Floor Statements

Mr. President, I ask unanimous consent to speak in morning business for not to exceed 15 minutes.

Yes.

Thank you, Mr. President. I thank my colleague.

Mr. President, I want to speak to the same issue my colleague Senator McCain spoke to in a couple minutes. But first I wish to make some brief comments about two of our colleagues who will no longer be with us--of course, our friend and colleague, Senator Kennedy, and Senator Martinez.

Let me, first of all, speak to Senator Kennedy's departure from this body due to his untimely death.

During his five decades of public service, Senator Kennedy served with diligence, tireless passion, and, of course, vigor--the word that immediately evokes the Kennedy spirit.

Because of who he was, he could have gotten by without a lot of hard work. But that was not his way. He believed deeply, so he worked hard-- as hard as any Senator I have known.

One thing that has been commented on by many who worked with Senator Kennedy was his willingness to compromise. I have characterized Senator Kennedy as a legislator's legislator, often a results-oriented pragmatist, who knew that clashes between the two parties are inevitable and, in fact, an integral part of our political system, and that it was important to reach across the aisle if you wanted to get things done. He believed that people with dramatically different points of view could usually find some common ground.

While Senator Kennedy and I did not share a perspective on very many issues, and he was always ready to make an ideological or political point, my colleagues and I appreciated his efforts to actually legislate as well. His dedication, his hard work, humor, and high spirit will always be remembered. My wife Caryll and I extend our thoughts and prayers to his family.

Mr. President, I also want to say a couple words about our colleague Mel Martinez from Florida who will be leaving the Senate on this coming Thursday. He has been an admirable public servant, both in this body and as Secretary of Housing and Urban Development. To each position he brought his considerable talent and devoted himself to solving problems in a practical, thoughtful, and bipartisan way.

Senator Martinez never sought the limelight; he simply wanted to make a difference. He was disappointed, I know, that he was unable to move immigration reform forward. But we will try to apply what he has taught us about that issue. His positive influence here in Washington will be greatly missed.

A farewell to Senator Martinez would not be complete without a note about his compelling life story and about his wife Kitty. As a Cuban emigre who came to America with few ties, Senator Martinez represents one of the most inspiring aspects of American life: that talent and hard work unlock the door to great success. He has not forgotten those who helped him, just as all of us will not forget him. His wife Kitty has, likewise, made many friends in Washington and will also be missed.

Although I know he will not need it, I wish him all the best in his future endeavors, and I know he will remain an

important voice in our party and on issues important to all Americans.

Mr. President, my colleague, Senator McCain, has spoken to the issue that is on the minds of all Americans today and which the Senate and House of Representatives will again take up as we return from the August recess; that is, how to deal with the issues that confront us in the delivery of health care today without doing damage to the care and the coverage that most Americans have and believe serves them well.

The approach I heard from my constituents over the recess was very similar to what Senator McCain has spoken about, which should not seem to be a big coincidence since we represent the same State. On one occasion we called about 50,000 Arizonans, had them on the telephone for about an hour and a half, and asked for their views, and gave our thoughts in response to their questions.

What I have been struck by is the consistency of the views that have been expressed in the various forums I had around the State, consistent with the townhall meetings Senator McCain had right in the heart of the Phoenix metropolitan area, views people expressed to me in every location, from the doctor's office I went to, to people meeting with me in my office, to folks at church. The message seems to be pretty much the same. And I think Senator McCain articulated it well when he characterized it as anxiety and concern.

One of my colleagues said he denoted in his constituents, in these townhall meetings, real fear. I think that is true. Because even though we know there are some things that need to be done to improve health care delivery in this country, most people, according to surveys, have insurance and believe what they have serves them very well or at least well. Our goal, therefore, is to try to solve the specific problems that exist without doing harm to the system that treats the others.

As I said, a lot of our constituents were very fearful that they were going to have to pay much more in taxes; that their debt burden as a part of what this entire country owes would be increased significantly because of the costs of the health care reforms that have been proposed; that they wouldn't be able to keep the insurance they have even if they like it; that the way they receive care--the advice they get from their doctor about what their family's needs are--would not necessarily be respected if the government has a large role in deciding what to pay for and what not to pay for; and generally that the government's continued takeover piece by piece of the American economy would not serve individual Americans well. To be sure, they agreed that some health care costs are growing too fast and need to be controlled and that there are some Americans who don't have health coverage and really don't have a way to get it without public health. Those are the two key areas in which they recognize there is a role for government to play in reform.

But they also wonder why certain problems are not being tackled--the problem, for example, of what one characterized as ``jackpot justice,'' where trial lawyers bring lawsuits and sometimes get big rewards but frequently simply settle the cases, and the net result is that the medical profession in this country--doctors primarily but hospitals and others--spend an enormous amount of money, estimated to be at least $100 billion a year, on what is called the practice of defensive medicine; that is to say, doing things--ordering tests, referring patients to other physicians and so on--all of which are really unnecessary for the care and treatment of the patient but which will protect the doctor in the event there is a claim of medical malpractice. This happens because the lawyers involved get so-called expert witnesses who come to court and tell the jury that the standard of care in the community is that if the child falls down on the playground and gets a bump on the head, you order a CAT scan. It doesn't matter whether or not from the physician's observations he can see that the child really, if the parents just watch him carefully that evening, should be just fine; no, to protect himself or herself against medical liability or malpractice claims, they order a CAT scan or some other kind of test. The net result of that, as I said, is an expense of over $100 billion a year in unnecessary medical tests and procedures. The cost of those items, of course, is passed on to all the rest of us.

Another estimate is that 10 percent of every health care dollar is spent on the premiums physicians spend for their malpractice insurance. As lawyers, some of us know you have to pay some money for malpractice insurance before you can start work on January 1. That is fair. But how about $200,000 in medical malpractice premiums for a neurosurgeon, for example. That is an awful lot of money if you are an OB-GYN, for example. This estimate of 10 percent of health care dollars spent on premiums means that if we could reduce the incidence of malpractice claims, we could reduce that premium cost, the physicians wouldn't have to pass it on to the insurance companies, who wouldn't have to pass it on to us, and again, our health care could be cheaper.

So because of premium costs and because of the practice of defensive medicine, this jackpot justice system has not served us well.

One would think that if we are interested in controlling costs, if we are making insurance more affordable for small businesses--for big businesses, for that matter--for their employees, and for us as individuals, and if we want to encourage more physicians to stay in practice, then what we would do is tackle this problem. Is there one word about medical malpractice reform in any of the bills, the bill that came out of the HELP Committee in the Senate, the bill currently pending in the Finance Committee, or the bill that came out of the House of Representatives? The answer is no, not a word about medical malpractice reform. Why? Well, Howard Dean, the former Democratic Governor of Vermont and Democratic National Committee chairman, was very honest about this on August 17 at a townhall meeting with Representative Moran in Virginia. He was asked that question, and he said: When you write a big bill, you don't want to take on too many special interests, and the people who wrote this bill simply didn't want to take on the trial lawyers, and, he said, that is the truth. It is the truth.

The reality is that the President is going to ask everybody else to sacrifice. For example, seniors are going to have to take a $400 billion to $500 billion cut in Medicare, which will mean less care for them. If small businesses are going to have to pay a tax on every one of their employees in order to make sure they get covered with insurance; if the pharmaceutical companies are going to have to pony up--I have forgotten how many hundreds of billions of dollars it was for more drugs for seniors, for example; if everybody else is going to have to sacrifice, why didn't we ask the poor trial lawyers to give up just a little bit here? We are not saying malpractice claims couldn't be filed. That is the way doctors and hospitals and others are kept honest. When you make a mistake, you are going to have to pay for it. But we can make sure the system works to prevent the kind of jackpot justice I spoke about.

There are at least five different kinds of medical malpractice reforms that have worked. One was offered by Senator Enzi in the HELP Committee; it is called health courts. The State of Texas and the State of Arizona have both adopted certain kinds of medical malpractice reforms. In Arizona, it has begun to work. In Texas, something like 7,000 doctors have moved into the State, with premiums being reduced by either 21 or 23 percent. In other words, medical malpractice costs can be reduced to provide care, and by reducing that cost, people's premiums can be cut, and that will make insurance more affordable and more people will be able to get it.

My point here is simply to say this: What we found as we talked to our constituents was a fear that in order to solve two or three very discrete problems, there were people here in Washington who wanted to remake the whole system, throw out what we have, and impose on it a new regulatory regime. Whether there is a government option or government insurance plan is only part of the issue. The problem is

that there is government control of everybody irrespective of that, and people are concerned as a result that their care will be rationed, that taxes will go up, and that, in fact, their premiums will go up.

How could that be if we are going to try to make care less expensive? I will give one example. I talked to people who are relatively young and relatively healthy, and they are very aware that if they are put in the same pool with everybody else, with the people who are sicker and older, they are all put into one pot and you can't discriminate on the basis of health condition--and we do believe people with preexisting conditions should be able to get insurance--then, naturally, the people who are younger and healthier are going to be paying more for their insurance than they would if they were in a category all by themselves, and that is what the actuarial data shows us. So it might make insurance more affordable for somebody who is older and sicker, but it will definitely raise the cost of insurance for those who are younger and healthier. There have to be ways to avoid that perverse result. There are, in fact, and Senator McCain talked about a couple of those that I will mention in just a moment.

There ought to be a way to ensure that everyone in this country can get affordable, quality health insurance without taxing all employers, especially small businesses--the very entities we are counting on to bring us out of this recession. We know that almost all of the jobs created in this country in the last 2 or 3 years were created by small business. Large businesses lost--in fact, we have lost about 3 million jobs in this country. In this recession, 3 million jobs have been lost. How are those jobs going to come back? It is going to be through small business. That is where over 80 percent of the jobs are created, and that is where they will be re-created to get us out of this recession. Why, when we are in the middle of this recession, would we want to tax people to say: If you want to hire somebody, it is going to cost you X amount. Why don't we give them an incentive to hire more people, not give them a disincentive through taxation. Why would we raise the taxes of all businesses, including, by the way, raising taxes on insurance? Insurance companies are fun to pick on, I grant. But does the insurance company just pass the cost of that tax that is going to be imposed on it to its premium holders? Of course. There is no free lunch. We end up paying the taxes. As everybody knows, corporations don't pay taxes, people do.

The net result is that when people are concerned about the economy, No. 1, about our rising debt, about the potential they are going to be taxed, and about the need to re-create jobs, what they are telling us and what they told me when I was back home is: Solve those problems first. When you get that solved, then if you still want to look at health care, go ahead and do that. But in the process of doing that, don't throw the baby out with the bathwater. Don't try to throw out a system that works for most people. If you have a specific problem, target solutions to that problem. You could cover the 12 million people who can't afford insurance and who need to get it today, you could buy them all insurance with the savings you get with malpractice reform. Why don't we do that? The jackpot justice system is a problem in and of itself, and we have a problem because some people can't afford insurance and we need to help them get it. The money we save from one can help pay for insurance for the other. Why not do that? We don't need to change the entire system of health in this country in order to do that.

Since everyone knows Medicare is in trouble, why would we get it in further trouble by cutting it by $500 billion, and instead applying that savings back in to help make Medicare solvent, provide coverage for people with that money when, in fact, you could get the money elsewhere.

That is what people are concerned about. They see some problems, but they see a solution that does not fit the problems, and they are afraid of it because it is too big, it is too much. People are trying to do it too fast. In fact, one asked why were they trying to rush this bill through before the end of August when it doesn't even take effect in most aspects until the year 2013. Good question. It has been a good thing that the American people have had a chance to consider this, that we have had a chance to read it and we have had a chance to talk about it.

Here is the bottom line. Republicans have a lot of alternatives. Senator McCain talked about them: the malpractice reform; getting rid of the waste, fraud, and abuse in programs such as Medicare; selling insurance across State lines; providing association health plans so that small businesses can compete with the insurance companies in the same way the big businesses compete. These are ideas that can discretely be put into place to solve specific problems, and at the end of the day we will have achieved two things: We will have reduced the cost of health care premiums and the cost of health care for everybody, not just a few, and at the same time we will have been able to, with that savings, provide coverage for people who need it and cannot get it. To do that, it is not necessary to scrap everything we have and create a whole new system where the government takes over health care just as it has insurance and banking and automobiles and everything else.

So that is what I am hearing from my constituents, and I hope, as we are reengaged in this debate, we will do the one fundamental thing our Founding Fathers had in mind when they set up the kind of system we have here, and that is that we will listen to our constituents, never forgetting they are our bosses and we work for them.

I thank the Chair.

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

Mr. President, I ask unanimous consent to speak for up to 20 minutes.

Mr. President, I am not sure I will need that much time, but there are four or five things I wanted to address this morning now that the Senate has completed its work through July and we will all be going home to visit with our constituents over the August recess.

What I did was I pulled together three or four topics I wished to address but, because of all the business we had this past week in dealing with the Sotomayor nomination and the cash for clunkers legislation, in particular, I had not yet had an opportunity to address them.

Let me start with the so-called cash for clunkers legislation which was adopted last night. This is legislation which I think was, as I said, a very well-intentioned concept in two respects: No. 1, to help auto dealers get off the mat--they had all been suffering from a lack of business--as well as to promote the idea of more fuel-efficient cars. But the well-intentioned plan ran into a lot of problems, and I think there were two reasons for that.

The first was the fact that it was rushed through. It was put on an emergency piece of legislation without hearings, without legislation having gone through the committee process, and, frankly, without anybody really thinking through how the program would be implemented. As a result, there were a lot of problems with it.

I got calls from car dealers. They had no idea whether they were going to be paid. The Department of Transportation had no idea whether it still had money left to pay the car dealers. As a matter of fact, one of them called me and said, as of Thursday a week ago, the Department had said they didn't need to kill the vehicles anymore that they had taken in on trade-in--that is to say do what they do to them so they can never operate again--because they weren't sure the money would be available to send to the dealer for the transaction. So the dealer may need to resell the car as a used car. The program, in other words, was very confusing and they got a lot of confusing signals out of the Department of Transportation.

That is why I offered an amendment yesterday that suggested we ought to call a timeout, a pause, to make sure all of the transactions that qualified could clear the process, the dealers could get paid, and we would know how much money we spent. Did we spend $1 billion? More than $1 billion? My amendment would have said whatever it takes to pay for all of the deals that had been made as of today, but then establish some process whereby the sales could be tracked, so that each day, at least by the end of the day, we would know how many cars were sold and what the obligations of the government were to the dealers that had acquired those trade-in cars. That way, we would know when we got close to the additional money that had been allocated.

Well, my amendment didn't pass. As a result, it is quite likely we are going to continue to have problems with this program. So I hope the Department of Transportation can find a way on its own to do this without direction from Congress so we don't have the same kinds of problems we have had in the past.

But there is a more fundamental problem with the program, and that is that it subsidizes a specific segment of the economy, as several of my colleagues pointed out, for the most part to simply advance the sale of a car that would have occurred anyway. So at the end of the day, there was no new economic activity--simply the expensive replacement of a vehicle that might have been used as a secondhand vehicle for several more years but because of the requirements of the program is actually destroyed. So as a matter of fact, we actually took value out of our economy rather than putting it in, and at a great cost. It was estimated that it was about $20,000 per vehicle.

There was a great editorial--or column, I should say--in my hometown newspaper, the Arizona Republic, today by Bob Robb, who is one of the smartest people I know, especially when it comes to economic matters. The title of it is ``Cash for Clunkers a Lemon.'' In it, he points out what is wrong as a matter of economic policy with programs like this that subsidize a particular piece of economic activity but end up in effect simply costing the taxpayers of the country without advancing an economic cause.

I ask unanimous consent to have this very erudite column printed in the Record at this point.

Mr. President, my colleague, Senator Lieberman from Connecticut, had put an item in the Congressional Record that was a letter to the President urging that the President and the Attorney General take action to stop the further notion of investigating members of the U.S. intelligence community for activities long since past related to the interrogation of terrorists after the September 11 attack on the World Trade Center. I found this to be a particularly well-reasoned statement as to why this kind of continually looking backwards, this kind of politics that seems to want to continue to scratch at old wounds, can be very destructive to our safety and security in the future.

Among other things, Senator Lieberman quoted President Obama and said:

President Obama had it right when he said that with regard

to past behavior by the intelligence community, he is ``more

interested in looking forward than . . . looking backward.''

And Senator Lieberman said:

Given the threats that we face as a Nation, it is

imperative that we follow the President's lead.

He went on to point out that if we don't, we are going to chill the activities of the intelligence community.

He noted--and I will note, as well--that there are so many very hard- working, dedicated Americans working in a frequently very dangerous environment whom we have asked to find out the most difficult things, such as: What are these terrorists up to? And might they have plans to attack us again? It is very difficult to get this information.

Anything we do that chills the methods by which they do that--short, of course, of violating the law or engaging in torture or other impermissible activity--simply hastens the day when there is another successful attack against the American people. We need to do everything we can to prevent that. The reason I was reminded was there are reports this morning we have been successful in taking out one of the most dangerous terrorists in Pakistan, someone who was allegedly involved in the planning of the death of Benazir Bhutto and who had been sought for a long time.

I was thinking about the activities of some of my colleagues in the Senate attacking the previous administration for considering a program that would involve the use of intelligence community assets to track down and find and then either capture or kill these terrorist leaders who are responsible for so many deaths. The assumption was it was somehow wrong for the United States to consider doing this. This program was begun back when President Clinton was in office, and he issued a directive which basically said: If there is a way we can find and either capture or kill these people, we should do so. The program was never implemented because there were potential problems with it. The same thing occurred during the Bush administration. It wasn't implemented. The Intelligence Community wasn't advised about it. Had there been a decision to go ahead with the program, the law would have required that the Intelligence Committees in the House and Senate be briefed. But there was great criticism of the Bush administration and Vice President Cheney.

I wondered at the time, how about these people whom we send into harm's way to try to find these terrorists and either capture them or, if they attempt to fight or flee, to kill them, what does it say to the people we send into harm's way to accomplish this, when there is all the criticism back home that somehow there is something wrong with it?

I was pleased this morning when the news of the alleged attack and killing of this terrorist leader was greeted with a great deal of approval in the media and by the people who commented on it. That is the kind of reaction our intelligence officials need to see when they go after these very dangerous terrorists--not a reaction that, gee, maybe we need to read this guy the Miranda rights before we try to capture him.

The reality is, these people are not generally subject to capture. We have the facilities and the means to track them and, frequently, we do track them by these means, and we are able to take them out. Since we are engaged in a war with these terrorists and they would kill us if we don't kill them, if you don't have the ability to capture them, then killing them and taking them off the battlefield in that way is totally appropriate and under the rules of war.

That is why I am pleased this kind of event is greeted with enthusiasm and approval because it might send the kind of signal to the intelligence community we want to send, which is: Do your best to defeat the opposition in the war on terror. I think Senator Lieberman's point was well taken in the letter he wrote.

Mr. President, I ask unanimous consent that an editorial from the August 7 Arizona Republic be printed in the Record, called ``Cabinet Chiefs Play the Heavies.''

Mr. President, the editorial reports on what they call a political hit job perpetrated ostensibly against me. It didn't bother me, but as reported, the Chief of Staff of the President enlisted four Cabinet officers to write letters to the Governor of Arizona, which were seen by some as veiled threats to withhold stimulus funding because I had dared to criticize the stimulus program and suggest that after the first couple years of spending, the outyears might be saved and spent in better ways. That generated criticism by these four Cabinet Secretaries, who wrote almost identical letters, which clearly were designed to try to intimidate.

That is not the right way for the administration to make its point. I am happy to debate the success or failure of the stimulus package with anybody from the administration who would like to debate it. I welcome that kind of conversation. But there seems to be too much effort now to either shut people up or intimidate them from speaking.

There have been a lot of reports with respect to the stimulus and the so-called health care legislation, and in other areas, to be coincidence. There seems to be a pattern developing, and it is not good. Senator Cornyn, yesterday, spoke to that issue with respect to a new Web site that the White House started asking people to send in their observations of people who are criticizing the administration's plans, if they think some of the criticism isn't accurate or they said: If you think there is something fishy, let us know about it.

These are the kinds of tactics that might go over well in certain cities that have had a history of political bosses, but it is not the kind of tactic you would expect from the White House. I hope the folks at the White House have learned their lesson and, frankly, will knock it off.

Mr. President, there were two items that came to my attention that I wished to briefly comment on that are related. The first has to do with the Fannie Mae and Freddie Mac continuing saga of costing the American taxpayers a ton of money. We all know that despite warnings, particularly from Republicans, they needed oversight, that they were accumulating far too much bad debt and taking on all these so-called toxic assets--mortgages that, frankly, weren't going to be paid back; that they were exposing the American taxpayer to liability because of the implicit guarantee that lay behind the Federal charter for Fannie Mae and Freddie Mac. Others said: Don't worry, keep going with this; it is a wonderful program. Finally, the bottom fell out. Fannie and Freddie were deeply in debt and the American taxpayers came to their rescue.

The idea was then to restructure these two entities so that never again could this happen. We did that. The problem was that, because Fannie and Freddie were government-chartered entities, it didn't take long for them to squeeze out most of the private players in the mortgage market. Today, I think they hold something like 75 percent of these particular mortgages.

Well, of course, the day of reckoning has come again. They have now run up more debt--a huge amount of debt--and they are not going to be able to pay it. A story in yesterday--I will get the source later-- reported that the government has since pledged, after their original reorganization, more than $1.5 trillion, including $85 billion in direct aid, in order to keep the mortgage market working through Freddie Mac and Fannie Mae. The White House is now considering a new plan that apparently is coming out of the Office of the Secretary of Treasury and the National Economic Council Director that would somehow reform Fannie and Freddie yet again.

The Treasury Secretary said:

The only question that remains is what form and what

structure they ultimately will take.

The article points out that the most likely structure is a good bank/ bad bank structure, in which they will basically be relieved of all their obligations, which will all be put in a new ``bad bank,'' which is a pile of debt that the American taxpayers will eat, and then the ``good bank'' is the entity that is supposed to continue on.

The question is: Why would we want these quasi-government entities to continue to compete with the private market, continue to create bad debt that taxpayers have to eat every now and then, and after we slough off the bad debt to the American taxpayers, they continue to do business as if they had gone through bankruptcy and don't have any more debts but they still have the implicit guarantee of the American taxpayers.

It is time to end that. We have a vibrant mortgage market now. There is an expectation that within the next several months housing will come back. It already is in certain areas. Interest rates are low, and it is possible to write mortgages now. We have learned the lesson that we are not going to write mortgages that cannot be repaid. It is not good for the financial institutions or for the people who take out the mortgages if they cannot repay them, and it is not good for taxpayers who have to end up eating the bad debt that is created.

I wished to close by referring to the penultimate paragraph from this newspaper, which says that the bad bank would be for Fannie Mae's and Freddie Mac's toxic assets. Then the government could create new companies to attract private investment for mortgage finance, starting the process over again.

Why should the government create new companies? The private market has an adequate way to deal with this; it is called the private sector, private companies. They are highly regulated. The proposal from the administration is to impose additional regulations, but why do we need a new government company? We have government insurance companies, government car companies, and the administration proposal on health care is to create a new government health insurance company. We have banks taken over by the government.

Now we are going to fail to learn the lesson with Fannie Mae and Freddie Mac and create new government-backed companies, such as Fannie and Freddie--maybe they have the same name, who knows--in the mortgage business. When are we going to get out of the business of having the government create new companies? That is socialism, that is not American. That is not our free enterprise system. When things go wrong, we adjust and we make new regulations to correct the problems that were created; we learn the lessons of why government created the issue in the first place.

We don't need to continue to have the government create new companies that cost the taxpayers money and get us deeper into the notion that the government can compete with the private sector. That, then, leads inevitably to the government takeover because the government is never a good competitor when it is also the regulator. That is a fear a lot of people have with health care.

Mr. President, that brings me to the final point. In yesterday's Wall Street Journal, an article is entitled ``ObamaCare's Real Price Tag.'' It goes through all the different expenses of the proposed health care legislation, with the creation of a government insurance company. They talk about the funding gap that is created by the commitments of funding to this entire program. One of the things they notice is people need to be aware of the long-term consequences. We all know that Medicare, for example, is not financially sound. We can go out through the 5-year projections, 10-year, 15-year, 20-year, and so on, and know what the obligations of our children and grandchildren will be.

When we pass regular legislation in Congress, we have a set of blinders that says: What is the 10-year cost? We get it, and then we assume there are no more costs beyond that. What this op-ed points out is, we can calculate a 10-year cost. Maybe it is $1 trillion or $2 trillion or maybe it is more than that. We can at least estimate it. That is what the CBO and the Joint Tax Committee are charged with doing. Then there is an assumption that there is no cost beyond that.

What the people who write the legislation frequently do is to build in benefits in the early years and then phase in the ways of paying or not paying for it, so the real costs come in the so-called outyears-- the outyears are beyond the 10-year window--so that it doesn't score as a big loser. What they point out is, in effect, what this legislation does is gone out for 10 years and creates a cliff. When you fall off the cliff, that is when you are in trouble because the commitments to the people for health care have been already made.

Can you imagine Congress pulling back on those commitments? Once there is an expectation from government, that is not lightly withdrawn. The American people come to expect it, and there is a big lobby against it, if you try to withdraw the benefit. But if you haven't provided for how you are going to pay for it, there is a very rude and sudden awakening when you come to the cliff and realize you haven't folded into your calculations how you are going to pay for this benefit.

We did that with the so-called SCHIP legislation. We created a benefit, and the benefit kicked in early. The funding ostensibly stopped after a certain period of years. But everybody knew the funding would not stop. That required the suspension of belief. I guess it is called cognitive dissonance. The notion that somehow or another Congress is going to, at the end of that period of time--I believe it was 5 years--pull back all the benefits we had been giving to people for 5 years, that was not going to happen.

So you had the commitment to provide benefits, but no way to pay for them. As this article points out, that is what is happening with this health care legislation as well.

Let me quote from the third paragraph:

In the July 26 letter, CBO Director Douglas Elmendorf notes

that the net costs of new spending will increase at a more

than 8 percent per year between 2019 and 2029--

There we are talking about the next 10 years, not the first 10 years.

--while new revenue would only grow at about 5 percent. ``In

sum,'' he writes, ``relative to current law, the proposal

would probably generate substantial increases in federal

budget deficits during the decade beyond the current 10-year

budget window.''

The point is, we should not look at these things during the first period of time that we analyze them, but rather the continuing commitment of the American taxpayer. When we do that, as the Director of the CBO points out, we find that we have a continuing, growing deficit; in other words, piling up more and more debt and, if anything, my guess is that these estimates are conservative and that the amount of deficit would be even more.

The editorialist in the Wall Street Journal had complained about this, talking about the ``Grand Canyon'' between spending and revenue, pointing to the CBO's long-term projections, and then said:

That's not our outlook. That's what White House Budget

Director Peter Orszag told the House Budget Committee in

June. He added that ``If you're not falling off a cliff at

the end of your projection window, that is your best

assurance that the long-term trajectory is also stable.''

As the editorial points out: ``The House bill falls off a cliff.''

So the precise thing we are trying to avoid in intelligent legislating is not avoided in the Democratic health care proposals: benefits promised now, ostensibly paid for in the first 10 years, not paid for after that. That is not me talking, as I said, that is the nonpartisan Congressional Budget Office.

There are other examples of this pointed out, but as the editorial notes in conclusion:

ObamaCare's deficit hole will eventually have to be filled

one way or another--along with Medicare's unfunded liability

of some $37 trillion.

I read that last night, and I had to go back and reread it--unfunded deficit of $37 trillion. It is impossible for us to imagine how much money that is--$37 trillion just for current obligations, not counting what would be added by the ObamaCare.

We cannot afford this, and I think the American people are beginning to appreciate we cannot afford it. There is no free lunch. The Federal Government cannot simply keep promising things and not worry about the costs in the future. We can only print money for so long before we have rampant inflation that destroys the wealth of everyone, primarily the people who have saved in the country, which starts with our senior citizens.

We cannot borrow our way out of it because the main people who continue to lend to us, such as the Chinese, have begun to lecture us on the fact they don't trust we are going to pay them back now, and they are going to start requiring more and more in the way of interest payments for them to continue to lend to us.

It is a little bit like the credit card company that says to a family: Look, you have borrowed a lot of money on your credit card. We are not sure that you are going to be able to pay that back to us. So if you are going to borrow more money on the credit card, we are going to double the interest rate to make it a high interest rate so at least it accounts for our risk in lending you more money. Borrowing more money from the Chinese at higher interest rates is not the answer.

The other alternative is to tax the American people. Everybody understands taxing the American people is the worst thing you can do for an economy, especially in a downturn. Americans believe they are already taxed enough. You cannot tax the rich and solve the problem because they already pay most of the taxes and it would only account for another few hundred billion dollars, even if you taxed them for everything they are worth.

You eventually get down to the middle class. The President has said over and over that he does not want to tax the middle class. The reality is that it is unavoidable if we continue to consider legislation such as this.

Mr. President, I ask unanimous consent to have printed in the Record this Wall Street Journal op-ed of August 6 called ``ObamaCare's Real Price Tag.''

Mr. President, I know I have talked about a lot of different issues today, but as we start this period of time when we go back home--we call it our work period back home--there are a lot of issues about which we want to talk to our constituents.

First on my list is going to be what do you think about the increased amount of debt this country is taking on, with all of the programs we have already passed and the programs that are on the horizon, including what was referred to here as ObamaCare, but the so-called health care reform? Do you believe your health care situation is in such a dire strait that we need to take on that kind of debt, or are there more targeted ways to resolve the problems that everybody acknowledges exists, particularly with some of the costs associated with health care.

We are also going to talk about whether the American people are comfortable with the degree of government involvement, the government takeover of all of these different elements of our society, including health care, including the mortgage business, as I talked about, and picking winners and losers in subsidizing the purchase of cars now.

I know we own two of the big car companies, but it seems a little self-serving then to try to help those car companies that the government owns by picking that as the place to put $3 billion to encourage people to buy new cars.

I know a lot of folks back home who are in other businesses who are hurting significantly. They could use this help just as much. I wonder if we took $3 billion and spread that to some of the other industries that are also hurting, I am sure they would say: This is great; why don't you help us out?

When government gets in the business of picking winners and losers, it is a sad day for our democratic Republic. I think we need to watch this. I am going to ask my constituents what they think about that. I already know. I got an earful last Sunday in church about a couple of these different ideas. I expect I am going to continue to hear about that.

It is important that our constituents talk to us about their concerns. We work for them, not the other way around. They pay our salaries. We need to listen to them about what they have to say.

Finally, we have all these domestic issues, but I wanted to refer to Senator Lieberman's comments about we cannot forget we have brave men and women halfway around the globe right now in 120-degree temperatures representing us. They are the men and women in our military services and in our intelligence services working very hard to protect us.

We have to send the signal to them that we appreciate what they do, that we are not going to criticize them for simply doing their job. I think Senator Lieberman was right when he said let's not send signals to those we have instructed to help us out in this war on terror that at the end of the day we are going to second-guess what they are doing, we are going to be Monday morning quarterbacks and even potentially find them criminally liable for activity they engaged in in good faith and belief they were protecting the American people.

I am going to be very interested to see what my constituents have to say about these issues. I know my colleagues will as well. I hope when we come back from the recess that we will not only be personally refreshed from having the opportunity to visit with our families and spend a little downtime but intellectually refreshed by having heard from our bosses--our constituents--on how they want to approach these problems in the future. Maybe in September, we will be a little more enlightened about how to carry out our responsibilities.

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

Mr. President, before the Senator from Iowa leaves the floor, if the Senator from Iowa has no further speakers on his amendment or wishes to speak any further, I am prepared on our behalf to yield all the time on our side if he would like to yield the time on his side so we can move the process on, and if the Senator would like to ask for the yeas and nays right now before I seek to offer my amendment, I am happy to stand by for that.

Mr. President, reserving the right to object, let me say that he raises a good point about his amendment. I don't think it would be a difficult matter to drop that provision, or modify that provision, so that it would not preclude someone who had not filed an income tax return from being eligible for this particular program.

If the Senator wishes to modify his amendment to that effect, there would be no objection on our side. However, there would be objection to simply dropping the amendment, because too many people on our side are in agreement with the concept, and this is pursuant to a unanimous consent agreement.

Again, if the Senator wishes to modify the amendment, there would be no objection to that, although we would want to see the language, obviously.

Mr. President, I call up my amendment No. 2301, which is at the desk, and I ask unanimous consent that Senators Bennett, Roberts, and Snowe be added as cosponsors, and I also ask that the amendment be modified with the changes at the desk.

Mr. President, I ask unanimous consent that reading of the amendment be dispensed with.

Mr. President, when Congress rushed the so-called Cash for Clunkers Program to passage as part of the fiscal year 2009 supplemental appropriations bill, it had little time to consider how the program would work. Although the program is well-intentioned, many have criticized its efficiency and questioned the ability of the Department of Transportation to manage its application.

The program has only been running for a couple of weeks, but DOT is already saying the $1 billion appropriated for the program has likely been spent. But nobody really knows. Yet this bill would appropriate an additional $2 billion.

My view is that before we jump to spend another $2 billion of taxpayers' hard-earned money, we need to call a time out--clear all of the transactions that qualify, see how much it costs, and evaluate how much more, if any, we want to spend. If we appropriate more, we certainly should establish a tracking system to know how much the government is committed to pay each day so that we will know when to cut the program off before we again run out of money. In short, this crash program must be properly restructured now if it is to be continued.

There have been multiple complaints from dealers who have had trouble with the program. Some dealers haven't received their registration information, and some have had trouble accessing the system to submit transactions. This information is concerning because, if true, DOT presumably doesn't have an accurate count of how many transactions dealers have made compared to how much money is left in the Cash for Clunkers Program. In fact, it is my understanding that the National Automobile Dealers Association estimated that at least 200,000 deals have been completed but not yet successfully submitted to the Department of Transportation.

The confusion at DOT is evident. On Thursday, July 30, less than 1 week after DOT started to accept dealers' transactions, DOT told Congress that the program was suspended because the $1 billion had been exhausted. The next day, DOT said the program was not suspended and transactions could continue. On Sunday, August 2, Secretary LaHood was on C-SPAN's ``The Newsmakers'' and first stated that the entire $1 billion hadn't been spent. However, later in the interview, he said that the administration would only honor deals made through Tuesday, August 4, unless the Senate approves this bill. He then said, in the same interview, that DOT estimates there is only enough money to cover deals made through this week. The process is anything but accurate. Dealers should not have to bear the risk that deals they made in good faith won't be honored.

It is not only dealers who should be concerned about whether the government has accurate data needed to wind down the program before the funding runs out. Secretary LaHood recently said that the government will make ``a good-faith effort'' to reimburse all deals that are in the ``pipeline.'' But without appropriated money, he cannot make any commitment. Statements of the Secretary are not binding promises. Consumers are also entitled to certainty. That is why we need a timeout to assess where we are and redo the process to be fully transparent and accurate.

Specifically, my amendment would terminate the program as of August 7, 2009, at 11:59 p.m. to give a date certain to dealers and consumers to avoid any further confusion about whether all

dealer transactions will be honored. It would delay new funding for the Cash for Clunkers Program beyond the $1 billion already appropriated, except for such sums needed to meet all obligations through August 7 that may exceed $1 billion, which would be paid for by using unobligated stimulus funding designated for DOT. This addresses the concern that some dealers will be on the hook for deals that have not cleared before the program runs out of money. DOT currently has no mechanism in place to efficiently cut off transactions once the appropriated threshold is reached.

My amendment would require DOT to submit a detailed report to Congress, before any new appropriations are made, that evaluates the methodology it used to track the daily obligations incurred under the program versus reimbursements sent to the dealers. The reporting requirement would ensure that Congress can evaluate what changes have to be made to more efficiently disburse any future money allocated to the program and, importantly, be able to track the disbursements and obligations to ensure the latter do not exceed the funding available. To this end, my amendment would add a requirement that if future appropriations are made, DOT must track daily the number of transactions made and money left to be obligated for reimbursement to the dealers. Again, this would ensure that the DOT is working with the most up-to-date information so that no consumer or dealer would enter into a transaction if funding is already exhausted.

Some have questioned whether the Cash for Clunkers Program is encouraging consumers to purchase or lease fuel-efficient vehicles. On June 11, two of my colleagues even submitted an opinion piece in the Wall Street Journal that indicated the Cash for Clunkers Program was ``bad policy'' and ``would create handouts for Hummers.'' The report would also evaluate the fuel efficiency standards of the automobiles traded in and the new automobiles leased or purchased. Obviously, should we want to modify the terms of the legislation to meet some of the concerns expressed by the colleagues I mentioned, that could be done at that time.

I am very familiar about what happens to program extensions that are rushed through without any oversight. In 2000, the Arizona State legislature passed a well-intentioned law, much like cash for clunkers, which provided a tax credit for purchasers to buy vehicles converted to run on propane or compressed natural gas. The program was originally estimated to cost $5 million. However, lawmakers continued the call for the expansion of the program based on consumer demand. Before long, that small $5 million pricetag ballooned up to a $600 million budget liability. It was stopped in time to avoid the State from bankrupting itself.

I am concerned that we are putting American taxpayers in a similar position. If the additional $2 billion is simply appropriated for this program, will DOT come back to Congress in September and argue that we must extend the program yet again? Maybe there would have been more money committed than the $2 billion, as may be the situation now. Aren't we required to apply some metrics, in other words, to evaluate the benefits against the cost to taxpayers? I don't have to remind everybody how Congress views temporary programs. Former President Reagan used to describe them by saying, ``There's nothing more permanent than a temporary government program.'' That could well be the case here if we don't step back and evaluate the program, and if we don't ensure that any future funding for such a program is done in a more efficient manner than this particular program is today.

As I said, auto dealers are hardly the only business that would be happy to receive government assistance. So evaluating it at this juncture is very important, lest we make the same mistake in the future.

We rushed cash for clunkers once. I suggest that we should not make the same mistake again. I urge my colleagues, therefore, to support my amendment when the appropriate time comes.

I am happy to yield time to my colleague.

Madam President, would it be in order to ask for the yeas and nays, and when the time is yielded back, we can set the vote?

I ask for the yeas and nays on the Kyl amendment.

The Senator has a right to table his amendment. I would simply say that while he is correct that his amendment would be better if it were modified, and he would have had no objection on our side to that modification, it still makes an important point and I think it would have been supported by many people on our side of the aisle. I, frankly, would vote against the motion to table myself because I think it does make an important point, and I think we should be able to debate it and dispose of it.

The Senator has a right to table his amendment. I would urge those on our side to vote against the motion to table.

Have the yeas and nays been ordered?

I ask for the yeas and nays.

Madam President, automobile dealers view this program a little like ``A Tale of Two Cities''--the best of times and the worst of times. They are selling more cars, but they don't know if they are going to get paid from the Cash for Clunkers Program because there has been no ability to track the sales. As a result, we don't know whether we spent $1 billion, less than $1 billion, or more than $1 billion.

My amendment simply calls a timeout. It says if the amount of money exceeds $1 billion, then appropriate the amount of money that is needed to pay the obligations on the deals that have already been made and qualified. Then set up a process to track the money in such a way that we can tell whether we have exceeded the next appropriated amount.

That is the essence of the amendment. It asks for a study to determine whether there should be one other change; namely, a change to the particular fuel standard we are applying to the cars. Some believe it should be a slightly higher fuel standard.

I hope my amendment will be adopted to call a timeout, pay the obligations we have already made, and determine a method to track the money in the future so that if we do this again, we know exactly how much we have spent, the dealers can get paid, and the customers have the assurance that their deal can go through.

Mr. President, pursuant to section 403(E)1 of the fiscal year 2010 budget resolution, S. Con Res. 13, I raise a point of order against the emergency designation provision contained in the bill.

Mr. President, every American should be proud that a Hispanic woman has been nominated to serve on the Supreme Court. In fulfilling our advice and consent role, of course, Senators must evaluate Judge Sotomayor on her merits, not on the basis of her ethnicity.

As I noted at the beginning of Judge Sotomayor's hearing, she has a background that creates a prima facie case for confirmation. She graduated from Princeton University and Yale Law School and then was an assistant district attorney, a corporate litigator, a district court judge, and a circuit court judge.

This background led the American Bar Association to rate her ``Well Qualified.'' My counterpart on the Democratic side, Senator Durbin, has said, ``The burden of proof for a Supreme Court Justice nominee is on the nominee. . . . No one has a right to sit on the Supreme Court. . . . It is not enough for a nominee to be found well qualified by the American Bar Association.''

It is obvious that the Senate cannot just rubberstamp the ABA. This is why we conduct our own evaluation of the nominee's background and record and then attempt to resolve outstanding questions at her hearing.

In evaluating a nominee, it is, of course, important to look at all aspects of the person's career. The nominee's prior judicial opinions are obviously an important consideration in this process. A lower court judge who issues judicial opinions that are outside the mainstream will, in all likelihood, continue to issue opinions that are outside the mainstream if promoted to a higher court.

But even judicial opinions do not tell us the entire story, especially when we are considering a nominee to the Supreme Court. District and appellate court judges operate under the restraining influence of judicial review. They have a strong incentive to avoid aberrant interpretations of the law, otherwise they risk embarrassment if cases are appealed to a higher authority. This check disappears, however, when a judge becomes a justice on the Supreme Court. There is no higher authority to reign in a lifetime-appointed Justice who decides, for whatever reason, to adopt a strained interpretation of the law.

Nor will a nominee generally be very specific about how he or she may rule on matters that could come before the Court.

So it is important to examine anything else in a nominee's background that could shed light on how the nominee really thinks about important issues. One source of information is a nominee's extrajudicial statements in speeches and writings. In these contexts, the nominee is not constrained by facts of particular cases, by precedents or the fear of appellate reprimand, but can say what he or she really thinks.

Before Judge Sotomayor's hearing, I studied not only her cases, but her extrajudicial writings, and a fraction of her speeches. I say a ``fraction'' because Judge Sotomayor was either unable or unwilling to provide a draft, video, or a sufficient topic description for more than 100 of the speeches that she identified for the Judiciary Committee.

But even with less than a full complement of her relevant materials, I saw a number of things in Judge Sotomayor's decisions and speeches that caused me to have great concern about her ability to put aside her biases and to impartially render a decision to the parties before her.

As I will explain, Judge Sotomayor's appearance before the Judiciary Committee did little to dispel my concerns. In many cases, her testimony exacerbated them.

I was and remain particularly troubled by Judge Sotomayor's speeches about gender and ethnicity. The speech that has garnered the most attention is, of course, her ``wise Latina woman'' speech, which was published in the Berkeley La Raza Law Journal. As it turns out, Judge Sotomayor delivered this same speech, with only minor variations, on multiple occasions over the course of several years.

In reading these speeches in their entirety, it is inescapable that her purpose was not simply ``to inspire young Hispanic, Latino students, and lawyers,'' as she asserted at her hearing. In fact, as she said at the beginning of several of these speeches, her purpose was to talk about ``my Latina identity, where it came from, and the influence I perceive it has on my presence on the bench.''

Judge Sotomayor reemphasized this theme later in her speeches. She said: ``The focus of my speech tonight, however, is not about the struggle to get us where we are and where we need to go, but instead to discuss . . . what . . . it will mean to have more women and people of color on the bench.''

She continued: ``[N]o one can or should ignore pondering what it will mean or not mean in the development of the law.'' In these speeches, she cited statements of some who had a different point of view than hers. Then she came back to her overriding theme: ``I accept the proposition that, as Judge Resnik describes it, `to judge is an exercise of power,' and because as . . . Professor Martha Minnow of Harvard Law School states `there is no objective stance but only a series of perspectives--no neutrality, no escape from choice in judging. . . .' ''

I believe judges must seek objective truth as found in the law of the case. I do not believe in judicial relativism, so I find her comment alarming. The essence of judging is neutrality. That is why Lady Justice is depicted with a blindfold. And that is why Federal judges are required to swear an oath to ``administer justice without respect to persons, and do equal right to the poor and to the rich'' and to ``faithfully and impartially discharge all of the duties incumbent on [her].'' That oath makes no allowance for a judge to choose the result based on his or her ``perspective.'' The oath requires exactly the opposite: a dispassionate adherence to impartiality and the rule of law.

Now, back to Judge Sotomayor's speech. After agreeing with law professors who say that there is no objective stance, only a series of perspectives, no neutrality, Judge Sotomayor then said, ``I further accept that our experiences as women and people of color will in some way affect our decisions. . . . What Professor Minnow's quote means to me is not all women or people of color, in all or some circumstances, or me in any particular case or circumstance, but enough women and people of color in enough cases will make a difference in the process of judging. Judge Sotomayor is talking here about different outcomes in cases based upon who the judge is. She goes on to substantiate her case by citing an outcome in a State court father's visitation case and two studies, which tended to demonstrate differences between women and men in making decisions in cases. She said, ``As recognized by legal scholars, whatever the reason, not one woman or person of color in any one

position, but as a group, we will have an effect on the development of law and on judging.'' She continued: ``our gender and national origins make and will make a difference in our judging.''

To recap: Judge Sotomayor announced her topic, developed the theme, refuted the arguments of those with a different view, and substantiated her point of view with some evidence. Up to this point, she had made the case that gender or ethnicity will have an impact on the way judges decide cases. She had not rendered a judgment about whether this influence would provide better outcomes from her perspective.

This is the context of the ``wise Latina'' comment. Judge Sotomayor quoted Justice O'Connor who said that a wise old woman and a wise old man would reach the same decisions. But, Judge Sotomayor said, ``I am also not sure I agree with that statement. . . . I would hope that a wise Latina woman with the richness of her experiences would, more often than not, reach a better conclusion than a white male who hasn't lived that life.''

Judge Sotomayor concluded, in other words, that, not only will gender and ethnicity make a difference, but that they should make a difference. She then acknowledged that some White male judges had made some good decisions in the past, but seemed to complain that it took a lot of time and effort, something that not all people are willing to give, and so on.

Judge Sotomayor concluded by saying, ``In short, I accept the proposition that a difference will be made by the presence of women and people of color on the bench and that my experiences will affect the facts that I choose to see as a judge.'' Judge Sotomayor added, ``I simply do not know exactly what that difference will be in my judging. But I accept there will be some based on gender and my Latina heritage.''

Even if the point of her speech was just to inspire young people or even to explore the question of whether judges could be influenced by their background, she should not have simply ``accepted'' that result. To conclude that judges could not avoid being so influenced and then not admonish that, of course, a judge must try his or her best to avoid that result, to try to set aside any bias and prejudice, was to abdicate her role as a judge in teaching her audiences.

Never, not once, in her speech, did she say that the biases she discussed were harmful to impartial judging and needed to be set aside. Instead, Judge Sotomayor's speeches seem to be celebrating these differences, these biases. The clear and unmistakable inference in her speeches is that she embraces the fact that minorities and women will reach a different outcome, indeed, a ``better'' outcome.

Before the Judiciary Committee, Judge Sotomayor refused to recant the speeches or acknowledge this egregious omission. But she did try desperately to convince committee members that her words conveyed a message other than the obvious one. Indeed, according to Judge Sotomayor, her words conveyed the exact opposite meaning. She said: ``I was talking about the very important goal of the justice system is to ensure that the personal biases and prejudices of a judge do not influence the outcome of a case. What I was talking about was the obligation of judges to examine what they're feeling as they're adjudicating a case and to ensure that that's not influencing the outcome.'' I've read the speeches in their entirety many times, and have verified that that is most certainly not what she was ``talking about.''

Judge Sotomayor's recharacterization of her speeches before the Judiciary Committee sounds like the objective, neutral approach that her speech explicitly dismissed. It is hard to understand how the same person could honestly make both statements. They are irreconcilably antithetical.

Further examples abound, but for the sake of time I will offer only one more. When Judge Sotomayor tried to explain her disagreement with Justice O'Connor's statement about how a wise old man and a wise old woman would reach the same conclusions, she said: ``The words that I used, I used agreeing with the sentiment that Justice Sandra Day O'Connor was attempting to convey.'' That's not true. Her explanation strains credulity. Both as to whether she really believes judges should try to set aside biases, including those based on race and gender, and the basic element of judicial temperament, forthrightness and fidelity to the oath of truth she took before the Judiciary Committee, I conclude she did not carry the very low burden of proof.

I also would like to discuss another of Judge Sotomayor's speeches, an address to the Puerto Rican ACLU on the subject of foreign law. But first, I should take a moment to explain why this issue is so critical.

There is a growing school of thought among some academics, and even some judges, that foreign law and practices should be used as an aid to understanding and interpreting our own laws and Constitution. This is problematic for two main reasons.

First, as Chief Justice John Roberts pointed out during his confirmation hearing, the consideration of foreign law by American judges is contrary to principles of democracy. Foreign judges and legislators are not accountable to the American electorate. Using foreign law, even as a thumb on the scale, to help decide key constitutional issues devalues Americans' expressions through the democratic process. It is simply irrelevant, except in a very few specific situations.

Second, even if the use of foreign law were not inconsistent with our constitutional system, its use would free judges to enact their personal preferences under the cloak of legitimacy.

Against this backdrop, Judge Sotomayor delivered her April 28, 2009, speech entitled, ``How Federal Judges Look to International and Foreign Law Under Article VI of the U.S. Constitution.'' From that speech, we begin to see how foreign law could shape Judge Sotomayor's jurisprudence in the future. Her comments were not casual observations, but directed to this specific topic, and, presumably says what she means.

After conceding that judges ``don't use foreign or international law'' as binding precedent in a case, she nonetheless maintained that foreign law could, and should, be ``considered.'' In Judge Sotomayor's view, foreign law is a source for ``good ideas'' that can ``set our [i.e., judges'] creative juices flowing.'' Putting aside for a moment the fact that deciding an antitrust case, or a commerce clause dispute, or an Indian law issue, or an establishment of religion case does not require ``creative juices,'' Judge Sotomayor's suggestion that judges consider foreign law would interfere with specific rules of construction or application of precedent.

Judge Sotomayor went on in this same ACLU speech to distance herself from two sitting justices who are critical of judges considering foreign law and align her views with those of Justice Ginsburg who recently endorsed the use of foreign law at a symposium at the Moritz College of Law at Ohio State University.

Specifically, Judge Sotomayor stated that ``[t]he nature of the criticism comes from . . . the misunderstanding of the American use of that concept of using foreign law. And that misunderstanding is unfortunately endorsed by some of our own Supreme Court justices. Both Justice Scalia and Justice Thomas have written extensive criticisms of the use of foreign and international law in Supreme Court decisions. . . .''

She continues: ``I share more the ideas of Justice Ginsburg in thinking . . . that unless American courts are more open to discussing the ideas raised by foreign cases, and by international cases, that we are going to lose influence in the world. Justice Ginsburg has explained very recently . . . that foreign opinions . . . can add to the story of knowledge relevant to the solution of a question. And she's right.

Judge Sotomayor's rationale for judges looking to foreign law--so that the United States does not ``lose influence in he world''--is astonishing. Not only is such an approach irrelevant to the role of judges, vis-a-vis the other branches of government, and arguably usually irrelevant even for the President and Congress as a yardstick with which to measure U.S. domestic and foreign policy, it is totally irrelevant to the considerations for deciding any particular dispute between two parties.

In response to questions from committee members concerned about these kinds of statements, Judge Sotomayor again tried to drastically recharacterize her prior statements. She testified that her speech was quite clear

that ``foreign law cannot be used as a holding or a precedent or to bind or to influence the outcome of a legal decision interpreting the Constitution or American law that doesn't direct you to that law.'' But in April of this year, Judge Sotomayor said, ``ideas are ideas, and whatever their source, whether they come from foreign law or international law, or a trial judge in Alabama, or a circuit court in California, or any other place, if the idea has validity, if it persuades you, then you are going to adopt its reasoning.'' These two statements cannot be squared, even though they occurred just 2\1/2\ months apart.

Later in her hearing, Judge Sotomayor gave the following testimony: ``I will not use foreign law to interpret the Constitution or American statues. I will use American law, constitutional law to interpret those laws except in the situations where American law directs the court.'' While this kind of declarative statement would normally provide some measure of comfort, it is belied by words Judge Sotomayor uttered less than 3 months ago, that judges were ``commanded'' to look to ``persuasive'' sources, including foreign law, in interpreting our own law. And it is even inconsistent with an exchange Judge Sotomayor had with Senator Schumer earlier in the hearing, in which she agreed that foreign law could be used for the same purposes as traditional interpretive tools, such as dictionaries.

It gives me great pause that Judge Sotomayor could say one thing at a public speech earlier this year and say the opposite while under oath before the Judiciary Committee, especially since she never repudiated her speech.

Finally, when Judge Sotomayor had an opportunity to reflect upon her testimony, review the transcript, and correct the record, she reverted to her former position by spinning the meaning of the word ``use.''

Specifically, as I just noted, in her hearing before the Senate Judiciary Committee, Judge Sotomayor testified under oath that ``foreign law cannot be used as a holding or a precedent or to bind or to influence the outcome of a legal decision interpreting the Constitution or American law that doesn't direct you to that law.'' In written answers submitted for the record she wrote, ``In my view, American courts should not `use' foreign law, in the sense of relying on decisions of foreign courts as binding or controlling precedent, except when American law requires a court to do so. In limited circumstances, decisions of foreign courts can be a source of ideas, just as law review articles or treatises can be sources of ideas. Reading the decisions of foreign courts for ideas, however, does not constitute `using' those decisions to decide cases.''

So we are back to ``considering,'' but not ``using.'' Or is it, using as ideas, but not binding precedent? And if so, of what use are ideas if not used in some way? And if used in some way, could they influence the decision? I am totally baffled how she could consider foreign law as a source of ideas consistent with her testimony that foreign law should not influence the outcome of cases. Effectively, immediately after the hearing, she rescinded her sworn testimony regarding foreign law.

Judge Sotomayor's supporters argue that we should not focus on her speeches, but on her ``mainstream'' judicial record. They cite all manner of statistics that purport to show that Judge Sotomayor agreed with her colleagues, including Republican appointees, the vast majority of the time. That may be true; but, as President Obama has reminded us, most judges will agree in 95 percent of all cases. The hard cases are where differences in judicial philosophy become apparent.

I have looked at Judge Sotomayor's record in these hard cases and again have found cause for concern. The U.S. Supreme Court has reviewed directly ten of her decisions--eight of those decisions have been reversed or vacated, another sharply criticized, and one upheld in a 5- 4 decision. Indeed, just in the past 4 months, the Supreme Court has reversed Judge Sotomayor's panels three times. That does not inspire confidence.

The most recent reversal is a case in point. In Ricci v. DeStefano, a case where Judge Sotomayor summarily dismissed before trial the discrimination claims of 20 New Haven firefighters, the Supreme Court reversed 5-4, with all nine Justices rejecting key reasoning of Judge Sotomayor's court. But in my view, the most astounding thing about the case was not the incorrect outcome reached by Judge Sotomayor's court; it was that she rejected the firefighters' claims in a mere one paragraph opinion and that she continued to maintain in the hearings that she was bound by precedent that the Supreme Court said didn't exist.

As the Supreme Court noted, Ricci presented a novel issue regarding ``two provisions of Title VII to be interpreted and reconciled, with few, if any, precedents in the court of appeals discussing the issue.'' One would think that this would be precisely the kind of case that deserved a thorough and thoughtful analysis by an appellate court.

But Judge Sotomayor's court instead disposed of the case in an unsigned and unpublished opinion that contained zero--and I do mean zero--analysis. This is confounding given Judge Sotomayor's Judiciary Committee testimony, in which she said: ``I believe my 17-year record on the two courts would show that in every case that I render, I first decide what the law requires under the facts before me, and that what I do is explained to litigants why the law requires a result. And whether their position is sympathetic or not, I explain why the result is commanded by law.''

Because her initial decision was unpublished, the case--and the firefighters' meritorious claims--would have been swept under the rug and lost forever if not for fellow Second Circuit Judge Jose Cabranes, who read about the firefighters' case in a local newspaper, the New Haven Register.

Judge Cabranes looked into the situation, recognized the importance of the case, and requested that the entire Second Circuit, including judges who were not involved in the original decision, rehear the case. By a vote of 7-6, the Second Circuit denied rehearing the case, with Judge Sotomayor providing the seventh and decisive vote to avoid further consideration of her panel's decision. Fortunately for the firefighters, Judge Cabranes wrote a blistering dissent that no doubt caught the attention of the Supreme Court. He charged that Judge Sotomayor and her panel had ``failed to grapple with the questions of exceptional importance raised in this appeal.''

Some have speculated that the Judge Sotomayor's panel intentionally disposed of the case in a short, unsigned, and unpublished opinion in an effort to hide it from further scrutiny. Was the case intentionally kept off of her colleagues' radar? Did she have personal views on racial quotas that prevented her from seeing the merit in the firefighters' claims? Was it is merely coincidence that the standard adopted by Judge Sotomayor--which in the Supreme Court's words ``would encourage race-based action at the slightest hint of disparate impact'' and would lead to a ``de facto quota system''--was consistent with policy and legal positions advocated by the Puerto Rican Legal Defense and Education Fund, an organization with which she was intimately involved for 12 years? In repeated speeches through the years, Judge Sotomayor said, ``I . . . accept that our experiences as women and people of color affect our decisions.'' Was this such a case?

Judge Sotomayor was asked about her Ricci decision at length during the confirmation hearing. Her defense was that she was just following ``established Supreme Court and Second Circuit precedent.'' The problem with this answer is that Ricci presented a novel question for which there were no Supreme Court precedents squarely on point. Indeed, the Supreme Court noted that there were ``few, if any'' circuit court opinions addressing the issue.

During the hearing, I pressed Judge Sotomayor to identify those controlling Supreme Court and Second Circuit precedents that allegedly dictated the outcome in Ricci. Rather than answer the question, she dissembled and ran out the clock. Perhaps that was because, as Judge Cabranes's dissent stated, the ``core issue presented by this case--the scope of a municipal employer's authority to disregard examination results based solely on the race of the successful applicants--is not addressed by any precedent of the Supreme Court or our Circuit.'' But even

if we accept Judge Sotomayor's contention that there was some relevant Second Circuit precedent, it is quite clear that such cases would not bind her or other judges in considering en banc review. It is telling that even the Obama Justice Department found her legal position impossible to defend. It filed a brief in the case asking the Supreme Court to vacate and remand the case for further proceedings, essentially what the dissent favored, as well.

The truth is that we will never know the reasons that guided the outcome of the case. But we know, at the very least, that Judge Sotomayor exercised poor judgment in dismissing serious claims in an unsettled area of the law without engaging in an analysis of the issues. As Judge Cabranes wrote in dissenting from the denial of rehearing en banc: ``The use of per curiam opinions of this sort, adopting in full the reasoning of a district court without further elaboration, is normally reserved for cases that present straight- forward questions that do not require explanation or elaboration by the Court of Appeals. The questions raised in this appeal cannot be classified as such, as they are indisputably complex and far from well- settled.''

Clearly, Judge Sotomayor did not adequately explain to the litigants--or the Judiciary Committee--why the law required the result she supported. And she cast the decisive vote to ensure that the full circuit court could not review the case. Is this the kind of behavior we should expect of a judge who is seeking a promotion to the Supreme Court?

Finally, if I had been a litigant before her court and Judge Sotomayor had asked me the questions I asked her about Ricci, and had I ``answered'' them as she responded to me in the hearing, she would rightly have told me to either sit down or start answering her questions. Her ``answers'' answered nothing and, in my opinion, violated her obligation to be forthcoming with the Judiciary Committee

Ricci is not the only Judge Sotomayor decision that gives reason to question her commitment to impartial justice. I am concerned about her analysis--or lack thereof--in Maloney v. Cuomo, a second amendment case that could find its way to the Supreme Court next year. Maloney was decided after the Supreme Court's landmark ruling in District of Columbia v. Heller, which held that the right to bear arms was an individual right that could not be taken away by the Federal Government.

In Maloney, Judge Sotomayor had the opportunity to consider whether that individual right could also be enforced against the States, a question that was not before the Heller court. In yet another unsigned opinion, Judge Sotomayor and two other judges held that it was not a right enforceable against States.

What are the legal implications of this holding? State regulations limiting or prohibiting the ownership and use of firearms would be subject only to ``rational basis'' review. As Sandy Froman, a respected lawyer and former president of the National Rifle Association, said in her witness testimony, this is a ``very, very low threshold'' that can easily be met by a State or city that wishes to prohibit all gun ownership, even in the home. Thus, if Judge Sotomayor's decision were allowed to stand as precedent, then states will, ironically, be able to do what the Federal District of Columbia cannot--place a de facto prohibition on the ownership of guns and other arms.

Some have suggested that Judge Sotomayor's decision is not cause for alarm. They say that she was simply following precedent and that the Maloney case is not necessarily indicative of what she would do if confirmed to the Supreme Court. And they point to a recent decision by the Seventh Circuit, which similarly refused to apply the second amendment to State regulations. Apart from the fact that her ruling is now binding in the States covered by the Second Circuit, there is a critical difference between Judge Sotomayor's decision and that of the Seventh Circuit.

While the judges on the Seventh Circuit explicitly declined to decide what will be the key issue before the Supreme Court--whether the Second Amendment's right to bear arms is, in legal parlance, ``fundamental,'' and therefore enforceable against states as well as the Federal Government--Judge Sotomayor's perfunctory decision did not leave this question open. Her panel specifically concluded, without any explanation, that the right to bear arms is in fact not a ``fundamental'' right a conclusion that, to the best of my knowledge, no other court has ever reached--and that, as Sandy Froman noted, ``would rob the Second Amendment of any real meaning and would trample on the individual rights of America's nearly 90 million gun owners.'' Indeed, Judge Sotomayor's assessment stands in stark contrast to the Supreme Court's own opinion in Heller, which not once but twice refers to the right to bear arms as ``fundamental.'' It is hard, if not impossible, to square these facts with Judge Sotomayor's repeated assertions, in sworn testimony before the Judiciary Committee, that she was just following precedent.

Judge Sotomayor's opinion in Maloney is extraordinary both for its lack of serious analysis and for reaching an unprecedented conclusion that was wholly unnecessary. She could have as easily chosen the path taken by the seventh circuit, and reserved for the Supreme Court the opportunity to decide in the first instance whether the right to bear arms is ``fundamental.'' Or, like the ninth circuit, she could have undertaken a thorough analysis of the issue and determined that the right is, indeed, fundamental. She did neither.

As Sandy Froman stated:

When faced with the most important question remaining after

Heller, whether the right to keep and bear arms is

fundamental and applies to the states, Judge Sotomayor

dismissed the issue with no substantive analysis. . . . By

failing to conduct a proper Fourteenth Amendment analysis,

the Maloney court evaded its judicial responsibilities,

offered no guidance to lower courts and provided no

assistance in framing the issue for resolution by the Supreme

Court. Whenever an appellate judge fails to provide

supporting analysis for their conclusion or address serious

constitutional issues presented by the case, it is legitimate

to ask whether the judge reached that conclusion by

application of the Constitution and statutes or based on a

political or social agenda.

I agree. I did not expect or even want Judge Sotomayor to precommit to a particular reading of the second amendment. The Judiciary Committee did, however, have a right to receive from her an explanation of the Maloney decision. At the very least she could have been more forthcoming in response to questions regarding recusal, but she would not even commit to recusing herself from the Supreme Court's consideration of her own Maloney decision if it were taken up as part of a consolidated appeal.

I think it is fair to say that Judge Sotomayor's testimony about the second amendment raised more questions than it answered. The issue of incorporation is bound to come before the Supreme Court. Those of us who support the right of the people to keep and bear arms should be very concerned about the position she has already taken and the fact that she has clearly reserved the option of reviewing the case on the Court she could be confirmed to, particularly on a matter she has already decided.

As we have seen, Judge Sotomayor's testimony about her previous speeches and some of her decisions is difficult, if not impossible, to reconcile with her record. Similarly, her testimony about the extent of her role with the Puerto Rican Legal Defense and Education Fund is in tension with the evidence we have.

At her hearing, Judge Sotomayor tried to downplay her role at PRLDEF. She said:

I was not like Justice Ginsburg or Justice Marshall. I was

not a lawyer on the fund as they were, with respect to the

organizations they belonged to. I was a board member.

In emphasizing her role as a long-time board member, Judge Sotomayor deflected attention from her service in litigation-focused positions, such as her 8 years on the litigation committee and the 4 years she served as that committee's chairperson. As anyone who is familiar with advocacy and public interest groups can attest, it is inconceivable that the chair of an organization's litigation committee would not have a significant role in shaping the organization's legal strategy.

Moreover, Judge Sotomayor's testimony that ``it was not my practice and not that I know of, of any board member'' to review briefs, is undermined by

PRLDEF's own meeting minutes. For example, on October 8, 1978:

[Litigation Committee] Chairperson Sotomayor summarized the

activities of the Committee over the last several months

which included the review of the litigation efforts of the

past and present. . . .

The New York Times has detailed her active involvement, as recounted by former PRLDEF colleagues, who have described Judge Sotomayor as a ``top policy maker'' who ``played an active role as the defense fund staked out aggressive stances.'' According to these reports, she ``frequently met with the legal staff to review the status of cases'' and ``was an involved and ardent supporter of their various legal efforts during her time with the group.''

What were the litigation positions advanced by PRLDEF during Judge Sotomayor's tenure there? Well, it argued in court briefs that restrictions on abortion are analogous to slavery. And it repeatedly represented plaintiffs challenging the validity of employment and promotional tests--tests similar to the one at issue in Ricci.

I want to return to a question I raised in my opening statement of Judge Sotomayor's hearing: What is the traditional basis for judging in America?

For 220 years, Presidents and the Senate have focused on appointing and confirming judges and Justices who are committed to putting aside their biases and prejudices and applying the law fairly and impartially to resolve disputes between parties.

This principle is universally recognized and shared by judges across the wide ideological spectrum. For instance, Judge Richard Paez of the ninth circuit--with whom I disagree on a number of issues--explained this in the same venue where, less than 24 hours earlier, Judge Sotomayor made her remarks about a ``wise Latina woman'' making better decisions than other judges. Judge Paez described the instructions that he gives to jurors who are about to hear a case. ``As jurors,'' he said, ``recognize that you might have some bias, or prejudice. Recognize that it exists, and determine whether you can control it so that you can judge the case fairly. Because if you cannot--if you cannot set aside those prejudices, biases and passions--then you should not sit on the case.''

And then Judge Paez said:

The same principle applies to judges. We take an oath of

office. At the federal level, it is a very interesting oath.

It says, in part, that you promise or swear to do justice to

both the poor and the rich. The first time I heard this oath,

I was startled by its significance. I have my oath hanging on

the wall in the office to remind me of my obligations. And

so, although I am a Latino judge and there is no question

about that--I am viewed as a Latino judge--as I judge cases,

I try to judge them fairly. I try to remain faithful to my

oath.

What Judge Paez said has been the standard for 220 years. It correctly describes the fundamental and proper role both for jurors and judges.

Before the hearing, my biggest question about Judge Sotomayor was whether she could abide by that standard. We spent 3 days asking her questions, trying to understand what she meant in some of her controversial speeches and what drove her to questionable conclusions in cases such as Ricci and Maloney.

Judge Sotomayor did not dispel my concerns. Her sworn testimony was evasive, lacking in substance, and, in several instances, incredibly misleading.

Her dissembling was widely noticed. Indeed, in an editorial, the Washington Post criticized Judge Sotomayor's testimony about her ``wise Latina'' statement. Here is what the Washington Post said:

Judge Sotomayor's attempts to explain away and distance

herself from that statement were unconvincing and at times

uncomfortably close to disingenuous, especially when she

argued that her reason for raising questions about gender or

race was to warn against injecting personal biases into the

judicial process. Her repeated and lengthy speeches on the

matter do not support that interpretation.

Until now, Judge Sotomayor has been operating under the restraining influence of a higher authority--the Supreme Court. If confirmed, there would be no such restraint that would prevent Judge Sotomayor from--to paraphrase President Obama--deciding cases based on her heartfelt views.

If the burden is on the nominee to prove herself worthy of a lifetime appointment to the Nation's highest Court, she must do more than avoid a ``meltdown'' in her testimony. She must be able to rationalize contradictory statements--assuming she does not repudiate one or the other--such as the differences between her speeches and her committee testimony. Her failure to do that has left me unpersuaded that Judge Sotomayor is absolutely committed to setting aside her biases and impartially deciding cases based upon the rule of law.

Judge Sotomayor is obviously intelligent, experienced, and talented. She represents one of the greatest things about America--the opportunity to become whatever you want with your God-given abilities. She is a role model for young women, as well as minorities, specifically. She is personable and, apparently, hard working. I respect the views of those who regard her well.

Moreover, I appreciate her many declarations during the hearing that judges must decide cases solely on the basis of the facts and the law; and especially her disagreement with the President's erroneous, I believe, formulations that, in the hard cases, a judge should rely on empathy and what is in his or her heart.

It may have been possible to vote to confirm her notwithstanding her decisions in Ricci, Maloney, and some other questionable cases. What I cannot abide, however, is her unwillingness to forthrightly confront the contradictions among her many statements, so as to give us confidence that her Judiciary Committee testimony represents what she believes and what she will do. Instead, she would have us believe that there is no contradiction, that she can hold onto what she said before in speeches and decisions--for example, that she merely followed Supreme Court and circuit precedent in Maloney, and that the dissenters in Ricci did not disagree with her reasoning--and also her testimony.

I cannot ignore her unwillingness to answer Senators' questions straightforwardly--for instance, her insistence that as chair of PRLDEF's litigation committee, she had little to do with the organization's legal positions. She has not carried her burden of proof and, therefore, regrettably, I cannot vote to confirm her.

Mr. President, I say to my colleague, I had the same impression yesterday when I saw Mr. Geithner and Mr. Summers on television. They, frankly, were recognizing the reality of the situation. I did not think that much of it because the truth is, the people my colleague has quoted are absolutely right. You cannot do all the things the President wants to do without raising taxes, and inevitably that will be on the middle class.

To put in the Record what both Treasury Secretary Geithner and Mr. Summers said--this is as reported by George Stephanopoulous, ``This Week'' host for ABC. He said:

To get the economy back on track, will President Obama have

to break his pledge not to raise taxes on 95 percent of

Americans? In a ``This Week'' exclusive, Treasury Secretary

Tim Geithner told me, ``We're going to have to do what's

necessary.'' Then Stephanopoulous continues:

When I gave him several opportunities to rule out a middle-

class tax hike, he wouldn't do it. ``We have to bring these

deficits down very dramatically,'' Geithner told me. ``And

that's going to require some very hard choices.''

Of course it is. Secretary Geithner is right. It is pretty hard to deny.

Then the National Economic Council Director, Lawrence Summers, was asked by Bob Schieffer on CBS if taxes could be raised for middle- income Americans. Summers said:

There is a lot that can happen over time. It is never a

good idea to absolutely rule out things no matter what.

Then he said that what the President has been completely clear on is he is

not going to pursue any of these priorities--not health care--in ways that are primarily burdening middle-class families. That is something that is not going to happen.

There seems to be a subtle switch here to, first of all, never say never and, secondly, say the tax burden is not going to primarily fall on middle-class Americans.

I say to my colleague, when you look at some of the provisions that are in the House of Representatives bill on health care, in the Senate HELP Committee on health care, and some of the things that are being considered by the Finance Committee, in all three situations, you do have taxes on working American families, middle-class families.

I think that what the Secretary and Mr. Summers said Sunday is actually more true than what the press secretary tried to make it out to be. It is simply the recognition of a reality--that you can't pay for all of this and not impose taxes on middle Americans.

Mr. President, I would just ask my colleague also if he is aware that there are some other proposals in these various Democratic bills. One is that all individuals would be required to buy medical insurance. There would be a penalty if they refused to do so that would go directly to their income tax. I believe the latest proposal I saw was 2.5 percent of your income tax. There would be a penalty imposed if you didn't buy insurance.

Now, what happens to, let's say a young man or woman who has just graduated from college, who are no longer on their parents' insurance policy and they are now going to be required to go into a risk pool along with everybody else? Or let's say they have been paying a modest amount for their insurance through their college, perhaps. What is likely to happen when they are thrown into the pool of other Americans, all of whom are required to purchase insurance? Will their premiums go down, or what is the estimate of what will happen to the premiums of these young people?

Mr. President, I know we just have a couple of minutes left. There are several other examples--one that is being considered by the Finance Committee, I know. It is to amend the provision of the Tax Code by which if you itemize your deductions and you have medical expenses that exceed 7\1/2\ percent of your adjusted gross income, you would get to deduct that from your income tax.

There are two different proposals pending in the Finance Committee. In both cases, there would be a new tax imposed. The problem is, according to the Joint Committee on Taxation, replacing the existing deduction with the new provision would increase taxes by $48 billion over 10 years. Who does it hit? Fifty-two percent of the taxpayers who claim the deduction earn under $50,000 a year. These are not the wealthy Americans the President was speaking of. Forty percent of the taxpayers who claimed the deduction are over the age of 65.

I guarantee you in Arizona we are going to look at that provision because a lot of our folks are over 65 and they rely upon the income- tax code to ensure if they have a catastrophic expense in any given year that they have the ability to deduct a portion of that.

The following Senator is necessarily absent: the Senator from Mississippi (Mr. Cochran).

Madam President, I ask for the yeas and nays.

The following Senator is necessarily absent: The Senator from Oklahoma, Mr. Inhofe.