Floor Statements

Mr. President, I am pleased today to introduce legislation to reauthorize the Department of Justice grant program for Boys & Girls Clubs. I thank Senator Hatch, Senator Kohl and Senator Sessions for joining me in this effort.

I have partnered with Senator Hatch for many years on issues concerning the Boys & Girls Clubs, and this bipartisan bill shows the commitment of both Democrats and Republicans to the good work done by Boys & Girls Clubs across the Nation.

Children are the future of our country, and we have a responsibility to make sure they are safe and secure. I know firsthand how well Boys & Girls Clubs work, and the real impact they have in our communities. In my home State of Vermont, we are fortunate to have 6 Boys & Girls Clubs operating in 25 locations. These clubs serve more than 14,000 youth in the State. I often hear from parents, educators, law enforcement officers and others in Vermont about just how successful these Clubs are, and how they inspire youth to reach their full potential.

As a senior member of the Senate Appropriations Committee, I have pushed for more Federal funding for Boys & Girls Clubs. This year, I recommended additional funding for youth mentoring programs, so that youth-serving organizations like the Boys & Girls Clubs of America are able to continue making a substantial and real difference in the lives of vulnerable children. I was pleased that Congress included $100 million for competitive youth mentoring grants in the recently passed consolidated appropriations bill.

The current recession has hit many organizations around the country, threatening their financial health, and the Boys & Girls Clubs are no different. At the same time, participation in these clubs has never been higher, and it continues to increase. I believe funding is well spent at the community level, however, where the positive impact on our youth is felt most directly.

In the 108th Congress, Senator Hatch and I worked together to pass a bill to reauthorize and extend the programs of the Boys & Girls Clubs of America through fiscal year 2009. Due in part to the support of Congress, there now exist over 4,300 Boys & Girls Clubs in all 50 states, serving more than 4.8 million young people. The bill we introduce today will help us continue to support these important programs by authorizing Justice Department grants through 2015.

We need safe havens where our youth--the future of our country--can learn and grow up free from the influences of drugs, gangs and crime. That is why Boys & Girls Clubs are so important to our children.

I hope all Senators will support this bipartisan bill to provide Federal support for the Boys & Girls Clubs of America. Our greatest responsibility is to our children, and supporting Boys & Girls Clubs is just one way in which we can show our commitment to their future.

Mr. President, I ask unanimour consent that the text of the bill be printed in the Record.

Mr. President, I am pleased today to introduce legislation to reauthorize the Department of Justice grant program for Boys & Girls Clubs. I thank Senator Hatch, Senator Kohl and Senator Sessions for joining me in this effort.

I have partnered with Senator Hatch for many years on issues concerning the Boys & Girls Clubs, and this bipartisan bill shows the commitment of both Democrats and Republicans to the good work done by Boys & Girls Clubs across the Nation.

Children are the future of our country, and we have a responsibility to make sure they are safe and secure. I know firsthand how well Boys & Girls Clubs work, and the real impact they have in our communities. In my home State of Vermont, we are fortunate to have 6 Boys & Girls Clubs operating in 25 locations. These clubs serve more than 14,000 youth in the State. I often hear from parents, educators, law enforcement officers and others in Vermont about just how successful these Clubs are, and how they inspire youth to reach their full potential.

As a senior member of the Senate Appropriations Committee, I have pushed for more Federal funding for Boys & Girls Clubs. This year, I recommended additional funding for youth mentoring programs, so that youth-serving organizations like the Boys & Girls Clubs of America are able to continue making a substantial and real difference in the lives of vulnerable children. I was pleased that Congress included $100 million for competitive youth mentoring grants in the recently passed consolidated appropriations bill.

The current recession has hit many organizations around the country, threatening their financial health, and the Boys & Girls Clubs are no different. At the same time, participation in these clubs has never been higher, and it continues to increase. I believe funding is well spent at the community level, however, where the positive impact on our youth is felt most directly.

In the 108th Congress, Senator Hatch and I worked together to pass a bill to reauthorize and extend the programs of the Boys & Girls Clubs of America through fiscal year 2009. Due in part to the support of Congress, there now exist over 4,300 Boys & Girls Clubs in all 50 states, serving more than 4.8 million young people. The bill we introduce today will help us continue to support these important programs by authorizing Justice Department grants through 2015.

We need safe havens where our youth--the future of our country--can learn and grow up free from the influences of drugs, gangs and crime. That is why Boys & Girls Clubs are so important to our children.

I hope all Senators will support this bipartisan bill to provide Federal support for the Boys & Girls Clubs of America. Our greatest responsibility is to our children, and supporting Boys & Girls Clubs is just one way in which we can show our commitment to their future.

Mr. President, I ask unanimour consent that the text of the bill be printed in the Record.

Mr. President, after months of arduous work, the Senate will finally take the first significant step toward bringing needed reforms to health care in this Nation. Opponents of reform have wasted much of the public's time by provoking arguments over their distortions about what health reform means. Opponents have tried to demonize the plan, and have claimed it will never work. We have overcome weeks of delay tactics employed by the minority--inexplicably, the most recent delay due to a filibuster against a bill to provide funding for our troops. These are the tactics of obstruction, and further demonstrate Republicans' efforts to maintain the status quo.

Is this the exact bill that any one of us would have written? Probably not. I remain disappointed that the managers' amendment before us today strips the bill of a public insurance option to compete with private plans and does not include a provision I have sponsored to repeal the antitrust exemption for health insurers and medical malpractice insurers. I believe both of these provisions would go far in providing fair competition into the health insurance market.

But in looking at this bill as a whole, I believe it stands by the core principles I sought at the beginning of this debate. It gives Americans affordable access to health care coverage, it reduces costs for families, businesses and government, and it protects consumers' ability to choose doctors, hospitals and insurance plans.

The managers' amendment introduced by the majority leader incorporates many important changes to the underlying legislation that will improve the bill. It includes several provisions that I have long supported and promoted.

Vermont has always been a national leader in expanding access to health insurance. In coordinating care, offering comprehensive coverage to children, and developing a system of electronic health records, Vermont has been at the forefront of reform. It is no surprise that for the third year in a row Vermont has been ranked the healthiest State in the Nation.

Unfortunately, a provision included in the underlying bill to expand Medicaid coverage nationwide threatened to penalize Vermont by excluding the State from increased Federal funding, solely because Vermont acted early to do the right thing. We can all share the goal of increasing access to essential medical services by expanding Medicaid coverage nationwide, but we should not penalize States such as Vermont, which demonstrated the initiative to expand its Medicaid Program early.

Senator Reid's amendment, however, remedies the anomaly in the underlying bill, and will allow Vermont to access additional Federal funding when the Medicaid expansion goes into effect. I thank Senators Reid and Baucus for working with me to ensure that Vermont's efforts to expand coverage to low income individuals is not set back by inequities in the underlying legislation.

The managers' amendment also incorporates a vital antifraud amendment Senator Kaufman and I, as well as Senators Specter, Kohl, Schumer,

and Klobuchar, introduced, derived from the Health Care Fraud Enforcement Act which we introduced earlier this fall.

This antifraud initiative builds on the impressive steps the administration has already taken to step up health care fraud prevention and enforcement, and on the real progress represented by the antifraud provisions adopted by the Finance and HELP Committees and incorporated into the leader's health care reform bill. I was glad to contribute to those efforts, and I am glad we are now going even further.

The Kaufman-Leahy provision will provide prosecutors with needed tools for the effective investigation, prosecution, and punishment of health care fraud. By making modest but important changes to the law, it ensures that those who drain our health care system of billions of dollars each year, driving up costs and risking patient lives, will go to jail, and that their fraudulent gains will be returned to American taxpayers and health care beneficiaries.

For more than three decades, I have fought in Congress to combat fraud and protect taxpayer dollars. This spring, I introduced with Senator Grassley and Senator Kaufman the Fraud Enforcement and Recovery Act, the most significant antifraud legislation in more than a decade. When that legislation was enacted, it provided law enforcement with new tools to detect and prosecute financial and mortgage fraud. Now, as health care reform moves through the Senate, I am glad we are taking steps to do all we can to tackle the fraud that has contributed greatly to the skyrocketing cost of health care.

The scale of health care fraud in America today is staggering. According to even the most conservative estimates, at least 3 percent of the funds spent on health care are lost to fraud--more than $60 billion a year. In the Medicare Program alone, the General Accountability Office estimates that more than $10 billon was lost to fraud just last year. While Medicare and Medicaid fraud is significant, it is important to remember that health care fraud does not occur solely in the public sector. Private health insurers also see billions of dollars lost to fraud. That fraud is often harder for the government to track. Private companies have less incentive to report it, and in some cases, are responsible for the fraudulent practices themselves. Reining in private sector fraud must be a part of any comprehensive health care reform.

The Kaufman-Leahy provision makes a number of straightforward, important improvements to existing statutes to strengthen prosecutors' ability to combat health care fraud. The bill would increase the Federal sentencing guidelines for health care fraud offenses. Despite the enormous losses in many health care fraud cases, offenders often receive shorter sentences than other white-collar criminals. This lower risk is one reason criminals are drawn to health care fraud. By increasing the Federal sentencing guidelines for health care fraud offenses, we send a clear message that those who steal from the Nation's health care system will face swift prosecution and substantial punishment.

The provision provides for a number of statutory changes to strengthen fraud enforcement. For example, it would expand the definition of a ``Federal health care fraud offense'' to include violations of the antikickback statute and several other key health care-related criminal statutes, which will allow for more vigorous enforcement of those offenses, including making their proceeds subject to criminal forfeiture. It also clarifies the intent requirement of another key health care fraud statute in order to facilitate effective, fair, and vigorous enforcement.

The managers' amendment also includes our provision amending the antikickback statute to ensure that all claims resulting from illegal kickbacks are considered false claims for the purpose of civil action under the False Claims Act, even when the claims are not submitted directly by the wrongdoers themselves. All too often, health care providers secure business by paying illegal kickbacks, which needlessly increases health care risks and costs. This change will help ensure that the government is able to recoup from wrongdoers the losses resulting from these kickbacks.

The Kaufman-Leahy measure gives the Department of Justice limited subpoena authority for civil rights investigations conducted pursuant to the Civil Rights for Institutionalized Persons Act. This provision allows the government to more effectively investigate conditions in publicly operated institutions, such as nursing homes, mental health institutions, and residential schools for children with disabilities, where there have been allegations of civil rights violations.

These changes will strengthen our ability to crack down on fraud and will ultimately result in significant savings that will make health care more efficient and more affordable.

I am also pleased Senator Reid's amendment includes a key reform to the False Claims Act that Senator Sanders, Senator Grassley, and I have proposed. By fixing the False Claims Act's public disclosure provision, we can ensure that we fairly and appropriately empower whistleblowers to come forward to expose fraud, which is a crucial way to save the government money and ensure the health and well-being of Americans.

We all agree that reducing the cost of health care for American citizens is a critical goal of health care reform. We in Congress must do our part by ensuring that, when we pass a health care reform bill, it includes all the tools and resources needed to crack down on the scourge of health care fraud. This provision is an important part of that effort.

I am also very encouraged that the amendment before us includes a measure I proposed with Senator Brown to expand Federal Tort Claims Act medical malpractice coverage for free medical clinics. This expanded coverage will help free clinics across the Nation continue to provide and improve a critical safety net for many Americans.

In 1996, Congress enacted legislation to cover volunteer medical professionals in free clinics with medical malpractice liability insurance through the Federal Tort Claims Act. This coverage protects volunteer medical staff against liability by substituting the Federal Government for an individual defendant. But without any explanation in the legislative history, the coverage enacted in 1996 failed to provide coverage for others who are essential to the operation of free clinics, such as nonmedical staff, contractors, board members, and the clinic itself. As a result, free clinics must use scarce funding to purchase insurance on the private market to fill this gap. This lack of comprehensive coverage for free clinics is inconsistent with the coverage provided to community health centers, which benefit from coverage for all employees. This provision will remedy this discrepancy.

This measure will have no impact on the legal rights of a patient injured by a medical error; any victim of medical malpractice will still be able to pursue a remedy for an injury under the Federal Tort Claims Act. Instead, this amendment will free up scarce resources that are currently being used to purchase liability insurance on the private market. Informal estimates indicate that this amendment could save free clinics across the country $15 to $20 million a year. These are funds that will be redirected to providing essential medical services to low- income and other Americans in need. For example, as a result of this amendment, the Viola Startzman Free Clinic in Wooster, OH, will save $17,000 a year. The Americares Clinic in Stamford, CT, will save $31,000 each year. Our hard-working free clinics in Vermont will save $12,000 each year and will be able to put those savings toward helping Vermonters in need of health care services. For free clinics operating through volunteerism and private donations and in a difficult economy, these are substantial sums that if devoted to the care of Americans in need will have a significant positive impact.

And the savings realized through this amendment will cost the taxpayers little if anything. Free clinics do not perform high-risk procedures such as obstetrics or surgeries, and thus are subject to a lesser risk of liability. Since 2004, when funds were first appropriated and set aside to cover any claims against free clinic doctors, no claims have been filed. The bottom line is that this amendment represents significant value to Americans in need of

health care services at little cost to the government and the taxpayer.

I thank Senator Brown for his support as a cosponsor, and I thank the majority leader, Senator Harkin, and Senator Baucus for working with me to make this amendment part of the historic legislation before the Senate.

Over the course of the past month, I have listened to many of my friends on the other side of the aisle. It is not surprising that frequently they have argued for one of their pet proposals--medical malpractice reform. For as long as I have served in this Chamber, I have fought against court-stripping measures that limit American's access to their justice system. I have also fought to protect the sovereignty of States to make rules for their own justice systems. Medical malpractice claims are based on State law and for the most part take place in State courts. I find it curious that some of the same Senators who pledge loyalty to federalism and the sovereignty of the States under the tenth amendment are some of the same Senators who are so aggressively pushing for a Federal ``one-size-fits-all solution'' for the justice systems in our 50 States.

The managers' amendment includes a provision addressing malpractice liability that has been introduced on a bipartisan basis several times over the past few years. I support this provision because it respects the States' primary role in adjudicating the claims of patients injured or killed by medical errors. I also support this provision because it resists the notion that ``one-size-fits-all'' when it comes to litigation issues and it includes the necessary safeguards for patients. I note for the Record that several States' efforts to reform medical malpractice liability have been struck down as unconstitutional. For example, Alabama, Florida, Georgia, Illinois, Kansas, New Hampshire, Ohio, Oregon, South Dakota, Washington, and Wisconsin have all enacted caps on damages associated with medical malpractice claims. And all of those State laws were struck down as unconstitutional for good reason. I am heartened that no such amendment was seriously considered in this Chamber because such arcane measures hurt our children, our senior citizens, and stay-at-home moms. The Wall Street Journal has reported on this clear fact when it pointed out that these caps deprive these groups of access to justice. If we create Federal caps on their ability to recover from serious injuries we are telling them that they are worth less because they are retired or they choose to stay home and raise a family or are young children. This is not fair. I know that no doctor wants to harm a patient, but the solution is not to take away the rights of patients who are seriously injured.

The provision in the managers' amendment does not encourage draconian damages caps and does not dictate what reforms States must consider. Importantly, however, it does include specific patient protections that must be in place before a State can receive a grant for liability reform measures. To the extent that States can pass measures that improve patient safety as well as expedite damages recovery for victims, those reforms will truly improve our health care system.

I am disappointed, however, that the Health Insurance Antitrust Enforcement Act, which I introduced in September, was not part of the managers' amendment, and will not be part of the Senate's health reform legislation. That legislation would repeal the antitrust exemption for health insurers and medical malpractice insurers, and is an integral part of injecting competition into the health insurance market.

While there are differing views on the best way to inject competition into the health insurance market, we can all agree that health and medical malpractice insurers should not be allowed to engage in blatantly anticompetitive practices, such as colluding to set prices and allocating markets. My repeal would ensure that basic rules of fair competition will apply to insurers, and is nonpartisan.

My amendment was cosponsored by 23 Senators, and has support from a cross-section of consumer rights organization. I look forward to working to include this repeal when the Senate and House conference to reconcile their versions of the legislation.

The managers' amendment will improve the underlying bill, and I hope my fellow Senators will support its passage so we can move toward final passage of the bill. Each day that passes without reform, 30 more Vermonters lose their health insurance. We know our current health system is unsustainable. That threatens not only our health security, but also our economic security. Doing nothing has been seen as an option before, but it simply is not an option now.

I hope now we can work together to pass a bill that will give millions more Americans access to quality, affordable health care. We should reject the tactics of delay and the efforts to obstruct, and remember that the Senate should be the conscience of the Nation. With the Christmas season upon us, our constituents are looking to us to do the right thing. We should adopt this amendment, advance this legislation, and work to send it to the President without undue delay.

Mr. President, I want to speak briefly about the indictment and trial by Chinese authorities of Mr. Liu Xiaobo for ``incitement of state subversion.'' The evidence cited in support of the charges were Mr. Liu's essays and association with Charter 08, a framework for democracy, human rights and the rule of law that was made public a year ago this month.

That document was signed by Mr. Liu and some 300 other intellectuals and activists. Thousands more people have since added their names, most of them from inside China. I am told that Charter 08 is widely regarded as the most significant democratic reform movement in China in a decade.

The charges against Mr. Liu are very disappointing. They illustrate how little has improved in China regarding tolerance for freedom of expression. I am informed that the Chinese Government has decided to bring Mr. Liu to trial, that international observers are permitted under Chinese law, and this is consistent with international legal standards on the openness and transparency of legal proceedings. I mention this because I am aware that former Governor of Pennsylvania and U.S. Attorney General Richard Thornburgh has expressed a strong interest in attending the trial as an observer, to show support for Mr. Liu and to convey the concern that he and others around the world have for the larger implications of this case.

The arrest of Mr. Liu demonstrates a continuing, disturbing trend in China. As Governor Thornburgh has written:

in recent years, China's leaders seemed to be tolerating

changes in the legal system. The number of private lawyers

and law firms has grown exponentially. Lawyers and citizens

energetically began pursuing rights in court. A ``wei quan,''

or ``rights defense'' movement, grew up around lawyers and

activists seeking to use the laws on the books, and the

institutions allowed by law, to assert and defend human

rights without challenging the underpinnings of China's

communist system. Such efforts were tolerated at first, and

there were even modest signs of greater professionalism in

the communist judicial system.

Unfortunately, initial signs of progress have given way to

serious setbacks. Many lawyers who take on politically-

sensitive cases have been subject to a kind of backdoor

disbarment, finding it impossible to renew their licenses.

Some lawyers have been the target of surveillance, confined

to house arrest, the victims of physical attacks, raids and

confiscation of their property. Law firms and other groups

pursuing law in the public interest have been shut down.

Moreover, there has been an alarming increase in the use of

``subversion'' or state security charges leveled against

activists. These cases have become a substitute for the old

``counter-revolutionary'' crimes. Others convicted on such

grounds include Hu Jia, the AIDS activist who also criticized

abuses surrounding the staging of the Summer 2008 Olympic

Games and Huang Qi, who posted public information on his

website about the government's response to the Sichuan

earthquake.

Liu's prosecution requires a serious response from the

United States. Cooperating with China on other issues like

the environment or North Korea does not mean we must silence

ourselves when it comes to the rights and freedoms of China's

citizens. Indeed, we are unlikely to get meaningful

cooperation on any issue when we appear weak in defense of

our principles, which as President Obama has said many

times--most recently in his speech accepting the Nobel Peace

Prize--are universal principles.

I agree, and hope the Chinese authorities reconsider this case, release Mr. Liu, and dismiss the charges against him. There are so many issues on which we want to expand our cooperation with China, but the persecution of courageous Chinese citizens who are guilty of nothing more than exercising rights guaranteed by the Universal Declaration of Human Rights hinders that cooperation and China's own development.

If the charges are not dismissed, and Mr. Liu is brought to trial, his trial should be attended by outside observers including top officials of the U.S. Embassy and Governor Thornburgh. I hope the Department of State and our diplomats in Beijing will assist Governor Thornburgh, including in obtaining a visa and access to the trial. It is important that the Chinese Government, and the Chinese people, know how strongly we deplore what is being done to Mr. Liu, and what it says about the need for China to meet its own commitments to respect internationally recognized human rights.

Mr. President, I want to speak briefly about a matter that is of concern to the Congress and the Department of State, involving a heinous crime that occurred in Nepal and the need for justice.

Many people are familiar with the brutal murder of Maina Sunuwar in February 2004. At the young age of 15, she was arrested by Nepali soldiers and severely tortured to death at, of all places, the Birendra Peace Operations Training Center. After her murder, the army made it look as though she had been shot while trying to escape, and then buried her body at the center.

According to a United Nations report, in September 2005, after intense public and international pressure, three army officers were brought before a court martial and sentenced to a mere 6 months imprisonment for failing to follow proper procedures when disposing of Maina's body. In spite of many requests, the Nepal army refused to disclose the nature of the charges that led to this sentence, or provide copies of any documents relating to the court of inquiry or court martial. It also refused to cooperate with police investigations.

It is shocking that one of the officers accused in her murder, Major Niranjan Basnet, was permitted to participate in a United Nations peacekeeping mission in Chad. This speaks volumes about the inadequacy of vetting procedures of military personnel for such missions, which is a separate subject that I intend to take up with officials at the Department of State and United Nations.

To his credit, Prime Minister Madhav Kumar Nepal had Major Basnet returned from Chad, following the issuance of an arrest warrant and in response to public calls for his arrest. However, when he arrived back at the Katmandu airport the army took him under its control and apparently, despite initial promises and requests from the police and orders from the Prime Minister, has still not handed him over to the police.

This case represents a critical juncture for Nepal. In large measure, and as others have pointed out, Maina's death will decide whether a civilian, democratic government and the rule of law will determine Nepal's future, or it will remain dominated by the interests of the Nepal army.

Just a few days ago, President Obama signed into law the Consolidated Appropriations Act, 2010, which includes a prohibition on assistance to the Nepal army unless it, among other things, is cooperating fully with investigations and prosecutions by civilian judicial authorities of violations of internationally recognized human rights. This provision applies squarely to Maina's case.

I urge the new Chief of the Army Staff, General Chhattraman Gurung, to seize this opportunity to demonstrate that the army is reforming, that it recognizes in a democracy its members are answerable to the civilian courts, and that it will no longer perpetuate the impunity that has undermined the rule of law in Nepal for far too long.

Mr. President, I have long questioned the policy of detaining asylum seekers who present genuine claims for protection under our laws. Asylum seekers who express a fear of return to their country, and who can establish their identity and show that they are neither a flight risk nor a threat to the community, should be allowed to pursue a claim for relief in the United States free from custody. Yesterday, U.S. Immigration and Customs Enforcement, ICE, announced new guidelines for release of asylum seekers that override an unduly harsh policy implemented in 2007 by the Bush administration and that are a welcome step toward compliance with our obligations under the Refugee Convention.

Under current law, an asylum seeker who arrives at a port of entry and asks for refugee protection is given a brief interview to ascertain whether he or she has a credible fear of persecution in their home country. If the asylum seeker passes that interview, they are detained, pending a hearing on their claim before an immigration judge. That hearing may take place weeks or months after the asylum seeker arrives in the United States. Unless the asylum seeker can convince the Department of Homeland Security that they should be released, that asylum seeker can spend those weeks or months in immigration detention. This policy is an affront to our ideals as a nation that aspires to be a beacon of light to persecuted refugees.

In 1997, the Immigration and Naturalization Service developed guidelines to determine whether asylum seekers should be released from custody in ``parole'' status while their asylum claims were adjudicated. To obtain parole, asylum seekers were required to establish their identity, and show that they were neither a flight risk nor a threat to the community. These guidelines were properly calibrated to deter fraud in the asylum system and threats to our national security. They also ensured that those who met the criteria for parole should be released. The 1997 parole guidelines were imperfectly implemented, but the policy contained in them was reasonable and appropriate.

For reasons that were never adequately explained, under the prior administration, ICE issued new parole guidelines that raised the bar for asylum seekers. In addition to the 1997 requirements, under the Bush policy, an asylum seeker had to demonstrate other factors, such as a serious medical condition, pregnancy, status as a minor, or that his or her release was in the ``public interest.'' The term ``public interest'' was not defined in the 2007 guidelines and it is not clear how a detained asylum seeker could have met such a vague standard. Members of Congress and the bipartisan U.S. Commission on International Religious Freedom questioned the need for such a restrictive policy, especially when many asylum seekers have no criminal record and pose no risk to Americans.

The new parole policy generally hews to the 1997 parole guidelines, but contains an important improvement. Again, asylum seekers will be eligible for parole if they demonstrate a credible fear of return to their country of origin, establish identity, and show that they are neither a flight risk nor a threat to the community. For the first time, however, the government will conduct a parole review of each case in which the asylum seeker establishes a credible fear of return. Under both the 1997 and 2007 policies, an asylum seeker had to request a parole determination in writing. Many asylum seekers arrive on our shores with genuine claims for protection, but no English language skills and no legal counsel. For these asylum seekers, navigating our complex immigration system presents an enormous hurdle. It is a challenge for them to even comprehend that they may seek parole

from detention. Therefore, an automatic parole review will assist many bona fide refugees in winning release from custody. Our commitment to fair and humane treatment of refugees demands no less. This new policy will also save taxpayer dollars spent to detain immigrants, including asylum seekers who are otherwise eligible for parole, at an average of $100 per person, per day.

In 1996, when our asylum laws were rewritten to restrict access to protection for many who requested protection upon arrival, I fought hard to preserve our role as a nation that welcomes refugees. I offered an amendment to restore basic due process protections to the summary exclusion and expedited removal provisions proposed for asylum seekers. Former Senator Michael DeWine of Ohio cosponsored the amendment, which prevailed by only one vote. Since that time, I have worked to strengthen access to due process for asylum seekers and ensure that our government complies with its international treaty obligations under the Refugee Convention.

I commend President Obama and Secretary Napolitano for engaging in a serious review of our asylum policies and taking steps to bring us closer to full compliance with international law. With the thirtieth anniversary of the Refugee Act of 1980 approaching, I will continue to press for both legislative and administrative changes to the law that will protect refugees and asylum seekers from harm and provide them with safety and security in America.

Mr. President, making medicine affordable is part of what health reform should be. Today we have the opportunity to include a measure long-championed by Senator Dorgan, which makes affordable prescription drugs more widely available to Americans.

Americans pay some of the highest prices for prescription drugs of any country in the world despite the fact that many of these drugs are made right here, and they are often made with the benefit of taxpayer supported research. Prescription drugs are a lifeline, not a luxury. The issue boils down to access: A prescription drug is neither safe nor effective if you cannot afford to buy it.

We have to recognize that this imposes real dangers on American consumers when they cannot follow their doctor's treatment plan because they can't afford their medicine. While we must do more to bring affordable healthcare to the millions of Americans who are currently uninsured or who do not have good coverage, we cannot continue to deny them this immediate market-based solution.

I am proud to be a cosponsor of the Dorgan-Snowe amendment to allow pharmacies and drug wholesalers in the United States to import the very same medications that are FDA-approved in the United States from Canada, Europe, Australia, New Zealand, and Japan where prices are 35- 55 percent lower than in the United States. Consumers will be able to purchase the very same prescription medications from their local pharmacies at a third or half of the cost. Additionally, the legislation would also allow individuals to purchase prescription drugs from FDA-inspected Canadian pharmacies--something Vermonters have crossed the border to do many times before.

For many Vermonters today, purchasing drugs from Canada literally means the difference between following their doctors' orders and having to throw the dice with their health and sometimes even with their lives by doing without their prescription medicines. It makes the difference for the woman who has maxed out her health plan's annual prescription drug benefit only three months into the year and is then faced with purchasing the other nine months worth of medicine at U.S. prices on her own. It makes the difference for the elderly man on a fixed income who is unable to afford both the heart medicine he needs to live, and the gas bill he needs to keep warm. Are we prepared to tell those in dire need that they must go back to choosing between paying gas, food, and heating bills, or their medicine?

Of course not, and I urge my fellow Senators to support the Dorgan- Snowe amendment.

Mr. President, two weeks ago, I challenged Senate Republicans to do as well as Senate Democrats did in December 2001 when we proceeded to confirm 10 of President Bush's nominees as Federal judges. Regrettably, my plea has been ignored. Senate Republicans are failing the challenge. The Senate has been allowed to confirm only one judicial nominee all month. On December 1, after almost 6 weeks of unexplained delays, the Senate was allowed to consider the nomination of Judge Jacqueline Nguyen to fill a vacancy on the Federal Court for the Central District of California. When finally considered, she was confirmed unanimously by a vote of 97 to 0. Since then, not a single judicial nominee has been considered. It is now 2 weeks later, December 15.

Judicial nominees have been and are available for consideration. This lack of action is no fault of the President. He has made quality nominations. They have had hearings and have been considered by the Senate Judiciary Committee and favorably reported to the Senate. Indeed, the logjam has only grown over the last 2 weeks. Five additional judicial nominations have been added to the Senate calendar since December 1, bringing the total number of judicial nominations ready for Senate action, yet delayed by Republican obstruction, to 12. One has been ready for

Senate consideration for more than 13 weeks, another more than 10 weeks, and the list goes on. The majority leader and Democratic Senators have been ready to proceed. The Republican Senate leadership has not.

There are now more judicial nominees awaiting confirmation on the Senate's Executive Calendar than have been confirmed since the beginning of the Obama administration. Due to delays and obstruction by the Republican minority, we have only been able to consider 10 judicial nominations to the Federal circuit and district courts all year, and for one of them, although supported by the longest serving Republican in the Senate, we had to overcome a full-fledged filibuster led by the Republican leadership. As a result, we will not only fall well short of the total of 28 judicial confirmations the Democratic Senate majority worked to confirm in President Bush's first year in office, but we threaten to achieve the lowest number of judicial confirmations in the first year of a new Presidency in modern history.

It is clear that the Republican leadership has returned to their practices in the 1990s, which resulted in more than doubling circuit court vacancies and led to the pocket filibuster of more than 60 of President Clinton's nominees. The crisis they created eventually led even to public criticism of their actions by Chief Justice Rehnquist during those years. Their delays this year may leave us well short even of their low point during President Clinton's first term, when the Republican Senate majority would only allow 17 judicial confirmations during the entire 1996 session. That was a Presidential election year and the end of President Clinton's first term. By contrast, this is just the first year of the Obama administration.

We need to act on the judicial nominees on the Senate Executive Calendar without further delay. This year, we have witnessed unprecedented delays in the consideration of qualified and noncontroversial nominations. We have had to waste weeks seeking time agreements in order to consider nominations that were then confirmed unanimously. We have seen nominees strongly supported by their home State Senators, both Republican and Democratic, delayed for months and unsuccessfully filibustered.

The 12 judicial nominations that have been given hearings and favorable consideration by the Senate Judiciary Committee and that remain stalled before the Senate are Beverly Martin of Georgia, nominated to the Eleventh Circuit; Joseph Greenaway of New Jersey, nominated to the Third Circuit; Edward Chen, nominated to the District Court for the Northern District of California; Dolly Gee, nominated to the District Court for the Central District of California; Richard Seeborg, nominated to the District Court for the Northern District of California, Barbara Keenan of Virginia, nominated to the Fourth Circuit; Jane Stranch of Tennessee, nominated to the Sixth Circuit; Thomas Vanaskie of Pennsylvania, nominated to the Third Circuit; Louis Butler, nominated to the District Court for the Western District of Wisconsin; Denny Chin of New York, nominated to the Second Circuit; Rosanna Malouf Peterson, nominated to the District Court for the Eastern District of Washington; and William Conley, nominated to the District Court for the Western District of Wisconsin.

Acting on these nominations, we can confirm 13 nominees this month. In December 2001, a Democratic Senate majority proceeded to confirm 10 of President Bush's nominees and ended that year having confirmed 28 new judges nominated by a President of the other party. We achieved those results with a controversial and confrontational Republican President after a midyear change to a Democratic majority in the Senate. We did so in spite of the attacks of September 11; despite the anthrax-laced letters sent to the Senate that closed our offices; and while working virtually around the clock on the PATRIOT Act for 6 weeks.

At the end of the Senate's 2001 session, only four judicial nominations were left on the Senate Executive Calendar, all of which were confirmed soon after the Senate returned in 2002. At the end of the first session of Congress during President Clinton's first term, just one judicial nominee was left on the Senate Executive Calendar. At the end of the President George H.W. Bush's first year in office, a Democratic Senate majority left just two judicial nominations pending on the Senate Executive Calendar. At the end of the first year of President Reagan's first term--a year in which the Senate confirmed 41 of his Federal circuit and district court nominees--not a single judicial nomination was left on the Senate Executive Calendar.

In stark contrast, there are now 12 judicial nominees on the Senate Executive Calendar and no agreement from Senate Republicans to consider a single one. That is a significant change from our history and tradition of confirming judicial nominations that have been reported favorably by the Senate Judiciary Committee by the end of a session.

The record of obstruction of the Senate Republicans is just as disappointing when we consider the executive nominations that have been reported by the Judiciary Committee. There are currently 15 executive nominations that have been reported favorably by the Senate Judiciary Committee pending on the Senate Executive Calendar, including nominations for Assistant Attorneys General to run three of the 11 divisions at the Department of Justice. Each of these nominations has been pending 4 months or longer.

The President nominated Dawn Johnsen to lead the Office of Legal Counsel on February 11. Her nomination has been pending on the Senate Executive Calendar since March 19. That is the longest pending nomination on the calendar by over 2 months. We did not treat President Bush's first nominee to head the Office of Legal Counsel the same way. We confirmed Jay Bybee to that post only 49 days after he was nominated by President Bush, and only 5 days after his nomination was reported by the Senate Judiciary Committee.

Mary Smith's nomination to be the Assistant Attorney General in charge of the Tax Division has been pending on the Senate's Executive Calendar since June 11--more than 6 months. We confirmed President Bush's first nomination to that position, Eileen O'Connor, only 57 days after her nomination was made and 1 day after her nomination was reported by the Senate Judiciary Committee. Her replacement, Nathan Hochman, was confirmed without delay, just 34 days after his nomination.

Among the nominations still waiting for consideration is that of Christopher Schroeder, nominated on June 4 to be Assistant Attorney General for the Office of Legal Policy, OLP. Mr. Schroeder's nomination has been pending before the Senate since July of this year when he was reported by the Senate Judiciary Committee by voice vote and without dissent. There was no objection from the Republican members of the committee on his nomination, so it puzzles me why we cannot move to a vote.

President Bush appointed four Assistant Attorneys General for the Office of Legal Policy. Each was confirmed expeditiously by the Senate. In fact, his first nominee to that post, Viet Dinh, was confirmed by a vote of 96 to 1 just 1 month after he was nominated and only a week after his nomination was reported by the Senate Judiciary Committee. Professor Schroeder's nomination has been pending for over 4 months. President Bush's three subsequent nominees to head OLP--Daniel Bryant, Rachel Brand, and Elisebeth Cook--were each confirmed by voice vote in a shorter time than Professor Schroeder's nomination has been pending.

Senate Republicans should not further delay consideration of these important nominations.

Returning to judicial nominations, I hope that instead of withholding consent and threatening filibusters of President Obama's nominees, Senate Republicans will treat President Obama's nominees fairly. I made sure that we treated President Bush's nominees more fairly than President Clinton's nominees had been treated. I want to continue that progress, but we need Republican cooperation to do so. I urge them to turn away from their partisanship and begin to work with the President and the Senate majority leader.

President Obama has reached out and consulted with home State Senators

from both sides of the aisle regarding his judicial nominees. Instead of praising the President for consulting with Republican Senators, the Senate Republican leadership has doubled back on what they demanded when a Republican was in the White House. No more do they talk about each nominee being entitled to an up-or-down vote. That position is abandoned and forgotten. Instead, they now seek to filibuster and delay judicial nominations. When President Bush worked with Senators across the aisle, I praised him and expedited consideration of his nominees. When President Obama reaches across the aisle, the Senate Republican leadership delays and obstructs his qualified nominees.

Although there have been nearly 110 judicial vacancies this year on our Federal circuit and district courts around the country, only 10 vacancies have been filled. That is wrong. The American people deserve better. As I have noted, there are 12 more qualified judicial nominations awaiting Senate action on the Senate Executive Calendar. Another nomination should be considered by the Judiciary Committee this week. I hope that with the session drawing to a close Judge Rogeriee Thompson of Rhode Island will not be needlessly delayed. The Senate should do better and could if Senate Republicans would remove their holds and stop the delaying tactics.

During President Bush's last year in office, we had reduced judicial vacancies to as low as 34, even though it was a Presidential election year. As matters stand today, judicial vacancies have spiked, and we will start 2010 with the highest number of vacancies on article III courts since 1994, when the vacancies created by the last comprehensive judgeship bill were still being filled. While it has been nearly 20 years since we enacted a Federal judgeship bill, judicial vacancies are nearing record levels, with 97 current vacancies and another 23 already announced. If we had proceeded on the judgeship bill recommended by the U.S. Courts to address the growing burden on our Federal judiciary and provide access to justice for all Americans, vacancies would stand at 160, by far the highest on record. I know we can do better. Justice should not be delayed or denied to any American because of overburdened courts and the lack of Federal judges.

There is still time to act on these nominations before the Senate recesses this year. I hope Senate Republicans will lift their objections and allow us to proceed on the 27 nominations reported by the Judiciary Committee. Absent cooperation to confirm nominations, this Congress will be recorded in history as one of the least productive in the confirmation of judicial nominations. I hope the New Year will bring a renewed spirit of cooperation.

Mr. President, I am pleased to learn that, after 14 years of legal struggle, Ms. Rody Alvarado has finally received asylum in the United States. The details of Ms. Alvarado's case are shocking. She suffered from horrific domestic violence in her home country of Guatemala and sought protection in the United States under our asylum laws. Because persecution of this type had not previously been recognized as a basis for refugee or asylum protection, Ms. Alvarado was forced to fight a long legal battle to win her case.

The administrations of three different Presidents--Clinton, Bush and Obama--have grappled with how to handle gender-based asylum claims, but the resolution of this case brings us closer to the end of this journey. Ms. Alvarado can finally feel safe here in the United States because she is no longer at risk of being deported to Guatemala. The Obama administration must now issue regulations to ensure that other victims of domestic violence whose abuse rises to the level of persecution can obtain the same protection as refugees or asylees.

Ms. Alvarado fled Guatemala in 1995 after being beaten daily and raped repeatedly by her husband. When she became pregnant but refused to terminate her pregnancy, her husband kicked her repeatedly in the lower spine. Ms. Alvarado had previously tried to escape the abuse, seeking protection in another part of Guatemala, but her husband tracked her down and threatened to kill her if she left their home again. We know that Ms. Alvarado notified Guatemalan police at least five separate times, but the police refused to respond, telling her that her desperate situation was a domestic dispute that needed to be settled at home.

Over the past 14 years, Ms. Alvarado's case has been considered by immigration judges, the Board of Immigration Appeals, BIA, five different Attorneys General, and three Secretaries of Homeland Security. Throughout this extensive consideration, the core facts of her case have never been disputed. All parties have agreed that Ms. Alvarado suffered extreme abuse at the hands of her husband and that the Guatemalan Government would not protect her. All parties agreed that she has a well-founded fear that she would be abused again if she was forced to return to Guatemala.

The dispute in Ms. Alvarado's case centered on whether the abuse she suffered was persecution under the terms of the Refugee Convention and applicable U.S. law. To obtain protection in the United States, an asylum seeker must demonstrate that they have a well-founded fear of persecution based on race, religion, nationality, political opinion, or membership in a particular social group.

I first wrote to Attorney General Janet Reno in December 1999, when the BIA reversed Ms. Alvarado's grant of asylum, concluding that her abuse was not persecution on account of membership in a particular social group. This decision was particularly troubling because it left unclear what grounds, if any, could be applied to a victim of severe domestic abuse who cannot obtain the protection of her country of origin. I wrote to Attorney General Reno again in February and September 2000 asking her to exercise her authority to review the case, called Matter of R-A-, and to reverse the BIA's decision. Unfortunately, the case was not reversed at that time, and it then languished for years. I wrote to Attorney General Ashcroft in June 2004 asking him to work with the Department of Homeland Security, DHS, to issue regulations to govern cases such as Ms. Alvarado's and to then decide her case in accordance with such rules. When he was a nominee to be Attorney General in January 2005, I asked Mr. Alberto Gonzales to commit to taking up the case and resolving it if he was confirmed. Mr. Gonzales promised to work with DHS to finalize regulations but did not take any action during his years as Attorney General.

Ten years after I and other Members of Congress first sought appropriate action and the fair resolution of this case, we celebrate the long-overdue outcome. While I am dismayed at the length of time Ms. Alvarado has lived with fear and uncertainty, the final resolution of this case gives me hope that abuse victims like Ms. Alvarado who meet the other conditions of asylum will be able to find safety in the United States.

The Obama administration has laid out a welcomed, new policy in its legal briefs in this case, and I thank the President, Secretary Napolitano, and Attorney General Holder for bringing this case to such a positive resolution. Yet the administration's work is not done. It must issue binding regulations so that asylum seekers whose cases have been held in limbo for years can also be resolved and that future cases are not delayed in adjudication. I urge the administration to immediately initiate a process of notice and comment rulemaking so that asylum seekers, practitioners, and other experts can contribute to the formulation of new rules.

Today, I commend Ms. Alvarado on the courage she has demonstrated over many years while seeking protection in the United States. I congratulate her and wish her all the best as she finally experiences true freedom from persecution and the full scope of liberties enjoyed by Americans.

Mr. President, last week, the Senate Judiciary Committee approved the media shield bill in a bipartisan vote of 14 to 5. This legislation would establish a qualified privilege for journalists to protect their confidential sources and the public's right to

know. At a time when the Senate is working to recognize the importance of protecting Americans' first amendment rights, I am proud to recognize a Burlington lawyer who was recently recognized by the Vermont Press Association for his lifetime commitment to the first amendment and the public's right to know.

On December 3, 2009, Robert B. Hemley was awarded the Matthew Lyon Award during the Association's annual awards banquet in Montpelier, Vermont. As a fellow Matthew Lyon Award recipient, I share with Robert a passion about the need for each generation to defend the first amendment rights that are so crucial to all Vermonters and to every American. Robert has worked to bring greater transparency and accountability to our government by representing journalists and newspapers in instances in which they were improperly forced to testify in violation of the first amendment, and by helping to create the Vermont Coalition for Open Government.

In each era there will always be much to do to bring greater openness and accountability to government of, by, and for the people. I am pleased to know Robert Hemley will continue to bring his expertise and dedication to this fight.

I ask unanimous consent to have printed in the Record an article from the St. Albans Messenger.

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

Mr. President, Division F of this omnibus conference agreement provides funding for the State Department, Foreign Operations, and related programs.

I want to thank the ranking member of the subcommittee, Senator Gregg, and his very capable staff, Paul Grove and Michele Wymer, for once again working with me and my staff in a bipartisan manner to produce this conference agreement.

I also want to thank Chairwoman Nita Lowey and Ranking Member Kay Granger, and their staffs, for working so cooperatively with us throughout this process.

The fiscal year 2010 State Foreign Operations conference agreement provides $48.8 billion in discretionary funding, a $3.3 billion decrease from the President's budget request of $52 billion.

The bill is $1.2 billion below the fiscal year 2009 level, including supplemental funds. This is an important point that needs to be understood by all Senators, because yesterday a Senator on the other side of the aisle criticized this bill for being 31 percent above fiscal year 2009.

That is misleading, because it does not account for the billions of dollars in fiscal year 2009 ``emergency'' supplemental funding that was the standard way of doing business under the previous administration.

To ignore those costs to American taxpayers is disingenuous. President Obama has made clear that he intends to fund these programs on budget, not through supplemental gimmicks. That is what the Congress urged him to do, and now he is being criticized for doing so.

If you compare apples to apples, this bill provides $1.2 billion less spending than in fiscal year 2009.

Some Republican Senators have made speeches against this omnibus package on account of earmarks they don't like, even though some of them requested their own earmarks. In fact, earmarks comprise a tiny fraction of the total package.

Like past years, the State-Foreign Operations conference agreement does not contain any earmarks as defined by the Appropriations Committee.

We do fund many programs that are priorities of Democrats and Republicans, including assistance for countries like Afghanistan, Pakistan and Iraq, and longstanding allies like Israel, Egypt, and Jordan.

In addition, the conference agreement provides $5.7 billion to combat HIV/AIDS, including $750 million for the Global Fund. Funds are provided to combat other diseases, like malaria, tuberculosis, and neglected tropical diseases,

The agreement provides $1.2 billion for climate change and environment programs, including for clean energy programs and to protect forests.

The agreement provides $1.2 billion for agriculture and food security programs, with authority to provide additional funds.

There are provisions dealing with corruption and human rights, funding for international organizations like the United Nations, NATO and the International Atomic Energy Agency, and to promote democracy, economic development, and the rule of law from Central America to Central Asia.

The conference agreement provides the funds to support our embassies and diplomats around the world, public diplomacy and broadcasting programs, the Peace Corps, and many other programs that promote United States interests.

I don't support everything in this omnibus package any more than anyone else does. I had hoped, as I know did Chairman Inouye and Vice Chairman Cochran, that we could have brought each of the bills in this omnibus, including the State-Foreign Operations bill, to the Senate floor individually.

But a handful of Senators on the other side have made clear that they will do whatever is procedurally possible to slow down or prevent consideration of these bills.

Despite that, I can say that the State Foreign Operations conference agreement was negotiated with the full participation of both House and Senate chairmen and ranking members. It was in every sense a collaborative process.

It is a balanced agreement and should be supported by every Senator who cares about U.S. security and the security of our allies and friends around the world.

Mr. President, I move to reconsider the vote.

Mr. President, I want to briefly discuss a subject that should interest all Senators concerning the country of El Salvador, which recently elected a new President and last month suffered extensive loss of life and devastating property damage as a result of torrential rains caused by Hurricane Ida.

First, I congratulate the people of El Salvador on the election, which was historic in that President Funes is the country's first President since the end of the civil war who is a member of the FMLN, which after the 1992 Peace Accords evolved from an armed insurgency into a political party. I am encouraged by what I have heard about President Funes' policies and wish him the best.

Second, the destruction caused by Hurricane Ida was extensive. Exceptionally heavy and constant rain fell on November 7 and 8, resulting in flooding and landslides that killed 192 people. Another 80 were reported missing, and more than 14,295 others were displaced from their homes. Thousands of homes, as well as roads, bridges, and other public buildings, were damaged or destroyed.

On November 10, U.S. Charge d'Affaires Robert Blau declared a disaster in response to the damage, and the U.S. Agency for International Development has so far allocated some $280,851 in humanitarian aid. An assessment of the

total damage is underway, but it is expected to be in the hundreds of millions, if not billions, of dollars.

Congressman Jim McGovern and I have urged the administration to provide additional aid. We remember how the U.S. Government all but forgot about El Salvador after the war ended, and this is a time to help the Salvadoran people recover from this tragedy.

Third, an issue that has deeply concerned me for many years is the problem of corruption and impunity in El Salvador. The police and the courts lack the training and resources they need, crimes are rarely solved and perpetrators are rarely punished. Violent crime and corruption have become endemic. El Salvador's democratic and economic development will continue to be impeded by a justice system that is incapable of enforcing the rule of law, and in which the Salvadoran people and foreign investors have little confidence.

One of the courageous Salvadorans who is trying to change this is Ms. Zaira Navas, inspector general of the National Police. She has a woefully inadequate budget and too few staff. But despite that, from everything I have heard she is doing an outstanding job for justice and the people of El Salvador.

I mention Ms. Navas because of the critical importance of the job she is doing, and because she has recently received death threats and I am concerned for her safety. I urge officials at the U.S. Embassy to discuss with President Funes what steps can be taken immediately to provide her the security she needs, and to increase the budget of her office.

El Salvador is a small country but one with which the U.S. has a long history. We both have newly elected presidents, and I am hopeful that we will see a renewed effort to work together to broaden our relations. Nothing, in my view, is more important than strengthening the rule of law and supporting people like Ms. Navas, but we should also expand our collaboration in health, education and exchanges, the environment, trade and investment, science and technology, the arts and culture.

Mr. President, last week, I challenged Senate Republicans to do as well as Senate Democrats did in December 2001 when we proceeded to confirm 10 of President Bush's Federal judicial nominees. Regrettably my plea has been ignored. Since the confirmation of Judge Jacqueline Nguyen last Tuesday to fill a vacancy on the Federal bench for the Central District of California; Republican objections and delay have prevented progress on any of the nine judicial nominees pending on the Senate Executive Calendar. Judge Nguyen was herself delayed almost 6 weeks, from October 15 until she was at last confirmed on December 1. When Republicans finally agreed to allow a vote, she was confirmed unanimously, 97 to zero. Why the 6-week delay? Why the stalling? That question was not answered. In fact, during the time reserved for debate on this nomination no Republican spoke a word about it.

I know how hard pressed the Federal judges in Los Angeles are, and only wish we followed the action on Judge Nguyen's nomination by proceeding, as well, to the confirmation of another nominee for a vacancy on that court. Dolly Gee's nomination to the Central District of California remains pending before the Senate. She was reported by voice vote and without dissent from the Senate Judiciary Committee on October 15, as well. Once confirmed, she will be able to go to work helping to eliminate the backlog and delays in that court.

I was glad we were finally allowed to proceed with Judge Nguyen's nomination, but urged at that time that Senate Republicans allow votes on the other nominations as well. That has not happened. I noted that we had shown what we can do when we want to make progress. The Senate confirmed Judge Christina Reiss of Vermont and Judge Abdul Kallon of Alabama before the Thanksgiving recess, and 17 days after their hearing. That prompt action by the Senate demonstrates what we can do working together in good faith. It should not take weeks for the Judiciary Committee to report nominations, and additional weeks and months before Senate Republicans allow nominations to be considered by the Senate.

There remain nine judicial nominations that have been given hearings and favorable consideration by the Senate Judiciary Committee but that remain stalled before the Senate. They are: Beverly Martin of Georgia, nominated to the Eleventh Circuit; Joseph Greenaway of New Jersey, nominated to the Third Circuit; Edward Chen, nominated to the Northern District of California; Dolly Gee, nominated to the Central District of California; Richard Seeborg, nominated to the Northern District of California; Barbara Keenan of Virginia, nominated to the Fourth Circuit; Jane Stranch of Tennessee, nominated to the Sixth Circuit; Thomas Vanaskie of Pennsylvania, nominated to the Third Circuit; and Louis Butler, nominated to Western District of Wisconsin. These nine nominees all await final action by the Senate. Some have been waiting since being reported by the Senate Judiciary Committee as long as 12 weeks ago.

Acting on these nominations, we can confirm 10 nominees this month. That is what we did in December 2001 when a Democratic Senate majority proceeded to confirm 10 of President Bush's nominees, and ended that year having confirmed 28 new judges nominated by a President of the other party. We achieved those results with a controversial and confrontational Republican President after a mid-year change to a Democratic majority in the Senate. We did so in spite of the attacks of September 11; despite the anthrax-laced letters sent to the Senate that closed our offices; and while working virtually around the clock on the PATRIOT Act for 6 weeks.

It is now December 9 and the Republican minority has consented to allow votes on only nine of President Obama's nominations to fill district and circuit court vacancies. We confirmed a tenth, Judge David Hamilton, after invoking cloture to overcome a Republican leadership- led filibuster. In comparison, by this date in 2001, we had confirmed 21 of President Bush's nominations, including six to fill circuit court vacancies. We will certainly fall well short of the total of 28 judicial confirmations our Democratic Senate majority worked to confirm in President Bush's first year in office.

This year we have witnessed unprecedented delays in the consideration of qualified and noncontroversial nominations. We have had to waste weeks seeking time agreements in order to consider nominations that were then confirmed unanimously. Judge Nguyen is the most recent example. We have seen nominees strongly supported by their home state Senators, both Republican and Democratic, delayed for months and unsuccessfully filibustered. I have been concerned that these actions by the Republican leadership signal a return to their practices in the 1990s, which resulted in more than doubling circuit court vacancies and led to the pocket filibuster of more than 60 of President Clinton's nominees. The crisis they created eventually led even to public criticism of their actions by Chief Justice Rehnquist during those years.

I hope that instead of withholding consent and threatening filibusters of President Obama's judicial nominees, Senate Republicans will treat the nominees of President Obama fairly. I made sure that we treated President Bush's nominees more fairly than President Clinton's nominees had been treated. In the 17 months that I served as chairman of the Senate Judiciary Committee during President Bush's first term, the Senate confirmed 100 of his judicial nominations.

I want to continue that progress, but we need Republican cooperation to do so. I urge them to turn away from their partisanship and begin to work with the President and the Senate majority leader.

Unlike his predecessor, President Obama has reached out, reached across the aisle to work with Republican Senators in making judicial nominations. The nomination of Judge Hamilton, which the Republican leadership filibustered, was supported by the most senior Republican in the U.S. Senate, my respected friend from Indiana, Senator Lugar. Other examples are the recently confirmed nominees to vacancies in Alabama supported by Senators Sessions and Shelby, in South Dakota supported by Senator Thune, and in Florida, supported by Senators Martinez and LaMieux. Still others are the President's nomination to the 11th Circuit from Georgia, supported by Senators Isakson and Chambliss, his nomination to the 6th Circuit from Tennessee, supported by Senator Alexander, and his recent nominations to the 4th Circuit from North Carolina, supported by Senator Burr. President Obama has reached out and consulted with home State Senators from both sides of the aisle regarding his judicial nominees.

Instead of praising the President for consulting with Republican Senators, the Republican leadership has doubled back on what they demanded when a Republican was in the White House. No more do they talk about each nominee being entitled to an up-or-down vote. That position is abandoned and forgotten. Instead, they now seek to filibuster and delay judicial nominations. They have also walked back from their position at the start of this Congress, when they threatened to filibuster nominees on which home state Senators were not consulted. We saw with Judge Hamilton that they filibustered a nominee supported by Senator Lugar.

When President Bush worked with Senators across the aisle, I praised him

and expedited consideration of his nominees. When President Obama reaches across the aisle, the Senate Republican leadership delays and obstructs his qualified nominees. I fear that Senate Republican delaying tactics will yield the lowest judicial confirmation total in modern history. If Senate Republicans continue their delaying tactics, the total could be as low as that during the 1996 session, during President Clinton's first term, when a Republican Senate majority would only allow 17 judicial confirmations, none for circuit courts.

Although there have been nearly 110 judicial vacancies this year on our Federal circuit and district courts around the country, only 10 vacancies have been filled. That is wrong. The American people deserve better. As I have noted, there are nine more qualified judicial nominations awaiting Senate action on the Senate Executive Calendar. In addition there are another four pending before the Senate Judiciary Committee that have been given hearings and could be reported to the Senate before Christmas. They will be available to be considered by the Senate once approved by the Judiciary Committee. The Senate should do better, and could if Senate Republicans would remove their holds and stop the delaying tactics.

During President Bush's last year in office, we reduced judicial vacancies to as low as 34, even though it was a Presidential election year. Judicial vacancies have now spiked. There are currently 97 vacancies on our Federal circuit and district courts, and 23 more have already been announced. This is approaching record levels. I know we can do better. Justice should not be delayed or denied to any American because of overburdened courts and the lack of Federal judges.

Madam President, last week I spoke about the situation of Aminatou Haidar, a Sahrawi human rights activist who has been on a hunger strike since shortly after November 13 when her passport was confiscated by Moroccan authorities and she was deported to the Canary Islands. She is now in the third week of her hunger strike, and her health has seriously declined. An agreement between the Spanish and Moroccan governments was reportedly reached on Friday, but it fell through at the last minute and Ms. Haidar remains at the Lanzarote Airport.

Given this dire situation and the damage it is causing to efforts to resume good-faith negotiations on the future status of the Western Sahara, I want to repeat my appeal to the Moroccan authorities to reinstate Ms. Haidar's passport and allow her to return home to her family.

Morocco and the United States are friends and allies. The denial of citizenship and forcible exile of Ms. Haidar is inconsistent with international human rights norms to which Morocco is a signatory and will accomplish nothing positive. It also raises the question, as do the recent arrests of other Sahrawi activists, of whether the United Nations' mandate in Western Sahara should be expanded to include human rights monitoring. I believe the State Department should seriously review this issue when the UN mission's term comes up for extension in the Security Council in April.

There is still time, but it is running out, to resolve this issue in a manner that serves Morocco's interests and protects Ms. Haidar's rights.

Mr. President, I thank the senior Senator from Montana.

Amendment No. 2927

Mr. President, let me wear my hat as chairman of the Senate Judiciary Committee and talk about the amendment we are going to vote on to cap attorney fees. It is a one-sided amendment. It does not hurt attorneys. It hurts injured Americans who seek to recover damages in our court system. It may not be obvious to the nonlawyers listening to this debate that many ordinary Americans who suffer an injury through another's negligence cannot afford to pay for the legal representation they need to go to court.

Our legal system allows for a plaintiff and an attorney to negotiate to determine what the compensation is going to be. In these cases, the parties sign a contract where the attorney may agree to work on a case with no compensation at all unless the victim ultimately receives compensation from the doctor or hospital responsible for the injury. This is called a contingency fee. In other words, a judge and a jury have to agree that person was injured and deserves this compensation. The parties do not do that. This allows all Americans, not just the wealthy, to have their day in court.

It should also be noted that if a judge believes a compensation agreement is unfair to the victim, or if they believe it is disproportionate, the judge has the power to reduce the fee. I believe this is the same in virtually every State in this country. States have regulated the area of attorney compensation extensively, striving for reasonableness. States have done this. Doesn't that make the most sense that the States decide?

Let's not forget that lawyers only are compensated if the client's case is successful and if a jury finds that a wrong was committed and if that jury finds they should be compensated. This is not some kind of windfall. It is the result of an attorney's very hard work to redress a wrong.

The pending amendment would override all of these traditional considerations. It would impose a flat cap on all attorney fees for significant injuries. But the amendment would not cap the attorney fees of those representing a negligent hospital or doctor. That hospital, those doctors--their insurance companies could pay any amount of money they wanted, for example, in the case--and there have been cases like this--where the wrong leg was amputated by mistake or a person was given the wrong medicine and they end up paralyzed.

But this amendment says, if that person who was paralyzed wants to sue, we are going to cap the amount of compensation that could be possibly paid to their attorney. But for the person who wants to escape liability for giving the wrong medicine that paralyzed a patient--their insurance companies, their hospitals--they can pay all however much they want for attorneys. They can pay their own counsel 10 times what a plaintiff's attorney might get in their effort to prevent a hospital or doctor from being held liable for that horrible mistake.

Trust me, this gives a defendant every incentive to prolong litigation. Why should they settle? Why should they admit wrongdoing? They have the deep pockets. Yet through this amendment, a plaintiff would be limited by the actions of the Senate--made up of 100 people who can afford a lawyer, unlike many of the people who are injured? And so are we going to say that the Senate has capped what a plaintiff's lawyer can get? By the way--wink, wink, nudge, nudge--if you are the hospital, the insurance company

for a doctor or somebody who has done a grievous wrong, just keep this thing rolling long enough because you have the money and you can just beat it down.

When a patient receives more than $150,000 in medical expenses or compensatory or other damages, it is because the injury is severe and ongoing or because it resulted in death. Those patients are going to have a tougher time finding someone to hold the person who harmed them accountable. Adding this insult to injury does not further the laudable goals of the pending health care bill. We should be increasing patient safety and health, not punishing those who have already been injured by wrongdoing.

I understand that yesterday the junior Senator from Nevada identified several prominent Democrats as having supported a similar amendment offered by Senator Kennedy a decade ago in a Republican-controlled Senate. I am not surprised by this tactic, given the disappointing tenor of the debate. Of course, upon a review of the actual vote, anyone would see that several Senators in this Chamber, including this one, opposed a motion to table Senator Kennedy's amendment. That is hardly the same as advocating a cap on fees.

It is also worth noting that in 1995, the Senate was considering a draconian products liability bill, not a health care bill. At that time, the then-Republican majority was attempting to go further than any other Congress in history to prevent injured Americans from recovering damages from the corporations that hurt them or their children.

I am relieved that legislation in 1995 never became law. I can see why some might have wished it had. Maybe they knew what was going to come because after that, what came to light were many recent incidents of harmful products that had been introduced into commerce--many of them toys for little children--and nothing could have been done about it had that bill become law. If that bill had become law, I fear we would have seen many more deaths or serious injuries among children as a result of faulty products.

I find it ironic, given the often-professed loyalty to the sovereignty of the States and the sanctity of private contracts, many on the other side of the aisle now seem to have no concerns about the vast Federal intrusion into these areas of traditional State control that this and other medical malpractice reform proposals represent.

Basically they are saying: Oh, we are all for States rights and sovereignty of the States except when it may cost some of the big insurance companies some money. We are all in favor of the sanctity of private contracts--except when it may cost some of the big insurance companies some money.

So I am going to oppose the amendment offered by Senator Ensign. It is unfair. It will only hurt Americans who have already been injured by making it more difficult for them to gain access to our court system.

I yield the floor.

Reserving the right to object. If the Senator receives an extra minute, then we will have an extra minute on this side.

Mr. President, it is hard to respond to all the inaccuracies in the statement of the junior Senator from Nevada.

One, incidentally, he may be interested in knowing, as I was leaving Burlington, VT, this morning after saying goodbye to a number of our Guard members I ran into Howard Dean. He hopes we will pass the bill that is on the floor.

Second, the motion he talks about and those who voted, including this Senator, was a procedural motion on a question of tabling Senator Kennedy's amendment. We thought he should be allowed to have a vote. It was not a vote in favor of caps.

Lastly, if you look at what he has done with this amendment, he is saying that the insurance companies and the hospitals or somebody who may have cut the wrong leg off or paralyzed you by giving you the wrong medication, they can spend all the money they want to stop you from getting any relief. You, however, will be limited and the Federal government will override the laws of your State and tell you what you can contract for on fees with your attorney.

In other words, the people who caused the damage can spend any amount of money they want to escape liability from the damage. The poor individual who has been damaged would not have an equal chance at recompense. Come on. Is the Senate actually going to vote for something like that? I would hope not.