Floor Statements

Mr. President, it has taken nearly a month to obtain Republican consent to consider the nomination of Judge Irene Berger to the Southern District of West Virginia. Judge Berger is a consensus nominee unanimously rated ``well qualified'' by the American Bar Association's Standing Committee on the Federal Judiciary, the highest rating possible. Her nomination has the support of both of West Virginia's highly respected Senators. Senator Byrd, as the senior member of the Senate, is the President pro tempore and is the longest serving Senator in history. Senator Rockefeller is a senior member and the chairman of the Commerce Committee. I thank the Senators from West Virginia for their statements in support of the nomination, their work on this nomination, and their recommendations of outstanding judicial nominations for West Virginia over many years.

Republican delay in the confirmation of this consensus nominee continues a pattern that has been followed all year. Last week, the Senate was finally allowed to consider the nomination of Roberto A. Lange to the District of South Dakota. I regret that the Republican minority allowed 3 weeks to lapse since the nomination was reported unanimously by the Judiciary Committee before allowing the Senate to consider it. They also required 2 hours of debate on the nomination, though they used fewer than 5 minutes to discuss the merits of the nominee. In that 5 minutes, the ranking Republican on the Judiciary Committee endorsed the nomination. That nomination had the support of both Senator Johnson and Senator Thune, a member of the Senate Republican leadership. Ultimately, Judge Lange's nomination was confirmed 100 to 0, but only after weeks of unnecessary delay.

The pattern is being repeated today with respect to Judge Berger. When confirmed, Judge Berger will be the first African American in the history of West Virginia to serve as a Federal judge. For the last 15 years, Judge Berger has served as a circuit judge in county court. Before that, she spent more than a decade as a State and Federal prosecutor.

So I ask, why has the Republican minority delayed consideration of this experienced and highly qualified jurist and of this historic confirmation for the last several weeks? Will any Republican explain why there will remain nine other judicial nominations reported favorably by the Judiciary Committee on which Senate Republicans continue to refuse to allow the Senate to proceed? Two were reported in June and have been stalled for more than 4 months.

Last week, the Senate also finally confirmed the nomination of Judge William Sessions of Vermont to chair the U.S. Sentencing Commission. An anonymous, unexplained Republican hold stalled that nomination for more than 5 months. The majority leader was forced to file a cloture petition in order to end the obstruction. Cloture petitions were previously required to overcome Republican obstruction on the nominations of David Ogden to serve as the Deputy Attorney General and Tom Perez to serve as the Assistant Attorney General heading the Civil Rights Division.

I said last week before the Senate unanimously confirmed Judge Lange that these delays are a dark mark on the Senate. They prevent us from doing our work. Worse, this obstruction means that nominees must place their lives on hold for an undetermined amount of time. The Senate should be the conscience of the Nation. These needless and harmful delays, particularly in connection to consensus nominees, make the Senate look foolish.

Judge Berger's nomination is one of 13 judicial nominations reported favorably by the committee this year to fill circuit and district court vacancies on Federal courts around the country. The President has worked hard to consult with Republicans and Democrats alike to make consensus, well-qualified selections. Unlike his predecessor, he has not sought to turn judicial nominations into a partisan matter. Ten of these judicial nominations were reported by the Judiciary Committee without a single dissenting voice. Yet, due to the pattern of Republican delay, this is just the fourth of those nominations allowed to be considered by the Senate.

It is now October 27. By this date in George W. Bush's first year in office, the Senate had confirmed a total of 12 lower court judges, including 4 circuit court judges. We achieved those results with a controversial and confrontational Republican President after a midyear change in the Senate to a Democratic majority, in spite of the attacks of September 11, despite the anthrax-laced letters sent to the Senate that closed our offices, and working virtually around the clock on the PATRIOT Act. By comparison, this year the Republican minority has allowed action on only three judicial nominations to the Federal circuit and district courts, with only one circuit court confirmation all year. Judge Berger's confirmation will raise the total judicial confirmations to only one-third of that achieved by this date in 2001.

I made sure that President Bush's judicial nominations were treated better than President Clinton's had been by the Republican Senate majority. By contrast, Senate Republicans are making sure that President Obama's nominees are treated worse even worse than they treated President Clinton's nominees. By this junction in President Clinton's first year, the Senate had confirmed twice as many judicial nominees as we have this year.

This is all despite the fact that President Obama sent nominees to the Senate 2 months earlier than did President Bush. This is despite bipartisan support from Republican Senators like Senator Lugar, Senator Thune, Senator Martinez, Senator Alexander, Senator Chambliss, and Senator Isakson for President Obama's judicial nominees to judicial vacancies affecting their home States.

When I served as chairman of the Senate Judiciary Committee during President Bush's first term, I did my best to stop the downward spiral that had affected judicial confirmations. Throughout my chairmanship, I made sure to treat President Bush's judicial nominees better than the Republicans had treated President Clinton's nominees. During the 17 months I chaired the Judiciary Committee in President Bush's first term, we confirmed 100 of his judicial nominees. At the end of his Presidency, although Republicans had chaired the Judiciary Committee for more than half his tenure, more of his judicial nominees were confirmed when I was the chairman than in the more than 4 years when Republicans were in charge.

Senate Republicans began this year threatening to filibuster every judicial nominee of the new President. They have followed through by dragging out, delaying, obstructing, and stalling the process. The result is that 10 months into President's Obama's first term, the Senate after today will have confirmed only four of his nominations for circuit and district courts while judicial vacancies skyrocket around the country. After reducing vacancies as low as 43 last year, even during the last year of President Bush's second term and a Presidential election year, vacancies have already more than doubled to 95 vacancies around the country in our Federal circuit and district courts. There are another 26 future vacancies already announced. These vacancies are at near record levels. We can do better. The American people deserve better. Justice should not be delayed or denied to any American because of overburdened courts.

When will Senate Republicans allow the Senate to consider the nominations of Judge Hamilton to the Seventh Circuit, Judge Davis to the Fourth Circuit, Judge Martin to the Eleventh Circuit, Judge Greenaway to the Third Circuit, Judge Honeywell to the Middle District of Florida, Judge Nguyen to the Central District of California, Judge Chen to the Northern District of California, Ms. Gee to the Central District of California, and Judge Seeborg to the Northern District of California?

President Obama made his first judicial nomination, that of Judge David Hamilton to the Seventh Circuit, in March, but it has been stalled on the Executive Calendar since early June, despite the support of the senior Republican in the Senate, Senator Lugar. The nomination of Judge Andre Davis to the Fourth Circuit was reported by

the Judiciary Committee on June 4 by a vote of 16 to 3, but has yet to be considered by the Senate. The nomination of Judge Beverly Baldwin Martin to the Eleventh Circuit has the support of both of Georgia's Senators, both Republicans, and was reported unanimously from the Committee by voice vote on September 10 but has yet to be considered or scheduled for consideration by the Senate. The nomination of Judge Joseph Greenaway to the Third Circuit has the support of both New Jersey Senators and was reported unanimously from the Committee by voice vote on October 1 but has yet to be considered or scheduled for consideration by the Senate. All of these nominees are well-respected judges. All will be confirmed, I believe, if only Republicans would consent to their consideration by the Senate. Instead, the President's good efforts are being snubbed and these nominees stalled for no good purpose.

The Senate's failure to adhere to its tradition of regularly considering qualified, noncontroversial nominees has not been limited to filling vacancies on the Federal bench. The Republican minority has irresponsibly stalled nominations to critical posts in the Department of Justice, depriving the President, the Attorney General, and the country of the leaders needed to head important divisions at the Justice Department. These are important leaders of our Federal law enforcement efforts. Presidents of both parties, especially newly elected ones, are normally accorded greater deference to put in place appointees for their administrations.

Yet, 10 months in to President Obama's first term, five nominations to be Assistant Attorneys General remain stalled on the Senate's Executive Calendar due to Republican opposition and obstruction. These are the President's nominees to run 5 of the 11 divisions at the Justice Department--nearly half. By comparison, at this point in the Bush administration the Senate had confirmed nine Assistant Attorneys General and only one nomination was pending on the Senate Executive Calendar. The difference is that the Republican minority is refusing to consider these nominations.

The President nominated Dawn Johnsen to be the Assistant Attorney General in charge of the Office of Legal Counsel at the Justice Department 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 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 4 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 committee. Her replacement, Nathan Hochman, was confirmed without delay, just 34 days after his nomination.

President Obama's nomination of Ignacia Moreno to be the Assistant Attorney General in charge of the Energy and Natural Resources Division has been on the Senate Executive Calendar for over a month, even though it was reported by the Judiciary Committee by unanimous consent. By comparison, a Democratic majority in the Senate confirmed President Bush's controversial nomination of Thomas Sansonetti to the position only 1 day after it was reported by the Judiciary Committee.

Chris Schroeder's nomination to be the Assistant Attorney General in charge of the Office of Legal Policy has been pending on the Senate Executive Calendar since July 28. It was reported by voice vote without a single dissenting voice. President Bush's first nominee to head that division, Viet Dinh, was confirmed 96 to 1 only 1 month after he was nominated and only a week after he his nomination was reported by the committee. The three nominees to that office that succeeded Mr. Dinh-- Daniel Bryant, Rachel Brand, and Elisabeth Cook--were each confirmed by voice vote in a shorter time than Professor Schroeder's nomination has been pending. Ms. Cook was confirmed 13 days after her nomination was reported by the committee even though it was the final year of the Bush Presidency. By contrast, the majority leader may have to file another cloture position in order to overcome Republican obstruction and obtain Senate consideration of Professor Schroeder's nomination.

Instead of withholding consents and filibustering President Obama's nominees, the other side of the aisle should join us in treating them fairly. We should not have to fight for months to schedule consideration of the President's judicial nominations and nomination for critical posts in the executive branch.

I look forward to congratulating Judge Berger and her family on her historic confirmation, and I thank the West Virginia Senators for their strong support of the nominee through another extended and unnecessary delay.

Mr. President, tomorrow afternoon President Obama will sign the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act into law. I commend the President for acting so quickly on this critical civil rights measure. Its protections are long overdue. Last week, when the Senate was about to consider the Department of Defense authorization conference report, I spoke in strong support of its provisions including the hate crimes measure. At that time, I requested my entire statement be included in the Record. Unfortunately, my entire statement did not make it

into the Congressional Record so I ask that it now be printed in full as it was prepared and offered at that time. I understand that this error will be corrected in the bound version of the Record, but I wanted my full statement to be immediately available for those following the specific details of how the language in the conference report differed from my hate crimes amendment that the Senate passed earlier this year.

After more than a decade, Congress is finally set to pass the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act of 2009 as an amendment to the National Defense Authorization Act, and I expect the President to sign it promptly. I am proud that Congress has come together to show that violence against members of any group because of who they are will not be tolerated in this country.

I thank Senator Collins for cosponsoring the amendment with me. I commend Senator Levin for working so hard to ensure that this provision would go forward as part of the conference report. I congratulate the Senate majority leader, Senator Reid, for his essential role in this matter. In the House of Representatives, Speaker Pelosi and Congressman Clyburn were similarly instrumental in this enactment.

I also want to take this opportunity to remember Senator Ted Kennedy who provided steadfast leadership on this issue for more than a decade. I wish he could have been here to see this bill, about which he was so passionate, finally enacted. I am honored to be able to see it through to the finish for him. I know it meant a lot to him. We miss him but his good work goes on.

Earlier this month was the 11th anniversary of the brutal murder of Matthew Shepard, a college student who was beaten and killed solely because of his sexual orientation. Matthew's parents have worked courageously and tirelessly for this legislation, which aims to ensure that this kind of despicable act will never be tolerated in this country. The bill was named for Matthew, as well as for James Byrd, Jr., a Black man who was killed in 1998 because of his race in another awful crime that galvanized the Nation against hateful violence. We appreciate and honor the important contributions of James Byrd's family as they have worked hard for this legislation.

Unfortunately, the years since these two horrific crimes have made clear that hate crimes remain a serious and growing problem. Most recently, the shooting at the Holocaust Memorial Museum showed that these vicious crimes continue to haunt our country. This bipartisan legislation will help law enforcement respond more effectively to this problem.

It is a testament to the importance of this legislation that the Attorney General of the United States came to the Judiciary Committee in June to testify in favor of it. We have been urged to pass this bill by State and local law enforcement organizations, and dozens of leaders in the faith and the civil rights communities. Michael Lieberman of the Anti-Defamation League and my friend, Janet Langhart Cohen, among others, also testified passionately in favor of this legislation before the Senate Judiciary Committee earlier this year. I also very much appreciate the support of Wade Henderson of the Leadership Conference on Civil Rights and Joe Solmonese of the Human Rights Campaign, who have worked tirelessly to see this legislation passed.

The answer to hate and bigotry has to ultimately be found in increased respect and tolerance for all our citizens. In the meantime, strengthening our Federal hate crimes legislation to give law enforcement the tools they need is a necessary step.

The facts set out in several recent reports show that hate crimes and hate groups remain a major problem. Last June, the Leadership Conference for Civil Rights released a report finding that ``the number of hate crimes reported has consistently ranged around 7,500 or more annually, or nearly one every hour of the day.'' A recent report from the Southern Poverty Law Center found that hate groups have increased by 50 percent since 2000, from 602 hate groups in 2000, to 926 in 2008.

This historic hate crimes provision will improve existing law by making it easier for Federal authorities to investigate and prosecute crimes of racial, ethnic, or religious violence. Victims will no longer have to engage in a narrow range of activities, such as serving as a juror, to be protected under Federal law. It also focuses the attention and resources of the Federal Government on the problem of crimes committed against people because of their sexual orientation, gender, gender identity, or disability, which are much needed protections. In addition, this legislation will provide resources to State, local, and tribal law enforcement to address hate crimes.

In preparing this legislation and moving it through Congress, we have worked closely with the Justice Department to ensure that we are advancing legislation that is fair, constitutional, and effective in cracking down on brutal acts of hate-based violence. It ensures that Federal prosecutors are able to rely on evidence of limited and relevant additional conduct to prove that the violent act in question was motivated by bias. It would also strengthen Federal jurisdiction over hate crimes and clarify key certification requirements to allow the Federal Government to appropriately support, but not to substitute for, State and local law enforcement. As a former State prosecutor, I believe respect for local and State law enforcement is critical.

This legislation was carefully crafted to respect constitutional limits and differences of opinion. It will combat acts of violence motivated by hatred and bigotry, but it does not target speech, however offensive or disagreeable, and it does not target religious expression.

I wish there had been more Republican support for this important civil rights amendment. Nonetheless, in the Senate we worked to address bipartisan concerns and issues. We incorporated Republican amendments mandating guidelines for hate crimes prosecutions, further changing first amendment protections, and creating a new criminal offense for attacks against servicemembers because of their service.

I am disappointed that the servicemembers provision contains a mandatory minimum sentence because I believe that mandatory minimum sentences can have unintended and unfortunate effects on sentencing and on our criminal justice system. However, I was pleased that we were able to limit the provision to one modest mandatory minimum sentence and require the United States Sentencing Commission to study the effect of mandatory minimum sentences. I am also glad that we were able to pass this bill without adding a new Federal death penalty, which would have needlessly inserted a divisive issue into this legislation.

I want to note that the sponsors and supporters intend with its passage, to authorize Federal investigations and prosecutions of those hate crimes described to the fullest extent permitted by the Constitution. Section 4707(a) of the defense authorization bill, which creates Sec. 249(a)(2)(B) of the new hate crimes statute, is desired to apply to the full extent of congressional authority under the Commerce Clause. Similarly, section 249(a)(1) should be interpreted broadly, to the full extent of Congress's authority under the 13th amendment.

Section 4710 of the bill sets out rules of construction for hate crimes legislation. These rules of construction are meant to be read as a collective whole. They simply confirm that the statute should be applied consistent with the first amendment and the Federal Rules of Evidence. They are not meant to prevent the admission of any evidence that is relevant, consistent with the first amendment, and otherwise admissible under the Federal Rules of Evidence, including under rule 404(b).

President Obama has worked closely with us to facilitate the quick passage of this vital hate crimes legislation. In his first few months in office, he has acted to ensure that Federal benefits are awarded more equitably, regardless of sexual orientation, and now to ensure that this hate crimes legislation becomes law. Unlike in previous years, our bipartisan hate crimes bill does not face a veto threat. We have a President who understands that crimes motivated by bias are particularly pernicious crimes that affect more than just their victims and those victims' families. I expect the President to sign this legislation without delay.

Hate crimes instill fear in those who have no connection to the victim other than a shared characteristic such as race or sexual orientation. For nearly 150 years, we have responded as a Nation to deter and to punish violent denials of civil rights by enacting Federal laws to protect the civil rights of all of our citizens. The Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act of 2009 continues that great and honorable tradition. Passage of this legislation, at last, will show, once again, that America values tolerance and protects all of its people.

Mr. President, today, if the Senate votes to pass the national defense authorization bill, Congress will at long last pass into law the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act of 2009. It is an important and historic step to reaffirm our values as Americans and show that violence against members of any group because of who they are will not be tolerated in this country. I am proud that this Congress and this administration have made this critical measure a top priority.

This is a step that has taken far too long. I have been working hard, as have many others, for more than a decade since the horrific murders of Matthew Shepard and James Byrd, Jr., galvanized the Nation. When Attorney General Holder testified before the Senate Judiciary Committee in June, it was the second time he had testified in support of this important bill. A full decade earlier he had testified as Deputy Attorney General in support of the passage of hate crimes. Since that time, he noted that ``there have been over 77,000 hate crime incidents reported to the FBI, not counting crimes committed in 2008 and 2009. That is nearly one hate crime every hour of every day over a decade.''

I offered the Matthew Shepard Hate Crimes Prevention Act as an amendment to the Defense authorization bill, and I was joined by my fellow New Englander, Senator Collins, in the effort. She has taken a leadership role on several important civil rights measures and now can add this to her long list of bipartisan accomplishments.

With the passage of this measure, for the first time our Federal law will protect a segment of Americans who have been under attack for too long. The LGBT community deserves its civil rights just as the rest of Americans do.

I commend Senator Levin for working so hard to ensure that this provision would go forward as part of the conference report. I congratulate the Senate majority leader, Senator Reid, for his essential role in this matter. Yesterday I noted the steadfast leadership Senator Ted Kennedy provided on this issue, as on so many others, for more than a decade. We think of him as we see his good work go forward.

Earlier this month was the 11th anniversary of the brutal murder of Matthew Shepard, a college student who was beaten and killed solely because of his sexual orientation. Matthew's parents have worked courageously and tirelessly for this legislation, which aims to ensure that this kind of despicable act will never be tolerated in this country. The bill was named for Matthew, as well as for James Byrd, Jr., a Black man who was killed in 1998 because of his race in another awful crime that galvanized the Nation against hateful violence. We appreciate and honor the important contributions of James Byrd's family, as they have worked hard for this legislation.

As I have said many times, the years since these two horrific crimes have made clear that hate crimes remain a serious and growing problem. The recent shooting at the Holocaust Memorial Museum showed that these vicious crimes continue to haunt our country. This bipartisan legislation will help law enforcement respond more effectively to this problem.

I understand that a Senator on the other side indicated that we were considering a fully inclusive hate crimes measure today based solely on ``perceived bias.'' I would note for the record that this measure would punish violent acts that result in bodily injury that were motivated by hate. Each of these elements needs to be proven to a jury beyond a reasonable doubt. So it is just plain wrong to claim that perceived biases will be elevated to a crime.

I understand that some have alleged that this has not gone through the Judiciary Committee. In fact, we did consider this legislation at a hearing in June. The Attorney General of the United States testified in support of the legislation, and we had a thorough debate about the merits of the legislation in committee. I would also note that adding the hate crimes measure to the Defense authorization bill has occurred in the past, as recently as last Congress. Its inclusion this year could not have come as a surprise to anyone here.

This same hate crimes bill also passed the Senate in 2004, 2000, and 1999. The amendment passed this year in July on a bipartisan vote. There has been plenty of consideration and process.

President Obama has worked closely with us to facilitate the quick passage of this vital hate crimes legislation. In his first few months in office, he has already acted to ensure that Federal benefits are awarded more equitably, regardless of sexual orientation, and now to ensure that this hate crimes legislation becomes law. Unlike in previous years, we have a President who understands that crimes motivated by bias are particularly pernicious crimes that affect more than just their victims and those victims' families. I expect the President to sign this legislation without delay.

Hate crimes instill fear in those who have no connection to the victim other than a shared characteristic such as race or sexual orientation. For nearly 150 years, we have responded as a nation to deter and to punish violent denials of civil rights by enacting Federal laws to protect the civil rights of all of our citizens. The Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act of 2009 continues that great and honorable tradition. Passage of this legislation, at last, will show once again that America values tolerance and acts to protect all of its people.

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

The PRESIDING OFFICER (Mr. Udall of New Mexico.) The clerk will call the roll.

Mr. President, I have been privileged to meet so many people in my 35 years in the Senate. One who will always stand out is Clara Kircher, who stayed with me in my office for over a quarter of a century, leaving as deputy chief of staff when she retired.

She is a remarkable woman who, on her own, raised her family, giving them the best example of a strong, talented, and loving woman. She did the same in my office, mentoring so many, and showing by example that she could keep a 50- to 60-hour week and still go back to college.

Marcelle and I consider her one of our dearest friends, and we were privileged to be with her when she was inducted into the hall of fame at Elizabeth Seton High School in Bladensburg, MD. I ask unanimous consent that the statement they made about her at that induction be printed in the Record as an example to everybody in the Senate family.

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

Mr. President, today, the Senate will finally consider the nomination of Roberto A. Lange to the District of South Dakota. It has been 3 weeks since Mr. Lange's nomination was unanimously reported by the Judiciary Committee to the Senate. It should not take 3 weeks to confirm a consensus nominee. I will be interested to hear from Senate Republicans who have stalled this confirmation for the last 3 weeks why they did so.

There are 10 other judicial nominations reported favorably by the Judiciary Committee to the Senate that remain pending without consent from Senate Republicans to proceed to their consideration. These are 10 other judicial nominations on the Senate Executive Calendar awaiting action and being stalled by Republican holds. All 10 were reported favorably by the Senate Judiciary Committee. Two were reported in June and have been waiting for more than 4 months for Senate consideration. These are things that we have always done by voice vote when there is no controversy.

It is not only a dark mark on the Senate for holding us up from doing our work, but it means that the nominees have their lives on hold. They have been given this nomination, and everything has to come to a stop. They know they are going to be confirmed. They know that whenever the Republicans allow a vote, it will be virtually unanimous. It makes the Senate look foolish, and I wish my colleagues would allow these people to move quickly.

The American Bar Association's Standing Committee on the Federal Judiciary reported that its peer review of the President's nomination of Mr. Lange resulted in the highest rating possible, a unanimous rating of well qualified. His nomination has the support of both home State Senators, Senator Johnson, a Democrat, and Senator Thune, a Republican, and was reported out of the Judiciary Committee by unanimous consent on October 1. I expect the vote on the President's nomination of Mr. Lange to be overwhelmingly in favor, as was the 99-0 vote for the only other district court confirmation so far this year, that of Judge Viken. I will be listening intently to hear why then Senate Republicans--despite the support of Senator Thune, the head of the Republican Policy Committee and a member of the Senate Republican leadership--have stalled this confirmation needlessly for 3 weeks.

This is one of the 13 judicial nominations reported favorably by the committee to the Senate since June to fill circuit and district court vacancies on Federal courts around the country. Ten of those nominations were reported without a single dissenting voice. This is unfortunately only the third of those judicial nominations to be considered all year.

It is October 21. By this date in the administration of George W. Bush, we had confirmed eight lower court judges. By this juncture in the administration of Bill Clinton, we had likewise confirmed eight circuit and district court nominations. The Senate has confirmed just three circuit and district court nominees this year less than half of those considered by this date during President Bush's tumultuous first year in office and confirmed by this date during President Clinton's first year. This is despite the fact that President Obama sent nominees with bipartisan support to the Senate two months earlier than did President Bush. Moreover, President Clinton's term also began with the need to fill a Supreme Court vacancy.

The first of these circuit and district court confirmations this year did not take place until September 17, months after the nomination of Judge Gerard Lynch had been reported out of committee with no dissent. Finally, after months of needless delay, the Senate confirmed Judge Lynch to serve on the Second Circuit by an overwhelming vote of 94 to 3. That filled just one of the five vacancies this year on the Second Circuit. The Second Circuit bench remains nearly one-quarter empty with four vacancies on its 13-member bench.

Judge Viken, the first of just two district court judges the Senate has been allowed to vote on this year, was confirmed on September 29, by a unanimous 99-0 vote. Today, the Senate is finally being allowed by Republicans to vote to confirm Roberto Lange, who was reported by the committee on October 1. It took 3 weeks to proceed to Mr. Lange's nomination despite the fact that he, like Judge Viken, had the support of both his home State Senators, one a respected Democratic Senator and the other a Republican Senator who is a member of the Republican Senate leadership.

South Dakota has had its two vacancies filled this year but vacancies in 35 other States remain unfilled and the Senate's constitutional responsibilities are going unfulfilled. There was--there is--no reason for the Republican minority to impose these unnecessary and needless delays to judicial confirmations. When will Senate Republicans allow the Senate to consider the nominations of Judge Hamilton to the Seventh Circuit, Judge Davis to the Fourth Circuit, Judge Martin to the Eleventh Circuit, Judge Greenaway to the Third Circuit, Judge Berger to the Southern District of West Virginia, Judge Honeywell to the Middle District of Florida, Judge Nguyen to the Central District of California, Judge Chen to the Northern District of California, Ms. Gee to the Central District of California and Judge Seeborg to the Northern District of California?

In a recent column, Professor Carl Tobias wrote:

President Obama has implemented several measures that

should foster prompt appointments. First, he practiced

bipartisanship to halt the detrimental cycle of accusations,

countercharges and non-stop paybacks. Moreover, the White

House has promoted consultation by seeking advice on

designees from Democratic and GOP Senate members, especially

home state senators, before official nominations. Obama has

also submitted consensus nominees, who have even temperaments

and are very smart, ethical, diligent and independent.

I ask unanimous consent that a copy of Professor Tobias's column be printed in the Record following my statement.

When I served as chairman of the Senate Judiciary Committee during President Bush's first term, I did my best to stop the downward spiral that had affected judicial confirmations. Throughout my chairmanship I made sure to treat President Bush's judicial nominees better than the Republicans had treated President Clinton's. During the 17 months I chaired the Judiciary Committee during President Bush's first term, we confirmed 100 of his judicial nominees. At the end of his Presidency, although Republicans had chaired the Judiciary Committee for more than half his tenure, more of his judicial nominees were confirmed when I was the chairman than in the more than 4 years when Republicans were in charge.

In spite of President Obama's efforts, however, Senate Republicans began

this year threatening to filibuster every judicial nominee of the new President. They have followed through by dragging out, delaying, obstructing and stalling the process. The result is that 10 months into President's Obama's first term, the Senate has confirmed only three of his nominations for circuit and district courts while judicial vacancies skyrocket around the country. The delays in considering judicial nominations pose a serious problem in light of the alarming spike in judicial vacancies on our Federal courts.

There are now 96 vacancies on Federal circuit and district courts and another 24 future vacancies already announced. These vacancies are at near record levels. Justice should not be delayed or denied to any American because of overburdened courts. We can do better. The American people deserve better.

Professor Tobias' observations about the Second Circuit hold true throughout the country and with respect to this President's efforts to work cooperatively with respect to judicial nominations. President Obama made his first judicial nomination, that of Judge David Hamilton to the Seventh Circuit, in March, but it has been stalled on the Executive calendar since early June, despite the support of the senior Republican in the Senate, Senator Lugar. The nomination of Judge Andre Davis to the Fourth Circuit was reported by the committee on June 4 by a vote of 16 to 3, but has yet to be considered by the Senate. The nomination of Judge Beverly Baldwin Martin to the Eleventh Circuit has the support of both of Georgia's Senators, both Republicans, and was reported unanimously from the committee by voice vote on September 10 but has yet to be considered or scheduled for consideration by the Senate. The nomination of Joseph Greenaway to the Third Circuit has the support of both Pennsylvania Senators, and was reported unanimously from the committee by voice vote on October 1, but has yet to be considered or scheduled for consideration by the Senate. All of these nominees are well-respected judges. All will be confirmed, I believe, if only Republicans would consent to their consideration by the Senate. Instead, the President's good efforts are being snubbed and these nominees stalled for no good purpose.

President Obama has been criticized by some for being too solicitous of Senate Republicans. As Wade Henderson, the executive director of the Leadership Conference on Civil Rights, said to The Washington Post recently: ``I commend the President's effort to change the tone in Washington. I recognize that he is extending an olive branch to Republicans on the Judiciary Committee and in the Senate overall. But so far, his efforts at reconciliation have been met with partisan hostility.'' As usual, Wade has it right. The efforts the President has made have not been reciprocated.

The Senate can and must do a better job of restoring our tradition of regularly considering qualified, noncontroversial nominees to fill vacancies on the Federal bench without needless and harmful delays. This is a tradition followed with Republican Presidents and Democratic Presidents. We should not have to overcome filibusters and spend months seeking time agreements to consider consensus nominees.

In addition, four nominations to be Assistant Attorneys General at the Department of Justice remain on the Executive calendar, three of them for many months. Republican Senators have also prevented us from moving to consider the nomination of respected Federal Judge William Sessions of Vermont to be Chairman of the United States Sentencing Commission for over 5 months, even though he was twice confirmed as a member of that Commission. The majority leader has been forced to file a cloture motion in order to end the obstruction of that nomination.

Four out of a total of 11 divisions at the Department of Justice remain without Senate-confirmed Presidential nominees because of Republican holds and delays--the Office of Legal Counsel, the Tax Division, the Office of Legal Policy, and the Environment and Natural Resources Division. Earlier this month, with the hard work of Senator Cardin, we were finally able to move forward to confirm Tom Perez to head the Civil Rights Division at the Justice Department. His nomination was stalled for 4 months, despite the fact that he was approved 17 to 2 by the Judiciary Committee. At the last minute, Senate Republicans abandoned an ill-fated effort to filibuster the nomination and asked that the cloture vote be vitiated. He was finally confirmed with more than 70 votes in the Senate.

During the 17 months I chaired the Judiciary Committee during President Bush's first term, we confirmed 100 of his judicial nominees and 185 of his executive nominees referred to the Judiciary Committee. And yet 10 months into President's Obama's first term, we have confirmed only 2 of his nominations for circuit and district courts and 40 of the executive nominees that have come through our committee.

I hope that, instead of withholding consents and filibustering President Obama's nominees, the other side of the aisle will join us in treating them fairly. We should not have to fight for months to schedule consideration of the President's judicial nominations and nomination for critical posts in the executive branch.

I look forward to congratulating Mr. Lange and his family on his confirmation today. I commend Senator Johnson for his steadfastness in making sure his State is well served.

Mr. President, I ask unanimous consent that my further remarks be charged against my time in connection with this nomination.

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

Mr. President, I am proud to be a cosponsor of the bill we are considering today, the Medicare Physician Fairness Act, introduced by Senator Stabenow. This bill would permanently end the scheduled reductions in Medicare and TRICARE payments that physicians face each year. This legislation is long overdue and an important step in making sure doctors will continue to serve Medicare patients and veterans in the years to come.

This year marks the 8th year in a row that Congress will be forced to prevent scheduled physician payment cuts under the Medicare Program. The scheduled cuts are based on a flawed formula, which cuts physician payments in the future if physician spending exceeds a target based on the growth of the economy. Because the scheduled cuts are cumulative, next year we could expect to see a 21-percent reduction in physician payments and a cumulative 40-percent cut scheduled by 2016. It is no wonder Congress has consistently acted to prevent these cuts and experts have called for a repeal of this broken formula.

Without passing this bill and permanently ending the schedule of physician payment cuts, doctors will continue to struggle to budget for the future without knowing with absolute certainty that Congress will act to prevent payment reductions. The uncertainty in payment rates has already resulted in many physicians declining to accept Medicare making it hard for beneficiaries to find a doctor. In rural States like Vermont, finding a doctor is challenging enough without looming payment cuts affecting doctors every year. In addition to seniors, the more than 12,000 Vermont veterans and military personnel who participate in TRICARE will continue to feel their benefits are at risk so long as this flawed formula threatens payment reductions to their doctors.

Some have argued that we cannot afford to make such an expensive fix to our health care system. I disagree. The President already assumed Congress will fix the payment cuts over the next 10 years in his budget proposal. We all know that without a permanent fix Congress will continue to act to prevent these debilitating cuts in payment rates to doctors. The administration's budget gives a realistic estimate of projected Medicare spending. Passing a permanent fix will allow us to have accurate estimates of Medicare spending, a first step toward truly reforming the physician payment system to one that is based on quality and performance and not on arbitrary formulas.

This legislation is an important step toward making changes in the Medicare and TRICARE physician payment structure that will help our entire health care system. I regret that some misplaced partisan point- scoring threatens to prevent us from considering a bill we should have passed long ago. I hope we can proceed to this bill and pass it swiftly so we can begin our work toward improving our overall health care system.

Mr. President, yesterday, the Senate majority leader was required to file cloture to end a Republican filibuster against the Department of Defense authorization bill. We are in two wars. We are in two wars, and we are about to send, from my State of Vermont, 1,500 members of our National Guard to Afghanistan. We have all kinds of things the Defense authorization bill is designed for, including to protect Americans serving abroad in harm's way. Yet the Republicans have filibustered against the Department of Defense authorization bill. The Senate is going to vote on that tomorrow, pursuant to our rules. I hope we will have a bipartisan vote proceeding to conclude the debate on the conference report which has been adopted by the House. I expect the Senate, on both sides of the aisle, will vote to provide the authorities necessary for our men and women in uniform.

I wonder what it would be like if you were a soldier, a marine out on the front lines in Afghanistan, and you get some news back home that one political party is holding up the Department of Defense authorization bill--the authorization for your equipment, the authorization for your body armor, the authorization for your ammunition, the authorization for your going forward. What would you think as the bullets are whizzing toward you? I know what I would think. I know what I would have thought when my young son was in the Marine Corps and got called for service in the Middle East. I know what I would have thought of people holding up the authorization for the equipment he needed.

Also, as part of that conference report, we are going to be adopting the Hate Crimes Prevention Act, including the provision added by the ranking Republican on the Senate Judiciary Committee, Senator Sessions, to create a new criminal offense for attacks against servicemembers because of their service. I would hope we will be moving forward on that.

After more than a decade, Congress is finally set to pass the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act of 2009 as an amendment to the Defense Authorization Act. I know the President will sign this, and I am proud the Congress has come together to show that violence against members of any group because of who they are is not going to be tolerated in our country. I thank Senator Collins for cosponsoring the amendment with me. I commend Senator Levin for working so hard to ensure that this provision would go forward as part of the conference report, and I congratulate Senate Majority Leader Reid for his essential role in this matter.

If I might, as I look over where my dear friend and colleague, Senator Kennedy, sat for decades on this floor, I wish to take the opportunity to remember Senator Ted Kennedy, who provided steadfast leadership on this issue for more than a decade. I wish he could have been here to see this bill, about which he was so passionate, finally get enacted. I wish he was here in any event, but I am honored to be able to see it through to the finish line for him. I know it meant a lot to him. I miss him, but I think this is a way we can say to Senator Kennedy his good work goes on.

Earlier this month was the 11th anniversary of the brutal murder of Matthew Shepard. He was a college student who was beaten to death solely because of his sexual orientation. Matthew's parents worked courageously and tirelessly for this legislation, which aims to ensure this kind of despicable act will never be tolerated in this country.

The bill was named for Matthew as well as for James Byrd, Jr. Mr. Byrd was a Black man who was killed in 1998 because of his race-- another awful crime which I will not even describe because it was so gruesome--but it galvanized the Nation against hateful violence. We appreciate and honor the important contribution of James Byrd's family, as they have worked so hard for this legislation.

Unfortunately, the years since these two horrific crimes have made clear that hate crimes remain a serious and growing problem. Only a few weeks ago, we saw--just a few blocks from this Capitol--a shooting at the Holocaust Memorial Museum, a place that should be sacred ground because of what it remembers. We saw a vicious hate crime, with a man dying trying to defend the Holocaust Memorial Museum. I think this bipartisan legislation will help law enforcement respond more effectively to this problem. It is a testament to the importance of this legislation that the Attorney General of the United States, Eric Holder, came to the Judiciary Committee in June to testify in favor of it. We have been urged to pass this bill by State and local law enforcement organizations and dozens of leaders in the faith and civil rights communities. I wish, when I had been a prosecutor in the State of Vermont, that we had had such legislation so we could have called on it when we needed help.

This historic hate crimes legislation will improve existing law by making it easier for Federal authorities to investigate and prosecute crimes of racial or ethnic or religious violence. Victims will no longer have to engage in a narrow range of activities, such as serving as a juror, to be protected under Federal law.

It also focuses the attention and resources of the Federal Government on the crimes committed against people because of sexual orientation, their gender, their gender identity or their disability, which are much needed protections. In addition, the legislation will provide resources to State, local, and tribal law enforcement to address hate crimes.

President Obama has worked closely with us to facilitate the quick passage of this vital hate crimes legislation. In his first few months in office, he has acted to ensure that Federal benefits are awarded more equitably, regardless of sexual orientation, and now to ensure that this hate crimes legislation becomes law. Unlike previous years, this bipartisan hate crimes bill does not face a veto threat. We have a President who understands that crimes motivated by bias are particularly pernicious crimes and affect more than just the victims and the victims' families. They affect all of us. They affect us as a society. They weaken us and demean us as a society, and we should all be opposed to such crimes. I expect the President to sign this legislation without delay.

Hate crimes instill fear in those who have no connection to the victim other than a shared characteristic, such as race or sexual orientation. For nearly 150 years, we have responded as a nation to deter and to punish violent denials of civil rights by enacting Federal laws to protect the civil rights of all our citizens. The Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act of 2009 continues that great and honorable tradition--Matthew Shepard, who was murdered because of his sexual orientation; James Byrd, who was murdered because of his race. In passing this legislation, we can say to them and everybody else that at last we in the Senate, the body that should be the conscience of the Nation, will show, once again, that America values tolerance and protects all its people.

Mr. President, today I am proud to join Senators Kohl, Mikulski, and LeMieux to introduce the Elder Abuse Victims Act of 2009, a bill to protect older Americans from abuse and exploitation. It is clear that we are not doing enough to combat crime against seniors, and the Elder Abuse Victims Act will give us important tools to better prevent and punish this deplorable behavior.

I have long fought to improve and protect the lives of older Americans. In 2000, I joined Senator Bayh in sponsoring the Protecting Seniors from Fraud Act, which was signed into law nearly nine years ago today. A key provision that I worked to incorporate into that legislation required the Attorney General to conduct a study of crime against seniors and to include specific information about crimes that disproportionately affect seniors in the National Crime Victimization Survey. The information collected as a result of those provisions has been valuable in understanding the scope of crime perpetrated against seniors and how best to combat it. In 2003, I sought further protections by introducing the Seniors Safety Act. That bill aimed to strengthen enforcement of many of the most prevalent crimes perpetrated against seniors, including health care fraud, nursing home abuse, telemarketing fraud, and pension fraud.

The Elder Abuse Victims Act builds on these earlier efforts and ensures that fighting the abuse and exploitation of our seniors is a top law enforcement priority. Specifically, the bill provides grants to train prosecutors and establish elder justice units within State and local courts and law enforcement offices. It also requires the U.S. Department of Justice to further study state and local enforcement of elder abuse laws and establish more uniform procedures to improve the identification and handling of elder justice matters. Additionally, the bill provides funding for elder abuse victims advocacy groups to ensure that vulnerable seniors have access to critical support services.

It is particularly important that we strengthen our ability to protect older Americans because they are the most rapidly growing population group in our society, making them an ever more attractive target for criminals. The Department of Health and Human Services has predicted that the number of older Americans will grow from 13 percent of the U.S. population in 2000 to 20 percent by 2030. In Vermont, seniors comprise about 12 percent of the population, a number that is expected to increase to 20 percent by 2025.

The growing number of older Americans demands that we have enough advocacy programs and law enforcement services in place to protect our seniors. We all deserve to age with dignity, free of the threat of abuse or fraud. The Elder Abuse Victims Act can help by giving our justice system the tools it needs to prosecute offenders who prey on the elderly. I look forward to working with Senators Kohl, Mikulski, LeMieux, and others to better protect seniors from crime and abuse.

Mr. President, today I am proud to join Senators Kohl, Mikulski, and LeMieux to introduce the Elder Abuse Victims Act of 2009, a bill to protect older Americans from abuse and exploitation. It is clear that we are not doing enough to combat crime against seniors, and the Elder Abuse Victims Act will give us important tools to better prevent and punish this deplorable behavior.

I have long fought to improve and protect the lives of older Americans. In 2000, I joined Senator Bayh in sponsoring the Protecting Seniors from Fraud Act, which was signed into law nearly nine years ago today. A key provision that I worked to incorporate into that legislation required the Attorney General to conduct a study of crime against seniors and to include specific information about crimes that disproportionately affect seniors in the National Crime Victimization Survey. The information collected as a result of those provisions has been valuable in understanding the scope of crime perpetrated against seniors and how best to combat it. In 2003, I sought further protections by introducing the Seniors Safety Act. That bill aimed to strengthen enforcement of many of the most prevalent crimes perpetrated against seniors, including health care fraud, nursing home abuse, telemarketing fraud, and pension fraud.

The Elder Abuse Victims Act builds on these earlier efforts and ensures that fighting the abuse and exploitation of our seniors is a top law enforcement priority. Specifically, the bill provides grants to train prosecutors and establish elder justice units within State and local courts and law enforcement offices. It also requires the U.S. Department of Justice to further study state and local enforcement of elder abuse laws and establish more uniform procedures to improve the identification and handling of elder justice matters. Additionally, the bill provides funding for elder abuse victims advocacy groups to ensure that vulnerable seniors have access to critical support services.

It is particularly important that we strengthen our ability to protect older Americans because they are the most rapidly growing population group in our society, making them an ever more attractive target for criminals. The Department of Health and Human Services has predicted that the number of older Americans will grow from 13 percent of the U.S. population in 2000 to 20 percent by 2030. In Vermont, seniors comprise about 12 percent of the population, a number that is expected to increase to 20 percent by 2025.

The growing number of older Americans demands that we have enough advocacy programs and law enforcement services in place to protect our seniors. We all deserve to age with dignity, free of the threat of abuse or fraud. The Elder Abuse Victims Act can help by giving our justice system the tools it needs to prosecute offenders who prey on the elderly. I look forward to working with Senators Kohl, Mikulski, LeMieux, and others to better protect seniors from crime and abuse.

Mr. President, today, the Senate is taking action long delayed by an anonymous Republican hold. That hold has extended for almost 6 months without explanation. I have spoken repeatedly to the Republican leader, the assistant Republican leader, and the ranking Republican on the Senate Judiciary Committee. No one has given me any explanation for the hold. When the Senate majority leader asked back in early June to proceed to the nomination that was reported without objection by the Senate Judiciary Committee on May 7, the Republican leader objected, saying ``we have not had an opportunity to get that cleared.'' They had had a month; another 4 months have now passed. In violation of the Honest Leadership and Open Government Act, no Republican Senator has come forward in all this time to identify himself and specify a reason for the hold.

Judge Sessions is an extraordinary public servant. Judge Sessions has twice previously been confirmed unanimously by the Senate to serve on the Sentencing Commission. He has served with distinction for 10 years, and has served as a vice chair of the Sentencing Commission. He is a distinguished U.S. Federal judge who has served for 14 years and now serves as the chief judge for the District of Vermont. He is a member of the Judicial Conference of the United States, made up of the leaders of the Federal judiciary. He has also contributed to his local community as a public defender, an adjunct law professor, and even as a coach of the local Little League team. A lawyer's lawyer and a judge's judge, he has earned the praise of both the prosecution bar and the defense bar.

Judge Sessions is eminently well qualified to serve as the chair of the Sentencing Commission. I must say that in my numerous conversations with Republican Senators and Republican Senate leaders during the last 6 months, no one raised any dispute or criticism or reason for this obstruction and delay.

This is most unfortunate because some of us have worked very hard to move beyond the era when delays in nominations to fill vacancies on the Sentencing Commission got so bad and extended so long that it drew the attention of the Chief Justice of the United States in his annual reports in 1997 and 1998. I have worked with the Republican chairmen and ranking members on the Judiciary Committee and consistently protected their rights and interests. I have treated their recommended nominees with respect and shown them support. I worked to break the impasse in the Republican-led Senate by working across the aisle and with the White House to develop a slate of nominees, Republican, Democratic and independent, that was confirmed as a group. Thereafter, I have worked conscientiously with the lead Republican on the Judiciary Committee to fill vacancies appropriately as they arose.

Most recently, I worked even during the last weeks of the Bush administration to have the Judiciary Committee report and the Senate confirm two nominees recommended and supported by Senate Republicans. William Carr, a recommendation from the ranking Republican on the Judiciary Committee, was confirmed on November 20, 2008, weeks after the Presidential election, and now serves as a vice chair. We also proceeded to confirm to another term Judge Ricardo Hinojosa, who I supported when he was nominated to the Commission by his friend President Bush in January 2003, when he was nominated and confirmed as chair in

2004, and when he was renominated for another term and confirmed in November 2008. Judge Hinojosa has served as acting chair because Republicans have held up the confirmation of Judge Sessions. Apparently, Senate Republicans have chosen to respond to our having proceeded with those confirmations in November 2008 to the Sentencing Commission and to my years of cooperative efforts by resorting to delay and obstruction. They have refused to allow the Senate to consider the nomination of Judge Sessions to serve as chair of the Sentencing Commission for the last several months.

I commend Judge Sessions for his patience, determination and sense of public service. I thank the majority leader for proceeding to file the cloture petition last night that is finally resulting in Senate action on this important nomination.

Mr. President, I am pleased that the Senate has passed the Department of Homeland Security appropriations conference report. This legislation contains important funding for the Department of Homeland Security to carry out its various responsibilities. I commend Chairman Inouye and Subcommittee Chairman Byrd for their hard work on this legislation, and also for their support of a vibrant immigration program that fosters direct investment in U.S. job creation that is extended through this legislation.

The conference report we will pass today contains a 3-year extension for the EB-5 regional center program. This extension will bring badly needed stability to this program. Foreign investors who look to the regional center program must have the confidence that the Federal Government supports and believes in this program. Stakeholders that rely on financing through this program must have the predictability that this 3-year extension will help provide. As the U.S. Citizenship and Immigration Services expressed to the Senate Judiciary Committee during a recent hearing about this program, the biggest impediment to the EB-5 regional center program is its lack of permanence. I have long believed in the potential of this program as an economic engine for America's communities. Given the recent and rapid expansion in the number of approved regional centers around the country, it is clear that many Americans recognize this potential, as well.

In an effort to make this program an integral part of our immigration system, I offered an amendment to the Homeland Security appropriations bill on the Senate Floor to provide for its permanent authorization. That amendment was overwhelmingly adopted. Unfortunately, the conference committee did not retain that permanent authorization, and once again, irrational immigration politics got in the way of good policy. Instead of making permanent a program that has created thousands of American jobs and brought more than $1 billion of capital investment into our communities since 2006, the conference was compelled to sacrifice this opportunity for no legitimate reason. However, it is still heartening to know that over the next 3 years the citizens who are working to better their communities through the regional center program will be able to do so without the fear of constant interruption and uncertainty.

I want to take a moment to commend all of the resourceful business people who have turned to this program to finance key economic development projects in their communities. Despite the hurdles that have continually hampered the efforts I have led to renew the program, the stakeholder community has not only continued to work hard on improving local economies across the country, but has directly engaged Members of Congress to ensure that this program does not wither away. As a result of their efforts to retain a strong extension in the conference report, I am confident that many more Members of Congress have a better understanding of this program's potential and importance in their own communities.

These stakeholders all deserve thanks for the jobs and capital investment they are bringing to their communities. In Vermont, people like Bill Stenger at Jay Peak Resort and Win Smith at Sugarbush Resort have used the EB-5 program to keep Vermont's ski industry a vibrant and foundational part of the Vermont economy. As a direct result of the EB- 5 regional center program and in a very difficult economic environment, dozens of subcontractors in Northeastern Vermont are hard at work on a project financed through the EB-5 Regional Center program. And in an effort to build on these successes, the State of Vermont is actively involved in working to expand the business sectors covered by Vermont's regional center so that technology firms and other diverse Vermont business enterprises can market their investment opportunities to a global audience. My efforts will continue in support of the regional center program. I look forward to helping Vermont and States across the country realize the full potential of this program through a permanent authorization.

I am also pleased that the conference retained an important measure to correct a serious inequity in immigration law commonly known as the widow penalty. Prior to the corrective amendment contained in this legislation, a foreign national widow or widower of a U.S. citizen was put into the untenable position of not only losing their spouse but losing their lawful permanent residence and path to U.S. citizenship. To underscore the nature of this injustice: In cases where a marriage was entered in good faith and without any fraud or ill intent, if the U.S. citizen spouse passed away during the period of conditional residency, the immigration agency took the position that the widow or widower no longer had standing to become a lawful permanent resident. This is wrong, and for a society that places such great value on family, a truly unfortunate position. The amendment in this legislation, which I and other Senators worked hard to ensure was retained in the conference report, will end this injustice.

The conference report also contains an amendment to extend a visa program that allows individuals from around the world dedicated to working on behalf of their religious faiths to come to the United States to do just that. I am pleased that the efforts I and others made to ensure this measure was retained have resulted in its adoption.

Finally, I commend the conference committee for rejecting an amendment that would have done little more than waste taxpayer dollars and cause further harm to the rights of property owners and the environment along our southern border. The conference committee wisely rejected an amendment that would have, in effect, required the Department of Homeland Security to tear down and rebuild hundreds of miles of barriers between the United States and Mexico that have already been constructed, at enormous expense to taxpayers. The Secure Fence Act, a piece of legislation I strongly opposed, directed the Department of Homeland Security to build border fencing and other barriers as a response to illegal border crossings. The Department carried out this legislative command during the Bush administration and constructed pedestrian fencing with vehicle barriers and other infrastructure. The amendment that was rejected by the conference committee would have compounded the negative effects that attended the border fence's original construction, and wasted taxpayer dollars in the process. I commend the conference for its wisdom in not accepting this amendment.

Mr. President, I commend the Senate for enacting the Leahy-Cornyn OPEN FOIA Act--a commonsense bill to promote more openness regarding statutory exemptions to the Freedom of Information Act, FOIA--as part of the Department of Homeland Security Appropriations Act, H.R. 2892. This FOIA reform measure builds upon the work that Senator Cornyn and I began several years ago to reinvigorate and strengthen FOIA by enacting the first major reforms to that law in more than a decade.

The Freedom of Information Act has served as perhaps the most important Federal law to protect the public's right to know for more than four decades. The OPEN FOIA Act will help to ensure that FOIA remains a meaningful tool to help future generations of Americans access government information.

The OPEN FOIA Act will make certain that when Congress provides for a statutory exemption to FOIA in new legislation, Congress states its intention to do so explicitly and clearly. In recent years, we have witnessed a growing number of so-called ``FOIA (b)(3) exemptions'' in proposed legislation--often in very ambiguous terms--to the detriment of the American public's right to know.

During a recent FOIA oversight hearing held by the Judiciary Committee, the president and CEO of the Associated Press, Tom Curley, testified that legislative exemptions to FOIA ``constitute a very large black hole in our open records law.'' The Sunshine in Government Initiative, a coalition of media groups dedicated to improving government transparency, has identified approximately 250 different statutory exemptions to FOIA that are used by Federal agencies to deny Americans' FOIA requests. This is an alarming statistic that should concern all of us, regardless of party affiliation or ideology.

By enacting the OPEN FOIA Act, Congress has taken an important step towards shining more light on the process of creating legislative exemptions to FOIA, so that our government will be more open and accountable to the American people. I thank Senators Lieberman, Graham and Cornyn, and Representative Price, for working with me on this measure. I also thank the distinguished chairmen and ranking members of the Senate and House Appropriations Committees--Senators Inouye and Cochran and Representatives Obey and Lewis--for their support of this open government measure.

President Obama--who supported the OPEN FOIA Act when he was in the Senate--has demonstrated his commitment to enacting this measure, as have the many FOIA, open government and media organizations that have tirelessly supported this measure since it was first introduced in 2005, including OpenTheGovernmnet.org, the Sunshine in Government Initiative, the National Security Archive and the American Civil Liberties Union.

I have said many times before--during both Democratic and Republican administrations--that freedom of information is neither a Democratic issue nor a Republican issue. It is an American issue. I commend the Congress for taking this significant step to reinvigorate FOIA and I urge the President to promptly sign this provision into law.

I ask for the yeas and nays.

Mr. President, today, I am proud to join Senators Durbin, Specter, Feingold, Cardin, Whitehouse, Kaufman, Franken, and others to introduce the Fair Sentencing Act of 2009. Our bill will eliminate the current 100-to-1 disparity between Federal sentences for crack and powder cocaine, equalizing the penalties for both forms of cocaine. I hope that this legislation will finally enable us to address the racial imbalance that has resulted from the cocaine sentencing disparity, as well as to make our drug laws more fair, more rational, and more consistent with our core values of justice.

I commend Senator Durbin for his leadership in fixing this decades- old injustice. He chaired a hearing before our Crime and Drugs Subcommittee six months ago to examine this issue where we heard from the Assistant Attorney General for the Criminal Division at the Justice Department. We should do what we can to restore public confidence in our criminal justice system. Correcting biases in our criminal sentencing laws is a step in that direction.

Today, the criminal justice system has unfair and biased cocaine penalties that undermine the Constitution's promise of equal treatment for all Americans. For more than 20 years, our Nation has used a Federal cocaine sentencing policy that treats ``crack'' offenders one hundred times more harshly than other cocaine offenders without any legitimate basis for the difference. We know that there is little or no pharmacological distinction between crack and powder cocaine, yet the resulting punishments for these offenses is radically different and the resulting impact on minorities has been particularly unjust.

Under this flawed policy, a first-time offender caught selling five grams of powder cocaine typically receives a 6 month sentence, and would often be eligible for probation. That same first-time offender selling the same amount of crack faces a mandatory five year prison sentence, with little or no possibility of leniency. This policy is wrong and unfair, and it has needlessly swelled our prisons, wasting precious Federal resources.

Even more disturbingly, this policy has had a significantly disparate impact on racial and ethnic minorities. According to the latest statistics assembled by the United States Sentencing Commission, African-American offenders continue to make up the large majority of Federal crack cocaine offenders, accounting for 80 percent of all Federal crack cocaine offenses, compared to white offenders who account for just 10 percent. These statistics are startling. It is no wonder this policy has sparked a nationwide debate about racial bias and undermined citizens' confidence in the justice system.

These penalties, which Congress created in the mid-1980s, have failed to address basic concerns. The primary goal was to punish the major traffickers and drug kingpins who were bringing crack into our neighborhoods. But the law has not been used to go after the most serious offenders. In fact, just the opposite has happened. The Sentencing Commission has consistently reported for many years that more than half of Federal crack cocaine offenders are low-level street dealers and users, not the major traffickers Congress intended to target.

The Fair Sentencing Act of 2009 would return the focus of Federal cocaine sentencing policy to drug kingpins, rather than street level dealers, and address the racial disparity in cocaine sentencing. The legislation we introduce today would align crack and powder cocaine sentences by setting the mandatory minimum sentencing triggers at the same levels. This equalization is a sound way to address the unjust sentencing disparity between crack and powder cocaine.

We have heard calls for this reform from Senators on both sides of the aisle. Senator Hatch, who has called the current ratio ``an unjustifiable disparity,'' recognizes that because ``crack and powder cocaine are pharmacologically the same drug'' our sentencing laws do ``not warrant such an extreme disparity.'' Even Senator Sessions, now the ranking Republican member of the Judiciary Committee, has called the 100-to-1 disparity in sentencing between crack cocaine and powder cocaine ``not justifiable'' and called for changes to make the criminal justice system more effective and fair.

The legislation we introduce today would also eliminate the mandatory minimum sentence for possession of crack cocaine. The 5-year mandatory minimum sentence penalty for simple possession of crack is unique under Federal law. There is no other mandatory minimum for mere simple possession of a drug. This bill would correct this inequity, as well. Still, the Federal penalties for drug crimes remain very tough. This bill toughens some of those penalties. It would increase fines for major drug traffickers, as well as provide sentencing enhancements for acts of violence committed during the course of a drug trafficking offense. As a former prosecutor, I support strong punishments for drug traffickers.

This legislation already has support from a broad coalition of groups, including the American Bar Association, the NAACP, the ACLU, Families Against Mandatory Minimums, the Sentencing Project, the United Methodist Church, and many more.

While serving in the Senate, in September 2007, then-Senator Obama said:

If you are convicted of a crime involving drugs, of course

you should be punished. But let's not make the punishment for

crack cocaine that much more severe than the punishment for

powder cocaine when the real difference is where the people

are using them or who is using them.

I agree. And the Justice Department agrees as well, as Assistant Attorney

General Lanny Breuer announced at our hearing this spring.

For over 20 years, the ``crack-powder'' disparity in the law has contributed to swelling prison populations without focusing on the drug kingpins. We must be smarter in our Federal drug policy. Law enforcement has been and continues to be a central part of our efforts against illegal drugs, but we must also find meaningful, community- based solutions.

American justice is about fairness for each individual. To have faith in our system Americans must have confidence that the laws of this country, including our drug laws, are fair and administered fairly. I believe the Fair Sentencing Act of 2009 will move us one step closer to reaching that goal. I urge all Senators to support this measure.

Mr. President, today, I am proud to join Senators Durbin, Specter, Feingold, Cardin, Whitehouse, Kaufman, Franken, and others to introduce the Fair Sentencing Act of 2009. Our bill will eliminate the current 100-to-1 disparity between Federal sentences for crack and powder cocaine, equalizing the penalties for both forms of cocaine. I hope that this legislation will finally enable us to address the racial imbalance that has resulted from the cocaine sentencing disparity, as well as to make our drug laws more fair, more rational, and more consistent with our core values of justice.

I commend Senator Durbin for his leadership in fixing this decades- old injustice. He chaired a hearing before our Crime and Drugs Subcommittee six months ago to examine this issue where we heard from the Assistant Attorney General for the Criminal Division at the Justice Department. We should do what we can to restore public confidence in our criminal justice system. Correcting biases in our criminal sentencing laws is a step in that direction.

Today, the criminal justice system has unfair and biased cocaine penalties that undermine the Constitution's promise of equal treatment for all Americans. For more than 20 years, our Nation has used a Federal cocaine sentencing policy that treats ``crack'' offenders one hundred times more harshly than other cocaine offenders without any legitimate basis for the difference. We know that there is little or no pharmacological distinction between crack and powder cocaine, yet the resulting punishments for these offenses is radically different and the resulting impact on minorities has been particularly unjust.

Under this flawed policy, a first-time offender caught selling five grams of powder cocaine typically receives a 6 month sentence, and would often be eligible for probation. That same first-time offender selling the same amount of crack faces a mandatory five year prison sentence, with little or no possibility of leniency. This policy is wrong and unfair, and it has needlessly swelled our prisons, wasting precious Federal resources.

Even more disturbingly, this policy has had a significantly disparate impact on racial and ethnic minorities. According to the latest statistics assembled by the United States Sentencing Commission, African-American offenders continue to make up the large majority of Federal crack cocaine offenders, accounting for 80 percent of all Federal crack cocaine offenses, compared to white offenders who account for just 10 percent. These statistics are startling. It is no wonder this policy has sparked a nationwide debate about racial bias and undermined citizens' confidence in the justice system.

These penalties, which Congress created in the mid-1980s, have failed to address basic concerns. The primary goal was to punish the major traffickers and drug kingpins who were bringing crack into our neighborhoods. But the law has not been used to go after the most serious offenders. In fact, just the opposite has happened. The Sentencing Commission has consistently reported for many years that more than half of Federal crack cocaine offenders are low-level street dealers and users, not the major traffickers Congress intended to target.

The Fair Sentencing Act of 2009 would return the focus of Federal cocaine sentencing policy to drug kingpins, rather than street level dealers, and address the racial disparity in cocaine sentencing. The legislation we introduce today would align crack and powder cocaine sentences by setting the mandatory minimum sentencing triggers at the same levels. This equalization is a sound way to address the unjust sentencing disparity between crack and powder cocaine.

We have heard calls for this reform from Senators on both sides of the aisle. Senator Hatch, who has called the current ratio ``an unjustifiable disparity,'' recognizes that because ``crack and powder cocaine are pharmacologically the same drug'' our sentencing laws do ``not warrant such an extreme disparity.'' Even Senator Sessions, now the ranking Republican member of the Judiciary Committee, has called the 100-to-1 disparity in sentencing between crack cocaine and powder cocaine ``not justifiable'' and called for changes to make the criminal justice system more effective and fair.

The legislation we introduce today would also eliminate the mandatory minimum sentence for possession of crack cocaine. The 5-year mandatory minimum sentence penalty for simple possession of crack is unique under Federal law. There is no other mandatory minimum for mere simple possession of a drug. This bill would correct this inequity, as well. Still, the Federal penalties for drug crimes remain very tough. This bill toughens some of those penalties. It would increase fines for major drug traffickers, as well as provide sentencing enhancements for acts of violence committed during the course of a drug trafficking offense. As a former prosecutor, I support strong punishments for drug traffickers.

This legislation already has support from a broad coalition of groups, including the American Bar Association, the NAACP, the ACLU, Families Against Mandatory Minimums, the Sentencing Project, the United Methodist Church, and many more.

While serving in the Senate, in September 2007, then-Senator Obama said:

If you are convicted of a crime involving drugs, of course

you should be punished. But let's not make the punishment for

crack cocaine that much more severe than the punishment for

powder cocaine when the real difference is where the people

are using them or who is using them.

I agree. And the Justice Department agrees as well, as Assistant Attorney

General Lanny Breuer announced at our hearing this spring.

For over 20 years, the ``crack-powder'' disparity in the law has contributed to swelling prison populations without focusing on the drug kingpins. We must be smarter in our Federal drug policy. Law enforcement has been and continues to be a central part of our efforts against illegal drugs, but we must also find meaningful, community- based solutions.

American justice is about fairness for each individual. To have faith in our system Americans must have confidence that the laws of this country, including our drug laws, are fair and administered fairly. I believe the Fair Sentencing Act of 2009 will move us one step closer to reaching that goal. I urge all Senators to support this measure.