Floor Statements

Mr. President, last week, the Supreme Court decided the case of Ricci v. DeStefano in which it ruled that the city of New Haven, CT, unlawfully discriminated against a number of mostly White firefighters by throwing out a standardized employment promotion test because some minority firefighters had not performed as well as they had.

In this case, the Supreme Court was correct in my view. The government should not be allowed to discriminate intentionally on the basis of race on the grounds that a race-neutral, standardized test-- which is administered in a racially neutral fashion--results in some races not performing as well as others.

Yet regardless of where one comes out on this question, there are at least two aspects of how all nine Justices handled this very important case that stand in stark contrast to how Judge Sotomayor and her panel on the Second Circuit handled it--and which call into question Judge Sotomayor's judgment.

First, this case involves complex questions of Federal employment law; namely, the tension between the law's protection from intentional discrimination--known as ``disparate treatment'' discrimination--and the law's protection from less overt forms of discrimination, known as ``disparate impact'' discrimination.

It also involves important constitutional questions--such as whether the government, consistent with the 14th amendment's guarantee of equal protection under the law, may intentionally discriminate against some of its citizens in the name of avoiding possible discriminatory results against other of its citizens.

Every court involved in this case realized that it involved complex questions that warranted thorough treatment--every court, that is, except for Judge Sotomayor's panel. The district court, which first took up the case, spent 48 pages wrestling with these issues. The Supreme Court devoted 93 pages to analyzing them. By contrast, Judge Sotomayor's panel dismissed the firefighters' claims in just 6 sentences--a treatment that her colleague and fellow Clinton appointee, Jose Cabranes, called ``remarkable,'' ``perfunctory,'' and not worthy ``of the weighty issues presented by'' the firefighters' appeal.

It would be one thing if the Ricci case presented simple issues that were answered simply by applying clear precedent. But the Supreme Court doesn't take simple cases. And at any rate, no one buys that this case was squarely governed by precedent, not even Judge Sotomayor.

We know this because in perfunctorily dismissing the firefighters'

claims, Judge Sotomayor did not even cite a precedent.

Moreover, she herself joined an en banc opinion of the Second Circuit that said the issues in the case were ``difficult.'' So, to quote the National Journal's Stuart Taylor, the way Judge Sotomayor handled the important legal issues involved in this case was ``peculiar'' to say the least. And it makes one wonder why her treatment of these weighty issues differed so markedly from the way every other court has treated them and whether her legal judgment was unduly affected by her personal or political beliefs.

Second, all nine Justices on the Supreme Court said that Judge Sotomayor got the law wrong. She ruled that the government can intentionally discriminate against one group on the basis of race if it dislikes the outcome of a race-neutral exam and claims that another group may sue it. Or, as Judge Cabranes put it, under her approach, employers can ``reject the results of an employment examination whenever those results failed to yield a desired racial outcome, i.e., failed to satisfy a racial quota.''

No one on the Supreme Court, not even the dissenters, thought that was a correct reading of the law.

Justice Kennedy's majority opinion said that before it can intentionally discriminate on the basis of race in an employment matter, the government must have a ``strong basis in evidence'' that it could lose a lawsuit by a disgruntled party claiming a discriminatory effect of an employment decision. And even Justice Ginsburg and the dissenters said that before it intentionally discriminates, the government must have at least ``good cause'' to believe that it could lose a lawsuit by the disgruntled party.

Not Judge Sotomayor. She evidently believes that statistics alone allow the government to intentionally discriminate against one group in favor of another if it claims to fear a lawsuit.

Stuart Taylor notes why this is problematic. As he put it, the Sotomayor approach would, ``risk converting'' Federal antidiscrimination ``law into an engine of overt discrimination against high-scoring groups across the country and allow racial politics and racial quotas to masquerade as voluntary compliance with the law.'' Under such a regime, Taylor notes, ``no employer could ever safely proceed with promotions based on any test on which minorities fared badly.''

It is one thing to get the law wrong, but Judge Sotomayor got the law really wrong in the Ricci case, and the New Haven firefighters suffered for it. To add insult to injury, the perfunctory way in which she treated their case indicates either that she did not really care about their claims, or that she let her own experiences planning and overseeing these types of lawsuits with the Puerto Rican Legal Defense and Education Fund affect her judgment in this case.

As has been reported, before she was on the bench, Judge Sotomayor was in leadership positions with PRLDEF for over a decade. While there, she monitored the group's lawsuits and was described as an ``ardent supporter'' of its litigation projects, one of the most important of which was a plan to sue cities based on their use of civil service exams. In fact, she has been credited with helping develop the group's policy of challenging these types of standardized tests.

Is the way Judge Sotomayor treated the firefighters' claims in the Ricci case what President Obama means when he says he wants judges who can ``empathize'' with certain groups? Is this why Judge Sotomayor herself said she doubted that judges can be impartial, ``even in most cases''? It is a troubling philosophy for any judge, let alone one nominated to our highest court, to convert ``empathy'' into favoritism for particular groups.

The Ricci decision is the tenth of Judge Sotomayor's cases that the Supreme Court has reviewed. And it is the ninth time out of ten that the Supreme Court has disagreed with her. In fact, she is 0 for 3 during the Supreme Court's last term.

The President says that only 5 percent of cases that Federal judges decide really matter. I do not know if he is right. But I do know that, by necessity, the Supreme Court only takes a small number of cases, and it only takes cases that matter. And I know that in the Supreme Court, Judge Sotomayor's been wrong 90 percent of the time.

In the Ricci case, her third and final reversal of this term, Judge Sotomayor was so wrong in interpreting the law that all nine justices, of all ideological stripes, disagreed with her. As we consider her nomination to the Supreme Court, my colleagues should ask themselves this important question: is she allowing her personal or political agenda to cloud her judgment and favor one group of individuals over another, irrespective of what the law says?

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

Mr. President, over the past several weeks, Americans have heard a number of proposals for reforming health care, and they are increasingly concerned about many of the details. Americans want reform, but they want the right reform, not a reform that ends up costing them much more for worse care than they already receive. Unfortunately, the government-run plan that some are proposing would do just that.

A government-run plan would force millions of Americans to give up the care they currently have and replace it with a system in which care is denied, delayed, and rationed. Instead of increasing access and quality, it could limit access and options. It could lead us into deeper debt. And millions could well remain uninsured.

Americans are skeptical about all of this. They do not want to be forced to

change the coverage they have for a government system they do not particularly want. Some of the advocates of a government plan are beginning to sense this growing public opposition to their proposal. But rather than make their case on the merits, they are basing their arguments on the urgency of the moment.

We keep hearing that time is running out, that the clock on reform is about to expire, that the entire health care system and the whole economy will soon collapse without this particular reform. Well, we have been down this road before.

Earlier this year, we heard the same dire warnings about the stimulus. If Congress did not pass the stimulus, we were told, unemployment would continue to rise and the economy would continue to falter. We did not just have to pass it, we had to pass it right away. The results are now coming in: higher unemployment, soaring job losses, higher debt, huge deficits, and growing fears about inflation.

Many of us saw this coming. That is why we proposed an alternative stimulus that would not add a trillion dollars to the debt and would have gotten to the root cause of our economic problem, which is housing. That is why in the debate over health care Republicans are proposing reforms that would make health care more accessible and less expensive without destroying what people like about our health care system and without sending the Nation deeper and deeper into debt.

Every cost estimate we have heard about the administration's plans for health care is astronomical. The administration realizes this is a problem, and yet they have no good plan for covering the cost. Some of the ideas that have been floated are a series of taxes, including a tax on soft drinks. But even that would not come close to covering the cost. So they have been looking frantically for money, and the target they seem to have landed on is Medicare--the government health plan for the elderly.

Last month, the administration proposed hundreds of billions of dollars in cuts. It said by taking this money out of Medicare and putting it into a new government-run plan for all Americans, we could help pay for health care reform. Not only is this aimed at concealing the cost of the new government plan, it is also a reckless misuse of funds that should be used to stabilize Medicare instead.

Weeks before the administration proposed its cuts to Medicare, the government board that oversees this vital program issued an urgent report on its looming insolvency. Let me say that again. Just weeks before the administration recommended Medicare cuts in order to pay for a new program, the government board that oversees this program issued an urgent report on its looming insolvency. Already, Medicare is spending more money than it is taking in. It runs out of money altogether in 8 years. And over the coming decades, Medicare is already committed to spend nearly $40 trillion that it does not have.

If there were ever a crisis that cannot wait another day for reform, it is Medicare. Yet rather than do the hard but necessary work to put this program on a sound financial basis, the administration wants to take money away from it and use it to create an entirely new government-run system that would presumably have the same fiscal problems down the road that Medicare has today. This makes no sense whatsoever.

Savings from Medicare should be put back into Medicare--not a government plan that could drive millions of Americans out of the private health care plans they have and like and lead to the same kind of denial, delay, and rationing of health care that we have seen in other countries.

We must be committed to reform but not a so-called reform that raids one insolvent government-run health care program in order to create another insolvent government-run health care program. The administration should be applauded for trying to fix what is wrong with our Nation's health care system, but it needs to slow down and take a deep breath before taking over what amounts to about one-sixth of our Nation's economy with a single piece of legislation that lacks bipartisan support.

The administration rushed ahead with a poorly conceived stimulus plan that added a trillion dollars to the national debt and has not stopped half a million Americans a month from losing their jobs. It should learn from that and not rush a poorly conceived health care plan with money we do not have. We do not need more rush-and-spend policymaking. We need to reform health care, but we do not need to weaken Medicare to do it. We can reform both, but we should start with Medicare.

At a time when Americans are increasingly concerned about the future of health care and also about a political system in which they see fewer and fewer checks on the party in power, now would be the ideal time to advance a truly bipartisan reform. The President has repeatedly expressed openness to reforming Medicare in the past. We stand ready to work with him to strengthen and preserve Medicare if he chooses to follow through on those assurances.

Mr. President, I yield the floor.

I say to my good friend from Tennessee, unfortunately, there has been no followup whatsoever. There seemed to be, on the part of the President and the President's Chief of Staff at the beginning of the administration, a willingness to support the Conrad-Gregg proposal, which would have given us a way to get a handle on at least Social Security--they did not seem to want to deal with Medicare, and I think we now know why--at least Social Security, with an expedited procedure and an up-or-down vote guaranteeing a result. But I would say to my friend from Tennessee, there has been no word on that lately.

Mr. President, I think there is a genuine alarm. Americans see the government now running banks, insurance companies, automobile companies. The Senator from Tennessee points out student loans. Now they fear the government wants to take over health care as well. I think there is a growing suspicion that this is exactly the wrong way to go.

Madam President, Americans are insisting that Members of Congress work together on reforms which make health care more affordable and accessible but which don't force people off their current plans or add to an already staggering national debt. Yet the Democratic plan now being rushed through the Senate would do just the opposite. It would force millions of Americans off their health care plans and bury our Nation deeper and deeper in debt.

Democrats have repeatedly and incorrectly declared that under their plan Americans who like their current insurance will be able to keep it. This morning, I would like to explain why that is, unfortunately, not the case.

Just last week, the independent Congressional Budget Office said that the incomplete Democratic HELP Committee proposal would cause 10 million Americans who currently have employer-based insurance to lose that coverage. Let me repeat that. Before the Democratic bill is even complete, we know that it will cause 10 million Americans to lose their health care insurance they currently have. But 10 million would just be the beginning. One key section missing from the HELP bill is the government plan Democrats say they want, and according to one study, 119 million Americans could lose their private coverage if a government plan is enacted.

Here is why this so-called government option would lead to Americans losing their current plans and why it would soon become the only option.

First, a government-run plan would have unlimited access to taxpayer dollars and could operate at a loss indefinitely, which could force private insurers out of business. Private health plans simply wouldn't be able to compete, and millions of Americans could be forced off their health plans whether they like it or not. At that point, people would have to enroll in a government plan or any surviving private health care plan, if they could afford it. I say if they could afford it because another unintended consequence of creating a government plan is that it would cause rates for private health plans to skyrocket, leaving most Americans unable to afford them. They would simply be too expensive. Right now, government programs such as Medicare and Medicaid pay hospitals and doctors less than private insurers do, and hospitals and doctors then pass on the difference to private insurers. If a government plan was established, doctors and hospitals would shift more of their cost onto private health plans, making them even more expensive and making it even harder for them to compete with a government plan. In the end, only the wealthiest would be able to afford private health plans and the kind of care most Americans currently enjoy.

Some say safeguards could be put in place to create a level playing field. But the very nature of the government running a health insurance plan in the private market is the problem. Any safeguard could easily be eliminated, and one look at the government takeovers in the insurance and auto industries shows that when the government is involved, there is really no such thing as a fair playing field.

Let's take a look at the auto industry. The government has given billions of dollars to the financing arms of Chrysler and GM, allowing them to offer interest rates that Ford, a major manufacturer in my State, and other private companies struggle to compete with. This means the only major U.S. automaker that did not take a bailout is at a big disadvantage as it struggles to compete with government-run auto companies. When Ford needed money, it had to raise it in the open market and pay an 8-percent interest rate. But GM could just call up the Treasury--just call up the Treasury--and have them wire over some taxpayer money. No company can compete with that.

So contrary to their claims, if the Democratic plan is enacted, millions of Americans will lose the health insurance they have and that they like. Again, that is not what I say, it is what the Congressional Budget Office says, it is what independent analysts say, it is what America's doctors say, and it is even what President Obama now says. The President now acknowledges that under a government plan, some people might be shifted off of their current insurance.

This isn't the only Democratic claim about health care that is increasingly suspect. Democrats have also promised their health plan will be paid for and won't add to the deficit. But the facts just don't add up. Right now, just one section--one section--of the HELP bill would spend $1.3 trillion. It is not plausible that this won't add to the deficit, which has already swelled by more than $1 trillion thanks to bailouts and the stimulus money.

So when Democrats predict their health care plan won't cause people to lose their current insurance and won't add to the national debt, Americans are certainly right to be skeptical. They made the same kinds of predictions about the stimulus bill. They said the money wouldn't be wasted. Yet we are already hearing about a $3.4 million turtle tunnel and $40,000 to pay the salary of someone whose job is to apply for more stimulus money. The administration also predicted that if we passed the stimulus, the unemployment rate wouldn't rise above 8 percent. Now they say unemployment will likely rise to 10 percent.

Americans, indeed, want health care reform, but they do not want a so-called reform that takes away the care they have and stands in the way of their relationships with their doctors or that buries their children and grandchildren deeper and deeper in debt. I think we can do a lot better than that.

I yield the floor.

Do you solemnly swear that in all things appertaining to the trial of the impeachment of Samuel B. Kent, Judge of the United States District Court for the Southern District of Texas, now pending, you will do impartial justice according to the Constitution and laws, so help you God?

Mr. President, I move to lay the motion on the table.

Without objection, the motion to lay upon the table was agreed to.

Mr. President, I move to lay that motion on the table.

Without objection, the motion to lay upon the table was agreed to.

Mr. President, in accordance with the resolution on the appointment of an impeachment trial committee, I recommend to the Chair the appointment of Senators Martinez (vice-chairman), DeMint, Barrasso, Wicker, Johanns, and Risch.

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

Mr. President, I am going to proceed on my leader time which I did not use earlier this morning.

Mr. President, the Secretary of Health and Human Services recently said that when it comes to health care, the status quo is unacceptable, and I agree with her. She then went on to say that there are a lot of people on Capitol Hill who are content with doing nothing, though she didn't name names. On that point, I totally disagree. Republicans and Democrats all share the belief that health care reform is needed. The question is what kind of reform it should be.

Some have proposed a government-run health care system that would force millions to give up the private health plans they have and like and replace them with a government plan where care is denied, delayed, and rationed. This so-called ``reform'' is not the kind of change Americans want. They want health care that is more affordable and accessible, but that preserves the doctor-patient relationship and the quality of care they now enjoy.

And that is why Republicans are proposing reforms to make health care less expensive and easier to obtain without destroying what's good about our system. Republicans want to reform our medical liability laws to discourage junk lawsuits and bring down the cost of care; we want to encourage wellness and prevention programs that have been successful in cutting costs; we want to encourage competition in the private insurance market to make care more affordable and accessible; and we want to address the needs of small businesses without creating new taxes that kill jobs. But instead of embracing these commonsense ideas that Americans support, Democrats in Congress are trying to rush through a health care bill that will not only lead to a government-run system, but will do so by spending trillions of dollars and plunging our country deeper and deeper into debt.

Recently, the independent Congressional Budget Office told us that just one--just one--section of the bill being discussed in the HELP Committee would spend $1.3 trillion over a decade. And Senator Gregg, the ranking member on the Budget Committee, estimates the HELP bill could end up spending more than $2 trillion--more than $2 trillion on a bill that would not even solve the entire problem.

The American people don't want us to spend trillions of dollars we don't have on a health care system they don't want. And yet that is exactly what Democrats plan to do, even though they can't explain to anyone how they will pay for it. Despite the staggering costs of the Democrat health care plan, we're being told we need to rush it through the Congress for the sake of the economy. When Republicans ask how Democrats are going to pay for it, or what impact it will have on our health care system and the economy, the only words we hear are rush and spend, rush and spend.

We heard similar warnings earlier this year when Democrats pushed through their stimulus bill, and voted on it less than 24 hours after all of the details were made public. Well, if the American people learned anything from the stimulus, it is that we should be suspicious when we are told that we need to spend trillions of dollars without having the proper time to review how the money will be spent or what effect it will or will not have.

Democrats also said the stimulus money wouldn't be wasted and that they would keep track of every penny spent. Yet already we are learning about outrageous projects like a $3.4 million turtle tunnel that is 13 feet long or more than $40,000 being spent to pay the salary of someone whose job is to apply for more stimulus money.

The administration also predicted that if we passed the stimulus, the unemployment rate wouldn't exceed 8 percent. But just last week, the President said that unemployment would likely rise to 10 percent.

So when Democrats now predict that their health care plan will cut costs, Americans should be skeptical. And they have good reason to be, since independent estimates show that every health care proposal Democrats have offered would only hurt the economy.

Americans should also be skeptical when it comes to Democrat promises that people will be able to keep their current insurance. Just last week, the independent Congressional Budget Office said that just one section of the HELP Bill will cause 10 million people with employer- based insurance to lose the coverage they have. And that is even before we have seen a finished product. The bill is still missing significant sections, such as a government plan that Democrats want, which could force millions more to lose their current coverage.

The stimulus showed that when politicians in Washington say the sky is going to fall unless Congress approves trillions of dollars right away, we should be wary. Yet just a few months later, Americans are hearing the same thing from Democrats in the health care debate: rush and spend, rush and spend. Americans want health care reform, but they want the right health care reform. They want us to take the time and care necessary to get it right. And that is why the Democrats' rush and spend strategy is exactly the wrong approach.

I yield the floor.

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

Madam President, I ask unanimous consent that Senator Sessions and I be granted 20 minutes.

Madam President, this morning I would like to turn my attention to the nomination of Judge Sonia Sotomayor to the Supreme Court and more specifically to the so-called empathy standard that President Obama employed in selecting her for the highest Court in the land.

The President has said repeatedly that his criterion for Federal judges is their ability to empathize with specific groups. He said it as a Senator, as a candidate for President, and again as President. I think we can take the President at his word about wanting a judge who exhibits this trait on the bench. Based on a review of Judge Sotomayor's record, it is becoming clear to many that this is a trait he has found in this particular nominee.

Judge Sotomayor's writings offer a window into what she believes having empathy for certain groups means when it comes to judging, and I believe once Americans come to appreciate the real-world consequences of this view, they will find the empathy standard extremely troubling as a criterion for selecting men and women for the Federal bench.

A review of Judge Sotomayor's writings and rulings illustrates the point. Judge Sotomayor's 2002 article in the Berkeley La Raza Law Journal has received a good deal of attention already for her troubling assertion that her gender and ethnicity would enable her to reach a better result than a man of different ethnicity. Her advocates say her assertion was inartful, that it was taken out of context. We have since learned, however, that she has repeatedly made this or similar assertions.

Other comments Judge Sotomayor made in the same Law Review article underscore rather than alleviate concerns with this particular approach to judging. She questioned the principle that judges should be neutral, and she said the principle of impartiality is a

mere aspiration that she is skeptical judges can achieve in all or even in most cases--or even in most cases. I find it extremely troubling that Judge Sotomayor would question whether judges have the capacity to be neutral ``even in most cases.''

There is more. A few years after the publication of this particular Law Review article, Judge Sotomayor said the ``Court of Appeals is where policy is made.'' Some might excuse this comment as an off-the- cuff remark. Yet it is also arguable that it reflects a deeply held view about the role of a judge--a view I believe most Americans would find very worrisome.

I would like to talk today about one of Judge Sotomayor's cases that the Supreme Court is currently reviewing. In looking at how she handled it, I am concerned that some of her own personal preferences and beliefs about policy may have influenced her decision.

For more than a decade, Judge Sotomayor was a leader in the Puerto Rican Legal Defense and Education Fund. In this capacity, she was an advocate for many causes, such as eliminating the death penalty. She was responsible for monitoring all litigation the group filed and was described as an ardent supporter of its legal efforts. It has been reported that her involvement in these projects stood out and that she frequently met with the legal staff to review the status of cases.

One of the group's most important projects was filing lawsuits against the city of New York based on its use of civil service exams. Judge Sotomayor, in fact, has been credited with helping develop the group's policy of challenging those exams.

In one of these cases, the group sued the New York City Police Department on the grounds that its test for promotion discriminated against certain groups. The suit alleged that too many Caucasian officers were doing well on the exam and not enough Hispanic and African-American officers were performing as well. The city settled a lawsuit by promoting some African Americans and Hispanics who had not passed the test, while passing over some White officers who had.

Some of these White officers turned around and sued the city. They alleged that even though they performed well on the exam, the city discriminated against them based on race under the settlement agreement and refused to promote them because of quotas. Their case reached the Supreme Court with the High Court splitting 4 to 4, which allowed the settlement to stand.

More recently, another group of public safety officers made a similar claim. A group of mostly White New Haven, CT, firefighters performed well on a standardized test which denied promotions for lieutenant and for captain. Other racial and ethnic groups passed the test, too, but their scores were not as high as this group of mostly White firefighters. So under this standardized test, individuals from these other groups would not have been promoted. To avoid this result, the city threw out the test and announced that no one who took it would be eligible for promotion, regardless of how well they performed. The firefighters who scored highly sued the city under Federal law on the grounds of employment discrimination. The trial court ruled against them on summary judgment. When their case reached the Second Circuit, Judge Sotomayor sat on the panel that decided it.

It was, and is, a major case. As I mentioned, the Supreme Court has taken that case, and its decision is expected soon. The Second Circuit recognized it was a major case too. Amicus briefs were submitted. The court allotted extra time for oral argument. But unlike the trial judge who rendered a 48-page opinion, Judge Sotomayor's panel dismissed the firefighters' appeal in just a few sentences. So not only did Judge Sotomayor's panel dismiss the firefighters' claims, thereby depriving them of a trial on the merits, it didn't even explain why they shouldn't have their day in court on their very significant claims.

I don't believe a judge should rule based on empathy, personal preferences, or political beliefs, but if any case cried out for empathy--if any case cried out for empathy--it would be this one. The plaintiff in that case, Frank Ricci, has dyslexia. As a result, he had to study extra hard for the test--up to 13 hours each day. To do so, he had to give up his second job, while at the same time spending $1,000 to buy textbooks and to pay someone to record those textbooks on tape so he could overcome his disability. His hard work paid off. Of 77 applicants for 8 slots, he had the sixth best score. But despite his hard work and high performance, the city deprived him of a promotion he had clearly earned.

Is this what the President means by ``empathy''--where he says he wants judges to empathize with certain groups but, implicitly, not with others? If so, what if you are not in one of those groups? What if you are Frank Ricci?

This is not a partisan issue. It is not just conservatives or Republicans who have criticized Judge Sotomayor's handling of the Ricci case. Self-described Democrats and political independents have done so as well.

President Clinton's appointee to the Second Circuit and Judge Sotomayor's colleague, Jose Cabranes, has criticized the handling of the case. He wrote a stinging dissent, terming the handling of the case ``perfunctory'' and saying that the way her panel handled the case did a disservice to the weighty issues involved.

Washington Post columnist Richard Cohen was similarly offended by the way the matter was handled. Last month, before the President made his nomination, Mr. Cohen concluded his piece on the subject as follows:

Ricci is not just a legal case but a man who has been

deprived of the pursuit of happiness on account of his race.

Obama's Supreme Court nominee ought to be able to look the

New Haven fireman in the eye and tell him whether he has been

treated fairly or not. There's a litmus test for you.

Legal journalist Stuart Taylor, with the National Journal, has been highly critical of how the case was handled, calling it peculiar.

Even the Obama Justice Department has weighed in. It filed a brief in the Supreme Court arguing that Judge Sotomayor's panel was wrong to simply dismiss the case.

So it is an admirable quality to be a zealous advocate for your clients and the causes in which you believe. But judges are supposed to be passionate advocates for the evenhanded reading and fair application of the law, not their own policies and preferences. In reviewing the Ricci case, I am concerned Judge Sotomayor may have lost sight of that.

As we consider this nomination, I will continue to examine her record to see if personal or political views have influenced her judgment.

I yield the floor.

If the Senator from Alabama will yield.

I commend Senator Sessions for his outstanding leadership on this nomination and his insistence that we be able to have enough time to do the job--to read the cases, read the Law Review articles, and to get ready for a meaningful hearing for one of the most important jobs in America. I think he has done a superb job, and I thank him for his efforts.

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

Madam President, as the debate over health care reform continues, a number of different approaches have now emerged. But one thing unites us: All of us agree health care reform is needed. The question is, what kind of reform--a reform that cuts costs and expands access or a so-called reform that leads to a government takeover where premiums are increased but health care is delayed, denied, and rationed? The American people want reform, but they want reform that allows them to keep their current insurance while preserving the freedoms, choices, and quality of care they now enjoy. That is why Republicans have proposed a series of reforms to lower costs and improve access, without--without--destroying what people like about our current health care system.

As it turns out, President Obama has said he is open to some of the ideas Republicans have put forward, such as the need to reform our medical liability laws to discourage junk lawsuits and the need to encourage wellness and prevention programs that have proven to be effective in cutting costs and improving care. In fact, during a speech last week to the American Medical Association, the President discussed one particular wellness and prevention program at the Safeway supermarket chain, which has dramatically cut that company's health care costs and employee premiums. The President even said he would be open to helping businesses across the Nation adopt wellness and prevention programs such as the Safeway plan. Yet the bill the Democrats are trying to rush through the Senate would actually ban this program from being copied and implemented by other companies. That makes absolutely no sense.

All last week, we heard eye-popping cost estimates for health care proposals coming out of Capitol Hill--proposals that wouldn't even solve the entire problem but would bury us deeper and deeper in debt. If the goal is to decrease costs, why wouldn't Democrats in Congress support a plan we know has been effective in doing so--especially if the President himself supports it? One would think this would be an easy bipartisan feature of any Democratic plan.

According to Safeway CEO Steve Burd, Safeway's per capita health care costs have remained flat even as the per capita health care costs of most American companies have increased by nearly 30 percent since Safeway implemented its wellness and prevention plan back in 2005.

Safeway's plan has also reduced the health care costs for employees and their families by offering incentives for workers who adopt healthier lifestyles. Those employees who choose to participate in the plan are tested for tobacco usage, for a healthy weight, and for their blood pressure and cholesterol levels. Employees who pass these tests are given discounts on their premiums.

For example, if employees pass all four tests, their annual premiums are reduced by $780 for individuals and $1,560 for families. If employees miss their goals the first time, the company provides support for improvement and financial incentives for those who make progress.

All of this makes health care more affordable, and it also helps to improve the health and quality of life of Safeway's workers. The company's obesity and smoking rates are now about 70 percent of the national average, and employees like the plan so much that 76 percent of them want more incentives that reward healthy behavior.

Safeway executives estimate if the United States had adopted its approach in 2005--4 years ago--the country's direct health care bill would be $550 billion less than it is now--if we had simply adopted the Safeway approach 4 years ago.

The Safeway program has proven so successful that the company wants to increase its incentives for rewarding healthy behavior. Unfortunately, current laws restrict it from doing so, but instead of offering legislation that corrects the problem, the so-called reform bill being pushed through the HELP Committee would do the opposite. It would actually prohibit companies from implementing the Safeway program.

Let me repeat that: The bill that is currently being pushed through the HELP Committee doesn't let companies consider an employee's health status when providing insurance--meaning employers would be banned from rewarding healthy behavior as Safeway does and offering lower premiums to workers who manage their chronic diseases, eliminate high-risk behaviors such as smoking, or lose weight. In other words, it would prohibit companies from implementing programs that have been proven to cut health care costs. I thought that was the point of health care reform.

When it comes to making health care more affordable, we should all support ideas that work. Americans want health care ideas that cut costs and improve care. The Safeway model is an excellent place to start. The President supports it, Republicans support it, and Safeway's experience has shown that it works. If Democrats in Congress are serious about making health care more affordable, they should support it too. Instead of the rush-and-spend approach that has led to a chaotic process and hugely expensive health care proposals that don't even address the whole problem, Democrats should slow down and consider ideas that have been shown to not only be effective in delivering care but also effective in reducing costs.

I suggest the absence of a quorum.

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

Mr. President, one thing Republicans and Democrats can all agree on is the need for serious health care reform. On Monday, President Obama spoke to the American Medical Association to discuss the issue. I applaud the President for his commitment to health care reform and agree with him that we need to make health care more affordable and accessible to all Americans.

While the American people want reform, they want us to fix what is wrong with the system without taking away the freedom, choices, and quality of care they now enjoy. During a speech to the AMA, the President acknowledged these concerns and articulated some principles on health care reform that many Republicans share. But it seems to me that many of my friends on the other side of the aisle should have listened more closely to what the President said to the AMA.

One thing the President said that Republicans agree with is that Americans should not be forced to give up the insurance they currently have and like and be forced into a government plan. The President promised the American people that:

If you like your doctor, you will be able to keep your

doctor. If you like your health care plan, you will be able

to keep your health care plan. No one will take it away no

matter what.

Republicans agree with the President. Yet Democrats in Congress are making last-minute edits to a bill in the HELP Committee that the nonpartisan Congressional Budget Office says will cost 10 million people with employer-sponsored insurance to lose the coverage they currently have. And that is the number of people who would lose their current insurance under just one section of the bill. This legislation is still missing significant sections that could force tens of millions of additional Americans to lose their current coverage. Republicans share the President's belief that those who like their health insurance should be able to keep it, but the bill currently being considered by the HELP Committee would force Americans off of the health care plans they now enjoy.

Another issue the President and Republicans agree on is the need to invest more in preventative care and wellness programs, which is an important way to cut costs and improve care. President Obama mentioned the successful wellness and prevention program Safeway created, which has dramatically cut the company's health care costs and employees' health care premiums. He said he would be open to doing more to help businesses across the country adopt and expand programs like the one created by Safeway. Yet the bill the Democrats are now pushing through the Senate would actually ban this successful program from being copied and implemented by other companies.

Republicans also agree with the President on the need to reform our Nation's medical liability laws. Frivolous malpractice lawsuits are a major cause of our increasing health care costs. These lawsuits cause insurance premiums for doctors to skyrocket, and doctors then pass those higher costs on, of course, to patients.

Doctors also often order expensive and unnecessary tests just to protect themselves against these lawsuits, and some doctors just close their practices or stop offering services as a result of all these pressures.

And patients are the ones who lose out. According to a report by the Kentucky Institute of Medicine, Kentucky is nearly 2,300 doctors short of the national average--a shortage that could be reduced, in part, by reforming medical malpractice laws.

President Obama has not advocated the kind of medical liability reform most Republicans would like to see, but he has at least opened the door to fixing the system. But none of the bills introduced in the Congress even acknowledge the need for malpractice reform or propose any solutions to deal with the problem.

Finally, Republicans share the President's concerns about how much health care reform is going to cost and how we will pay for it. President Obama said that he set down a rule that ``health care reform must be, and will be, deficit-neutral in the next decade.''

But the preliminary estimates from the bill before the HELP Committee show that just one--just one--section of the bill spends $1.3 trillion. And even more outrageous is the fact that the bill doesn't even have any proposals to pay for its enormous pricetag--other than to borrow it from the taxpayers. Americans want reform. But they don't want a blind rush to spend trillions of dollars that they and their grandchildren will have to pay for through higher taxes and even more debt.

When it comes to making sure Americans can keep the coverage they have, strengthening wellness and prevention programs, reforming our medical malpractice laws, and paying for health care reform, Republicans share common ground with the President. I just wish that congressional Democrats did too.