Floor Statements

Mr. President, I ask unanimous consent that the Committee on Banking, Housing, and Urban Affairs be authorized to meet during the session of the Senate on September 10, 2009, at 2:30 p.m., to conduct a hearing entitled ``Oversight of the SEC's Failure To Identify the Bernard L. Madoff Ponzi Scheme and How To Improve SEC Performance.''

Mr. President, I ask unanimous consent that the Committee on Finance be authorized to meet during the session of the Senate on September 10, 2009, at 2:15 p.m., in room 215 of the Dirksen Senate Office Building, to conduct a hearing entitled ``Oil and Gas Tax Provisions: A Consideration of the President's FY2010 Budget Proposal.''

Mr. President, I ask unanimous consent that the Committee on Foreign Relations be authorized to meet during the session of the Senate on September 10, 2009, at 2:30 p.m., to hold a hearing entitled ``Iraq: Report from the Field.''

Mr. President, I ask unanimous consent that the Committee on Homeland Security and Governmental Affairs be authorized to meet during the session of the Senate on September 10, 2009, at 10 a.m., to conduct a hearing entitled ``Follow the Money: An Update on Stimulus Spending, Transparency, and Fraud Prevention.''

Mr. President, I ask unanimous consent that the Committee on Indian Affairs be authorized to meet during the session of the Senate on September 10, 2009, at 2:15 p.m. in Room 628 of the Dirksen Senate Office Building.

Mr. President, I ask unanimous consent that the Committee on the Judiciary be authorized to meet during the session of the Senate on September 10, 2009, at 10 a.m., in SD-226 of the Dirksen Senate Office Building, to conduct an executive business meeting.

Mr. President, I ask unanimous consent that Committee on Veterans' Affairs be authorized to meet during the session of the Senate on September 10, 2009. The Committee will meet in room 345 of the Cannon House Office Building beginning at 9:30 a.m.

Mr. President, today, I am reintroducing a comprehensive bill to address the resource needs of the Federal judiciary by authorizing additional courts of appeals and district court judgeships. This good government bill will improve the effectiveness of our Federal courts and provide Federal judges with the tools to promptly render the justice that Americans so desperately need.

The Federal Judgeship Act of 2009 establishes 12 new judgeships in six courts of appeals and 51 new judgeships in 25 district courts across the country. The legislation I introduce today is based on the recommendations of the Judicial Conference of the United States, which identified the judiciary's resource needs during the completion of its biennial survey in March.

Last Congress, I joined Senator Hatch and 20 other Senators from both sides of the aisle to introduce this legislation. A bipartisan majority of the Judiciary Committee voted to report the bill to the Senate last year. Unfortunately, the Senate did not act on the bill before the end of the last Congress.

We used to consider judgeship bills at six year intervals. It has been 19 years since the last comprehensive judgeship bill was enacted to address the growth in the workload of the Federal judiciary. That legislation established 11 additional circuit court judgeships, as well as 61 permanent and 13 temporary district court judgeships. Since 1990, case filings in the Federal appellate courts have increased by 42 percent, and case filings in the district courts have risen by 34 percent. Congress has authorized only a few additional district court judgeships and extended a few temporary judgeships. We should pass a comprehensive judgeship bill in this Congress that will ease the strain of heavy caseloads that has burdened the courts and thwarted the administration of justice.

Last year, the weighted number of filings in district courts, which takes into account an assessment of case complexity, was 472 per judgeship. This figure is well above the Judicial Conference's standard of 430 weighted filings per district court judgeship. In the 25 district courts that would receive additional judgeships under this bill, the weighted filings averaged 573 per judgeship, and 10 courts had caseloads near or above 600 weighted filings per judgeship. Today, the national average circuit court caseload per three judge panel has reached 1,104 filings. That statistic approaches the record number of 1,230 cases recorded in 2005 and far exceeds the 773 average circuit court caseload filings recorded in 1991.

Federal judges are working harder than ever, but in order to maintain the integrity of the Federal courts and the promptness that justice demands, judges must have a manageable workload. To address the excessive caseloads that burden Federal courts, the Federal Judgeship Act of 2009 would add nine permanent circuit court judgeships, 38 permanent district court judgeships, and convert five existing temporary judgeships into permanent positions. These additional judgeships would help to alleviate the significant increase in caseloads that the Federal courts have seen over the nearly two decades since the last comprehensive judgeship bill was enacted.

The bill would also add 13 temporary district court judgeships, three temporary circuit court judgeships, and would extend one existing temporary district court judgeship. These additional temporary judgeships will allow Congress some flexibility with regard to future judgeship needs. If caseloads continue to increase, Congress has the option to introduce legislation making permanent or renewing these temporary judgeships. If those caseloads do not increase, when the next judge in that circuit or district retires they will not be replaced.

After years of debate and Federal courts struggling to adjudicate cases despite the overwhelming burden of heavy caseloads, the time to enact a comprehensive Federal judgeship bill is long overdue.

The ability of Federal courts to effectively administer justice will continue to be challenged unless adequate resources are provided. The Federal Judgeship Act of 2009 responds to the increasing workload of the Federal judiciary, and it is long overdue. I thank Senators Feinstein, Schumer, Whitehouse, Klobuchar, Kaufman,

Franken, Harkin, Bingaman, Murray, Brown, Bayh, Bennet, Boxer, Shaheen, Inouye, Akaka, and Kerry for their support. I urge Senators on both sides of the aisle to give this legislation their serious consideration and support.

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

Mr. President, today, I am reintroducing a comprehensive bill to address the resource needs of the Federal judiciary by authorizing additional courts of appeals and district court judgeships. This good government bill will improve the effectiveness of our Federal courts and provide Federal judges with the tools to promptly render the justice that Americans so desperately need.

The Federal Judgeship Act of 2009 establishes 12 new judgeships in six courts of appeals and 51 new judgeships in 25 district courts across the country. The legislation I introduce today is based on the recommendations of the Judicial Conference of the United States, which identified the judiciary's resource needs during the completion of its biennial survey in March.

Last Congress, I joined Senator Hatch and 20 other Senators from both sides of the aisle to introduce this legislation. A bipartisan majority of the Judiciary Committee voted to report the bill to the Senate last year. Unfortunately, the Senate did not act on the bill before the end of the last Congress.

We used to consider judgeship bills at six year intervals. It has been 19 years since the last comprehensive judgeship bill was enacted to address the growth in the workload of the Federal judiciary. That legislation established 11 additional circuit court judgeships, as well as 61 permanent and 13 temporary district court judgeships. Since 1990, case filings in the Federal appellate courts have increased by 42 percent, and case filings in the district courts have risen by 34 percent. Congress has authorized only a few additional district court judgeships and extended a few temporary judgeships. We should pass a comprehensive judgeship bill in this Congress that will ease the strain of heavy caseloads that has burdened the courts and thwarted the administration of justice.

Last year, the weighted number of filings in district courts, which takes into account an assessment of case complexity, was 472 per judgeship. This figure is well above the Judicial Conference's standard of 430 weighted filings per district court judgeship. In the 25 district courts that would receive additional judgeships under this bill, the weighted filings averaged 573 per judgeship, and 10 courts had caseloads near or above 600 weighted filings per judgeship. Today, the national average circuit court caseload per three judge panel has reached 1,104 filings. That statistic approaches the record number of 1,230 cases recorded in 2005 and far exceeds the 773 average circuit court caseload filings recorded in 1991.

Federal judges are working harder than ever, but in order to maintain the integrity of the Federal courts and the promptness that justice demands, judges must have a manageable workload. To address the excessive caseloads that burden Federal courts, the Federal Judgeship Act of 2009 would add nine permanent circuit court judgeships, 38 permanent district court judgeships, and convert five existing temporary judgeships into permanent positions. These additional judgeships would help to alleviate the significant increase in caseloads that the Federal courts have seen over the nearly two decades since the last comprehensive judgeship bill was enacted.

The bill would also add 13 temporary district court judgeships, three temporary circuit court judgeships, and would extend one existing temporary district court judgeship. These additional temporary judgeships will allow Congress some flexibility with regard to future judgeship needs. If caseloads continue to increase, Congress has the option to introduce legislation making permanent or renewing these temporary judgeships. If those caseloads do not increase, when the next judge in that circuit or district retires they will not be replaced.

After years of debate and Federal courts struggling to adjudicate cases despite the overwhelming burden of heavy caseloads, the time to enact a comprehensive Federal judgeship bill is long overdue.

The ability of Federal courts to effectively administer justice will continue to be challenged unless adequate resources are provided. The Federal Judgeship Act of 2009 responds to the increasing workload of the Federal judiciary, and it is long overdue. I thank Senators Feinstein, Schumer, Whitehouse, Klobuchar, Kaufman,

Franken, Harkin, Bingaman, Murray, Brown, Bayh, Bennet, Boxer, Shaheen, Inouye, Akaka, and Kerry for their support. I urge Senators on both sides of the aisle to give this legislation their serious consideration and support.

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

Mr. President, among the most gratifying aspects of the confirmation of Justice Sonia Sotomayor for me was meeting her mother Celina. Anyone who knows their story knows how much Justice Sotomayor owes to her mother. She paid tribute to her mother during her opening statement at the confirmation hearing last month when she poignantly said: ``I want to make one special note of thanks to my Mom. I am here today because of her aspirations and sacrifices for both my brother Juan and me. Mom, I love that we are sharing this together.''

One of the good things about the hearing was that Americans were able to meet Celina Sotomayor, a woman admired across America. I will never forget her own participation at that hearing. She sat just behind her daughter, nodding in agreement when her daughter spoke. She followed the questions and answers, the give-and-take. She was focused, protective and justifiably proud of her daughter.

Justice Sotomayor's story is her story too. Justice Sotomayor's triumph is her triumph too. This confirmation is the realization of the American dream that she lived and for which she worked, sacrificed and overcame adversity. She is an inspiration to us all.

Madam President, what is the parliamentary situation?

Madam President, I thank the many Senators who took part yesterday in the historic debate over the nomination of Judge Sonia Sotomayor to the Supreme Court. In fact, the distinguished Presiding Officer was one who introduced her to the Judiciary Committee and also spoke eloquently in the Chamber yesterday. I am hopeful that today will not only conclude the debate, but we will then vote on her confirmation and vote favorably.

Senator Klobuchar, the senior Senator from Minnesota, a very active member of the Judiciary Committee, led a group of five women Senators in a powerful opening hour of debate yesterday. The distinguished Presiding Officer was one of them, and it also included Senators Shaheen, Stabenow, and Murray. Their speeches were very moving. Several Judiciary Committee Senators gave strong speeches of support for Judge Sotomayor's nomination, including Senator Schumer, Senator Specter and Senator Cardin. Senator Franken, the newest Member of the Senate and newest member of the Judiciary Committee, gave his first Senate speech. Most of us follow the tradition of waiting for our first Senate speech to make sure it is on a matter of some moment. In his case, it was as momentous a matter as one could pick, the nomination of a Supreme Court Justice. Senator Franken eloquently spoke on her behalf.

We heard from Senator Lautenberg; Senator Dodd, my neighbor in the Senate, both in the row I sit and also in my Senate office, and a good friend. Senators Baucus, Merkley, Akaka, Lieberman, Casey, Wyden, and Bennet all spoke for her.

Statements of support for Judge Sotomayor yesterday came from both sides of the aisle. On the Republican side, Senator Martinez, who has been a strong supporter of Judge Sotomayor, gave a particularly moving speech. Senator Bond, a former Governor, former attorney general, and one who has appointed judges, joined him in announcing his intent to vote for this well-qualified nominee. My neighbors from New England, Senators Collins and Snowe, also spoke in favor of her nomination.

The troubling thing yesterday was to hear some critics of hers making unfounded insinuations about the integrity and character of this outstanding nominee. That is wrong. She is a judge of unimpeachable character and integrity. These critics have also chosen to ignore her extensive record of judicial modesty and restraint from 17 years on the Federal bench. Instead they have focused on and mischaracterized her rulings in a handful, out of more than 3,600, of cases. That is interesting, out of 3,600 cases, they could find only a tiny handful to criticize, and they can criticize those only by mischaracterizing them.

Let me go to one area in particular. Some Republican Senators have twisted Judge Sotomayor's participation in a unanimous Second Circuit decision that applied a 123-year-old U.S. Supreme Court precedent to reject a challenge to a New York State law of restriction on chukka sticks, a martial arts device. What she was doing was following the precedent of the Supreme Court; again, one of the reasons why it was a unanimous decision of the Second Circuit. Some have trumped up a straw man by ignoring the facts of Judge Sotomayor's decision. It is easy to come to a conclusion if you ignore the facts and the law and just go to your conclusion. Of course, that doesn't make it right. They ignored the facts of her decision. They ignored the developing state of second amendment law, and they ignored Judge Sotomayor's testimony during her confirmation hearing, recognizing the individual right to bear arms that is guaranteed by the second amendment.

In fact, in joining the per curiam decision in Maloney v. Cuomo, Judge Sotomayor followed and applied the holding of the Supreme Court that the second amendment provides individuals with the right to keep and bear arms. When the Supreme Court handed down its decision in District of Columbia v. Heller last year, I applauded the Court for affirming what so many Americans already believe. The second amendment protects an individual's right to own a firearm. The Heller decision reaffirmed and strengthened our Bill of Rights. Vermont has some of the least restrictive gun laws in the country. In fact, most would say they have the least restrictive gun laws. One does not need a permit to carry a concealed firearm in Vermont, if they don't have a felony conviction. But Vermonters are trusted to conduct themselves responsibly and safely, and we do.

I am a native Vermonter. I have lived there all my life. I find Vermonters do conduct themselves safely and responsibly. Similar to many Vermonters, I grew up with firearms. I have enormous respect and appreciation for the freedoms the second amendment protects. In fact, I own many firearms. Similar to other rights protected by our Bill of Rights, the second amendment right to keep and bear arms is one I cherish. Fortunately, I live in a rural area in Vermont. I can set up targets and use my backyard as an impromptu pistol range and often do.

The Supreme Court's decision in Heller recognized that the second amendment guarantees an individual the right to keep and bear arms against Federal restrictions. So before we go off using talking points and ignore what she did or ignore what she said, I thought it might be good to kind of spoil the rhetoric by actually going to the facts.

The facts are these. At her confirmation hearing, Judge Sotomayor repeatedly affirmed her view of the second amendment guarantees as set forth in the Heller decision. This seems to be ignored by some who criticize her. In fact, I asked a question on it because it is important to me as a Vermonter, as a Senator and certainly as chairman of the Judiciary Committee. In response to my question, she testified:

I understand how important the right to bear arms is to

many, many Americans. In fact, one of my godchildren is a

member of the NRA, and I have friends who hunt. I understand

the individual right fully that the Supreme Court recognized

in Heller.

Judge Sotomayor reaffirmed that statement in answers to questions from Senators Kyl, Coburn, and Feingold.

Judge Sotomayor testified in response to a question from Senator Kyl:

The decision of the Court in Heller . . . recognized an

individual right to bear arms as applied to the Federal

Government.

Judge Sotomayor testified in response to Senator Coburn:

In the Supreme Court's decision in Heller, it recognized an

individual's right to bear arms as a right guaranteed by the

Second Amendment.

In response to Senator Feingold, Judge Sotomayor testified about Heller:

[T]he Supreme Court did hold that there is . . . an

individual right to bear arms, and . . . I fully accept that.

Judge Sotomayor participated on a Second Circuit panel in a case called Maloney v. Cuomo that was decided earlier this year in which the unanimous panel--let me emphasize, the unanimous panel--recognized the Supreme Court decision in Heller that the personal right to bear arms is guaranteed by the second amendment against Federal law restrictions.

Justice Scalia, arguably the most conservative Justice on the U.S. Supreme Court, said in his opinion in the Heller case that the Heller case expressly left unresolved and explicitly reserved as a separate question whether the second amendment guarantee applies to the States and laws adopted by the States, whether the State of Vermont or any other State. In doing so, the Court left in place a series of Supreme Court holdings from 1876 to 1894 that the second amendment does not apply to the States.

I mention this because there are those who want Justices to not be activists but to be traditionalists. Going back to 1876 to 1894 recognizes a tradition of this country. The question posed to Judge Sotomayor and the Second Circuit in Maloney involved a challenge by a criminal defendant to a New York State law restriction on a martial arts device called nunchucks or chukka sticks, not firearms. Indeed, in that case the appellant had pleaded guilty to disorderly conduct, agreed to the destruction of the nunchucks as part of the plea, and the charge of possession of the nunchucks in violation of New York law had been dismissed. The Second Circuit considered the case on appeal from a denial of a subsequent declaratory judgment case.

In declining to overrule the trial judge--the trial judge would not set aside the State law against nunchucks--the Second Circuit panel emphasized that its decision was dictated by Supreme Court precedent, holding that: ``Where, as here, a Supreme Court precedent has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to the Supreme Court the prerogative of overruling its own decisions.' '' Had the Second Circuit acted otherwise, it would have been seen as judicial activism and an unwillingness to adhere to Supreme Court precedent. That is something that every single Member of this Chamber has said judges should do, follow Supreme Court precedent.

Now Judge Sotomayor is criticized for doing what a Circuit Court of Appeals judge is supposed to do; that is, follow the precedent of the Supreme Court. She seems to be caught in a Hobson's choice. Had she violated that rule, had they acted otherwise, had they refused to follow Supreme Court precedent, I am sure she would be attacked as being a judicial activist. Come on. Let's be fair. When we have had nominees by Republican Presidents, we have heard over and over again how Republicans want these people because they follow precedent. Here, some Republicans are attacking Judge Sotomayor because she did follow precedent, because she did do what a Court of Appeals judge is supposed to do.

In fact, the approach taken by the Second Circuit decision in Maloney was adopted by some of the most respected, very conservative jurists in the country. Judges Easterbrook and Posner, both renowned conservatives, people whom I hear quoted by the Republican side over and over again, serve on the Seventh Circuit. They agreed with the Second Circuit panel. This may sound like it is getting into the weeds, but what I am saying is, judges of all stripes ruled the same way. In National Rifle Association v. City of Chicago, they cited the Second Circuit in Maloney. Judges Easterbrook and Posner refused to ignore the direction of the Supreme Court to implement Supreme Court holdings, even if the reasoning in later opinions undermines their rationale and, instead, ``leave to [the Supreme Court] the prerogative of overruling its own decisions.''

What I am saying is, conservative judges, liberal judges, and moderate judges such as Judge Sotomayor all came to the same conclusion: You have to follow precedent. It may sound like I am doing a tutorial for a law school class, but I thought rather than having the rhetoric, let's go to the facts and let's go to the law. Because both the facts and the law are irrefutable.

If Republican Senators wish to criticize, let them criticize Justice Scalia for the Supreme Court's decision in Heller to limit its application against Federal Government restrictions and expressly reserve for another Supreme Court decision whether to incorporate the Second Amendment right against the States. Judges Easterbook, Posner and Bauer of the Seventh Circuit and Judges Pooler, Sotomayor and Katzmann of the Second Circuit all followed Justice Scalia and the holdings of Supreme Court precedent.

Petitions for certiorari have been filed in both Maloney and National Rifle Association and are currently pending before the Supreme Court. A third, related decision by a panel of the Ninth Circuit is being reconsidered en banc by that Court of Appeals. Republican Senators insisted during the Roberts and Alito hearings that a Supreme Court nominee must avoid making predictions about how she might rule in a case that is likely to come before the Supreme Court. Yet Republican Senators have now reversed their approach to demand that Judge Sotomayor ignore these standards and commit to how she intends to rule on these cases and this issue if confirmed.

Recognizing that she would be unable to say how she would rule, I asked Judge Sotomayor whether she would approach these matters with an open mind and she assured us that she would. I do not see how any fair observer could regard her testimony as hostile to the Second Amendment personal right to bear arms, a right she has embraced and recognizes.

The question of incorporation of the Second Amendment of the Bill of Rights against the States is not merely likely to come before the Court; petitions to decide it are currently pending before the Supreme Court. There are well-recognized limits to how much a judicial nominee can say during her confirmation hearings. Nominees do not answer questions about cases or issues pending before the Supreme Court. It is striking that many of those who today criticize Judge Sotomayor's adherence to these limits strongly defended them just a few years ago, when a Republican President was doing the nominating.

A 2005 Senate Republican Policy Committee Report commissioned by Senator Kyl concluded that ``the preservation of an independent judiciary'' depends on a nominee's ability to avoid signaling how she will rule on upcoming cases. According to this report:

It is inappropriate for any nominee to give any signal as

to how he or she might rule on any issue that could come

before the court, even if the issue is not presented in a

currently pending case. If these novel ``prejudgment

demands'' were tolerated, the judicial confirmation process

would be radically transformed.

Senator Kyl's Republican Policy Committee Report raised concerns that ``no judge can be fair and impartial if burdened by political commitments that Senators try to extract during confirmation hearings'' and concluded that ``nothing less than judicial independence and the preservation of a proper separation of powers is at stake.''

Senators Sessions, Cornyn, Grassley, Coburn and Hatch referred to these restrictions on a nominee's ability to answer questions during the Senate's consideration of President Bush's Supreme Court nominees. During the Senate's consideration of the Roberts nomination, Senator Sessions said:

Judges apply the facts to the legal requirements of the

situation, and only then make a decision. [Judge Roberts]

refused to make opinions on cases that may come before him.

Of course, he should not make opinions on that . . . He

should not be up there making opinions on the cases. That is

so obvious.

At that time, Senator Cornyn shared their view and strongly defended Republican nominees who refused to discuss legal issues that might arise in the future. He said:

It undermines a nominee's ability to remain impartial once

he or she becomes a judge if he or she has already taken

positions on issues that might come before him or her on the

bench. . . . In other words, just because some Members may

ask these questions does not mean the President's nominee

should answer them. In accordance with long tradition and

norms of the Senate in the confirmation process, they should

not answer them.

At the beginning of confirmation hearings for John Roberts, Senator Grassley said: ``The fact is that no Senator has a right to insist on his or her own issue-by-issue philosophy or seek commitments from nominees on specific litmus-test questions likely to come before that Court.''

Senator Coburn criticized those Senators whom he said planned to vote against the Roberts nomination for his failure to state positions on specific issues: ``The real reason they will be voting against John Roberts is because he would not give a definite answer on two or three of the social issues today that face us. He is absolutely right not to give a definite answer because that says he prejudges, that he has made up his mind ahead of time.''

In 2005, Senator Hatch noted the ethical restrictions on a nominee's ability to answer questions and said:

I have said Senators on the Judiciary Committee can ask any

question they want, no matter how stupid the question may be.

. . . But the judge does not have to answer those questions.

In fact, under the Canons of Judicial Ethics, judges should

not be opining or answering questions about issues that may

possibly come before them in the future.

Both Judge Roberts and Judge Alito followed their advice and did not answer questions with any specificity about cases that could come before the Supreme Court. Judge Roberts testified during his hearing: ``I think I should stay away from discussions of particular issues that are likely to come before the Court.'' During his hearing, Judge Alito testified:

I think it's important to draw a distinction between issues

that could realistically come up before the courts and issues

that . . . are still very much in play . . . that's where I

feel that I must draw a line, because no issues that could

realistically come up, it would be improper for me to express

a view, and I would not reach a conclusion regarding any

issue like that before going through the whole judicial

process that I described.

I asked Judge Sotomayor during her hearing whether, if not bound by Second Circuit or Supreme Court precedent, on whether second amendment rights should be considered ``fundamental rights,'' she would keep an open mind in evaluating that legal question. Her response to me was straightforward. She said:

You asked me whether I have an open mind on that question.

Absolutely.

She said:

I would not prejudge any question that came before me if I

was a Justice on the Supreme Court.

She could not have gone any further without prejudging the question Justice Scalia's opinion in Heller left open, one that is currently pending before the Supreme Court.

In response to a question from Senator Coburn, Judge Sotomayor testified: ``In the Supreme Court's decision in Heller, it recognized an individual's right to bear arms as a right guaranteed by the Second Amendment. . . . The Maloney case presented a different question. That was whether that individual right would limit the activities that States would do to limit the regulation of firearms.'' Judge Sotomayor also told Senator Coburn at the hearing: ``I can assure your constituents that I have a completely open mind on this question. I do not close my mind to the fact and the understanding that there were developments after the Supreme Court's rulings on incorporation that will apply to this question or be considered.''

In response to a question from Senator Sessions on how she would come down on the question of incorporation of the Second Amendment, Judge Sotomayor testified: ``I have not prejudged the question that the Supreme Court left open in Heller . . . of whether this right should be incorporated against the States or not.'' She also answered Senator Sessions' questions about the panel decision in Maloney:

Well, when the Court looks at that issue, it will decide is

it incorporated or not. And it will determine by applying the

test that it has subsequent to its old precedent, whether or

not it is fundamental and hence, incorporated. But the

Maloney decision was not addressing the merits of that

question. It was addressing what precedent said on that

issue.

The only other case in which Judge Sotomayor was involved as an appellate judge involving a Second Amendment contention was a case in which an illegal alien was convicted of distribution and possession with intent to distribute approximately 1.2 kilograms of ``crack'' cocaine and of illegal possession of a firearm while an illegal alien. In that case, United States v. Sanchez-Villar, decided in 2004--before the Supreme Court's decision in Heller--involved an attempt to overturn a jury conviction. The defendant in that case claimed he had received ineffective assistance from his lawyer because his possession of the firearm in New York did not provide probable cause for seizure and arrest was rejected by a unanimous panel of the Second Circuit. The Second Circuit unanimously rejected this claim. In so doing, the panel quoted in a footnote to language from an earlier Second Circuit decision decided before Heller or Maloney. This is not unlike a number of cases in which Judge Sotomayor has upheld police actions when undertaken in good faith.

So I am disappointed by recent news accounts that the National Rifle Association has decided to ``score'' the vote on confirming Judge Sotomayor to the Supreme Court. They did this in response to pressure from the Republican leader. In fact, this is the first time in the history of the NRA that it has ``scored'' a Supreme Court confirmation vote. The irony of this is, if she had been nominated by a Republican President, they would all be supporting her with her record.

Madam President, I ask unanimous consent to have printed in the Record, at the conclusion of my statement, a copy of the July 24 letter from four members of the Congressional Hispanic Caucus, who have consistently earned high ratings from the NRA, to the NRA's executive vice president and executive director.

Congressmen Joe Baca, Solomon Ortiz, Silvestre Reyes, and John Salazar wrote:

[W]e are disappointed by the NRA's opposition to the

nomination of Judge Sonia Sotomayor to the U.S. Supreme

Court. It is not merited by either Judge Sotomayor's record

or hearing testimony.

In their letter, they point out that at her hearing Judge Sotomayor ``emphasized that she has an `open mind' on the question of incorporation and `has not prejudged' the issue.''

In fact, they said:

Judge Sotomayor has said more than either of the two

previous Supreme Court nominees about the Second Amendment--

specifically, she said that it confers an individual right,

as recognized by the Supreme Court in its Heller decision.

The letter continues: ``Even more troubling, it appears you are holding Judge Sotomayor to a different standard than you held Judges Roberts and Alito when they were nominated to the Court, or for that matter, any previous nominee to the Court. The double standard you have set for Judge Sotomayor is a disservice to all members of the NRA, particularly those who are Hispanic'' and that ``we are mystified as to why the NRA is characterizing Judge Sotomayor as hostile to the rights of gun owners and evaluating Judge Sotomayor by a different standard than that to which you have held previous Supreme Court nominees.''

I think it is a double standard. When Justices Roberts and Alito were nominated by a Republican President, Republicans did not have this standard. When this woman was nominated by a Democratic President, suddenly they change the standard. All I am saying is, they ought to follow the same standards they followed when President Bush nominated the two men he did now, when President Obama has nominated this woman to the Supreme Court.

Madam President, I ask unanimous consent to have printed in the Record letters of support for Judge Sotomayor from a large number of prosecutors, including the National District Attorneys Association.

Madam President, I ask unanimous consent to have printed in the Record letters of support for Judge Sotomayor from a broad cross section of law enforcement agencies, including the National Association of Police Organizations, the National Sheriffs' Association, and the Sheriff of the Los Angeles County Sheriff's Department.

I urge each Senator to vote his or her own conscience in connection with this historic nomination.

Exhibit 1

Congress of the United States,

Washington, DC, July 24, 2009.

Wayne LaPierre,

Executive Vice President, National Rifle Association of

America, Fairfax, VA.

Chris Cox,

Executive Director, National Rifle Association of America,

Fairfax, VA.

Dear Messrs. LaPierre and Cox: As Members of Congress whose

strong support for the rights of gun owners has earned us

consistently high ratings from the NRA, we are disappointed

by the NRA's opposition to the nomination of Judge Sonia

Sotomayor to the U.S. Supreme Court. It is not merited by

either Judge Sotomayor's judicial record or hearing

testimony. Even more troubling, it appears that you are

holding Judge Sotomayor to a different standard than you held

Judges Roberts and Alito when they were nominated to the

Court, or for that matter, any previous nominee to the Court.

The double standard you have set for Judge Sotomayor is a

disservice to all members of the NRA, particularly those who

are Hispanic.

We support the confirmation of Judge Sotomayor. She is

eminently qualified by her experience as a prosecutor,

district judge and 12 years on the Second Circuit Court of

Appeals. Her judicial record is one marked by modesty and

restraint, prompting the New York Times to write that her

``judicial opinions are marked by diligence, depth and

unflashy competence'' and are ``models of modern judicial

craftsmanship, which prizes careful attention to the facts in

the record and a methodical application of layers of legal

principles.'' (Adam Liptak, ``Nominee's Rulings Are

Exhaustive But Often Narrow,'' May 26, 2009). And we believe

that the historic act of putting the first Hispanic Justice

on the Court, particularly one so well qualified for the job,

is an important step for our country.

Judge Sotomayor has said more than either of the two

previous Supreme Court nominees about the Second Amendment--

specifically, she said that it confers an individual right,

as recognized by the Supreme Court in its Heller decision.

Judge Sotomayor was then asked repeatedly to discuss her

position on incorporation, even though there is now a circuit

split on the issue and there are petitions pending asking the

Supreme Court to take the issue. Judges are prohibited by ABA

rules from commenting on pending cases, making it

inappropriate for Judge Sotomayor to state a definitive view.

Nonetheless, at the hearing on her nomination, she emphasized

that she has an ``open mind'' on the question of

incorporation and has ``not prejudged'' the issue.

Conversely, when now-Chief Justice Roberts testified at his

confirmation hearing facing a similar circuit split prior to

the Heller decision on the issue of the individual right to

bear arms, he declined to discuss the issue at all, saying

only: ``That's sort of the issue that's likely to come before

the Supreme Court when you have conflicting views.'' And now-

Justice Alito was not even asked a question about the

subject. Yet the NRA voiced no opposition to these candidates

who were less forthcoming on issues of importance to us.

Your letter cites two cases as evidence that Judge

Sotomayor is hostile to the Second Amendment. Your analysis

of those cases is either mistaken or deliberately misleading.

United States v. Sanchez-Villar, on which Judge Sotomayor

was a member of the panel, was decided in 2004, four years

before the Supreme Court's landmark decision in District of

Columbia v. Heller. That decision was consistent not just

with 2nd Circuit precedent, but with the weight of authority

at the time; in 2004, every circuit but the Fifth that had

considered the question had similarly concluded that the

Second Amendment did not protect an individual right. Your

letter fails to mention either fact.

Your characterization of Maloney v. Cuomo is similarly

erroneous. First, Maloney did not involve firearms at all.

The degree to which it was not considered an important case

at the time can be gleaned from the fact that no outside

entity or organization, including the NRA, filed an amicus

brief in that case, in contrast to the multiple amici filed

in National Rifle Association v. City of Chicago.

Second, the Maloney court did not reject the concept of

incorporation; it recognized the prerogative of the Supreme

Court, which in Heller explicitly did not overrule prior

precedent on incorporation. The panel wrote, ``[w]here, as

here, a Supreme Court precedent has direct application in a

case, yet appears to rest on reasons rejected in some other

line of decisions, the Court of Appeals should follow the

case which directly controls, leaving to the Supreme Court

the prerogative of overruling its own decisions.''

Two of the most renowned conservative jurists in the

country, Judges Posner and Easterbrook of the Seventh Circuit

Court of Appeals, recently endorsed the Second Circuit panel

opinion in Maloney. In National Rifle Association v. City of

Chicago, Judge Easterbrook's opinion explicitly stated that

the court ``agree[d] with Maloney.''

Even Mr. Maloney himself said the decision in this case was

appropriate: ``I did not expect to win . . . it was clear to

me that they had a very solid basis for saying that the

Second Amendment is not incorporated and that essentially

they are powerless to do anything about it, they had a

defensible position there.'' Mike Pesca, ``High Court May

Review Personal Weapons Ruling,'' NPR Legals Affairs, June 1,

2009.

In conclusion, we are mystified as to why the NRA is

characterizing Judge Sotomayor as hostile to the rights of

gun owners and evaluating Judge Sotomayor by a different

standard than that to which you have held previous Supreme

Court nominees. We are concerned that your opposition will

alienate Hispanic NRA members and dismayed that you may

unnecessarily force some well-intentioned Senators to choose

between disappointing the NRA or infuriating their Hispanic

constituents. We hope that you will reconsider your position

on Judge Sotomayor.

Sincerely,

Joe Baca,

Silvestre Reyes,

Solomon P. Ortiz,

John T. Salazar.

Madam President, I see Senator Lincoln on the floor, one of my most distinguished colleagues, and I yield to her.

Mr. President, I thank the Senator from Alabama for his kind comments. As he knows, I made similar comments about him this morning in the Senate Judiciary Committee. I reiterate them here today.

We did decide, both Senator Sessions and I, at the beginning of this process that we would try to make sure everybody was heard. We may have different outcomes on how everybody would vote, but everybody was heard. That has been done. I compliment the leaders of the Senate for doing that.

We are about to conclude Senate consideration of this nominee. I thank those Senators who evaluated this nomination fairly. I thank especially those Republican Senators who have shown the independence to join the bipartisan confirmation of this historic nomination. I thank all Senators on both sides of the aisle who spent hours and hours and days and days in our hearings.

Some critics have attacked President Obama's nomination of Judge Sonia Sotomayor by contending he picked her for the Supreme Court to substitute empathy for the rule of law. These critics are wrong about the President; they are wrong about Sonia Sotomayor.

Let's leave out the rhetoric and go to the facts. When the President announced his choice of Judge Sotomayor 10 weeks ago, he focused on the qualities he sought in a nominee. He started with ``rigorous intellect'' and ``a mastery of the law.''

He then referred to recognition of the limits of the judicial role when he talked about ``an understanding that a judge's job is to interpret, not make, law; to approach decisions without any particular ideology or agenda, but rather a commitment to impartial justice; a respect for precedent, and a determination to faithfully apply the law to the facts at hand.'' That is what President Obama said.

Then he went on to mention experience. He said:

Experience being tested by obstacles and barriers, by

hardship and misfortune; experience insisting, persisting,

and ultimately overcoming those barriers. It is experience

that can give a person a common touch and a sense of

compassion; an understanding of how the world works and how

ordinary people live. And that is why it is a necessary

ingredient in the kind of justice we need on the Supreme

Court.

Then the President concluded by discussing how Judge Sotomayor has all these qualities. The President was looking not just for lawyerly ability, but for wisdom--for an understanding of how the law and justice work in the everyday lives of Americans.

In a subsequent radio and Internet address, the President reiterated the point when he said:

As a Justice of the Supreme Court, she will bring not only

the experience acquired over the course of a brilliant legal

career, but the wisdom accumulated over the course of an

extraordinary journey--a journey defined by hard work, fierce

intelligence, and the enduring faith that, in America, all

things are possible.

President Obama did not say that he viewed compassion or sympathy as a substitute for the rule of law. In fact, he has never said he would substitute empathy for the rule of law. That is a false choice. The opposition to this nomination is based on a false premise.

When she was first named, Judge Sotomayor said: ``I firmly believe in the rule of law as a foundation for all our basic rights.'' Judge Sotomayor reiterated time and time again during her confirmation hearing her fidelity to the rule of law. She said:

Judges can't rely on what's in their heart. They don't

determine the law. Congress makes the laws. The job of the

judge is to apply the law. And so it's not the heart that

compels conclusions in cases. It's the law. The judge applies

the law to the facts before that judge.

Those who, after 4 days of hearing, would ignore her testimony, should at least take heed of her record as a judge. Judge Sotomayor has demonstrated her fairness and impartiality during her 17 years as a judge. She has followed the law. There is no record of her substituting her personal views for the law. The many independent studies that have closely examined Judge Sotomayor's record have concluded it is a record of applying the law, not bias.

What she has said, and what we should all acknowledge, is the value her background brings to her as a judge and would bring to her as a Justice, our first Latina Justice.

Judge Sotomayor is certainly not the first nominee to discuss how her background has shaped her character. Justice O'Connor has acknowledged, ``We are all creatures of our upbringing. We bring whatever we are as people to a job like the Supreme Court.'' Everybody knows that, just as all 100 of us bring who we are to the Senate. Many recent Justices have spoken of their life experiences as influential factors in how they approach the bench. Justice Alito and Justice Thomas, nominated by Republican Presidents, did so famously at their confirmation hearings, and then they were praised by the Republican side of the aisle for doing so. Indeed, when the first President Bush nominated Justice Thomas to the Supreme Court, he touted him as an ``intelligent person who has great empathy.''

Some of those choosing to oppose this historic nomination have tried to justify their opposition by falsely contending that President Obama is pitting empathy against the rule of law. Not so. Not so. This President and this nominee are committed to the rule of law. They recognize the role of life experience not as a substitute for the law or in conflict with its mandates, but as informing judgment.

What is really at play is not a new Obama ``empathy standard'' with respect to judicial selection, but a double standard being applied by those who supported the nominations of Justice Alito and Justice Thomas.

Judge Sotomayor's career and judicial record demonstrate that she has always followed the rule of law. The point is, we don't have to guess at what kind of a judge she has been. She has had more experience on the Federal court, both trial level and appellate level, than any nominee in decades. She will be the only member of the U.S. Supreme Court with experience as a trial judge. We don't have to guess. There are well over 3,000 cases, so we don't have to guess. Attempts at distorting that record by suggesting that her ethnicity or her heritage would be the driving force in her decisions as a Justice of the Supreme Court are demeaning to women and all communities of color.

I have spoken over the last several years about urging Presidents from both political parties to nominate someone from outside the ``judicial monastery.'' I believe that experience, perspective, an understanding of how the world works and people live, and the effect decisions will have on the lives of people are very important qualifications. By striving for a more diverse bench drawn from judges with a wider set of backgrounds and experiences we can better ensure there will be no prejudices and biases controlling our courts of justice. All nominees have talked about the value they will draw on the bench from their backgrounds. That diversity of experience and strength is not a weakness in achieving an impartial judiciary.

I have voted on every member of the current U.S. Supreme Court. I have participated in the hearings of all but one of them, and that one I voted on the nomination having watched the hearing. I have sat in on the hearings of Justices no longer there, either because of retirement or death. I have conducted hundreds of nomination hearings--everything from courts of appeals judges, Federal district court judges, and Department of Justice appointees. I have been ranking member on two Supreme Court nominations and conducted this one. I mention that to thank the Senator from Alabama for his cooperation during it.

After those hundreds of hearings, you get a sense of the person you are listening to. I met for hours with Judge Sotomayor, either in the hearing room or privately. You learn who a person is, you really do, in asking these kinds of questions. You have to bring your own experience and your own knowledge to

what you are hearing. There are only 101 people in this great Nation of 300 million people who get a say as to who is going to be one of the nine members of the U.S. Supreme Court. First and foremost, it is the President who makes the nomination, but then the 100 of us in the U.S. Senate who must follow our own conscience, our own experience, our own abilities in deciding whether we will advise and consent to that nomination. It is an awesome responsibility, and we should do it not because we are swayed by any special interest group of either the right or the left.

In fact, I have a rule--my office knows it very well--that in Supreme Court confirmations I will not meet with groups on either the right or the left about it. I will make up my mind through those hours and days and the transcripts of the hearing. I would urge all Senators to do that. I think it is unfortunate if any Senator of either party were to make up their mind on a Supreme Court nominee based on pressure from special interest groups from either the right or the left. That is a disfavor to those hundreds of millions of Americans who don't belong to pressure groups of either the right or the left. They expect us to stand up.

That is what we should do on Judge Sotomayor. This is an extraordinary nominee. I remember when President Obama called me a few hours before he nominated her. I was with our troops in Afghanistan, and he explained what he was going to do in a few hours. We talked about that and we talked about Afghanistan, but we talked especially about her. He said, you know, there are Web sites already developing opposed to her. And within hours, we had leaders calling her racist, bigoted, or being affiliated with a group akin to the Ku Klux Klan. Fortunately, Senators on neither side joined with that.

We are almost at a time for a vote. I would hope every Senator would search his or her conscience and ask whether they are voting for this nominee based on their oath of office, based on their conscience, or are they reflecting a special interest group.

When the Judiciary Committee began the confirmation hearings on this Supreme Court nomination, and when the Senate this week began its debate, I recounted an insight from Dr. Martin Luther King, Jr., which is often quoted by President Obama. ``Let us realize the arc of the moral universe is long, but it bends toward justice.''

It is distinctly American to continually refine our Union, moving us closer to our ideals. Our union is not yet perfected, but with this confirmation, we will be making progress.

Years from now, we will remember this time when we crossed paths with the quintessentially American journey of Sonia Sotomayor and when our Nation took another step forward through this historic confirmation process. I urge each Senator to honor our oath, our Constitution, and our national promise by voting his or her conscience on the nomination of Sonia Sotomayor to serve as a Justice of the U.S. Supreme Court. I will proudly vote for her.

Mr. President, I see the Republican leader is here, and I will reserve the remainder of my time.

Mr. President, the Senate has concluded consideration of the nomination of Sonia Sotomayor and has confirmed her as a Justice on the U.S. Supreme Court. The consideration of a nomination for a lifetime appointment to the Supreme Court is one of our most consequential responsibilities. The consideration of the nomination of Sonia Sotomayor has been a credit to the Judiciary Committee and to the Senate.

We could not give this process the attention it deserves without the help of dedicated staff. For 2\1/2\ months, the staff of the Judiciary Committee has worked long hours dutifully to help Senators in their review. I wish to thank the following members of the majority staff in particular: Jeremy Paris, Erica Chabot, Kristine Lucius, Roscoe Jones, Shanna Singh Hughey, Maggie Whitney, Sarah Hackett, Michael Gerhardt, Elise Burditt, Noah Bookbinder, Stephen Kelly, Kelsey Kobelt, Matt Virkstis, Anya McMurray, Juan Valdivieso, Curtis

LeGeyt, Zulima Espinel, Tara Magner, Roslyne Turner, Erin O'Neill, Sarah Guerrieri, Brian Hockin, Joseph Thomas, Leila George-Wheeler, Laura Safdie, Kathleen Roberts, Aaron Guile, Matt Smith, Lydia Griggsby, Patrick Sheahan, Scott Wilson, Dave Stebbins, Sarah Hasazi, Kiera Flynn, Bree Bang-Jensen, Tom Wheeler, Eric Poalino, Brad Wilhelm, Lauren Rosser, Chuck Papirmeister, and Bruce Cohen. I also thank my staff for their hard work on this nomination, in particular, Ed Pagano, David Carle, Jennifer Price, and Kevin McDonald.

I commend and thank the hard-working staffs of the other Democratic members of the Judiciary Committee for their tremendous contributions to this effort. I also want to extend considerable thanks to the Democratic leadership and floor staff, in particular Serena Hoy, Mike Spahn, Stacy Rich, and Joi Chaney.

I also commend and thank Senator Sessions, the committee's ranking Republican, and his staff, in particular, Brian Benczkowski, Elisebeth Cook, Danielle Brucchieri, and Lauren Pastarnack, for their hard work and professionalism.

I move to lay that motion on the table.

The motion to lay on the table was agreed to.

Mr. President, I would like to make some observations about the Consumer Assistance to Recycle and Save Program, more commonly known as cash for clunkers.

When Congress first passed this program in June, I evaluated the merits and the arguments and chose to support it, because I believed it would provide a prompt shot in the arm to our ailing economy. I continue to believe that the program's goals of reducing the environmental impact of automobiles on the road and producing economic stimulus are good ones.

However as we debate whether to infuse this program with another $2 billion I would urge that we be patient and wait until all the facts are in, before rushing forward with a tripling of the program's overall cost. Significant claims have been made about the average increased fuel economy and resulting financial savings that will result from car purchases made through the program. The administration has used these claims to push for the program's expansion, yet Federal agencies have not yet made available--to the American people and to the Congress--the appropriate data to support these claims.

If you have picked up a newspaper in the past few weeks, the sudden popularity of the program is clear. Newspaper headlines have consistently noted the program is rapidly running out of money and that car purchases are well above where they were at this time last year. In my own State of Vermont, car dealers have reported having difficulty keeping up with demand for new cars that meet the program's requirements. But while we know that cars are moving off sales lots and onto the road, we have yet to receive enough details about the current sales data to know the true story of whether this program is working as intended.

Recent reports on the program have indicated that funding was about to run out, yet the number of actual car sales through the program was far lower than the program allowed for. Further, many dealers have noted that hundreds of thousands of dollars in program vouchers from the government have yet to be paid. If this is in fact the case, we should demand that the management of this program be ironed out before pumping billions more into it. Are we sure that this the best way to spend $2 billion right now, if it is to be spent? There are many worthy and pressing purposes to which such significant sums could be allocated.

Positive indications about the direction of the economy are emerging. Today we learned that the number of Americans filing for unemployment dropped to its lowest level since January. The Cash for Clunkers Program may prove to be a factor in helping our country emerge from this recession, and I certainly hope that is the case.

But the public release of information about this car rebate program is necessary to ensure that both the Congress and the American people can make well-informed judgments about the merits of continuing this program in these economically challenging times. If the administration is unwilling or unable to provide this information before the Senate votes on additional funding, I will be unable to support the program's expansion.

Mr. President, I rise today to speak about a man who has been serving the U.S. Senate for almost 35 years. Now that is how I and many other Senators may begin remarks about a colleague who is retiring. My remarks today are indeed about a colleague but not about a fellow Senator. These remarks are about Senate Historian Richard Baker, an important member of the Senate community who has made the Senate a better institution during his tenure.

Remarkably, until 1975 the U.S. Senate did not have a Historical Office charged with preserving the institutional memory of this great body. Dick Baker is the original and only Director and the Chief Historian for the past 34 years. Under his leadership, the Historical Office of the Senate has worked to recover, catalogue and preserve the history of the Senate.

Building this office from the ground up required Dick Baker and his team to collect and maintain records on current and former Senators, record oral histories, document important precedents, statistics and Senate activities. And as a photographer I must point out that this work included the cataloging and preservation of a huge trove of Senate-related photographs.

From the beginning, Dick Baker knew his responsibility at the Historical Office was not only to preserve the history of the Senate but to make it more accessible. That included providing access to records for members, staff, media and scholarly researchers. He exposed more of the Senate and its rich history to the general public through exhibits in the office buildings, presenting materials via the Web and working with C-SPAN to incorporate Senate history into its programming. And as an author, Dick Baker disseminated information with his publications on Senate history, including a biography of the former Senator from New Mexico, Clinton P. Anderson.

His greatest impact on me, however, and I believe the Senate as a whole, has been his placing of our work here in proper context. Most Senators and I look forward to the historical ``minutes'' that he presents at the opening of many of our caucus lunches. He has also been accessible to me and other Senators in providing presentations of the Senate history at many different venues. My staff and I thoroughly enjoyed a presentation he provided to us on the history of the Vermont Senate delegation. His alacrity and care for describing Senate history has reminded all of us about the significance of our work here.

As much as visitors feel the weight of history when they enter this building, it is no less important for those of us who represent them to be well aware of the 200-year history of the Senate. It is important to remember that although great men and women preceded us, and even greater ones will undoubtedly follow, our words and actions will continue to echo through these halls long after we are gone. Dick has reminded us of that regularly, and for that we thank him and wish him well.

Mr. President, it is fitting that we in the Senate take note of the retirement of Ron Edmonds of the Associated Press, a veteran news photographer who has long and superbly documented public life in the Nation's Capital, including here on Capitol Hill.

If by chance we have not seen Ron himself over the years on the White House driveway or in the Senate's hearing rooms and hallways, we all surely recognize his work. His images, in the parlance of photographers, have bracketed the history of our era, from marches on Washington, to the attack on President Reagan's life--a photograph for which Ron Edmonds was awarded a Pulitzer Prize for spot news photography.

By now he has covered the White House for 28 years and captured the news in images of so many Presidents. He entered the world of photography in the day of celluloid film and concluded his career after having helped usher in the age of digital news photography.

I am grateful to have known Ron during his long career. I wish him and his family our congratulations and our best wishes.

I ask unanimous consent to have printed in the Record Ron Edmonds' farewell message to his AP associates.

Mr. President, I would like to recognize the Bove family of Burlington, VT, on receiving a prestigious honor from the National Association of Specialty Food Trades. In particular, I congratulate Mark Bove, President of Bove's, and his brother Rick, on receiving the Gold Sofi Award in the Outstanding Pasta, Rice and Grain category.

Bove's Restaurant opened on Pearl Street in Burlington in 1941 and has been a local favorite for generations. Marcelle and I enjoyed many of Bove's Italian specialties while we were dating. I was a student at Saint Michael's College, and Marcelle at the Jeanne Mance School of Nursing. To this day, Bove's continues to be a favorite among college students, and many return to the restaurant as alumni during their reunion weekends.

Much to our delight, Mark Bove began bottling his family's outstanding sauces for sale in grocery stores and now also sells Bove's specialties, including meatballs and lasagna, at retail sites around our country. When I come home from a long day in the Senate, I am delighted that Marcelle and I can still enjoy a dinner from Bove's, just as we did as students years ago. We have also enjoyed sharing their great dishes with other Senators and their staff at the annual Taste of Vermont in Washington.

Once again, I congratulate the Bove family for this high honor. I ask unanimous consent to have a copy of a July 6 article from the Burlington Free Press printed in the Record.

Mr. President, today, I am pleased to introduce the Reserve Officers Association Modernization Act of 2009. I want to thank Senators Chambliss and Pryor for joining me to introduce this legislation. As the cochairs of the United States Senate Reserve Caucus, Senators Chambliss and Pryor have worked hard for the brave men and women of the United States Reserves.

Over the past decade, our country has relied on the National Guard and Reserves more than at any other time in recent history. The Guard and Reserves provide an invaluable contribution to our Nation's military, our national security, and disaster relief efforts. In recent years the National Guard and Reserves have demonstrated their position as a keystone to our military operations, particularly in Iraq and Afghanistan, and stepped forward repeatedly to answer the call-to-duty at a tempo not seen in decades. At the same time, the support from the Guard and Reserves for homeland duties has been at an all time high. The Guard and Reserves have provided crucial support to our Governors and States during natural disasters such as the aftermath of Hurricane Katrina. In addition, they have assumed additional roles in homeland security as our country has adopted new policies following the attacks of September 11, 2001. This new era for the Guard and Reserves prompted Congress and the Department of Defense to review many existing and but outdated policies.

The 95-member U.S. Senate National Guard Caucus, which I cochair along with Senator Bond, plays an integral role in the review and implementation of new policies. I have worked closely with groups like the Reserve Officers Association, ROA, to ensure that the National Guard and Reserves have access to more affordable health care, a greater influence in the military, adequate training facilities and supplies, and shorter troop deployments in Iraq and Afghanistan.

Since its founding in 1922, the ROA has worked on behalf of the National Guard and Reserves and their families. For over 85 years, ROA has remained committed to its original mission, to ``support and promote the development and execution of a military policy for the United States that will provide adequate National security.'' The Reserve Officers Association represents the Reserve Components officers for the Army, Air Force, Navy, Marine Corps, Coast Guard, the Air and Army National Guard, Public Health Service, and the officers of the National Oceanic and Atmospheric Administration.

This legislation would update the Reserve Officers Association's Federal Charter to reflect two recent changes in the organization. First, it would add the position of ``president elect'' to its constitution and bylaws. Second, it would expand the ROA from only three national executive committee members to include three representatives from each of the seven branches of the uniformed services. The Reserve Officers Association's charter has not been modified since 1998 and this legislation would update it to correctly reflect the current operation of the organization and enable ROA to continue its good work.

The Reserve Officers Association has provided a voice to the men and women that serve our country in the National Guard and Reserves. I urge Senators on both sides of the aisle to show their support for the brave members of the National Guard and Reserves by enacting this legislation swiftly.

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

Mr. President, today, I am pleased to introduce the Reserve Officers Association Modernization Act of 2009. I want to thank Senators Chambliss and Pryor for joining me to introduce this legislation. As the cochairs of the United States Senate Reserve Caucus, Senators Chambliss and Pryor have worked hard for the brave men and women of the United States Reserves.

Over the past decade, our country has relied on the National Guard and Reserves more than at any other time in recent history. The Guard and Reserves provide an invaluable contribution to our Nation's military, our national security, and disaster relief efforts. In recent years the National Guard and Reserves have demonstrated their position as a keystone to our military operations, particularly in Iraq and Afghanistan, and stepped forward repeatedly to answer the call-to-duty at a tempo not seen in decades. At the same time, the support from the Guard and Reserves for homeland duties has been at an all time high. The Guard and Reserves have provided crucial support to our Governors and States during natural disasters such as the aftermath of Hurricane Katrina. In addition, they have assumed additional roles in homeland security as our country has adopted new policies following the attacks of September 11, 2001. This new era for the Guard and Reserves prompted Congress and the Department of Defense to review many existing and but outdated policies.

The 95-member U.S. Senate National Guard Caucus, which I cochair along with Senator Bond, plays an integral role in the review and implementation of new policies. I have worked closely with groups like the Reserve Officers Association, ROA, to ensure that the National Guard and Reserves have access to more affordable health care, a greater influence in the military, adequate training facilities and supplies, and shorter troop deployments in Iraq and Afghanistan.

Since its founding in 1922, the ROA has worked on behalf of the National Guard and Reserves and their families. For over 85 years, ROA has remained committed to its original mission, to ``support and promote the development and execution of a military policy for the United States that will provide adequate National security.'' The Reserve Officers Association represents the Reserve Components officers for the Army, Air Force, Navy, Marine Corps, Coast Guard, the Air and Army National Guard, Public Health Service, and the officers of the National Oceanic and Atmospheric Administration.

This legislation would update the Reserve Officers Association's Federal Charter to reflect two recent changes in the organization. First, it would add the position of ``president elect'' to its constitution and bylaws. Second, it would expand the ROA from only three national executive committee members to include three representatives from each of the seven branches of the uniformed services. The Reserve Officers Association's charter has not been modified since 1998 and this legislation would update it to correctly reflect the current operation of the organization and enable ROA to continue its good work.

The Reserve Officers Association has provided a voice to the men and women that serve our country in the National Guard and Reserves. I urge Senators on both sides of the aisle to show their support for the brave members of the National Guard and Reserves by enacting this legislation swiftly.

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

Mr. President, I ask unanimous consent that Joi Chaney of

the Democratic policy committee be granted the privilege of the floor during today's session of the Senate.

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

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

Mr. President, we began debate yesterday on this historic nomination of Judge Sonia Sotomayor to the Supreme Court. Senator Reid, Senator Feinstein, Senator Menendez, Senator Whitehouse, and Senator Brown gave powerful statements--powerful statements--in support of Judge Sotomayor's long record, a record that makes her a highly qualified nominee and a record that brought about her receiving the highest qualification possible from the American Bar Association. I thank those Senators for their statements.

In the course of my opening statement yesterday, I spoke about the value of real-world judging. Among the cases I discussed were two involving the strip searches of adolescent girls. I spoke about how Judge Sotomayor and Justice Ginsburg properly--properly--approached those decisions in their respective courts.

Judge Sotomayor is certainly not the first nominee to discuss how her background has shaped her character. Many recent Justices have spoken of their life experiences as an influential factor in how they approach cases. Justice Alito, at his confirmation hearings, described his experience as growing up as a child of Italian immigrants saying:

When I get a case about discrimination, I have to think

about people in my own family who suffered discrimination

because of their ethnic background or because of religion or

because of gender. And I do take that into account.

He was praised by every single Republican in the Senate for that.

Chief Justice Roberts testified at his confirmation hearing:

Of course, we all bring our life experiences to the bench.

Again, every single Republican voted for him.

Justice O'Connor echoed these statements when she said recently:

We're all creatures of our upbringing. We bring whatever we

are as people to a job like the Supreme Court. We have our

life experiences . . . So that made me a little more

pragmatic than some other justices. I liked to find solutions

that would work.

Justice O'Connor explained recently:

You do have to have an understanding of how some rule you

make will apply to people in the real world. I think that

there should be an awareness of the real-world consequences

of the principles of the law you apply.

Just as all Democrats voted for Justice O'Connor, so did all Republicans.

I recall another Supreme Court nominee who spoke during his confirmation hearing of his personal struggle to overcome obstacles. He made a point of describing his life as:

One that required me to at some point touch on virtually

every aspect, every level of our country, from people who

couldn't read or write to people who were extremely literate,

from people who had no money to people who were very wealthy.

And added:

So what I bring to this Court, I believe, is an

understanding and the ability to stand in the shoes of other

people across a broad spectrum of this country.

That is the definition of empathy. That nominee, of course, was Clarence Thomas. Indeed, when President George H.W. Bush nominated Justice Thomas to the Supreme Court, he touted him as:

A delightful and warm, intelligent person who has great

empathy and a wonderful sense of humor.

Let me cite one example of a decision by Justice Thomas that I expect was informed by his experience. In Virginia v. Black, the Supreme Court, in 2003, held that Virginia's statute against cross burning, done with an attempt to intimidate, was constitutional. However, at the same time, the Court's decision also rejected another provision in that statute. Justice Thomas wrote a heartfelt opinion, where he stated he would have gone even further.

He began his opinion:

In every culture, certain things acquire meaning well

beyond what outsiders can comprehend. That goes for both the

sacred . . . and the profane. I believe that cross burning is

the paradigmatic example of the latter.

He went on to describe the Ku Klux Klan as a ``terrorist organization,'' while discussing the history of cross burning, particularly in Virginia, and the brutalization of racial minorities and others through terror and lawlessness. Would anyone deny Justice Thomas his standing or seek to belittle his perspective on these matters? I trust not. Who would call him biased or attack him as Judge Sotomayor is now being attacked? I trust no one would. Real-world experience, real-world judging, and awareness of the real-world consequences of decisions are vital aspects of the law. Here we have a nominee who has had more experience as a Federal judge than any nominee in decades and will be the only member of the U.S. Supreme Court with experience as a trial judge.

I look forward to this debate. One of the Judiciary Committee's newest members is now on the floor, Senator Klobuchar, the senior Senator from Minnesota. She has been a leader in support of this nomination. I see beside her the former Governor of my neighboring State of New Hampshire, then-Governor Shaheen, now Senator Shaheen. Both of them are going to speak, so I will take no more time.

I yield the floor, first, to Senator Klobuchar.

Mr. Presdient, many independent studies that have closely examined Judge Sotomayor's record have concluded that hers is a record of applying the law, not bias. For example, the American Bar Association's Standing Committee on the Federal Judiciary unanimously found Judge Sotomayor to be ``well qualified''--its highest rating-- after conducting a thorough evaluation that included an examination of her integrity and freedom from bias. The Chair of the Standing Committee testified, ``the committee unanimously found an absence of any bias in the nominee's extensive work,'' and described Judge Sotomayor's opinions as ``show[ing] an adherence to precedent and an absence of attempts to set policy based on the judge's personal views.''

Numerous other studies from groups such as the Congressional Research Service, the New York City Bar Association, the Transactional Records Access Clearinghouse, the National Association of Women Lawyers, and the nonpartisan Brennan Center for Justice, have reached similar conclusions. These studies were entered into the record during Judge Sotomayor's confirmation hearings. Nothing in these studies or in her 17 year record on the bench raises a concern that Judge Sotomayor would substitute feelings for the command of the law.

Judge Sotomayor's critics attack her by pretending that President Obama does not respect the Constitution and the rule of law. They are wrong. They attack him for using the word empathy to describe one of the qualities he is looking for in a judicial nominee. He has never said that empathy is intended to override the rule of law. It is, nonetheless, ironic that the Senate Republican leader has criticized Judge Sotomayor for not being more empathetic and ruling for Frank Ricci, Ben Vargas, and the other plaintiffs despite the well-settled law in the Second Circuit which she applied in that case.

They attack her by misconstruing what empathy means. Empathy is understanding and awareness. That is what Justice Alito was testifying about at his confirmation hearing. That is what Justice Thomas was testifying about when he said that what he would bring to the Supreme Court ``is

an understanding and the ability to stand in the shoes of other people across a broad spectrum of this country.'' Justice Alito and Justice Thomas were not testifying that they would be biased. What the partisan critics do not appreciate is that the opposite of empathy is indifference and a lack of understanding. Empathy does not mean biased or mean picking one side over another, it means understanding both sides.

When she was designated by the President, Judge Sotomayor said: ``The wealth of experiences, personal and professional, have helped me appreciate the variety of perspectives that present themselves in every case that I hear. It has helped me to understand, respect, and respond to the concerns and arguments of all litigants who appear before me, as well as to the views of my colleagues on the bench. I strive never to forget the real-world consequences of my decisions on individuals, businesses, and government.''

It took a Supreme Court that understood the real world to see that the seeming fair-sounding doctrine of ``separate but equal'' was a straightjacket of inequality. We do not need more conservative activists second guessing Congress and who through judicial extremism override congressional judgments intended to protect Americans' voting rights, privacy rights and access to health care and education.

In her widely misconstrued speech at the University of California at Berkeley, Judge Sotomayor said: ``[J]udges must transcend their personal sympathies and prejudices and aspire to achieve a greater degree of fairness and integrity based on the reason of law.'' That parallels what Chief Justice Roberts said at his confirmation hearing when he testified about ``the ideal in the American justice system'' and judges ``doing their best to interpret the law, to interpret the Constitution, according to the rule of law'' and not substituting their own personal agenda.

Those who spent days asking Judge Sotomayor to explain what she meant in a partial quotation from that speech about the decisions reached by a ``wise Latina woman with the richness of her experiences'' miss that she begins that statement with the words, ``I would hope.'' They miss that her statement is aspirational. She would ``hope'' that she and the other Hispanic women judges would be ``wise'' in their decisionmaking and that their experiences would help inform them and help provide that wisdom. Judge Sotomayor's critics have ignored her modesty in not claiming to be perfect, but rather in aspiring to the greatest wisdom and fairness she can achieve.

These critics also miss that Judge Sotomayor was pointing out a path to greater fairness and fidelity to law by acknowledging that despite the aspiration she shares with other judges, there are imperfections of human judging. By acknowledging rather than ignoring that while all judges seek to set aside their personal views, they do not always succeed, and we can be on guard against those views influencing judicial outcomes.

Judge Sotomayor has described herself as ``an ordinary person who has been blessed with extraordinary opportunities and experiences.'' In her opening statement at her Supreme Court confirmation hearing she spoke about witnessing the ``human consequences'' of judicial decisions. She testified that her judicial decisions ``have not been made to serve the interests of any one litigant, but always to serve the large interest of impartial justice.''

We have a long and important tradition in the law of seeking justice and fairness and equity. Judge Sotomayor spoke about the meaning of the word ``justice'' a decade ago and said: ``Almost every person in our society is moved by that one word. It is a word embodied with a spirit that rings in the hearts of people. It is an elegant and beautiful word that moves people to believe that the law is something special.''

In this country, the law is special, and it is special because of what it protects and what it can do. In England there were separate law courts and chancery courts. But, in the United States we have combined these functions to be performed by all of our Federal judges.

We all talk about the importance of judges following the law. Yet we should remember that the law that judges must follow includes the reconstruction amendments and particularly the 14th amendment, which transformed the rule of law and the role of judges and Congress in the United States. In the aftermath of the bloody, tragic Civil War, the 14th amendment was passed to give the courts and the Congress a more active role in defining and protecting civil rights. The complete abolition of slavery was only a part of its grand purpose. It was driven by a profound desire to arm the newly freed slaves--and all Americans--with the rule of law--set forth in the grand phrasing of the equal protection, due process, and privileges or immunities clauses--to guarantee their equal rights against invidious governmental discrimination.

The 14th amendment does not supplant but reinforces the historical equitable powers of our courts to redress problems. It is not just the statutes Congress writes, but also the precedent and interpretations of the courts that make up the law. We have a strong common law tradition in that regard. And we have a powerful equitable tradition that ensures that fairness and justice are done.

We need judges who appreciate when and how to use their equitable powers. Judges who follow the law are empowered to enjoin illegal behavior, as the Supreme Court did in its historic series of orders enjoining the States and others from segregating schools on the basis of race. This does not mean that our courts have the power to remedy every problem in America. They do not. In addition, they can abuse their power, as I think the Supreme Court did when it intervened in the Presidential election in 2000 and determined its outcome. But, we should never forget that it is through its equitable powers that the Supreme Court and most other courts in this country are able to do justice and to ensure fairness and equity. In that regard, I believe that the experience and wisdom Judge Sotomayor has gained from an extraordinary life will benefit all Americans.

Mr. President, I yield the floor and suggest the absence of a quorum.