health, Education, Labor and Pensions Committee has released details on a bill. According to CBO, what they have released so far scores at $1 trillion. Oh, we just got another $1 trillion not calculated in these numbers. ``Well, everybody just needs to have health insurance.'' So who is going to pay for it?

We have to be smart. We have to see how we can improve health care, get more people insured, create a better system with the absolute lowest possible cost because we cannot continue this kind of reckless spending. Instead of learning a lesson from the already surging deficits, we seem to be blithely going on with a huge new spending program on top of that.

The American people, I think, are uneasy. They think we are out of control up here. They do not think they have ever seen anything like this: deficits the likes of which we have never seen in peacetime.

The U.S. Government passed a bill last fall that was supposed to buy toxic mortgages from banks, and now they bought a controlling share in General Motors. How did this happen? Did Congress ever vote on that? No. We did not vote on it. They took advantage of the language in that bill, which I was opposed to and voted against. One of the reasons I opposed it was because it was too broad and an unbelievable abrogation of congressional power to the Secretary of Treasury, who had already helped lead us into financial catastrophe. But people in panic, they all voted and gave him this power.

Did anybody know we were going to use that money to buy an automobile company? No. In fact, Secretary Paulson at one point was asked at a hearing: What about buying stock in banks? This was supposed to be helping the banks. In the House committee, he said, no, we did not want to buy stock in banks. But a week after that bill passed, he was buying stock in banks. And they have not yet begun to buy toxic mortgages. Maybe they will begin soon. They say they have a plan now.

I am saying the American people are right to be concerned about the reckless, irresponsible behavior of this government in Washington. I hope they will continue to watch what is going on. I hope the American people will speak out and let the folks up here know they expect us to do something more than deal with the problem next week. They expect us to be thinking about the long-term health of the American economy.

I heard a well-known financial expert say: Well, you know what? I am not saying there will be reckless inflation occurring, although some people are predicting that. He said: After President Reagan broke inflation and we got the economy on a sound track, the economy grew at about 3 percent a year and inflation was about 2 percent. He said: What I am worried about is that what we are going to see in the next 10 years is inflation at about 3 percent and growth at about 2 percent. That is not good. You want your growth to exceed the inflation rate.

I do not know what will happen. I cannot predict it. But I know this: We are going to have less money to spend on the things we need because we are going to have to be paying a huge amount in interest. Those are real concerns. This matter is not going away. I believe the American people are becoming more and more attuned to these matters. That is what the Tea parties were about--a sort of spontaneous reaction by the American people saying: What are you guys doing up there? Surely you know this is not the way to handle America's business.

I will say, I am going to continue to report on things that are developing. Surely we will begin to see some improvement in the unemployment rate and maybe some economic growth in the weeks to come. You would normally expect that when you pump the kind of money we have pumped into this economy. But in the long run, this begins to drag down the gains you make in the short run. That is what I am saying.

In fact, the Congressional Budget Office said--analyzing the stimulus package alone--it would increase our GDP, our growth for 2 to 3 years, but if you took that over 10 years, the economy would grow less over the 10 years than if we had no stimulus package at all. That is because when you borrow money, not only do you have to pay interest on it, but it crowds out borrowing from the private sector.

If a corporation wants to borrow money through the issuance of bonds, they are having to compete with the Treasury bills that are now paying 4 percent, and they will have to pay a good bit more because people think the Treasury bills are better, safer investments than some private corporate bonds. It hurts the private sector because now they are paying considerably higher interest rates to get people to loan money to them instead of loaning it to the U.S. Government.

I thank the Presiding Officer for the opportunity to share this. I hope and pray we can all figure out a way to work together to do a better job of being stewards of this economy. It is a high responsibility we have. No one knows everything. No one has a perfect answer to it. We are going to have to go through some tough times. I think that is clear, and there is no need to sugar-coat that.

I am not blaming President Obama for everything that has gone wrong, and he inherited so much of this. I have talked about Secretary Paulson. I do not think Secretary Geithner is any better. He was Secretary Paulson's top adviser when they came up with this plan last fall.

But, at any rate, we need to get our heads together and know one fundamental thing: Nothing comes from nothing. There is no free lunch. If you borrow money to spend today, there will be a cost in the future, and those costs can outweigh the benefits that are occurring today.

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 wish to assure our Members, the American people, and Judge Sotomayor that our committee is going to do its best to have a hearing on her confirmation that would be worthy of the serious responsibility we have and that the American people will feel is fair. I hope they will say it is the best hearing we have ever had.

I have to tell you, though, things are moving faster than I would like to have seen them move, and it does cause some difficulties for us. As I discussed on the floor yesterday, the Republican members of the Judiciary Committee are deeply concerned about this process being moved this rapidly. Yesterday, Chairman Leahy unilaterally announced that the hearings would begin on July 13, some 48 days from the announcement of this nomination. I won't go into a lot of detail, but I would note that in the recent three Supreme Court nominees, Justice Breyer's hearing was 60 days after the announcement, Justice Roberts'-- the one that has been most cited and was the shortest--was 55, and Justice Alito's was 70. And I would note that Justice Roberts had 370 cases, whereas Judge Sotomayor has 3,500-plus cases to review. So I think, to quote Senator Schumer and Senator Leahy in remarks they made previously, it is better to do it right than to do it too fast.

I would note that late last week, the White House sent her answers to the questionnaire we send to all the nominees, requiring a good deal of information, and that is done on a bipartisan basis. Those answers were sent forward with great fanfare. In a press release from the White House Counsel's Office, the Obama administration proclaimed that they set a record by completing the process in just 9 days. But this is a confirmation process, not a confirmation race. I think the White House should focus more on having thorough and complete answers to the questionnaire, not on entering the ``Guinness Book of World Records'' for the fastest response from a Supreme Court nominee.

We know now that Judge Sotomayor omitted or failed to include key information and has provided incomplete and sometimes contradictory responses to the questionnaire. The responses are not satisfactory. So today all seven Republican members of the Judiciary Committee, who have been through this--most of them--for some time and seen these issues develop before, have written to ask that the nominee fulfill her duty to provide clear and complete answers to our questions in order to obtain quite a bit of information that is now not available and should have been included.

Mr. President, I ask unanimous consent to have that letter printed in the Record.

Mr. President, the judge has provided our committee with a good deal of information. We also appreciate that the judge has already once recognized that her quick questionnaire was incomplete. The issue was raised, and she provided the committee with additional information on June 6 which really should have been in the first response. However, we are still concerned with several aspects.

As I have already said, the minority leader reiterated this morning that members of the Judiciary Committee and the full Senate need a complete and thorough record in order to make informed judgments on this nomination.

This is a lifetime appointment. It is our one chance in Congress to get it right. A Justice on the Supreme Court, if not faithful, has the power to actually alter the Constitution in addition to faithfully follow it, and sometimes I think that is what they have done.

We need to know what kind of judges we are going to get. Does this judge understand that he or she will be under the law, subordinate to the law, one who must faithfully follow the law or do they believe they are above the law and have the freedom and the ability to interpret it in new and novel ways which might seem to further some agenda he or she might have, if they are on the bench? I think the American people are concerned about that. I think they are right to be concerned about that. Decisions have been rendered, in my opinion, that are not faithful to the Constitution, not required by the Constitution.

Those are things we need to talk about and do it in a fair way and do it at a high level. There is no need to be personal about it.

The oversights and errors in this questionnaire are the product of trying to rush through a nominee with one of the most lengthy records in recent history, maybe ever, to the Supreme Court, in one of the shortest timeframes in history.

I think we should try to get it right. I believe a fair and thorough process, in the best spirit of this Chamber and in the best interest of this Nation, is what we should look forward to. I want to see we get the complete record and get back on the right track. I believe we can do that and it is important we work at it.

I promise, as I said, to do what I can, and I believe we will have a very fair and objective hearing. But it is also important that we are fair to the American people. They are depending on us to carefully scrutinize anyone who comes up for confirmation. We cannot do that without a complete questionnaire.

There are a number of things I raised the other day, yesterday, about the shortfall. I will briefly make a point or two. The letter sets forth in some detail quite a number of areas we set forth. It is eight different items and some other comments that we believe are inaccurate and we call for additional information. There are some significant matters there.

When the judge supplemented her initial questionnaire on June 6 by providing us with a report concerning the death penalty article she drafted during her time on the board of the Puerto Rican Legal Defense Education Fund, she had initially omitted that from the report. We would appreciate confirmation that a thorough review of those records has been completed, given the initial omission, and that she has provided all the relevant documents to the committee in response to this question.

There are other questions of writings, reports, and speeches. Question 12(a) requires the nominee to provide copies of materials written or edited. Judge Sotomayor has been widely described as one of the editors of the Yale Law Journal and, as managing editor, Yale Studies in World Public Order. However, we have not received any copies of either publication that she has edited. We need to see copies of those materials.

The questionnaire also requires copies of reports, memorandums, and policy statements prepared by specified organizations. The judge responded:

[a]s a member of various court committees [she has]

prepared and contributed to numerous reports and memoranda on

court issues, which relate to internal court deliberations

and are not available for public dissemination.

I don't think those are the kind of documents that are secret. I think they can be obtained, and I believe the questionnaire calls for all of those.

Paragraph 12(d) talks about a list of speeches and lectures providing the text of those speeches or, if that is not available, outlines or notes and, if not that, a summary of the subject matter involved in the speeches. About a third of those speeches have not been prepared and the summaries are inadequate. I will give an example. This was a response to one of them:

I spoke on Second Circuit employment discrimination cases.

There is no summary of what it was about, no outline or other information on that speech.

Another one:

I spoke at a federal court externship class on Access to

Justice.

Another one:

I spoke on the United States Judicial System.

Another one:

I participated in a symposium on post-conviction relief. I

spoke on the execution of judgments of conviction.

Another one:

I spoke on the implementation of the Hague Convention in

the United States and abroad.

It goes on. There are several others. But those are inadequate responses, probably as a result of rushing the questionnaire through. I hope the nominee will go back and see, first of all, if she can find the written speech she gave and provide us a copy of it. That would be helpful as we review these matters because there have been some questions about speeches that the nominee has made.

I will not take any more time. I will let the letter speak for itself. I tried to

call the judge earlier this afternoon, but she will not be available until sometime later, to tell her this is coming forward. I believe her staff may have already been notified of it, the White House Counsel's office.

These are not little bitty matters. They are important matters. If we are going to move forward in a recordbreaking timeframe, the least we can expect is complete and full answers to these questions. It is appropriate that we insist this questionnaire be properly and completely answered. I hope and believe it will be. Certainly that is what our request is.

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

Mr. President, I thank Senator McConnell for his leadership in so many ways but in particular the concern he has shown repeatedly on the U.S. judiciary. He is on the Judiciary Committee, and he takes these issues seriously. I think it is important that we all do so.

I have to say I am disappointed that this morning we learned from media reports--I did--that the chairman of the Judiciary Committee, Senator Leahy, announced we would begin the hearings on July 13 on Judge Sotomayor. I believe that is too early. I don't believe it is necessary. It is far more important that we do this matter right than do it quick. When the announcement was made, President Obama said the time we should look to is October 1, when the new Supreme Court term starts. I think that always was an achievable goal, and it is something I said I believe we could achieve and still do it in the right way.

The question is, Can we get all this done in this rush-rush fashion? It will be the shortest confirmation time of any recent nominee. It is a time well shorter than that of Justice Roberts--now Chief Justice-- and we had a need to move that a bit because he was confirmed, as it turned out, on September 29, a couple of days before the new term began. He was going to be Chief Justice. But the last nominee, whose record was much like this nominee, Justice Alito, was coming up in late December, and the Democratic leader

then on the Judiciary Committee, Senator Leahy, asked that it be put off until after Christmas. The Republican chairman at that time, Senator Specter, despite President Bush's desire that it move forward, said: No, I think that is a reasonable request, and so we put it off. It was 90-some-odd days before that confirmation occurred. It was well over 70 days before the hearings began.

Mr. President, first and foremost, we are committed to giving this nominee a fair, good, just hearing. But to do so requires that we have an opportunity to examine her record of probably more than 4,000 cases. In addition to that, she has given a lot of speeches and written law review articles, which need to be analyzed.

Make no mistake about it, this is the only time, the only opportunity this Congress and the American people have to play a role in what will turn out to be a lifetime appointment, an appointment to a Federal bench of independence and unaccountability for the rest of their lives. I think it is important that we do this right.

I thank Senator McConnell for his leadership in trying to insist that we do it right. I believe, from what I know today, the timeframe set forth is unrealistic. More than that, it is not necessary. Let's do this right, take our time, and do it in a way that I hope--as I have said repeatedly, this would be what people could say is the finest confirmation process we have ever had.

I thank the Chair and yield the floor.

Mr. President, I thank Senator Kyl for his leadership on this committee. He is one of the Senate's great lawyers. I appreciate his insights, as we all do.

I note that I think this rush is ill advised. In truth, the White House was determined to get the nominee's questionnaire to the Senate in a hurry. There were a number of cameras and crews and press releases that went out when boxes were delivered. In many ways, the questionnaire was incomplete, the result, I think, of that kind of rush. In others, the nominee failed to provide sufficient details that are required by the questionnaire.

For example, the judge did not include a troubling recommendation to the Puerto Rican Legal Defense Fund to lobby against a New York State law that would reinstate the death penalty, and it had quite a bit of intemperate rhetoric in it. After that was noted, she admitted she had failed to include but got that document in. But I suggest perhaps if somebody had not been aware of that omission, maybe we would not have received that document at all. What else might she have failed to include that might be an important bit of information as our committee does its oversight work?

In addition, the nominee was supposed to provide opinions and filings for cases going to verdict, judgment, or final decision. For three cases, she indicates that the District Attorney's Office is searching its records for information on this case, and she did not provide those.

In 14 cases, she noted that she tried, the record is incomplete and not provided. So we don't have any documents related to these cases.

As another example, the nominee is supposed to list speeches, remarks, and lectures she gave and, in the absence of having a prepared text, to provide outlines, notes, and then a summary of the subject matter.

Several of the entries lacked any subject matter descriptions or are so vague as to be utterly uninformative, including these quotes I will note for the record, and we have had some problems with her speeches. A lot of speeches she has given she has no text for.

I note this is on her questionnaire: ``I spoke on Second Circuit employee discrimination cases.'' She did not indicate what or give any summary of that.

Another one: ``I spoke at a federal court externship class on `Access to Justice.' '' It is not clear what that was in any way, and no summary and certainly no text.

``I participated in a panel entitled `Sexual Harassment: How to Practice Safe Employment.' '' Similarly, no additional explanation.

Next: ``I spoke on the United States judicial system.''

Next: ``I spoke on the topic `Lawyering for Social Justice.' I discussed my life experiences and the role of minority bar organizations.''

``I participated in a symposium on post-conviction relief. I spoke on the execution of judgments of conviction.''

``I spoke on the implementation of the Hague Convention in the United States and abroad.''

``I participated in an ACS panel discussion on the sentencing guidelines.''

``I participated in a roundtable discussion and reception on `The Art of Judging' at this event.''

It would be nice to know what she thought about the art of judging.

``I contributed to the panel, `The Future of Judicial Review: The View from the Bench' at the 2004 National Convention. The official theme was `Liberty and Equality in the 21st Century.' ''

Those are some of the things that I think are inadequate responses to the questionnaire's requirements. This questionnaire is one we have used for nominees of both parties for a number of years.

The chairman justifies this rushed schedule because of the need, he says, to allow the nominee to respond to unfair criticisms of her record. But the chairman and all our Democratic colleagues know that the Republican Senators who will actually be voting on this nominee, I am confident and certain, have been nothing but extremely fair and courteous and respectful of the nominee. Even when she made mistakes, such as omitting several things from her questionnaire, we have not criticized her for that. So in return for this courtesy, I am disappointed that we are being rushed to complete this process in a time based on what I know now is not a wise approach. I don't think it is a good way to begin the proceedings.

I look forward to working with my colleagues on this date. Perhaps we can do better as we move forward. It is an important process. It is the public's only opportunity to understand what this is about. I think we ought to do it right. As Senator Leahy has said, do not rush it.

I yield the floor.

Will the Senator yield for just one question?

I know the Senator from California raised the question of doing for this nominee as the others. If this goes forward as planned, it would be 48 days from nomination announcement to the first hearing. I wonder if the Senator from New York would acknowledge that for Justice Breyer it was 60 days; for John Roberts it was 55, the shortest; and Sam Alito was 70. This would be much shorter a period of time than the period we are being given for this nominee, who has 3,500 cases.

I would ask if the Senator remembers saying with regard to the Alito nomination, when our Democratic colleagues asked that it be held over past Christmas, and at their request it was done so, he said:

It is more important to do it right than to do it quickly.

And now we have a bipartisan agreement to do that.

So we just ask for a bipartisan agreement to do it right and not too fast. I don't know how we can work it out, but I think this is an arbitrary date, designed to move this process forward by a certain end game, faster than we need to. The vacancy, as the Senator knows, does not occur until October when Justice Souter steps down. So we do need to complete it by then. I have told the President I will work to make sure that occurs.

Mr. President, I wish to express my appreciation to Senator Burr for his hard work on this issue. He is one of our most able Members. I think the fundamental premise of the study that showed his bill will reduce smoking more than the bill on the floor, the Kennedy bill, is something that should give us pause. I know they have worked very hard on it. He has worked very hard on it, and I hope my colleagues will avail themselves of his suggestion to read it--both bills--and make a judgment on what they think is best for the country.

Unprecedented Budget Deficits

Mr. President, the unprecedented budget deficits we see today are creating fears of a surge in bond interest yields and a fall in the U.S. credit rating. I wish to talk about that. I have talked about it previously. But I would repeat my fundamental assertion that nothing comes from nothing, nothing

ever could, as Julie Andrews said. Debts must be paid, and they will be paid one way or the other. Either somebody is going to lose--either you are going to print money and inflate the money or you are going to pay back the debt with interest to whomever will loan you the money to fund the debt. We are moving into a decade of the most unprecedented deficits in the history of our country. Nothing has ever been seen like it before. It is irresponsible. We have not discussed it enough. It is breathtaking to people who examine it.

The estimated deficit for fiscal year 2009, the one we are in, ending September 30, is expected to be $1.84 trillion. That is a lot of money. That number dwarfs even the $500 billion maximum, inflation-adjusted deficit--nearly the same dollars to dollars--during World War II. It was only $500 billion in World War II. So this year, the deficit is projected to be 12.9 percent of the gross domestic product. In 1 year, the deficit will be 12.9 percent of the gross domestic product of the United States of America. That is a level not seen since World War II.

David Walker, the former Comptroller General of the United States-- that is what we call the Government Accountability Office--has been speaking out for a number of years on deficits. He criticized President Bush for deficits. He continues now to speak out since he has left government. He has concluded that the United States of America is in danger of losing our AAA credit rating. He points out that the cost of insuring U.S. Government debt has risen so much that it recently cost more to buy protection on U.S. debt than debt issued by McDonald's Corporation. That is his statement. In fact, a Wall Street Journal editorial in March noted that the insurance rate for U.S. Government bonds rose 700 percent to 100 basis points between March of 2008 and March of 2009. That means in this past month of March, it costs $10,000 to insure $1 million in Treasury bonds. Who would think you would have to get insurance to guarantee the payment of U.S. Treasury bonds? As of May 28, that insurance cost had fallen to 45 basis points, but that is still more than three times what it was in March of 2008, just a year ago. Not only that, as of May 28, the cost of insuring our government's debt is higher than that of France and Germany.

Mr. Walker goes on to note that the United States has had a AAA credit rating since 1917. Furthermore, he states that given the current national debt and deficit, the United States may not deserve the AAA rating we have today. That is a warning. I hope that is not so. I hope we don't see a reduction of our AAA rating, which has a real impact in how much we have to pay to borrow money, and we are borrowing a lot. But I think this man deserves hearing. This is a serious commentator on American deficits and debt.

So the idea he has proposed is not farfetched. In fact, the Standard & Poor's--S&P--a few weeks ago lowered its outlook on Great Britain's debt. They put it on a negative outlook. While the United Kingdom is keeping its AAA rating for now, the Wall Street Journal notes that the negative outlook that S&P has found is a precursor to a downgrade. They also note that Japan's debt, in fact, has already been downgraded to AA2 from AAA. So the question is, are we next?

Not only is our credit rating in danger, but it is costing more and more to borrow. This is very important. While it may appear to be a separate problem, I think it is related to us spending more and borrowing too much. The yield on the 10-year Treasury bond, which rises with the increased government debt and expectations of inflation, has surged 54 percent this year, from 2.4 percent to 3.7 percent as of yesterday. It was 3.2 percent 2 weeks ago. Yesterday it was 3.7 percent. That is a significant surge.

So let me say it this way, and to repeat: We will borrow this year a record amount of money. Not only that, over the next 10 years, we will continue to borrow at unprecedented rates. We are borrowing because we are spending more than we take in--a lot more than we take in--and nothing comes from nothing.

How do we spend more than we take in, in taxes? How do we do it? We borrow the money. How do we borrow the money? We sell Treasury bills. We ask people to take their money out of their bank account and buy U.S. Treasury bills. We have had an unusual situation with interest rates being low, because people were so afraid if they bought stock or private bonds, that companies may go bankrupt, and they were interested in buying government bonds, Treasury bonds, presumably the most secure bonds in the world. So we have had a bargain and we have been taking advantage of it. But all of a sudden now we are beginning to see a surge in these interest rates, because people are thinking: Well, if I don't get a 3-percent return when I buy a Treasury bill, and inflation next year is 5 percent, and my money is tied up for 10 years, I am losing 2 percent a year. I am not gaining money; I am losing money. The world looks at it like that. The Chinese and people in Saudi Arabia who have excess wealth and bought Treasury bills are looking at this too and they are demanding higher interest rates. That is why it is going up. That means each year we will pay a larger percentage of the tax money we take in to pay interest on the debt than we would have if that had not been the case.

I am told that this rampant rise in Treasury rates is the talk of Wall Street. How has it happened? Net debt sales; that is, the net sales of Treasury bills and the borrowing the government has done, increased from $332 billion last year to $1.555 billion this year. That is a lot. That is almost five times. When you put too much of a product on the market, things happen, and people start demanding better returns. Two weeks ago, Barron's reported as big news that the U.S. Department of Treasury bond yields could top 4 percent this year. And it seems, since it already hit 3.7 percent yesterday, that we may get there sooner than Barron's even anticipated.

So how does all this stack up with what the President estimated when he submitted his budget earlier this year? His budget estimated an average yield on Treasury bonds at 2.8 percent for the entire year. We already hit 3.7, and Barron's said we are going to hit 4, so we are ahead of Barron's schedule already. So the 10-year Treasury bill is increasing, and hopefully, it won't surge out of reason. Some are worried about that. It does look like it may well reach that 4 percent or more this year. That is bad news for American taxpayers.

So we are like the credit cardholder. When interest rates go up, it costs us more. When the interest rates on Treasury bills go up, we have to pay more to get people to loan us money so we can spend it. I guess it is fair to say we have only ourselves to blame.

Even if you took the President's assumptions, interest on the debt is supposed to be $170 billion this year. So this Nation will pay on the debt we already have accumulated $170 billion in interest this year. That is a lot of money. We spend $40 billion on the Federal highway program. We spend less than $100 billion on Federal aid to education in America. We are already spending, and will spend this year, $170 billion on interest, on debt we have run up before. That equals $1,435 per household. That is a lot of money, $1,435. By 2019, according to the Congressional Budget Office, our own Budget Office's evaluation of what the President's budget is going to be, 10 years from now, the interest on the debt will not be $170 billion; it will be $800 billion. That would be $3,433 per household, more than twice the current debt interest payment that each household in America is to incur. Why? Because we are spending too much. We are spending money we don't have. We spent $800 billion on a stimulus package. We are spending $700 billion on the TARP Wall Street bailout. Our increase in spending for the underlying Federal budget this year, the nondefense, the discretionary spending was a 9-percent increase. That is huge, many times the rate of inflation, a 9-percent baseline increase. Most of my colleagues know that if you increase spending, or have an interest rate of 7 percent, your money will double in 10 years. So at 9 percent, in less than 10 years, the amount of our spending would double; entire government spending in 8 or 9 years would be doubled. That is why we are running up debt. But the most troubling thing is, it is going to continue.

We have heard the President say, I am worried about this. We are going to

have to talk about this in the future. Have you heard that? Oh, yes. This is a big problem. We are going to have to do something about it in the future. Well, the future is becoming now. The budget that he submitted to us didn't do anything about it in the future. Let me be frank with my colleagues. The budget this year, the deficit this year the President projected would be $1.76 trillion. That has already been proven to be low. They are now estimating $1.84 trillion in 1 year. And they project it dropping down to maybe $500 billion in 3 or 4 years, assuming the economy is growing well. But over the 10 years, in the tenth year of his budget deficit, the annual deficit in the tenth year, is over $1 trillion. And over the 10 years, the average deficits from the President's own submitted budget would be almost $1 trillion a year, and the highest deficit prior to this we have ever had was $455 billion last year. So this is averaging almost twice, really twice the highest deficit we have ever had.

The President has said, correctly, that these trends are unsustainable. He recognizes that. He also said, according to Bloomberg at a townhall meeting in New Mexico on May 14, that current deficit spending is unsustainable. He warned of skyrocketing interest rates for consumers if the United States continues to finance government by borrowing from other countries. So I agree with him on that, but it is time to start doing something.

China remains the biggest foreign holder of United States debt in Treasuries, and Prime Minister Wen Jiabao stated in March that China is worried about its investments.

Not only that, but yields are currently rising despite an extremely unusual move by the Federal Reserve to directly purchase Treasury bonds. So the U.S. Federal Reserve--our banking gurus--have decided they will take money and purchase U.S. Treasury bonds to keep the interest rates from going up so fast, because there are not enough people out there to buy them all, I suggest. It holds the interest rates down somewhat.

The Fed has not done anything like this since the 1960s. It is very unusual. Even then, it was a much smaller operation. They announced a $300 billion purchase plan in March and have made $100 billion in purchases so far. If those purchases are not carefully managed, they could lead to inflation down the road; there is no doubt about it. Not only that, but the Fed could get stuck with sizable losses if the yield on those Treasury bills continues to rise.

According to Barron's, if rates rise 1 percentage point, it could lead to a $140 billion loss for the Fed in that deal of purchasing these bonds. That is $140 billion. The Federal highway spending in America is $40 billion. This is a huge sum of money.

Let's look at the deficit and debt that are driving our interest rates higher as part of his detailed budget released in May. The President raised his estimate of a deficit from $1.75 trillion to $1.84 trillion. I ask, do we remember that at that same time when the President released his budget, he also released a plan that was going to show that he was committed to frugality, and it would supposedly save $17 billion? Remember that? Some people had to laugh at it, really. It was pretty amazing. There were these numbers out there, and he announced this frugality package to save $17 billion. It wasn't clearly understood, in my view, how insignificant that was, because at the same time they were announcing saving $17 billion, the reaccounting of the projected deficit for this very fiscal year jumped $90 billion. So it dwarfed the $17 billion in spending cuts that were announced at that time. So we had a $17 billion efficiency project, which remains to be seen whether it will be successful, and the total deficit expectation jumped $90 billion.

The President's budget proposes to take us to a debt level of 82 percent of GDP by 2019. In 2019, the amount of debt, in the country at that point would amount to 82 percent of our entire gross domestic product in America. That is a level not seen since 1946, at the height of World War II. The difference between now and then, of course, is that that was during a war. It was widely known that those expenditures were temporary, and when the war was over, they would end; and, in fact, they did.

However, today, the President is projecting deficits averaging nearly $1 trillion as far as the eye can see, with no projections to show them drop, or be reduced. It has been popular to complain that, well, President Bush had deficits--and he did. I criticized him for that, and I think he could have done a better job. His highest deficit was $455 billion. This year's deficit will be $1.8 trillion, and they will average $900 billion over the next 10 years. Not 1 year in the next 10 years, according to the President's own budget, will his deficit be as low as the highest deficit President Bush had, which was $455 billion. Even as a percentage of the total gross domestic product, it is astounding. President Bush's deficits averaged 3.2 percent of GDP. President Obama's budget, over the next 10 years, will average 7.3 percent of GDP each year--twice what President Bush's averaged.

I am worried that we are not getting the kind of bang for our buck that we hoped to get. We got an $800 billion stimulus package that was supposed to go out there and build infrastructure and create jobs now. It was money that had to be spent in a hurry. The truth is, though, that most of that money is not going to be spent until after 2010. It takes time to get that money out. The CBO estimated that $162 billion of the $311 billion now appropriated won't be spent until 2011, or later--not to mention that there is no evidence of the government ever taxing and spending its way out of a recession. That is not, historically speaking, proven to work.

Christina Romer, the Chairman of President Obama's Council of Economic Advisers, wrote about this in 1992, in a paper titled ``What Ended the Great Depression?'' in the 1930s. She concluded:

Nearly all of the observed recovery of the U.S. economy

prior to 1942 was due to monetary expansion [from gold

inflows].

She gives almost no credit to the increased spending that occurred.

Another report with Ms. Romer's name on it, one that the President's economic team put out this January--and she is the head of the team-- was titled ``The Job Impact of the American Recovery and Reinvestment Plan.'' It estimates that the $800 billion stimulus package will lower the unemployment rate and create 3.6 million new jobs, and it includes a chart. The chart, if you look at it today--and it has been examined by others, such as Greg Mankiw, Chairman of the Council of Economic Advisers--it shows that their projected unemployment rate, without the stimulus package--that rate would hit a certain level. Now that we have had the $800 billion stimulus package, what does it show? That we are trending, on unemployment, exactly where they projected the unemployment rate would be if there were no stimulus package at all.

Indeed, if you look at the numbers, very little of it has gotten out of there, and you can see how little was stimulative, or job creating, or how much of it was spent on things it should not have be spent on. Indeed, this Senate rejected and failed to adopt my amendment that would have said at least the employers who hired people with this money ought to run the E-Verify system to make sure the people they hire are here legally in America and are entitled to work. That wasn't even part of it.

Unemployment continues to go up. It was 8.9 percent in May, and a lot of people think it may hit 10 percent. I hope not, but I think it is likely to continue above 9 percent, which is higher than what was projected, for sure.

I say all this to point out that some of the brilliant thinkers in our country believe we had to do all this; if we had not, the country would sink into the ocean. We could have this problem and that problem. But the testimony we had in the Budget Committee from the Congressional Budget Office, whose numbers have held up pretty well so far, and they are basically hired by the Democratic majority here, but they are nonpartisan and do a good job. They projected only a slight difference in unemployment, if you had a stimulus package--only slightly better than if you didn't have one at all. But, more importantly, they concluded that over 10 years, the stimulus package, if we passed it, would have a net negative effect on the economy. It should help some in the 2 or 3 years from the moneys being pumped out--it has to help some out soon.

But the crowding out of private borrowing, the interest that will have to be paid on the debt over the 10-year period, will mean that the economy will be less healthy at the end of 10 years than if we hadn't had the bailout package or stimulus package at all, which confirms my view that nothing comes from nothing. There is no free lunch. Debts have to be repaid. You cannot create something out of thin air. If you spend something today and you have resources today to spend today, and you took them from tomorrow, they are not going to be there tomorrow. Somebody is going to have a greater burden to carry--our young people-- than if we hadn't taken their money and spent it today.

I have to say that I am not happy about this. I am worried about it. I do believe deficits matter. People who say deficits don't matter--and some Republicans used to say that--what planet are they from? Of course, deficits matter. You can cover them up, the Fed can help, and smart monetary policy and spending policies may make a difference here and there, but in the long run, it drives you down, and we have to be serious about it. I hope as time goes by, we can work together in a bipartisan way to try to establish some control over our spending.

Just Monday, GM went into bankruptcy. We already have $20 billion in Federal Government money going into General Motors prior to bankruptcy, and the White House plans to add another $30 billion. That is a substantial additional investment. This is what the numbers show. First, the White House said we are going to be out of GM and get our money back in 5 years. That is their goal, right? You heard that we are going to get the money back. But the Wall Street Journal has calculated this, and they have said for the Federal Government to get their money back out of GM, they would have to sell their stock, and GM's market cap, the total value of their stock, would have to reach a value of $80 billion. So to get our money back in 5 years, the market cap or value of GM stock would have to total $80 billion. Let me remind you that at its peak, in 2000, the highest GM ever got as a market cap was $56 billion. Their current market cap is less than $1 billion--$441 million dollars. It goes beyond rationality to believe that in 5 years--or maybe ever--we are going to get our money back out of GM. I am worried about that.

That is one more example of the kind of spending we are doing, and the money is being spent in a way that is not controlled. How does the Secretary of the Treasury decide how much money to give? And to what corporation? What about suppliers of GM? What about automobile dealers, who are losing their shirts and going into bankruptcy? Nobody bailed them out.

Somewhere along the way, it has been decided that we need to do this. It should have been done according to the established constitutionally- approved reorganization policies of bankruptcy. The U.S. Government could have put some money into GM in an effective way, I think, and had a positive benefit. But just to pour the money in, as we have, in an unprincipled way, is not good.

I will repeat one more time my concern about the unlawful way, the unprecedented way, in which this money is allocated.

The money comes from the TARP, the Wall Street bailout. I opposed it because I thought the language was too broad, but even I didn't know it was this broad. But we were told if we passed the TARP bill, Secretary Paulson and the Treasury Department would buy toxic assets. He was specifically asked at a House committee meeting whether he would buy stock in banks. He said: No. His goal was to get the money flowing again in the financial markets, and we had to do something about the financial markets. Senators were eventually convinced, and it was rammed through here in the very shortest period of time--in a panic, really. A week had not gone by when he had decided to buy stock and not buy toxic assets, not to buy toxic mortgages. As time has gone by, that same money is used to buy stock in what was once a private corporation.

I think this is unbelievable. There are no hearings on where the money is going. There is no public ability to understand what kind of justification these banks, GM, or Chrysler had to put forward to receive billions of dollars from the taxpayers. It was all done basically in secret, as far as I can understand. They are telling the company they have to do this and that and firing the CEO and all of those kinds of things that have been occurring. I don't think the American people are happy with that. The American people are very concerned--I believe they are rightly concerned--because we are doing some things that have never been done in the history of our Republic. It is not healthy.

I hope that somehow we can get our footing again, get our balance, and return to the tried-and-true principles that made this country great.

I yield the floor.

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

Madam President, I am concerned by the reports of several news outlets that the implementation of Executive Order 12989, which mandates the use of E-Verify for Federal contractors and subcontractors for the Federal Government, is now being delayed again until September of this year. This is the fourth such delay this year and I am afraid that it signals this administration is not serious about immigration enforcement--not even serious enough to utilize effective systems that we have in place.

On January 28 of this year, President Obama pushed back implementation of Executive Order 12989 to February 20. A few weeks later, that implementation date was pushed back again to May 21. Prior to that date, implementation was pushed back to June 30. Now various sources are reporting implementation will be delayed until sometime in September. E-Verify is one of the most effective tools at our disposal for protecting American jobs and should be made mandatory and permanent. Instead, the administration yet again has decided to delay this program as it applies to Federal contractors and subcontractors-- that is, people who do work for the Federal Government; not every private business, just those who get jobs and money from the Federal Government to do contracting work. The administration claims they need more time to review the program. But it has been 5 months already.

I was also, let me recall, extremely disappointed when this Senate's Democratic Members stripped the E-Verify provisions from the final version of the economic stimulus package without discussion or debate. I tried to bring up an amendment in the Senate that would have matched the language that the House accepted unanimously in committee and was included in the final version of their bill. That language said that contractors who get money out of the stimulus program from the Federal Government had to use E-Verify, this computer system, to determine whether the people they are hiring are legally in the country. That was not too much to ask, I thought. The House, as I said, unanimously accepted that provision in committee and passed it overwhelmingly as part of the final version of their bill.

Every time I sought to bring it up, it was blocked by the Democratic leadership. They did not want to vote on it. It became pretty clear why, because if it was in the Senate bill and the House bill, it would certainly be in the final conference report language and would become law. As long as they could keep it out of the Senate bill, when they went to conference they could take the language that had been passed in the House out of the bill. Part of the compromise in conference would be to eliminate the E-Verify related language. I warned that would happen and that is exactly what did happen. We could not get a vote in the Senate. If we had gotten a vote, I am confident the Senate would have voted in favor of requiring recipients of stimulus funds to use E- verify.

The purpose of the stimulus bill was to put Americans back to work. Unemployment continues to rise. We are now hearing it will hit 10 percent. That is a serious number, much higher than some were projecting. I think the Obama administration's budget projected unemployment would be between 8.1 to 8.5 percent. Currently, unemployment rates are close to 9 percent and many are saying we will hit 10 percent. So why would we want to use stimulus money that was promoted as a way to create jobs for Americans and reduce unemployment in this time of recession and not make sure that those jobs go to American citizens. I think it is a matter of real, serious import and I am baffled by it.

Briefly, E-Verify is an on-line system operated jointly by Homeland Security and the Social Security Administration. Employers can check the work status of people who apply to work for them on line by comparing information from the employee I-9 application form against the Social Security and DHS databases. More than 112,000 employers are already using it because they do not desire to hire somebody not legally in the country. I think they should be congratulated for that.

It also helps the employer because they can use this as a defense and say I used the E-Verify system if it is later found out that an employee they hired is here illegally. It did not tell me the person was illegal. They produced a

document. It looked good to me. I checked the number and they said it was OK. They are protected. They have safe harbor against Government action for hiring people who are illegal.

E-Verify is a free and voluntary system. As a practical matter, it is the best means we have today for determining employment eligibility for any hires and the validity of their Social Security number.

We have had thousands of employees using bogus Social Security numbers to get work. There are examples of hundreds of people being hired under the same Social Security number. Well, that ought to give somebody a clue.

According to the Department of Homeland Security, 96 percent of the employees who are checked by businesses are cleared immediately. So the idea that large numbers of people are being blocked is not true. If you are not cleared, you can still be hired temporarily until further validation occurs to see if you have a legitimate Social Security number or if you are legitimately in the country.

It is working fine. This many companies would not be using it if it were not. On a related note, though people do not like to talk about the impact of illegal immigration on low-skilled workers, we must be factual. The large number of illegal workers in this country is having a depressing effect, particularly on the standard of living of low- skilled Americans.

The U.S. Commission on Immigration Reform, chaired by the late civil rights pioneer, Barbara Jordan, found:

Immigration of unskilled immigrants comes at a cost to

unskilled U.S. workers.

The Center for Immigration Studies has estimated that such immigration has reduced the wage of the average native-born workers in a low-skilled occupation by 12 percent, or almost $2,000 annually.

Harvard economist, George Borjas, himself an immigrant from Cuba, has studied this probably more than any other person in the whole source of issues on this. He has written a book on the subject. He has estimated that immigration in recent decades reduced the wages of native-born workers without a high school degree by 8.2 percent.

Doris Meissner, in 2009, a few months ago, the former head of Immigration Services under President Clinton, said:

Mandatory employer verification [that is what we are

talking about through E-Verify] must be at the center of

legislation to combat illegal immigration . . . the E-Verify

system provides a valuable tool for employers who are trying

to comply with the law. E-Verify also provides an opportunity

to determine the best electronic means to implement

verification requirements. The administration should support

reauthorization of E-Verify and expand the program . . . ''

That was Doris Meissner, the INS Director under President Clinton, who said that a few months ago.

Alexander Aleinkoff, who was an official at INS under President Clinton, and the Obama administration DHS transition official--he participated in the transition for President Obama--calls it a ``myth'' that ``there is little or no competition between undocumented workers and American workers.''

I know our majority leader has written that he favors the E-Verify Program. Senator Reid wrote this:

I strongly believe that every job in our country should go

only to those who are authorized to work in the United

States. That is why I strongly support programs like E-Verify

that are designed to ensure that employers only hire those

who are legally authorized to work in the United States, and

believe we need to strengthen enforcement against employers

who knowingly hire individuals who are not authorized to

work. I support reauthorization of the E-Verify program, as

well as immigration reform that is tough on lawbreakers, fair

to taxpayers and practical to implement.

Those are Senator Reid's comments. So it is time for us to get busy. Let's do some of these things. I know some have said this is a cumbersome program. That is not so. These are excuses put out by big businesses that are using workers, many of whom they have reason to believe--I would suggest--are illegal. They do not want to be checked. They do not want to have any checks.

There was a recent letter to the Wall Street Journal by Mark Powell, a human resource executive for a Fortune 500 company. This is what he said about how hard it is to use this system:

The E-Verify program is free, only takes a few minutes, and

is less work than a car dealership would do checking a credit

score prior to selling a vehicle or letting you take a test

drive.

Well, that is correct. He is right about that. How else can you explain the thousands of employers who voluntarily sign up to use the program? Short-term extensions and delay in implementation, such as what we are seeing today, only discourage participation in the E-Verify Program, since employers have no assurance that the program will even exist down the road.

I have offered legislation, and others have worked on the floor, to try to make E-Verify permanent and mandatory. We keep having one roadblock after another one.

Who is pulling the strings around here? I do not believe they are talking to the American people. I do not believe whoever it is blocking this kind of activity is talking to the American people, talking to people with common sense.

They must be talking with people who have special interests that are not interested in a lawful system. T.J. Bonner, who heads the Border Patrol Officers Association, testified at the Judiciary Committee, and he said this many times: One of the best things, perhaps the best thing, you can do to reduce the numbers of people who enter our country illegally is to eliminate the jobs magnet. The jobs possibility is a magnet that draws those who come illegally.

He said: There are a lot of things that can be done to eliminate that magnet, and this is one of them.

Further delay in the implementation of this Executive order is not acceptable, I believe, and am afraid it signals some sort of lack of commitment to enforce our immigration laws. You see, E-Verify does not require anybody to be arrested, it does not require anybody to be deported, it does not require anything--you simply do not get the job if you are not legally authorized to work. Law enforcement officers are not called. The businesses check the number to see if the person is legally here with a valid Social Security number, and if they have information that the individual is not, then they do not hire them.

That is all that happens. How simple is that? It is a good step, a modest step but an important step. We keep putting it off and keep rejecting the idea that even Government contractors that get work from the Government of the United States should have to use the program.

Every employer in America should be using the program. That is where we should be going. That is the policy we should be pursuing if we are at all serious about dealing with the matter.

There has been some good news. The good news is that last year, our border enforcement officers arrested only 770,000 people entering our country illegally. A couple years ago it was over 1.1 million arrests. That number doesn't include illegal aliens that evade CBP agents at the border. The reason the number of apprehensions is still so high, in my opinion, and I have studied it a good bit, is that we have inadvertently, perhaps intentionally, sent messages around the world that our border is open.

As long as we have a willing worker and a willing employer, President Bush once said, he almost said: I am okay with it. Well, that is not right, is it? We have laws. Good people every day apply to come to our country and to enter our country through legal channels. Some of them have to wait in line, and they do so dutifully. But large numbers are ignoring that because somehow they have gotten the impression that nobody here cares at all.

So we have stepped up enforcement. We have built some fencing, not nearly what was contemplated being built, but we built some. We are doing better. We are prosecuting some of the people who enter the country illegally. That has worked dramatically. I do not mean long times in jail but a prosecution for a misdemeanor.

They serve a little time, they got a conviction, if they come back it can be a felony. That is working. So you do those kind of things and it makes a big difference. If we make the E-Verify system a part of what we do within this country every day, and especially for government business, that will further send the signal to the world that our country is not open to illegal entry. If

you want to come you should come under the normal, lawful process.

It is so important America reestablish the rule of law when it comes to immigration in our country. We are a nation of immigrants. We are the most generous Nation, I think, in the world for allowing people to come here. But there has to be some limit on those numbers. It has to be done in an orderly fashion, a lawful fashion.

If you do not have order and lawfulness at our border and you have huge numbers coming through every year, then it undermines respect for law and sends a signal worldwide that we are not serious.

I think we are making some progress. We need to get E-Verify going. It needs to be made permanent and mandatory. At the very least, every business that does business with the U.S. Government should have to use it. Pretty soon every business in America should use it. When we do that, we will have taken a big step toward assuring even ourselves that we mean what we say and that we are going to establish a lawful program.

Some say we need these workers. Well, let's talk about a good guest worker program that would work, and we could allow people to come legally. That is critically important. So when your unemployment rate is going over 9 percent, highest in over 20 years, then maybe we do not need as many people coming into our country, as some people have said we do.

But regardless, there ought to be a mechanism for allowing temporary workers to come, the number allowed to come should serve our national interest, and we ought not to allow the large numbers who are now coming illegally to come and be able to successfully take jobs that Americans need right now.

Maybe the reports saying that the administration is delaying implementation of mandatory E-Verify for Federal contractors are not correct. But since we have seen it happen several times already, I think it is important the American people know something is not going well here and maybe there will be an opportunity to make their voices heard and maybe we can somehow, some way get this E-Verify Program made permanent and workable.

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

Madam President, I wish to speak for a few moments regarding the President's remarks on national security today and about some national security issues in general.

At the outset, let me note that there are some points in the President's message I do not agree with and some points of plain fact he made that should help us clarify some of the issues that have been raised in recent debates over national security. President Obama endorsed the continued use of military commissions with some minor changes. These commissions are historic and certainly appropriate and have been used by nations all over the world. I will reserve judgment on those changes until I see the details, but the President is right when he states that military commissions are ``an appropriate venue for trying detainees for violations of the laws of war,'' though some have not agreed with that.

The President correctly noted: ``Military commissions have a history in the United States dating back to George Washington and the Revolutionary War.''

As the President also noted, military commissions ``allow for the protection of sensitive sources and methods of intelligence gathering.'' That is absolutely true, and it is an important principle in defending America. He also noted that the commissions allow ``the presentation of evidence gathered from the battlefield that cannot be effectively presented in a Federal court.''

In other words, we have strict rules of evidence in Federal courts. Our soldiers are in a life-and-death struggle on the battlefield. They are not police investigators. They are not homicide investigators. They can not be expected to be able to comply with every rule regarding the collection of evidence. Military commissions account for that difference.

It is also reassuring to see that President Obama has stated he will exercise his power as Commander in Chief to detain as war prisoners those al-Qaida members who continue to pose a danger to the United States, but who cannot be tried by a military commission. Some detainees may not be able to be tried by military commissions for legal reasons. For years, we have heard criticism from some of the fringe groups on the left--criticisms that have been echoed occasionally in this Chamber--that we must either try every enemy war prisoner or release them. That has never been the practice in the history of war, and that is not what our law says. This is a notion that cannot be sustained and one that would pose a threat to us if it were ever adopted as policy.

I am glad to see President Obama rejected that notion. As he noted in his remarks today:

There may be a number of people who cannot be prosecuted

for past crimes, but who nonetheless pose a danger to the

security of the United States. Examples of that threat

include people who have received extensive explosives

training at al-Qaida training camps, commanded Taliban troops

in battle, expressed their allegiance to Osama bin Laden, or

otherwise made it clear they want to kill Americans. These

are people who, in effect, remain at war with the United

States.

As I said, I am not going to release individuals who

endanger the American people. Al-Qaida terrorists and their

affiliates are at war with the United States and those we

capture--like other prisoners of war--must be prevented from

attacking us again.

That is fundamentally true, but some people have a confused notion about that.

Under the Geneva Conventions, even lawful combatants can be detained throughout the duration of a war. When illegal combatants conduct a war outside the laws of the Geneva Conventions and other treaties and laws that deal with the conduct of civilized warfare by deliberately and intentionally bombing innocent men, women and children who are noncombatants, those people are not entitled to be released.

President Obama also stated this morning that:

We are not going to release anyone if it would endanger our

national security, nor will we release detainees within the

United States who endanger the American people.

Well, that is hard to know for certain. Attorney General Holder has talked about releasing the Uighurs, a terrorist group focused primarily on China. I don't believe the administration has the legal authority to release these detainees. Recently, according to the Los Angeles Times, some of the Uighurs were watching a soccer game--they allow them to watch television at the Guantanamo Bay facility--and a lady came on with short sleeves. This offended one of the Islamic Uighurs and they jumped up and grabbed the television and threw it on the floor. I point that out simply to say it is difficult to know for certain who is a threat. Many may well harbor a secret determination to attack America as soon as they are released.

I think the President has made clear that he does not have the full and free discretion to simply release al-Qaida members and their fellow travelers into the United States. Federal law expressly bars admission to the United States of anyone who is a member of a foreign terrorist organization. A Federal law we passed some years ago bars admission of any person who is a member of a foreign terrorist organization--pretty common sense, right? If you are going to have lawful immigration policy, you don't want terrorists to be able to immigrating into the country. The law bars admission of anyone who has provided material support to a foreign terrorist organization, and it also bars from this country anyone who has received military-style training at a camp operated by one of these terrorist organizations. The United States Congress decided that these individuals, ones who have ties to or have assisted or who have been trained by groups such as al-Qaida pose a danger to the American people and should not be admitted into this country. That congressional enactment is now the law. It is binding upon the President and the Attorney General, who is charged by the Constitution with enforcing the law.

So when the President states he will not release detainees within the United States, I can only state that I would expect no less. The law requires the President to bar admission to al-Qaida members or material supporters or those who trained in a terrorist camp, and I think he will follow that.

I note his speech also is rather selective, however, in how it cites to: ``The court order to release 17 Uighur detainees that took place last fall.''

The President referred to a court order to release these Uighurs, but he inexplicably failed to acknowledge what happened to that case on appeal. A lower district court judge ordered that they must be released, but the Federal appellate court reversed that order which would have allowed these terrorist to be released into the United States. This February, a couple of months ago in Kiyemba v. Obama, the United States Court of Appeals for the District of Columbia held that the district court did not have legal authority to order the release of the Uighur detainees into this country. These are individuals who have trained in a terrorist camp, a terrorist group that is connected to al- Qaida. A month ago, the U.S. Department of Treasury reaffirmed the determination that they are a terrorist organization. The appeals court could not have been more clear when it wrote:

Never in the history of habeas corpus has any court thought

it had the power to order an alien held overseas brought into

the sovereign territory of a Nation and then released into

the general population. As we have also said, in the United

States, who can come in and on what terms is the exclusive

province of the executive branches.

There are other things the President said today that I disagree with. First, President Obama committed himself to banning the enhanced interrogation of al-Qaida detainees. I certainly oppose torture of any detainees. But he went on to state: ``Some have argued'' that these techniques ``were necessary to keep us safe,'' and he said he ``could not disagree more.''

Well, that is not exactly accurate, I have to tell my colleagues.

On September 6, 2006, when President Bush announced the transfer of 14 high-value al-Qaida detainees to Guantanamo, he also described information that the United States had obtained from these detainees as a result of these enhanced interrogation programs. Most people agree many of these enhanced techniques clearly are not torture. Some argue that a few of the techniques may amount to torture; but many say they are not torture. We have a statute that prohibits torture and it defines it pretty clearly.

President Bush noted then that Abu Zubaydah was captured by U.S. forces several months after the September 11 attack. Several months later he was captured. Under interrogation he revealed that Khalid Shaikh Mohammed was a principal organizer of the September 11 attacks. Zubaydah also described a terrorist attack that al-Qaida operatives were planning to launch inside this country--an attack of which the United States had no previous knowledge. Zubaydah described the operatives involved in this attack and where they were located. This information allowed the United States to capture these terrorists, one while he was traveling in the United States. Under enhanced interrogation, Zubaydah also revealed the identity of another September 11 plotter, Ramzi bin al Shibh, and provided information that led to his capture. U.S. forces then interrogated him. Information that both he and Zubaydah provided helped lead to the capture of Khalid Shaikh Mohammed, the person who orchestrated the 9/11 attacks.

Khalid Shaikh Mohammed also provided information to help stop another planned attack on the United States when he was interrogated. KMS provided information that led to the capture of a terrorist named Zubair, and KMS's interrogation also led to the identification and capture of an entire 17-member Jemaah Islamiya terrorist cell in Southeast Asia.

According to President Bush, information obtained as a result of enhanced interrogation techniques also helped stop a planned truck bomb attack on U.S. troops in Djibouti. Interrogation also helped stop a planned car bomb attack on the U.S. Embassy in Pakistan, and it helped stop a plot to hijack passenger planes and crash them into Heathrow Airport in London. On September 6, President Bush said:

Information from terrorists in CIA custody has played a

role in the capture or questioning of nearly every single al-

Qaida member or associate detained by the United States and

its allies.

He concluded by noting that al-Qaida members subjected to interrogation by U.S. forces have painted a picture of al-Qaida's structure and financing, communications and logistics. They identified al-Qaida's travel routes and safe havens and explained how al-Qaida's senior leadership communicates with its operatives in places such as Iraq. They provided information that has allowed us to make sense of documents and computer records that have been seized in terrorist raids. They have identified voices in recordings of intercepted calls and helped us understand the meaning of potentially critical terrorist communications. Were it not for the information obtained, our intelligence community believes that al-Qaida and its allies would have succeeded in launching another attack against the American homeland. By giving us information about terrorist plans we would not get anywhere else, this program has saved innocent lives.

Well, this was information obtained in the last administration as a result of the enhanced interrogation techniques of al-Qaida detainees. It allowed us to stop terrorist attacks. It allowed us to learn about al-Qaida communications, how it responded and operated. It even allowed us to capture Khalid Shaikh Mohammed, the organizer of 9/11. I don't think anybody here can reliably contend that this information was not valuable. It was valuable.

We have to be careful how we conduct interrogations. I believe the debate over this has helped us clarify the responsibility we have to not participate in torture. But it does not mean that we cannot used enhanced techniques to move a person to the point they are providing information that can help protect this country. We have to be careful that we don't go too far. We have a history of going too far in reaction to matters like this.

One of the things we did is we put a wall between the CIA and the FBI. We said the CIA should not deal with dangerous thugs around the world to get information. After 9/11 it was clearly determined that both of those were bad ideas, and we reversed them immediately.

Nobody in this Congress should suggest that we are incapable of making a mistake. But we have gone 8 years without an attack. That is something of significance. We should be proud of that. We have men and women in the CIA, in the FBI, and in the U.S. military, who are putting their lives on the line right now. I remember being, several years ago, in a foreign country with a history of some violence and terrorism. A man from the CIA met with us. He worked 7 days a week. He had dinner with us at 8 o'clock. He said that was the earliest he had been off duty since he had been there.

They are putting their lives at risk for us, and we need to back them up when we can. If they make a mistake, they need to be held to account for it.

Madam President, I see my colleague from Texas. I assume she would like to make some remarks. I am not sure what the expectation is, but I will just wrap up and say a few more things. This is an important issue. I just don't believe this issue has only one side. I have to tell you, I believed that the President's remarks today reflected a view that only he had the correct view of how these matters should be conducted, and that everybody else who disagreed had less decency than he. I don't think there is any doubt that the work this Nation did after 9/11 stopped further attacks and saved the lives of Americans. It can and should be done, consistent with the laws of this country. But that doesn't mean that unlawful terrorists--not legitimate prisoners of war--cannot be subjected to interrogation. They can be and they have been. I trust that they will be in the future.

The President argued today that releasing the Office of Legal Counsel memos from the Department of Justice and exposing the details of the interrogation and actually tricks that CIA has used will not harm national security because this President has decided not to use those techniques. I simply point out that the war with al-Qaida will not

end with this administration, and future administrations--and even this administration--may need to have access to reasonable interrogation techniques, and providing this information is not the right thing.

It is odd that of all the material released, we have not had further information released from the intelligence agencies that would provide evidence of interrogations that have enabled us to stop other attacks on our country. I don't know why they would not want to release that; they want to release the techniques and a lot of other things.

When the President released the legal counsel's interrogation memos, he excised certain information from the memos and left out other memos entirely. These other memos describe in detail the information that was obtained as a result of the enhanced interrogation of al-Qaida detainees.

If the President really believes these interrogations don't work, I urge him to release these other memos, the ones Vice President Cheney called on to be released. If he believes in full transparency, why don't we see that? We know some of it because it was in President Bush's September 2006 remarks.

Madam President, to sum up, we are in a great national effort. We are now sending 17,000 more troops to Afghanistan. I think President Obama studied that carefully. I know he, like myself and most of us, doesn't look forward to having to send more troops there. He decided it was important for America and our allies and stability in the region and the world that they be sent there. This Congress supported that. So we continue the struggle. It is going to be a long time.

Intelligence is a critical component of our success against the war against the terrorists. That is what the 9/11 Commission told us. That is what the American people understood with clarity. Good intelligence prevents attacks and saves lives. Good intelligence is so valuable, it is almost invaluable. We have to be careful when we set about passing more and more rules that chill the willingness of our investigators and military people to do their job. As we have found from previous spasms, harm to our intelligence community can be the result of irrational, reactionary decisions. We didn't wisely consider this when we put a wall between the FBI and we limited the CIA in these dangerous areas of the world in getting information. I share a deep concern about that.

There is one more thing I will conclude with. The President talked repeatedly in his speech, in a most disparaging manner, about Guantanamo. I think inadvertently, and I am sure unintentionally, I believe he has cast a shadow over the fabulous men and women who serve us there, who participate in running a very fine facility. I would have appreciated it if he had taken the opportunity to clear the air about Guantanamo, our military prison.

Do you know that not one single person was subjected to waterboarding at Guantanamo? Actually, there were only three instances of it, all done by our intelligence agency in a different place. None of that occurred there. I wish he had said that. I wish he had quoted from one of the investigative reports of what happened at Guantanamo.

This is what the finder found: They found one incident in which a series of techniques were used during interrogation, not one of which would have amounted to torturing that person, but all together they concluded it put too much stress on that individual and that it violated the law against torture. Well, that should not have been done.

But to hear the talk about Guantanamo, you would think we are waterboarding people and torturing people constantly. That is just not what happened there. I have been there twice. These are great men and women down there trying to serve our country. They are absolutely committed to trying to extract as much good information as they could to protect America. They are not abusing detainees nor are they violating the law. If they cross that line, they should be disciplined for it. But it is not the kind of thing that is or was systematically occurring.

I wish the President had taken the opportunity--as Commander in Chief of our men and women who sends them into harm's way--to defend and explain that a lot of the allegations about Guantanamo were exaggerated and false.

I yield the floor.

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

Mr. President, I wish to briefly discuss an issue that I think is important and at one time would probably have been worthy of front-page news articles around the country. Instead, I notice it is just another piece of news in the middle of a paper.

Last Thursday, Mr. Stephen Friedman announced his resignation, effective immediately, as Chairman of the Federal Reserve Bank of New York, considered a central reserve bank in the country, the one that now-Secretary Geithner used to serve as president. As Chairman, Mr. Friedman stepped down only after a Wall Street Journal story questioned his ties to Goldman Sachs, a banking institution, at the same time he was serving on the New York Fed's board. Unfortunately, his bad judgment is just another example in a long line of examples demonstrating the tangled web we have woven in allowing so prominent a government role in private businesses, involving hundreds of billions of dollars.

Let me read what the Wall Street Journal reported last Monday, May 4:

The Federal Reserve Bank of New York shaped Washington's

response to the financial crisis late last year, which buoyed

Goldman Sachs . . . and other Wall Street firms. Goldman

received speedy approval to become a bank holding company in

September [of last year] and a $10 billion capital injection

soon after. That is a $10 billion capital injection after

they redefined themselves as a bank holding company. Prior

to that they were not eligible.

It goes on to say:

During that time, the New York Fed's chairman, Stephen

Friedman, sat on Goldman's board and had a large holding in

Goldman's stock, which because of Goldman's new status as a

bank holding company was a violation of Federal Reserve

policy. The New York Fed asked for a waiver, which, after

about 2\1/2\ months, the Fed granted. While it was weighing

the request, Mr. Friedman bought 37,300 more Goldman shares

in December. They've since risen $1.7 million in value.

This is a troubling matter. Members of the Senate cannot even allow a lobbyist to buy our lunch. Yet this man can be on a board and can buy stock while he is asking for approval to do something he wants to do-- and they eventually gave him that approval--and he continues to buy stock and it goes up in value $1.7 million.

According to the article:

[Mr. Friedman] says he checked with a Goldman lawyer to

make sure there was no timing issue with such a purchase. He

says he didn't check with the Fed. New York Fed lawyers say

they didn't learn about his share purchase until the Journal

raised questions about them in April. . . . [The day after

receiving a waiver,] Mr. Friedman purchased 15,300 more

Goldman shares. . . . That million-dollar purchase brought

his holdings to 98,600 shares, according to the filings.

I find this unacceptable behavior. There is a reason the Federal Reserve has a policy prohibiting a chairman of any regional Fed bank from having any connections with regulated financial institutions. You do not want the regulator to have a personal financial interest in those being regulated.

I appreciate Mr. Friedman doing the right thing now and resigning. That is a good thing. However, too many officials have been acting in a way that suggests an erosion of propriety and the proper separation of interest.

Recently, we learned from the New York attorney general that Government officials may have threatened Bank of America CEO Ken Lewis to continue a merger with Merrill Lynch or lose his job. After he figured out it was going to be very bad for his stockholders and indicated he was not going through with it, they told him they would fire him if he didn't go through with it.

Some of the stories are unclear about how that all happened, but the issue does remain, and I will be interested to see what more we learn about this troubling matter when the House Committee on Oversight and Government Reform holds a hearing with Mr. Lewis and top Government officials, who will testify under oath.

Since last year, when then-Secretary Paulson told us we must act or the economy would go into collapse--and we heard those dire warnings repeatedly--we have seen more and more of these instances of impropriety and lack of wisdom.

Through TARP--the $700 billion bailout--a blank check with no accountability was given to the Government to do basically as it pleased. The money was given to the Secretary of the Treasury, and he met in private with many of these banks. Many of them were people he knew and were friends and buddies with, and he started allocating this $700 billion. It has continued now under Mr. Geithner, a man who previously was president of the Federal Reserve Bank of New York.

Last month, Neil Barofsky, the special inspector general overseeing this $700 billion bailout, issued a report stating he has opened 20 criminal investigations and 6 audits into whether

tax dollars are being misused or wasted.

I think we have entered a time in American history where the line between Government and free enterprise has become muddled more than ever. During good times and bad--but particularly during times such as today--the American system of capitalism and free enterprise should not be manipulated for the benefit of insiders. We expect the people who are setting policy to be independent and above that kind of action.

I will note that the reports concerning how the AIG bailout was handled remain unchallenged. This is what the report is indicating: that Mr. Paulson, who was Secretary of the Treasury and who had been the CEO of Goldman Sachs, was in and out of a meeting--a very important meeting--involving the insurance company AIG. Also, in that meeting, as I recall, was Mr. Kashkari, Mr. Paulson's assistant, who was also from Goldman Sachs. But who else was in that meeting? The chairman of the board of Goldman Sachs--the current, immediate chairman at that time-- and they were talking about an insurance company, AIG, and they decided to pump $80 billion into that company. Now we have pumped in $170 billion. Of course, we now know that of the money that went to AIG, $20 billion went to Goldman Sachs.

So these are the kinds of things that are causing me great difficulty. I am a lawyer. I know how things are supposed to work. When you ask for money, you raise your hand under oath. People ought to be asking you questions. If you are in bankruptcy, you have to be cross- examined by lawyers. The judge gets to ask questions. You have to submit certified financial statements before you get money. We cannot just allow a handful of people to meet in secret, decide we are in an emergency, and pass out hundreds of billions of dollars without the kind of accountability that I think is necessary.

I will say to my colleagues in the Senate, that when we passed the TARP bill, I opposed it, and I said it was far too much a grant of power to one man--the Secretary of the Treasury--to allocate money that Congress should be appropriating. I raised that point, and it was one of my top objections. I believe history has shown the language in that bill was even more broad than we thought. Because, originally, we were told the money would be used to buy toxic mortgages from banks that were in trouble. That is what Mr. Paulson told us. That is what everybody thought they were voting on--except the language was much broader than that, if anybody took the time to read it.

As soon as he got the money, within a week or so, he had decided not to buy toxic assets but to buy stock in the banks. He bought stock in the banks. Then, pretty soon, he was buying stock in an insurance company--AIG--pumping half the money into one insurance company, and $40 billion of the money that went into AIG went to foreign banks to pay the claims those banks had against AIG, as it did with other banks. We, the taxpayers, became the guarantor of an insurance company's responsibilities, which was never discussed with the Senate, the House or the American people. They just did it.

The amount of money they committed was tremendous--I believe $170 billion; whereas, the Federal highway budget for the whole United States is just $40 billion, and the education budget for the United States, the Federal Government, is $100 billion.

I don't like this process. I am seeing too many stories such as this one involving Mr. Friedman, and it is time for Congress to get serious about it. I hope the Obama administration will stand and be counted. Mr. Friedman came in, I believe, under the Bush administration, so I am not being partisan. But it is time for the Obama administration to take a stand too. Mr. Geithner was in the middle of most of this; he helped write the proposal and was, what many called, the brains behind the Paulson proposal--the $700 billion bailout.

This is a continuing problem in both administrations. It is time for Congress to reassert its constitutional responsibility to monitor the purse and to not allow money to be distributed in these kinds of sums without direct approval of the people through their elected representatives.

I thank the Chair, I yield the floor, and I suggest the absence of a quorum.