Floor Statements

Mr. President, I rise today to introduce the Jerusalem Embassy Relocation Act of 2009. My colleagues and I have sponsored this important piece of legislation in order to pave the way for the United States to correct a longstanding and--I believe--dangerous deficiency in our diplomatic relations and foreign policy. For too long, our embassy in Israel has been located in a different city than Jerusalem, which is the capital of Israel according to longstanding Israeli and American law and practice. The time has come to remove the barriers that have encouraged this state of affairs to continue, and that is precisely what this legislation will do, by repealing the waiver included in the Jerusalem Embassy Act of 1995 that has

been abused by the Executive Branch for 14 years.

Jerusalem is the spiritual center of the Jewish faith. First conquered by King David more than 3000 years ago, there has always been a Jewish presence there, a fact attested to by incalculable archaeological evidence. Although at various times the Jewish people lost sovereignty in the land of Israel--to the Babylonians, Greeks, Romans, Byzantines, Ottomans, British--Jerusalem has never served as the capital of any other political or religious entity in history. In every year during the nearly two thousand year exile in 70 A.D., Jews around the world concluded their Passover seder with the phrase, ``Next Year in Jerusalem.'' Despite the depths of despair to which the Jewish people descended throughout their long exile, Jerusalem always remained at the center of Jewish religious life.

Since 1950, just two years after the miraculous rebirth of the State of Israel, Jerusalem has served as Israel's capital. The seat of Parliament, Prime Minister's residence, and Supreme Court, all reside there, in addition to numerous ministries and government buildings. American officials conduct business with Israeli officials in Jerusalem, in de facto recognition of the status of the city. The Jerusalem Embassy Act of 1995, passed into law by an overwhelming vote of Congress, stated unequivocally as a matter of United States policy that ``Jerusalem should be recognized as the capital of the State of Israel,'' and ``the United States Embassy in Israel should be established in Jerusalem no later than May 31, 1999.

This is our policy, yet for some reason our embassy remains in Tel Aviv. This is despite the fact that the government of Israel many times has declared Jerusalem to be the eternal and undivided capital of Israel, a policy reflected in American law. Such a state of affairs constitutes an ongoing affront to the people of Israel who, under international law, have the sovereign right to choose the location of their capital. It also harms the interests of American citizens living in Israel, who face procedural and substantive harm as a result of the confusing diplomatic structure that has arisen in place of a Jerusalem embassy.

The failure of the State Department to relocate the embassy is not only inconvenient and inefficient, but also is dangerous. The State Department's refusal to acknowledge clear U.S. law and policy radicalizes Israel's opponents by creating the false hope that the U.S. would support the division of Jerusalem. Were the embassy to be moved to Jerusalem, and Israel's capital respected in both American law and in practice, then Palestinians and Arab governments would have no choice but to accept the unchanging reality of Jerusalem, which is that Israel, regardless of the political party or government in power, will not move its capital away from this city.

I and my fellow sponsors of this legislation recognize that the Executive Branch generally has discretion over diplomatic arrangements. However, when a waiver included for the limited purpose of national security becomes perfunctory and contradicts the clear will of the Congress, the time has come to reevaluate the wisdom of such a waiver. This bill simply restores the statutory effect of the Jerusalem Embassy Act, updating the timeline of fiscal years required for action, but without the waiver.

I urge my colleagues to support this necessary and appropriate legislation.

Mr. President, I rise today to introduce the Jerusalem Embassy Relocation Act of 2009. My colleagues and I have sponsored this important piece of legislation in order to pave the way for the United States to correct a longstanding and--I believe--dangerous deficiency in our diplomatic relations and foreign policy. For too long, our embassy in Israel has been located in a different city than Jerusalem, which is the capital of Israel according to longstanding Israeli and American law and practice. The time has come to remove the barriers that have encouraged this state of affairs to continue, and that is precisely what this legislation will do, by repealing the waiver included in the Jerusalem Embassy Act of 1995 that has

been abused by the Executive Branch for 14 years.

Jerusalem is the spiritual center of the Jewish faith. First conquered by King David more than 3000 years ago, there has always been a Jewish presence there, a fact attested to by incalculable archaeological evidence. Although at various times the Jewish people lost sovereignty in the land of Israel--to the Babylonians, Greeks, Romans, Byzantines, Ottomans, British--Jerusalem has never served as the capital of any other political or religious entity in history. In every year during the nearly two thousand year exile in 70 A.D., Jews around the world concluded their Passover seder with the phrase, ``Next Year in Jerusalem.'' Despite the depths of despair to which the Jewish people descended throughout their long exile, Jerusalem always remained at the center of Jewish religious life.

Since 1950, just two years after the miraculous rebirth of the State of Israel, Jerusalem has served as Israel's capital. The seat of Parliament, Prime Minister's residence, and Supreme Court, all reside there, in addition to numerous ministries and government buildings. American officials conduct business with Israeli officials in Jerusalem, in de facto recognition of the status of the city. The Jerusalem Embassy Act of 1995, passed into law by an overwhelming vote of Congress, stated unequivocally as a matter of United States policy that ``Jerusalem should be recognized as the capital of the State of Israel,'' and ``the United States Embassy in Israel should be established in Jerusalem no later than May 31, 1999.

This is our policy, yet for some reason our embassy remains in Tel Aviv. This is despite the fact that the government of Israel many times has declared Jerusalem to be the eternal and undivided capital of Israel, a policy reflected in American law. Such a state of affairs constitutes an ongoing affront to the people of Israel who, under international law, have the sovereign right to choose the location of their capital. It also harms the interests of American citizens living in Israel, who face procedural and substantive harm as a result of the confusing diplomatic structure that has arisen in place of a Jerusalem embassy.

The failure of the State Department to relocate the embassy is not only inconvenient and inefficient, but also is dangerous. The State Department's refusal to acknowledge clear U.S. law and policy radicalizes Israel's opponents by creating the false hope that the U.S. would support the division of Jerusalem. Were the embassy to be moved to Jerusalem, and Israel's capital respected in both American law and in practice, then Palestinians and Arab governments would have no choice but to accept the unchanging reality of Jerusalem, which is that Israel, regardless of the political party or government in power, will not move its capital away from this city.

I and my fellow sponsors of this legislation recognize that the Executive Branch generally has discretion over diplomatic arrangements. However, when a waiver included for the limited purpose of national security becomes perfunctory and contradicts the clear will of the Congress, the time has come to reevaluate the wisdom of such a waiver. This bill simply restores the statutory effect of the Jerusalem Embassy Act, updating the timeline of fiscal years required for action, but without the waiver.

I urge my colleagues to support this necessary and appropriate legislation.

Mr. President, Today I introduce an important piece of legislation that would provide a real boost to our economy at little, if any, expense to taxpayers. The bill I introduce would offer bonus depreciation on the purchase of noncommercial general aviation aircraft in 2010 or 2011.

America is the world leader in general aviation manufacturing, a sector in which we truly have no peer. General aviation is an essential and critical part of our Nation's transportation infrastructure for many individuals and businesses, for whom time is of the absolute essence. Further, general aviation is a vital component of our economy, supporting over 1.2 million jobs and providing $150 billion in economic activity. It is one of the few remaining American manufacturing industries that still provide a significant trade surplus for the U.S., generating over $5.9 billion in exports of domestically manufactured planes in 2008 alone.

However, this sector is particularly susceptible to economic downturns. Many individuals and companies will delay or even cancel the purchase of an aircraft in a bad economy even though they may have a present need for a new aircraft.

We see this reflected in our general aviation sector where during the first half of 2009, we witnessed declines of 58 percent in piston engine aircraft sales; 37 percent in jet engine aircraft sales; and 13 percent in turboprop aircraft sales. At the same time, use of business jets has declined 12 percent over the past year, and the number of used aircraft on the global market stands at a historic high.

Cumulatively, general aviation companies have had to lay off 19,000 American workers, and this includes 11,500 alone in Wichita, KS. Over the past year, total employment of general aviation companies has declined by almost 14 percent. This is even more alarming when you consider that the U.S. Department of Labor aerospace workforce multiplier is three. For every general aviation worker on an aircraft, there are three jobs outside the immediate company that are created, whether manufacturing, engineering, supply or support. So, for this many general aviation workers to have been laid-off has much further reaching consequences in terms of the number of people and families that are adversely impacted.

The legislation that I propose today is a proven approach to spur general aviation aircraft orders with minimal affect on the Federal budget. My approach to this issue is an approach that has resulted in real jobs. During the 2003-2004 economic downturn, I worked to have general aviation bonus depreciation included in legislation that emerged from the Senate Finance Committee. That provision is credited with spurring over $2 billion in new general aviation aircraft sales, and it is credited with saving or sustaining thousands of jobs. Also, another consideration that makes this approach a real

no-brainer is that, in the past, the Joint Tax Committee reported the provision to have a negligible impact on Federal tax revenues over the 10-year budget window. This is because, while tax revenue is reduced in the near-term, revenues rebound to higher levels in the second half of the 10-year window as no deprecation is being taken in the later years of the period.

Acting on this proposal now is important. The Blue Chip Economic Indicators consensus forecast expect unemployment to rise above 10 percent and to remain above the 3rd quarter 2009 level of 9.6 percent at least though the end of 2010, so we are looking at uncertain economic growth and high unemployment for several more quarters. A proposal like the one that I am putting forward is likely to encourage individuals and businesses to go ahead and act now on placing orders rather than waiting. For the Congress to act on this bonus depreciation legislation now would have a positive effect on getting our economic engines moving again and can play a part in helping facilitate a broader economic recovery, as it would hopefully again help to save and sustain jobs as well as returning jobs to those who have lost them as a result of the recession.

Mr. President, Today I introduce an important piece of legislation that would provide a real boost to our economy at little, if any, expense to taxpayers. The bill I introduce would offer bonus depreciation on the purchase of noncommercial general aviation aircraft in 2010 or 2011.

America is the world leader in general aviation manufacturing, a sector in which we truly have no peer. General aviation is an essential and critical part of our Nation's transportation infrastructure for many individuals and businesses, for whom time is of the absolute essence. Further, general aviation is a vital component of our economy, supporting over 1.2 million jobs and providing $150 billion in economic activity. It is one of the few remaining American manufacturing industries that still provide a significant trade surplus for the U.S., generating over $5.9 billion in exports of domestically manufactured planes in 2008 alone.

However, this sector is particularly susceptible to economic downturns. Many individuals and companies will delay or even cancel the purchase of an aircraft in a bad economy even though they may have a present need for a new aircraft.

We see this reflected in our general aviation sector where during the first half of 2009, we witnessed declines of 58 percent in piston engine aircraft sales; 37 percent in jet engine aircraft sales; and 13 percent in turboprop aircraft sales. At the same time, use of business jets has declined 12 percent over the past year, and the number of used aircraft on the global market stands at a historic high.

Cumulatively, general aviation companies have had to lay off 19,000 American workers, and this includes 11,500 alone in Wichita, KS. Over the past year, total employment of general aviation companies has declined by almost 14 percent. This is even more alarming when you consider that the U.S. Department of Labor aerospace workforce multiplier is three. For every general aviation worker on an aircraft, there are three jobs outside the immediate company that are created, whether manufacturing, engineering, supply or support. So, for this many general aviation workers to have been laid-off has much further reaching consequences in terms of the number of people and families that are adversely impacted.

The legislation that I propose today is a proven approach to spur general aviation aircraft orders with minimal affect on the Federal budget. My approach to this issue is an approach that has resulted in real jobs. During the 2003-2004 economic downturn, I worked to have general aviation bonus depreciation included in legislation that emerged from the Senate Finance Committee. That provision is credited with spurring over $2 billion in new general aviation aircraft sales, and it is credited with saving or sustaining thousands of jobs. Also, another consideration that makes this approach a real

no-brainer is that, in the past, the Joint Tax Committee reported the provision to have a negligible impact on Federal tax revenues over the 10-year budget window. This is because, while tax revenue is reduced in the near-term, revenues rebound to higher levels in the second half of the 10-year window as no deprecation is being taken in the later years of the period.

Acting on this proposal now is important. The Blue Chip Economic Indicators consensus forecast expect unemployment to rise above 10 percent and to remain above the 3rd quarter 2009 level of 9.6 percent at least though the end of 2010, so we are looking at uncertain economic growth and high unemployment for several more quarters. A proposal like the one that I am putting forward is likely to encourage individuals and businesses to go ahead and act now on placing orders rather than waiting. For the Congress to act on this bonus depreciation legislation now would have a positive effect on getting our economic engines moving again and can play a part in helping facilitate a broader economic recovery, as it would hopefully again help to save and sustain jobs as well as returning jobs to those who have lost them as a result of the recession.

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

Mr. President, I ask unanimous consent to speak for 7 minutes on the Republican time of the time allotted after 5:30 p.m.

Mr. President, I wish to draw the attention of the body today to a policy initiative that was put forward by the Obama administration last week. It is on a topic a lot of people have been involved in for a long period of time. It involves Sudan, Darfur, and the genocide taking place in Sudan. It now involves new policy steps the administration is proposing to take to build a relationship and overtures to the Sudanese Government.

This is engagement to the extreme because President Bashir of Sudan is an indicted war criminal whose government is conducting a genocide, as declared by the Congress of the United States and the administration. For the first time in the history of America, we would be engaging an individual who is both an indicted war criminal, being pursued by the International Criminal Court, and also who has conducted a genocide in Darfur. We are talking about: OK. We need to start maybe engaging, and now there have been visas issued to top members of President Bashir's inner circle to come into the United States and discussion of a carrot-and-stick approach to Sudan, when he is running a genocide in Darfur and is an indicted war criminal. This is atrocious on its face. It is engagement to the extreme. It is wrong, and it would be harmful to long-term U.S. interests.

What happens the next time an individual is involved in genocide? Do we say: If you start behaving a little less worse on your genocide, we will start to give you some carrots to help you out. What about the next indicted war criminal, do we say: If you are a little less bad, if you only kill 500 a day instead of 1,000, we are going to start offering you carrots instead of sticks in

this approach. This undermines the moral authority of the United States. It is the wrong thing to do.

I wish to give a couple historical examples.

Toward the end of World War II, Heinrich Himmler, who was No. 2 in charge--but after Hitler committed suicide was No. 1 in charge--of Nazi Germany reached out to the Allied commander, General Eisenhower, and wanted to start negotiating with him: If he could be allowed to live, they might negotiate some sort of settlement. Eisenhower completely ignored it and treated him like the war criminal he was. Can you imagine if we would have started negotiating with Himmler at that time?

Let me give some more recent examples. What about Serbian leader Karadzic, the so-called ``Butcher of Bosnia,'' accused of slaughtering hundreds of thousands of innocent people? The State Department did not say: If you are a little less bad and don't kill quite as many people, we will start negotiating with you. They didn't say that. They put a $5 million reward out to anybody who gave us information leading to his capture, and he currently resides in a prison in The Hague.

What about Charles Taylor, the ``Butcher of Liberia,'' who ran on an election slogan--listen to this: ``He killed my pa, he killed my ma, but I will vote for him.'' That was his election slogan. Taylor was directly involved in coordinating and supporting unthinkable atrocities over many years and, after ceding power, was indicted for war crimes and crimes against humanity.

Here is an indicted war criminal. Did we say to him: OK. Mr. Taylor, if you start not killing as many people, we will negotiate with you? Of course not. What the Congress did was offered and passed legislation giving a $2 million reward for Taylor's capture, and he now sits in a prison in The Hague.

It would be unthinkable for us, in those circumstances, to say: OK. We will start negotiating with these indicted war criminals, butchers of their own people, and we are going to start working with you because you are going to act a little less bad. Yet that is what we are talking about with President Bashir, an indicted war criminal, conducting a genocide in Darfur that we have declared.

We have had hundreds of thousands of people across America going to rallies to save Darfur, and now we are talking about a carrot-and-stick approach with him?

I say no. I say we cannot do this, and if we do this in this circumstance, what about future genocidal regimes? What about future indicted war criminals? Is there any standard upon which the United States can or will stand at those points in time or could we, at that point in time, if we do this in this particular case?

I am all for getting some form of movement on the north-south agreement so the south can vote next year and will probably vote to secede and form its own country in the south. I think that is prudent and wise, after many years of civil war and the negotiations that took place to get a north-south agreement. But I do not at all think you can trade that for us negotiating with this indicted war criminal.

I urge my colleagues not to support this effort on behalf of the administration to engage a genocidal regime in Khartoum.

I appreciate my colleagues' attention. I yield the floor.

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

Mr. President, I rise to speak on this bill, on a particular issue of interest to my State and I think to the country on a new National Bio-Agriculture facility to research new diseases and problems that can come in on animal health. In this particular bill, Senator Roberts and I have been working for some period of time to get funding for this facility to go forward. This was a national competition that took place for the location of the NBA facility. A number of States competed for it. It was determined that Kansas would be the primary location for this to occur. The initial funding of $32 million is in this conference report. I am delighted that the National Bio-Agriculture facility, to be located in Kansas, is getting its initial funding.

As one of the responsible acts of this body, the fullest amount of the funding for this will not come until the Plum Island facility is sold. When that is sold, then that money is to go to build this facility that will research a number of different, difficult diseases in the animal health industry--foot-and-mouth disease and a number of other ones are to be researched. The facility has to be built safely so the containment facility, its initial design, is a metal structure on top of a concrete structure on top of another concrete structure in which the animals and the pathogens will be contained.

To make sure this structure is safe, the facility design will be reviewed by the Department of Homeland Security and the DHS review will also be reviewed by the National Academy of Sciences, so it is an additional review on top of a review process. That may seem like redundancy to a lot of people, but there has been a lot of concern about moving FMD research into the mainland from Plum Island off of New York.

I think it is prudent for us to do this research. I think it is important for us to research cures in this area. I think it is also prudent for us to make sure that the facility is well built and one from which we can be certain these pathogens will not be released.

The passage of this final bill is a huge step in locating this NBA facility in Kansas, providing additional funding for this. I believe there is no better place than in Kansas to do this research. I am not just saying that because it is my State--although that is a big part of it--but 30 percent of the animal health industry globally is located within 100 miles of Kansas City. It is a place where there is a lot of this research taking place. The scientists are already there, the companies are already developing these products to take care of animal health problems. They are there and we can build on that success at a national level.

I am delighted to see this moving forward in a responsible fashion. This is the initial piece. The bigger piece comes after the sale of Plum Island, which is appropriate. I am hopeful my colleagues will see fit to doing that this next year.

I yield the floor.

Mr. President, I thank my colleague, Senator Kohl, who chairs this committee. This is the first year for me to be ranking member. He has been a delight to work with.

A number of issues are addressed in this bill. The centerpiece is the agriculture industry. It is of key importance. It is interesting to note, in this economic downturn we are in, that the agriculture industry has had a great deal of difficulty, although it has been one of the stronger industry sections we have had during this period. That is in no small part because of the strength of the industry, the willingness of people to work, to invest aggressively, to work hard, and to pay attention to details.

For us to support the research entities underneath it--a lot of that is in this bill. So we are researching aggressively what we can do to produce things efficiently, effectively, that the marketplace wants. It is a great export industry. It is one that provides a lot of exports out of my State, out of the State of the chairman, and the States of other Senators. That research is important. That is what is in the bill, the research and development industry. That is the primary piece of it. It is not the total, but it is a key part.

Looking into the future, I can see that places we need to go are in things that will require the research for us to be able to move forward, things such as cellulosic ethanol where people are excited about doing the grain-based ethanol. We need to have a stream from cellulosic ethanol so we can produce more of our energy needs domestically and renewably. That also goes into the energy field, but it is a key part of agriculture. It also grows jobs in rural areas where it is pretty hard at times to grow jobs. People go to more concentrated regions and places, but we need them in rural areas. If we can invest and if we can show ways people can invest and make money in rural areas, going into food and fiber and fuels and pharmaceutical products, these are things that can really work for us and for our people and around the world. I am pleased to work with Chairman Kohl on that. He has worked on this many years. This has been my first year as ranking member.

In particular, I would like to note two areas we made key investments in that are important for the country and to save people's lives. One is in the food and drug piece of this bill. The FDA is also appropriated in this bill.

One of those areas is rare and neglected diseases. There is language included in this bill that creates two groups within FDA to examine the agency's approach to rare and neglected diseases in the developing world and here.

Unfortunately, a number of people in the United States get diseases that maybe only 100,000 people get. That sounds like a big number, and it is a big number, but to a drug company looking at making an investment and then being able to develop a cure, it is looking for a much larger marketplace.

What we are asking in this bill is, are there ways within the FDA, for a rare disease or neglected disease, for us to cut down the cost process to develop a new drug? Otherwise, we are not getting any research into how we take care of diseases for somebody who is one of 50,000 who get it, and there is nothing going on research-wise to help them. I had a lady in my office this morning who had a disease in this category. She was basically told by her physician when she got diagnosed: You should get your affairs in order. That is not an acceptable answer, particularly as a policymaker.

We have two groups in here looking at rare or neglected diseases and how do we cut the cost of developing that drug so that a pharmaceutical company or others could say: This doesn't affect a lot of people, but my entry cost is lower, so I will look at this, I will go into this field. Our hope is we can stimulate some research in this country.

Then neglected diseases around the world that can affect huge numbers of people--the World Health Organization says that more than a billion people, nearly one in every six persons worldwide is affected by at least one of the neglected diseases. This isn't a small category, but they happen to be in countries that don't have high per capita income. So again a company looks at this and says: There are a lot of people affected, but there is no income level here, so I can't go into it. Well-known examples include malaria, tuberculosis, and cholera. They disproportionately affect low-income populations in developing countries. We are going at this issue too.

I can't think of a better place for us to invest more policy-wise than helping to save people's lives. People tend to like you more when you help save their lives. This affects a broad cross-section of people around the world. And we have the marketplace, the technology to work on it, if we can cut the cost down. These two really track together, and they are very important for us to save lives. I always consider it a great day if we can save a person's life by some policy move we are making that may make things work better. These are a couple of them.

Another area the chairman and I have been working on is the issue of food aid. Here, I have had a lot of disappointment in the fact that we put a lot of money in food aid and then not a lot of it hits the target. For every dollar we put in food aid, 60 percent is eaten up by transportation and administration. So 40 percent gets to the person who actually needs it.

A lot of these are food aid situations where it costs a lot to get the food there. Going into the interior in Sudan, it just costs a lot to get there, there is no question. But still I have to think we can do this better. We are starting to look at that but also pilot projects to help develop new food aid products and to develop micronutrient- fortified foods for infant through schoolage children, pregnant or nursing mothers. We haven't developed a new food aid product in over 20 years. The last one was a corn-soybean blend which is a good product. But I know the chairman and I don't eat the way we did 20 years ago. You kind of understand the body moves a little differently.

This area of micronutrients is the area that most researchers believe that if the world would invest in it, it is the highest yield category for us to save and positively affect the most lives, an investment in micronutrients. It may be a corn-and-soybean blend, but it also has vitamin additives put into it for that infant, that nursing mother, that person with AIDS or malaria. We have invested a lot to try to save the person with AIDS or malaria, but now they really can't get better because they don't have the nutrition in their body they need. We get that into the system.

I am excited about these steps and pilot projects, what we might be able to find out in these categories and do to save lives. These are well-spent funds.

It is tough economic times for us as a country. These are critical issues for us. I am always looking at ways we can hold the budget numbers down because I think we really have to get our budget under control. These are ones that have been good and wise investments. They are important places for us to work in.

I am appreciative of being able to work on these particular projects. As we move forward, looking at next year, I hope we can sharpen the pencil even more in areas that may have been a high priority in the past but they should not be now, for us to look at ways we can control and get our budget down. And then you move that money either into paying down the deficit so the deficit is much lower or you say: If we are going to put things in higher investment areas, we move them from low-investment to high-investment regions, and that we would emphasize

ourselves and work in the committee to see what areas are there that we should be taking money out of to put into higher need categories or to put back against the deficit that is just running way too high for us as a country.

We all know that. This deficit is way too high. It is nonsustainable. We need to sharpen our pencil every bit we can in these committees to do our part. I hope we can really spend some time this next year, even as we line up for the appropriations process, holding hearings on what are low-priority areas, what we can cut out of this budget. We tend to mostly focus on new ideas, new programs, and those are good and important, but in these budgetary times, we have to spend some time asking: What is it we could do without? That would be important for us to do.

It has been a pleasure to work with the chairman. I urge colleagues to vote for the conference report and to send it on to the President.

I yield the floor.

Congressionally Directed Spending

I agree with Chairman Kohl and appreciate him bringing these items to the Chamber's attention.

I suggest the absence of a quorum and ask unanimous consent that the time be equally charged to both sides.

Madam President, it is tough to follow that act, but I ask unanimous consent that the pending amendment be set aside and call up amendment No. 2598 and ask for its immediate consideration.

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

Madam President, this is an amendment for which the cosponsors include the chairman of the committee and the chairman of the Indian Affairs Committee, Senator Dorgan, as well. It is an amendment that has been cleared through the authorizing committee a multiple of times and it has been cleared through this body previously and we have cleared it on both sides of the aisle.

With the passage of this amendment, we officially apologize for the past ill-conceived policies by the U.S. Government toward the Native Peoples of this land and reaffirm our commitment toward healing our Nation's wounds and working toward establishing better relationships rooted in reconciliation.

Apologies are often times difficult, but like treaties, go beyond mere words and usher in a true spirit of reconciling past difficulties and help to pave the way toward a united future. Perhaps Dr. King said it best when he stated, ``The end is reconciliation, the end is redemption, the end is the creation of the beloved community.'' This is our goal, with this resolution today.

Native Americans have a vast and proud legacy on this continent. Long before 1776 and the establishment of the United States of America, Native peoples inhabited this land and maintained a powerful physical and spiritual connection to it. In service to the Creator, Native peoples sowed the land, journeyed it, and protected it. The people from my State of Kansas have a similar strong attachment to the land.

Like many in my State, I was raised on the land. I grew up farming and caring for the land. I and many in my State established a connection to this land as well. We care for our Nation and the land of our forefathers so greatly that we too are willing to serve and protect it, as faithful stewards of the creation with which God has blessed us. I believe without a doubt citizens across this great Nation share this sentiment and know its unifying power. Americans have stood side by side for centuries to defend this land we love.

Both the Founding Fathers of the United States and the indigenous tribes that lived here were attached to this land. Both sought to steward and protect it. There were several instances of collegiality and cooperation between our forbears--for example, in Jamestown, VA, Plymouth, MA, and in aid to explorers Lewis and Clark. Yet, sadly, since the formation of the American Republic, numerous conflicts have ensued between our Government, the Federal Government, and many of these tribes, conflicts in which warriors on all sides fought courageously and which all sides suffered. Even from the earliest days of our Republic there existed a sentiment that honorable dealings and a peaceful coexistence were clearly preferable to bloodshed. Indeed, our predecessors in Congress in 1787 stated in the Northwest Ordinance:

``The utmost good faith shall always be observed toward the

Indians.''

Today we live up to this goal, today we right a wrong that has been committed in this nation.

Many treaties were made between the U.S. Government and Native peoples, but treaties are far more than just words on a page. Treaties represent our word, and they represent our bond. Unfortunately, again, too often the United States did not uphold its responsibilities as stated in its covenants with Native tribes.

I have read all of the treaties in my State between the tribes and the Federal Government that apply to Kansas. They generally came in tranches of three. First, there would be a big land grant to the tribe. Then there would be a much smaller one associated with some equipment and livestock, and then a much smaller one after that.

Too often, our Government broke its solemn oath to Native Americans. For too long, relations between the United States and Native people of this land have been in disrepair. For too much of our history, Federal tribal relations have been marked by broken treaties, mistreatment, and dishonorable dealings.

This amendment extends a formal apology from the United States to Tribal Governments and Native peoples nationwide--something we have never done; something we should have done years and years ago.

Further, this resolution will not resolve the many challenges still facing Native Americans, nor will it authorize, support or settle any claims against the United States. It doesn't have anything to do with any property claims against the United States. That is specifically set aside and not in this bill. What this amendment does do is recognize and honor the importance of Native Americans to this land and to the United States in the past and today and offers an official apology for the poor and painful path the U.S. Government sometimes made in relation to our Native brothers and sisters by disregarding our solemn word to Native peoples. It recognizes the negative impact of numerous destructive Federal acts and policies on Native Americans and their culture, and it begins--begins--the effort of reconciliation.

President Ronald Reagan spoke of the importance of reconciliation many times throughout his Presidency. In a 1984 speech to mark the 40th anniversary of the day when the Allied armies joined in battle to free the European Continent from the grip of the Axis powers, Reagan implored the United States and Europe to ``prepare to reach out in the spirit of reconciliation.''

I do not pretend that this apology is a panacea, but perhaps it signals the beginning of the end of division and a faint first light and first fruits of reconciliation and the creation of beloved community Dr. King so eloquently described.

This is an apology and a resolution of reconciliation. It is a step toward healing the wounds that have divided our country for so long--a potential foundation for a new era of positive relations between tribal governments and the Federal Government.

It is time, as I have stated, for us to heal our land of division, all divisions,

and bring us together and I am proud that today we are closer to that goal.

Madam President, I understand the amendment has been cleared, and I ask unanimous consent for its immediate adoption.

Thank you very much, Madam President.

I wish to thank my colleagues for being willing to consider this amendment in an expedited fashion, but it is actually an issue for which there have been hearings held, research done, and has been voted on by this body over 5 years. So I am delighted we could move it on through.

I yield the floor.

Mr. President, today I recognize a great Kansan for his long service to the youth of the State of Kansas.

``Teaching by example,'' was Cecil Eyestone's philosophy in his 31- year Kansas 4-H career. He served 12 years as a Montgomery County club agent and 19 years as a State 4-H specialist. He was a pioneer for leadership opportunities for teens. Cecil initiated the first junior leaders club for the teens in Montgomery County. His determined attitude for developing teen leaders through hands-on experiences resulted in 80 percent of Kansas counties adopting the concept. A State Junior Leadership Camp was held in 1959 at Rock Springs 4-H Center that continued for 15 years with annual participation of 200-300 youth. Cecil and his brother Merle have sponsored a 4-H leadership scholarship for 24 years.

Cecil was Collegiate 4-H Club adviser for 16 years, reaching over 4,000 students. He organized eight collegiate clubs at other Kansas universities and colleges. Cecil guided the animal science 4-H program and helped develop horse, dog and rabbit projects. He created the Horse Panorama to teach horse care and judging.

Retired in 1977, Cecil volunteers for the Governor's Mental Health Advisory, National Active and Retired Federal Employees, Sertoma, Riley County Flint Hills AMI, Methodist's Men and First United Methodist Church, Flint Hills Veterans Coalition and KSU WWII Veterans Memorial. He stays busy with his family, but finds time to judge 4 to 10 county fairs annually.

Last year, Cecil was inducted into the National 4-H Hall of Fame. This Sunday, October 4, 2009, Cecil will be honored at a special reunion of the 4-Hers he mentored during his time as the Montgomery County 4-H agent. During this reunion, the first two recipients of a scholarship named in Cecil's honor will be announced. These scholarships were made possible by donations from the 1946-1957 Montgomery County 4-H alumni.

As a former 4-H member myself during Cecil's tenure as the State 4-H specialist, it is an honor for me to speak on behalf of the thousands of Kansas 4-Hers who were touched by Cecil's commitment to the Kansas 4-H program. It is a privilege for me to honor this fine Kansan for his leadership and service and to join in congratulating him on his induction into the National 4-H Hall of Fame.

I certainly have. I appreciate the Senator from Tennessee leading this discussion and also asking that question. As a former Governor, he has dealt with these issues. He knows that when Washington dictates something--or too often Washington will dangle a little bit of money out here and say: We would like the State to do this, and here is a little money to get it started. Then 3 years in the program, 5 years in the program, the money is pulled away at the Federal level and the State is left with trying to fund this.

It is on two levels that I get it at the State level: No. 1, trying to drive so many more people into Medicaid; that is, by raising the amount of coverage of people in Medicaid, it then gets a big price tag with it--at the Federal level initially and at the State level as well--and State budgets are really strapped right now. I was just talking with some State legislators yesterday, and they are looking at a multiple hundreds of millions of dollars hole next year--that alone, without adding additional Medicaid requirements from the Federal Government on top of that. It is clearly a huge problem for them if you are going to add a cost at a time when they don't have the funds.

The Federal Government, much of it, is saying: We are going to pay for it initially, and the proposals under Baucus are to pay for most of it initially, but I don't think there is any question that then, over time, the State is going to have to assume a bigger role of that, and that is going to be up to State responsibility.

Pay for it and pay for it completely. But this is also a more pernicious piece of this, and that is we have 40 percent of our physicians in Kansas saying they are not taking more Medicaid patients. That is 40 percent now. Now you are talking about expanding Medicaid, the number of people in Medicaid, when 40 percent of your doctors are saying: We aren't taking them. You are saying: Why won't the doctors take it? It is not that they don't want to have Medicaid patients, but it is the reimbursement ratios they get. Listen to these numbers from MedPAC saying that Medicare provider reimbursement rates are about 80 percent of private insurance. So private insurance, and then 80 percent of that is Medicare, and then Medicaid is 72 percent of Medicare. So you are cutting it back even further, to the point that physicians are saying: I just can't afford to take more.

They won't see them. Now what you are doing is driving people into a system that is a very low reimbursement system, that physicians are, almost half, saying: We won't take any more.

My concern here is that you are going to drive people in this system where you are not going to be able to get health care; they are not going to be able to get health care at all because of these reimbursement rates, because of the reimbursement rates physicians are having under Medicaid.

So I think that is a deadly piece of this overall proposal. It is the cost to the States, and then it is also that you are driving people into an area where providers are fleeing and heading out of.

Mr. President, I think to put it in Kansas-type terms, if you are talking about taking savings from Medicare to start a whole new health care entitlement program, that is like writing a big fat check on a completely overdrawn bank account to buy a new car.

You are going: Now, well, who would do something like that? When you are saying: Well, that is what the Federal Government is looking at doing in this proposal that Senator Baucus has put forward.

Medicare is not sustainable. It is not fiscally sound. You are going to write an overdraft check on that to start a whole new program that you do not have the wherewithal to do, that most Americans do not want to see you do because they want to see you fix the current program and get it on a sustainable basis.

It does not make sense. It is out of the stream of thought of the American public. We ought to back up, stop, and go at this in incremental changes, to get costs down and more people covered, that do not drive costs up, that do not do a big federal takeover of the system.

Mr. President, I rise to speak as in morning business. I ask unanimous consent to speak as in morning business for up to 10 minutes.

Mr. President, this issue is actually one that is related to the bill but it is not on point, so that is why I asked for that permission.

Earlier this month, the World Trade Organization issued an interim ruling that the European Union's ``launch aid'' to Airbus is illegal. I say this is relating to the bill because a major transportation issue for us in the United States is the building of major aircraft, of aircraft to be able to transport individuals. What we have seen taking place over the last 15 years is Airbus subsidizing their way into the commercial aviation market and taking market share from Boeing and driving McDonnell-Douglas and other competitors out of the field altogether.

Earlier this month, about 2 weeks ago, the World Trade Organization issued a major finding that the European Union was doing illegal launch aid as a subsidy and it was harming U.S. participants in this marketplace. This ruling is a big one for the Office of the U.S. Trade Representative, which has been pursuing this case for years. U.S. trade policy regarding the aerospace industry has been remarkably consistent for years and across several administrations.

The United States has always contended that the launch aid which the EU provides to Airbus to develop new aircraft constitutes an illegal trade practice. Airbus's dishonest behavior has had a devastating effect on the commercial aviation industry in the United States. Launch aid gives Airbus access to billions in government funds which it could never afford to borrow on commercial terms. This free money directly harms the United States and our competitors in these fields. As the USTR pointed out in a 2006 submission to the World Trade Organization, launch aid helped force Lockheed and McDonnell-Douglas from the large commercial aircraft market. It forced them out of the field because of government subsidy by Europe.

Launch aid has also contributed to a loss of 19 percent of Boeing's market share. Imagine two of your main competitors are forced out of the field, Lockheed and McDonnell-Douglas, and you lose 19 percent of market share, because of a European subsidization in this field. This has harmed the United States substantially, in a big way, and this is a huge ruling for us.

This WTO interim ruling is a big win for the United States and U.S. companies that have had to deal with dishonest behavior by Airbus over the years--or at least it should be a big win. For years the Department of Defense has said it cannot consider foreign subsidies when it holds a competition for defense procurements. In particular, DOD has said it would not consider launch aid last year when it evaluated the cost of the Airbus proposal to build a new aerial refueling tanker for the Air Force.

So here we have a case, supported by administrations, Republican and Democrat, over several years against Airbus that comes out in our favor from the WTO, and the next big bid this may come into effect in is in the military bidding of this tanker, the $40 billion U.S. Department of Defense tanker bid. The Department of Defense is saying we cannot consider the issue of launch aid.

I think that is wrong. I think it is wrongheaded. I think it is harmful and I think it is at cross purposes for our government, where one end of the government, the U.S. Trade Representative office, sues Airbus for subsidization and the other end, the Department of Defense, says we don't care, and if you give us a cheaper aircraft that way, that is fine. That is at cross purposes, and I think clearly what we should listen to is what the WTO has said, that this launch aid is illegal and it should not be allowed to use it to subsidize a military bid in this country by a foreign competitor.

Last year the Air Force chose Airbus to build the tanker because the cost seemed very low. But now we know that the Airbus pricetag covered up development costs that were illegally subsidized by the EU, and we have that from a World Trade Organization interim ruling.

The Department of Defense, I believe, has an obligation to listen to the Office of the U.S. Trade Representative when designing a new tanker competition. Defense procurement should be coordinated with our trade policy. If the WTO agrees with arguments made by the U.S. Trade Representative, why should the Department of Defense, our Department of Defense, be allowed to object? We cannot afford to have the Pentagon undermining our Trade Representative and our trade policy negotiating position at the World Trade Organization. We have seen how launch aid to Airbus distorts the commercial aircraft market, driving two major U.S. competitors out of the field and cutting back Boeing's share of the marketplace by nearly 20 percent. The WTO ruling should keep us from relearning that lesson in the military marketplace as well. Defense contracts should never stack the deck against American companies, particularly when the WTO foreign companies are engaged in illegal trade practices.

Everyone agrees that the Air Force needs new tankers. In this current fleet of tankers, many of the planes are already over 50 years old, and when they are finally replaced some of them will be 80 years old and will still be out there flying. They need to be replaced. Tankers are a vital platform for the Air Force and for all of our Armed Forces. They enable the rest of our forces to deploy across the world. Taxpayers have a right to expect a new tanker competition will have a level playing field, particularly for U.S. entrants.

We should not ask taxpayers to ignore the illegal trade practices of companies vying to build a new tanker and we should not ask taxpayers to outsource this crucial capability to a foreign company offering unrealistic, bought-down-by-the-Government-subsidy bargain basement prices, subsidization from the French Government, from the German Government, to get a U.S. military contract that puts our workers out of jobs.

I call on the Secretary of Defense to ensure the new tanker competition accounts for the recent ruling from the World Trade Organization. DOD should factor the value of launch aid subsidies into the cost estimates for any tanker proposal Airbus might submit. This is the only fair way to account for the way Airbus manipulates the aircraft market and has done so successfully in the commercial aviation field to the great detriment of the United States.

I call on the President to ensure Federal procurements are coordinated with U.S. trade policy. This kind of coordination should be a no-brainer. Our trade policy should not be undermined from within and our procurement policies should reflect our trade priorities.

This is a key issue. It is a key issue up in front of the military. It is a key economic development issue for this country. It is a key contract, a $40 billion military contract. It should be won fairly and squarely by a U.S. company, not by a subsidized European group.

I yield the floor.

Madam President, I rise to add my voice to those who have already paid tribute to our friend and colleague, the late Senator Ted Kennedy, who passed away this last month after a courageous battle with cancer.

He was quite an institution. I came into this body in a seat held by an individual who was quite an institution as well. Bob Dole was in this seat. So I know that when people look to the person who follows after Ted Kennedy, you just can't replace an individual like that who was such a towering figure in this body, was the lion of the Senate, as many have noted, and certainly deserved that topic and that accolade.

While Senator Kennedy and I did not see eye to eye on most political issues, I admired him greatly as a colleague and certainly as a dedicated public servant. Ted Kennedy fought for what he believed and did so with passion and conviction and incomparable ability. When he was your opponent on an issue, you knew you had a fight on your hands, and when he was on your side, you knew you had an advocate who worked hard and effectively.

His skills as a legislator were unmatched. I think really what was at the core of that was he really enjoyed working with other people. He had built relationships across the aisle with individuals, so that he could personally go to other individuals with that relationship he had built. Even though there were huge disagreements on policy issues on many other fronts, he had the personal relationships. To him, I think, in many cases, it was a lot more about the person rather than policy. I think that is a good lesson for many of us to learn. He mastered the legislative process, became one of the most effective Members of this body and that this body has ever known. One

of the keys of his effectiveness was his tenacity and perseverance and attending to, in many cases, the unglamorous details and the sometimes tedious work that goes into crafting and passing a bill.

He also understood that getting things done as a politician means compromise. He had a great sense of when to fight on principle and when to reach out to the other side and arrive at an agreement in order to advance the cause for which he was fighting. I think you can probably look back over the last decade or 15 years of this body and no major piece of legislation passed without Ted Kennedy's fingerprints somewhere around or on that piece of legislation.

Despite our political differences, I always found him to be professional, courteous, thoughtful, and a caring individual. He was always looking for ways to find common ground and had a wonderful ability to win others over to his side with that charm, Irish wit, his fellowship, and gregarious nature. And once he made an agreement, you could depend on him to be true to his word and honor in public an agreement he had made in private.

Over the years, I had the opportunity to work on several legislative issues with Senator Kennedy. As many testified, he was the best ally one could ever hope for.

Most recently we worked together to pass the Prenatally and Postnatally Diagnosed Conditions Awareness Act, a pro-life piece of legislation. When I would travel around the country saying that Ted Kennedy and I had introduced a pro-life piece of legislation together, many people would be quite startled. I would explain what this was. It was a piece of legislation that would encourage people, once they had a diagnosis that their child had Down Syndrome in utero, not to abort the child but instead to have the child, put together an adoption registry of individuals who were willing to adopt children with Down Syndrome. We have this terrible plague in the country where 90 percent of our children who are diagnosed with Down Syndrome never get here; they are aborted.

In our office we went to the disability community. We went to his sister Eunice and talked with her about it. And I went to Ted. I remember how effective his sister Eunice would be on lobbying Ted on this piece of legislation. Just this past year, when we were able to move things forward with it, I met with Eunice. She was obviously getting more difficult and failing of health at that point. She said: Is Teddy being helpful? Is Teddy working with you and helping? I would say: Yes, he is, but you can always help us more and push him more. And she did. What an effective team that was on providing help for those especially with mental disabilities, even on this pro-life piece of legislation that I hope will result in more people getting here who have disabilities so that they are not killed in utero but instead that they get here and, if people can't handle that issue in their families, that they put them up for adoption. We have adoption registries ready to go for people who want to adopt a child who may have more difficulties. Working together we were able to find common ground on protecting the dignity of these precious Americans by providing parents who receive a pre- or postnatal diagnosis of genetic disability with resources, information, and a network of support.

I am so pleased to know Senator Kennedy lived to see this bill passed and signed into law. It stands as an example of how we can find common ground to advance the interests of all Americans in spite of differences. This body truly will not be the same place without Ted Kennedy, without his rhetoric and his strong voice, his abilities as a legislator.

My thoughts and prayers go out to him and his family and friends.

I yield the floor.

Mr. President, I too join my colleagues in recognizing Mel Martinez and his great contribution to this body and his friendship. I think most of those things have been said.

One of the things I learned from a leader in the Senator's State was a saying that he gave to me that: We get into trouble when we look at people as problems and not as people. I have thought about that for a long time, because you can go back in our history, and generally when we have looked at people as problems and not people, that is when we have gotten into trouble. When you look at various situations we have had, and even the immigration debate would be one: Well, this is a problem. No, this is a person. Or you can look at our debate on abortion in this country and say: Well, we have got a problem here. No, we have a person here.

The consistency of what I have seen in Mel's policy position has been very much, no, this is a person. It is not just a person, this is a great person, and not just a great person, this is an unusual individual. He celebrates that with everyone. That is a beautiful thing to do and it is a beautiful thing to have, and it is a beautiful thing to see, because then that carries over into his friendships, so whenever he is talking with someone else, it may be a colleague or another individual, normally you are sitting there and you are going: Okay, I need to get something done through this person. But I do not usually find that in a conversation with Mel. Normally what I find is: Well, yes, I need to get something done, but what I am interested in is you and what you are thinking and who you are. And this is not an opportunity for me to get something, this is an opportunity for me to celebrate another beautiful soul who is standing right there and staring at me and talking to me, and I have this unique opportunity to engage them.

How much better we all are when we look at people as people and not as problems or as opportunities or as obstacles to get through. That is where I find what he embodies does in this way he works. I am going to miss you, Mel. We are going to miss you an awful lot. We appreciate you. I appreciate the lessons you have taught me by the way you live and by the way you serve. God bless you.

I ask the Presiding Officer to inform me when 2 minutes is left of my time.

Mr. President, I rise today to discuss the nomination of Judge Sonia Sotomayor to be a Justice of the U.S. Supreme Court. Ultimately, the core of this debate, I believe, is over the proper role of the Court. Our side tends to believe that the Court does not make policy and must stay within the written text of the Constitution. The other side sees the Constitution more often as a living document and that its meaning changes along with the attitudes of society.

When the courts improperly assume the power to decide issues more political than legal in nature, the people naturally focus less on the law and more on the lawyers who are chosen to administer it. Some are key to impose their policy agendas through the judicial process. Others want judges who will stick to interpreting the law rather than making it. It is beyond dispute that the Constitution and its Framers intended for judges to satisfy the latter criteria; that is, to stay within the law rather than making it.

President Obama has voiced his support for judges looking to the Constitution as a living document malleable to the times. He has said he will pick judges who will look to empathy rather than written law when deciding cases. When then-Senator Obama voted against the confirmation of Chief Justice John Roberts, he said this:

[W]hile adherence to legal precedent and rules of statutory

or constitutional construction will dispose of 95 percent of

the cases that come before a court, so that both a Scalia and

a Ginsburg will arrive at the same place most of the time on

those 95 percent of the cases--what matters on the Supreme

Court is those 5 percent of cases that are truly difficult.

In those cases, adherence to precedent and rules of

construction and interpretation will only get you through the

25th mile of the marathon. That last mile can only be

determined on the basis of one's deepest values, one's core

concerns, one's broader perspectives on how the world works,

and the depth and breadth of one's empathy.

I don't dispute that there is a small percentage of cases that are truly difficult. But the question is: Do we want these cases decided by what the law says or by a judge's own personal empathies? I reject the idea that these cases cannot be resolved by staying faithful to the text of the Constitution, and it is dangerous to the rule of law to suggest otherwise.

In June, I came to the floor and stated my opposition to Judge Sotomayor's nomination based on numerous past statements she made embracing an activist judiciary and endorsing the idea that judges should look to areas outside of the law when deciding cases. However, when Judge Sotomayor appeared before the Judiciary Committee last month, she consistently took positions contrary to her past writings and, in many cases, did a complete 180. This leads me to ask which Sotomayor are we voting to confirm--the liberal activist or the modest judge who believes in strictly applying the law as written?

Judge Sotomayor attempted to assure Senators that the real Sotomayor is reflected in her 17-year record on the bench. I find this argument interesting but unpersuasive, because as a judge on the court of appeals, Judge Sotomayor has been constrained by Supreme Court precedent. That is the position she held. Her judicial record tells us very little about who the real Sotomayor will be when on the Supreme Court. It is in her speeches and writings where she is unrestrained that we find the real views on the fundamental questions that she will decide as a Justice on the Supreme Court.

When asked at her confirmation hearing to summarize her judicial philosophy, she said: ``Fidelity to the law.'' I completely agree with this philosophy, but I have difficulty reconciling the words she chose at her confirmation hearing with the statement she made in 1996 at Suffolk University Law School when she stated: ``The law that lawyers practice and judges declare is not a definitive capital `L' law that many would like to think exists.'' The only reasonable interpretation to that is that she pledges fidelity to whatever she says the law is.

In a 2001 famous speech she gave to Berkeley Law School, which was later published in the Berkeley La Raza Law Journal, she dismissed the idea that ``judges must transcend their personal sympathies and prejudices and aspire to achieve a greater degree of fairness and integrity based on the reason of law,'' saying that ``by ignoring our differences as women or men of color, we do a disservice both to the law and society.'' This certainly doesn't sound like a judge who believes in fidelity to the law.

In the same speech, Judge Sotomayor famously said:

Justice O'Connor has often been cited as saying that a wise

old man and a wise old woman will reach the same conclusion

in deciding cases. I am not so sure that I agree with that

statement. I would hope that a wise Latina woman with the

richness of her experiences would more often than not reach a

better conclusion than a white male who hasn't lived that

life.

When asked about this statement at her confirmation hearing, Judge Sotomayor said:

The words I used, I used agreeing with the sentiment that

Justice Sandra Day O'Connor was attempting to convey.

Really? Are we really supposed to believe that each time Judge Sotomayor said, ``I'm not so sure I agree with that statement,'' she actually meant ``I agree with that statement''? Judge Sotomayor's explanation requires some suspension of disbelief.

Also at Berkeley, Judge Sotomayor said:

Whether born from experience or inherent physiological or

cultural differences, our gender and national origins may and

will make a difference in our judging.

At her hearing, she said:

I do not believe that any ethnic, racial, or gender group

has an advantage in sound judging.

Again, are we being asked to believe that Judge Sotomayor is either a very poor communicator or her past statements have been continually taken out of context and misinterpreted? I don't think she is a bad communicator at all.

In her writings, Judge Sotomayor has repeatedly rejected the principle of impartiality and embraced the novel idea that a judge's personal life story should come into play in the courtroom. But when she was in front of the Senate Judiciary Committee, with the Nation watching, she suddenly embraced the judicial philosophy of Chief Justice Roberts.

The past positions simply cannot be reconciled with what she said before the Judiciary Committee. We do not know what she actually believes.

In a 2005 appearance at Duke University Law School, she said, ``The court of appeals is where policy is made.'' During her confirmation hearing, she said, ``Judges don't make law'' and they ``look at the Constitution and see what it says.''

Even some of Judge Sotomayor's defenders have criticized her flip- flopping on her views. Georgetown Law Center professor Louis Michael Seidman, a liberal constitutional law scholar, said:

I was completely disgusted by Judge Sotomayor's testimony

today. If she was not perjuring herself, she is

intellectually unqualified to be on the Supreme Court. If she

was perjuring herself, she is morally unqualified.

There was never any doubt that this President would nominate liberal judges who shared his views. He won the election. Judge Sotomayor's record on the bench has been fairly typical of a liberal judge. However, there have been some notable exceptions.

After the Supreme Court ruled that individuals have a constitutionally protected right to gun ownership in the case of District of Columbia v. Heller, Maloney v. Cuomo, another second amendment case, was argued in front of the Second Circuit. In a per curiam opinion issued by a panel that included Judge Sotomayor, the Second Circuit ruled that ``the Second Amendment applies only to limitations the Federal Government seeks to impose on this right.'' They also said:

Legislative acts that do not interfere with fundamental

rights or single out suspect classifications carry with them

a strong presumption of constitutionality and must be upheld

if rationally related to a legitimate state interest.

In other words, the second amendment does not protect a fundamental right. I believe the second amendment protects a fundamental right, just as the first amendment protects a fundamental right. The Supreme Court agrees it protects a fundamental right, and the Founders most certainly believed there was a fundamental right to keep and to bear arms.

In a high-profile racial discrimination case, Judge Sotomayor's panel issued an unpublished summary order denying a group of firefighters a promotion they had earned because the promotion exam had a disparate impact on minorities. Sotomayor and her two colleagues' actions were troubling because by issuing an unpublished summary order, they avoided bringing the case to the attention of other judges on the Second Circuit. It was only after another judge of the circuit read about the case in a New Haven newspaper and requested that the full Second Circuit rehear the case that Sotomayor's actions came to light. The case was eventually appealed to the Supreme Court, and in a 5-to-4 opinion, the Court reversed the Second Circuit. Perhaps even more importantly, the Court was unanimous--unanimous--in rejecting Sotomayor's opinion that simply having a disparate racial impact was justification to void the test. The dissenters at the Supreme Court believed a jury trial should have been granted to examine the evidence and determine whether the test was job related. Sotomayor clearly erred in her decision.

Judge Sotomayor was nominated by a President who said judges should have ``the empathy to recognize what it's like to be a young teenaged mom; the empathy to understand what it's like to be poor or African- American or gay or disabled or old,'' and that difficult cases should be decided by ``what is in the justice's heart.''

When asked about President Obama's empathy standard by Senator Kyl, Judge Sotomayor said this:

I wouldn't approach the issue of judging in the way the

President does. He has to explain what he meant by judging. I

can only explain what I think judges should do, which is

judges can't rely on what is in their heart.

Are we really to believe the President chose a nominee who outright rejects his view of justice? I am concerned that the President has, in fact, nominated an individual who shares his view that the Constitution is a living document, and that is why I will be voting against her confirmation.

After watching her performance in front of the Judiciary Committee last month and observing that performance, I learned something I have long suspected: Judge Sotomayor had no choice but to reverse many of her past statements. A judge who openly embraces an activist judiciary, using empathy to pick winners and losers, using his or her own race and gender to decide the outcome of cases, using foreign law, who does not believe the second amendment is a fundamental right and sees judges as policymakers--all those things--is a judge who cannot be confirmed by this body despite 60 Members belonging to the party of the President.

I hope President Obama has learned that important lesson as well, that the people of the country want a Justice on the Supreme Court to be a justice and not a policymaker; to be a judge and not somebody who goes with the sympathies in their heart; someone who sticks with the Constitution and does not try to rewrite it. If the President realizes that, it will be a victory for the rule of law. And that is what this is about.

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