Floor Statements

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 President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. President, I have come to the floor to speak for a few moments about the Kagan nomination, and I believe we have about 20 minutes of time on our side. If somebody wishes to come and speak, I would gladly yield the floor, since I have had the chance to speak on her nomination as a member of the Judiciary Committee. But in the absence of somebody who has not had that chance, I wanted to go ahead and say a few words because I have been listening off and on throughout the day to the debate that has taken place on the Senate floor regarding her nomination and I have heard over and over concerns expressed--particularly from the other side of the aisle--about this terrible spectre of judicial activism, the judicial activism that looms over the Court and looms over the Kagan nomination.

I know it is a familiar tune from the other side. I think most of them could sing it in their sleep, frankly. But if you actually look at where the activism is coming from, the surprising conclusion that I think objective people would have no choice but to reach is that it is the rightwing of the Supreme Court--the rightwing; the Roberts wing of the Court--that is in fact engaged in all of the activism.

I think to a certain extent activism is a term of general criticism and that it applies to decisions you don't like. So if it is a decision that goes a way you don't like, it is an activist decision. If it is a decision that goes your way, no matter how much it changes the law, then that is not activism because I agree with it. So I think the discussion about activism is a little bit flavored by the question of point of view.

Trying to set that point of view question aside, I thought a bit about what might the objective indicators of an activist Court--or in our case an activist bare majority on the Court--look like. What would the telltales be that you had an activist Court doing its thing? Well, I think there are a few, and they seem to be ones that are actually pretty germane to this activist bloc on the Supreme Court.

For instance, if you were an activist Court, or an activist bloc on the Court, you would issue a lot of 5-to-4 decisions, and you would issue 5-to-4 decisions in major cases. The reason you would do that is because the Court is constantly presented with the choice to reach far with a bare majority or dial its aspirations back and achieve a broader consensus on the Court. So every decision presents, to one degree or another, this choice. When you see recurring 5-to-4 decisions, you see a majority of five that would appear to want to go to a particular place, even if they can't bring the other four judges with them, and who have deliberately chosen not to write a narrower decision, a more modest decision, a more conservative--small ``c''--decision that could have attracted six or seven or eight, or even perhaps all nine members of the Court.

That is a flag that would fly over an activist Court--a penchant for 5-to-4 decisions. Sure enough, the Roberts Court is notorious for 5-to- 4 decisions, particularly in major cases, and particularly in cases that change the law--that change the interpretation of the Constitution. So there is one flag, and they seem to be flying that warning flag right now.

If you were an activist Court, you would probably tend to break the informal rules of appellate decisionmaking. Because the rules might constrain you from getting where you want to go, and they would be a nuisance because you had a purpose--you had a place you wanted to get with your decision, and so that the rules would be less of a hindrance for you, because you would want to get beyond them, you would set them aside.

One of the dangers of the Supreme Court is that it is the court of final appeal. They have only their own self-restraint that prevents them from going anywhere. They stand above the checks and balances of our government in that respect. So these rules the Court tends to impose on itself to keep itself within proper bounds are important rules.

One of them is that appellate courts do not engage in factfinding. It is not their province. Factfinding is done by juries and it is done by trial judges. Those facts are established at the trial court level. Once you get up above that and into the appellate courts you should be looking just at questions of law. The courts should not be engaging in factfinding at those upper levels, certainly not at the Supreme Court level. The exception to that principle is where the fact is so obvious that the Court can take what they call judicial notice of it. The Court can take judicial notice that San Francisco is west of Denver. It is an indisputable fact. It is no big deal. But other than that, factfinding is discouraged. So another little telltale would be is where the Court is running over those principles that are principles of self-restraint.

Sure enough, you see the Roberts Court doing just that. Indeed, in one of its biggest leaps in which it knocked out enormous amounts of precedent, in which it knocked out enormous amounts of legislative practice and made a huge doctrinal shift, was the case of Citizens United. In that case, the Court made a finding of fact. It made a finding of fact that was critical to getting where it wanted to go in that decision. The finding of fact was the following--the finding of fact was that corporate money, the independent expenditure of corporate money in elections, cannot contribute to the corruption of those elections. Corporate money, independently spent in an American election, cannot possibly tend to corrupt that election.

It is an interesting finding of fact because I think, as anybody who has been through a contested election would understand, it is a finding of fact that is in fact wrong. It is untrue. Yet they made it as a finding of fact. It is also a finding of fact that ran contrary to the vast legislative record that had been built up in Congress on this question when it had come up in previous matters before the Court. But because of the peculiar manner in which they got to this question in Citizens United--it was not a question presented by the parties; they added the question themselves, the Court did, and asked the parties to brief it in, so there had not been a record on this.

They put themselves in a position where they could ignore the previous record of fact and then they created their own finding of fact notwithstanding that findings of fact are not something an appellate court is supposed to do, and in doing so they found a fact that was in fact not true. It is a false claim to assert that. It is not a fact.

When you look at that, another flag goes up. That is the kind of thing an activist Court would be doing. They would be trespassing over the self-imposed rules of judicial restraint when necessary to get to the point they wish to achieve. Again, it was 5-4, so you have a ``two- fer'' on that decision.

If you are an activist Court, you would probably want to keep doing what you are doing so you would start advancing theories that allowed you to look at the precedents of the Court, the history of its decisions, and selectively knock down precedent you did not like. Nothing could give a Court more power and more room for activism than to be free of the constraint of precedent, of the previous decisions of the Court.

The only way you can get yourself free of precedent--because it is there. The previous courts made those decisions. It is in the records. You go to the United States Supreme Court Reporter and you can look them up. So what you have to do is you have to knock it down if you do not like it. In order to do that, if that was your intention, you would want to come up with a theory that allowed you to do that. Sure enough, in Citizens United, in his concurring opinion, the Chief Justice of the United States did that. He came up with a theory that says if a precedent is hotly contested, then over time it clearly will be deemed not as valid as other precedent and ultimately it can be replaced with precedent that is not hotly contested.

Who gets to decide on the Supreme Court whether a precedent is hotly contested? Obviously, the Justices themselves. So you can create a self-fulfilling prophecy in which Chief Justice Roberts and his bloc of four other conservative voters who make up the group of five that is always steering the Court to the right, can hotly contest any precedent they please. They can hotly contest it, and hotly contest it, until they undermine it more and more and finally they knock it down. Despite all the things they said about respect for precedent and judicial modesty when they went through their hearings before the Senate, what they have actually done is create an analytical tool, a device for selectively undermining precedent they do not like, hotly contesting it, disabling it, and taking it out. They can reshape the precedent of the Court to their liking using this doctrine.

There is another flag that goes up. Why would you create a doctrine such as that, that allows you to selectively disrespect, hotly contest, and knock out the precedent of the Courts past if you did not have an intention to try to shift the precedent to support a particular direction? If you are an activist Court, you would give Congress very little deference. And this is a Court that gives Congress very little deference. Jeffrey Toobin, who writes on the Supreme Court frequently, in an article entitled ``No More Mr. Nice Guy, The Supreme Court's Stealth Hard-Liner,'' an article about Chief Justice Roberts, back in May of a year ago--so this is a little bit dated, May 25, 2009--said that:

In every major case since he became the Nation's

seventeenth Chief Justice, Roberts has sided with the

prosecution over the defendant, the State over the condemned,

the executive branch over legislative, and the corporate

defendant over the individual plaintiff. Even more than

Justice Scalia has embodied judicial conservatism during a

generation of service on the Supreme Court, Roberts has

served the interests, and reflected the values, of the

contemporary Republican Party.

``Served the interests and reflected the values of the contemporary Republican Party''--by, in every major case, siding with the executive branch over the legislative.

That is just one piece of it. The other is the disrespect for laws that have been passed by Congress and their intent. Lilly Ledbetter is the perfect case. Congress wanted to protect women from discrimination in the workplace, on what they are paid. Rather than read the statute to protect Lilly Ledbetter's right to a judgment, they came down with a finding that for so long as the company was successfully able to prevent her from finding out that she had been discriminated against, they were able to get away with it. That is not a finding this body ever would have accepted. But it was what the Court came down with. And it gave Congress no deference--again, a tradition in these Roberts Court decisions. Why would you want to defer to Congress if you have a point of view that you want to bring to the Court? You wouldn't want Congress's point of view involved, you would want your point of view, and therefore deferring to Congress would not be part of your goal.

So the lack of deference, a striking pattern in the Roberts Court, is again consistent with what you would expect from an activist Court. Most of all, if you were an activist Court, a pattern would begin to emerge to those decisions as the Court issued them, particularly those 5-4 decisions. On the Roberts Court, one pattern is striking, the clear pattern of corporate victories at the Roberts Court. It reaches across many fields--across arbitration, antitrust, employment discrimination, campaign finance, legal pleading standards, and many others. Over and over on this current Supreme Court, the Roberts bloc guiding it has consistently, repeatedly rewritten our law in the favor of corporations versus ordinary Americans. That is one of the reasons why Jeffrey Toobin, in his article, was able to say:

In every major case since he became the nation's

seventeenth Chief Justice, Roberts has sided with

the corporate defendant over the individual plaintiff.

Again, that was only effective May 25 of 2009, so it is a dated statistic. But certainly as of May 25 that was the record when corporations came before this Court.

A recent article--not May 25 of 2009; this one is July 24, 2010--was written by Adam Liptak. The headline was ``Court Under Roberts Has Become Most Conservative in Decades.'' It was published in the New York Times. Here are some of the findings:

In the 5 years [of the Roberts Court], the court not only

moved to the right but also became the most conservative one

in living memory, based on analysis of four sets of political

science data.

The ideological direction of the court's activism has

undergone a marked change toward conservative results.

Another quote from the article.

The first term of the Roberts court was a sharp jolt to the

right.

Another quote from the article.

[F]ive years of data are now available, and they point

almost uniformly in one direction: to the right.

That was another quote from the article.

A more human reaction was of Justice Sandra Day O'Connor:

``Gosh,'' Justice Sandra Day O'Connor said in the law

school forum in January a few days after the Supreme Court

undid one of her major achievements by reversing a decision

on campaign spending limits. ``I step away for a couple of

years and there's no telling what's going to happen.''

That was the reaction of Sandra Day O'Connor, a Republican appointee.

They turn things very quickly when they have the chance.

In 2000, the Court struck down a Nebraska law banning an

abortion procedure by vote of 5 to 4, with Justice O'Connor

in the majority--

making it a 5-to-4 striking down of that statute.

Seven years later, the court upheld a similar federal law,

the Partial-Birth Abortion Act, by the same vote. ``The key

to the case was not in the difference in wording between the

Federal law and the Nebraska act,'' Erwin Chemerinsky wrote

in 2007 in The Green Bag, a law journal.'' It was Justice

Alito having replaced Justice O'Connor.

A new person on the Court, almost identical set of facts, complete reversion of decision, 5-4 to 5-4.

Similarly, in 2003, Justice O'Connor wrote the majority opinion in a 5-4 opinion to allow public universities to take account of race in university admissions decisions. A month before her retirement in 2006, a similar decision came up, and because that decision was there on the books, that opinion, the Court refused to hear a case challenging the use of race to achieve integration in public schools.

Almost as soon as she left, the article says, the Court reversed course. A 2007 decision limited the use of race for such a purpose, also on a 5-4 vote. So I suppose you could add another flag to

the list of signs of an activist Court and that would be that they change very recent decisions as soon as the majority changes so they control the votes, the way we might here in the legislature. It is very appropriate in the Senate when the majority shifts.

I see the distinguished ranking member of the Finance Committee. If he were to be the chairman of the Finance Committee, I am sure the focus of the Finance Committee would change from that under Democratic leadership, and that is part of majority control, but it is not supposed to be that way on the Supreme Court. The Supreme Court is supposed to be not dealing with partisan questions, not going for a simple majority, but answering to the Constitution.

Mr. President, I ask unanimous consent that the Senate resume legislation session and proceed to a period of morning business with Senators permitted to speak therein for up to 10 minutes each; that upon the conclusion of the so-called wrap-up period, the Senate then resume executive session and continue the debate on the Kagan nomination as provided for under a previous order and in the specified hour blocks; that upon the conclusion of the debate previously specified in the hour blocks, the Senate then resume legislative session.

I ask unanimous consent that on Wednesday, August 4, after any remarks of the leaders, the Senate resume consideration of the House message to accompany H.R. 1586, with an hour of debate prior to a vote on the motion to invoke cloture on the motion to concur in the House amendment to the Senate amendment to H.R. 1586, with amendment No. 4575, with the time equally divided and controlled between the leaders or their designees, with Senator Murray designated to control the time of the majority leader; that upon the use or yielding back of the time, the Senate proceed to vote on the motion to invoke cloture on the motion to concur.

I ask unanimous consent that the Senate proceed to the immediate consideration of Calendar No. 495, S. 3397.

Mr. President, I ask unanimous consent that the committee-reported amendments be agreed to; the bill, as amended, be read a third time and passed; the motions to reconsider be laid upon the table, with no intervening action or debate, and any statements related to the bill be printed in the Record.

I ask unanimous consent the Health, Education, Labor and Pensions Committee be discharged from further consideration of S. Res. 555, and the Senate proceed to its immediate consideration.

I ask unanimous consent that the resolution be agreed to, the preamble be agreed to, the motions to reconsider be laid upon the table, with no intervening action or debate, and any statements related to the resolution be printed in the Record.

Mr. President, I ask unanimous consent that the Judiciary Committee be discharged from further consideration of S. Res 596, and the Senate proceed to its immediate consideration.

I ask unanimous consent that the resolution be agreed to, the preamble be agreed to, the motions to reconsider be laid upon the table, with no intervening action or debate, and any statements be printed in the Record.

I ask unanimous consent that the Senate proceed to the immediate consideration of S. Res. 605 submitted earlier today.

I ask unanimous consent that the resolution be agreed to, the preamble be agreed to, the motions to reconsider be laid upon the table, with no intervening action or debate, and any statements related to the resolution be printed in the Record.

I understand that H.R. 3534 has been received from the House and is at the desk.

I ask now for its second reading, and I object to my own request.

Mr. President, I ask unanimous consent that when the Senate completes its business today, it adjourn until 9:30 a.m. on Wednesday, August 4; that following the prayer and pledge, the Journal of proceedings be approved to date, the morning hour be deemed expired, the time for the two leaders be reserved for their use later in the day; that following any leader remarks, the Senate resume consideration of the House message to accompany H.R. 1586, as provided under the previous order.

Tomorrow, there will be 1 hour for debate prior to a cloture vote on the motion to concur with an amendment with respect to H.R. 1586. The amendment to the motion relates to FMAP and teacher funding. Senators should expect the vote to occur around 10:40 a.m.

Finally, I ask unanimous consent that following the remarks of Senators Grassley and LeMieux, the Senate adjourn under the previous order. I thank the distinguished Senator from Iowa for his courtesy in allowing us to go through the closing script in this fashion.

Madam President, I rise today to speak on behalf of Rhode Islanders who are fed up with our inaction to address climate change and to reform our Nation's energy policy.

In the media and in this very Chamber, we have all seen the tactics of deception and delay intended to convince the American public that the overwhelming body of climate science is inconclusive, that there is some doubt about whether our planet is experiencing unnatural changes in its climate. They argue that the American people are not concerned about warming temperatures, rising sea levels, and shrinking glaciers. They imply that business as usual is our best option, that job- creating, clean energy technologies built right here in America aren't worth the trouble or the investment. These voices of deception and delay are simply wrong.

During my time representing Rhode Island in the Senate, I have received thousands of letters and phone calls urging that this Chamber take bold action to price carbon and create clean energy jobs that will fuel our economy for generations to come. Contrary to what detractors would have us think, the vast majority of my constituents know that continuing to fiddle as the world warms is irresponsible, dangerous, and harmful to our Nation's interests.

Some of the most poignant letters I have received are from students, Boy Scouts, and other young people who are concerned about the future of the planet they will inherit from us. In December, a high school student from Wakefield named Kristin shared her concerns, writing to me:

As a teenager with my whole life ahead of me, I am

concerned about the dire consequences of climate change and

the impact it will have not only upon Rhode Island, but the

whole world.

Kristin says she hopes to stay in Rhode Island for the long term, but she is worried about the impacts rising ocean temperatures may have on the vitality of the fishing industry--a critical economic driver for the Ocean State that she calls home. By continuing to delay climate legislation, we not only damage the Earth for Kristin's generation, we also force her and her peers to be participants in an economy based on unchecked carbon emissions, unwilling contributors to the damage of their planet.

Rhode Islanders also believe they will benefit from comprehensive climate legislation because energy efficiency and renewable energy technologies will be the foundation of a vibrant new clean energy economy.

Doug from Newport recently started a small business designing and installing residential solar panels. He hears from many of his potential customers that they want to reduce their dependence on fossil fuels, especially in light of the BP oilspill down in the gulf. Doug does everything he can to make his product affordable. He helps his customers investigate loan options and tax credits, and he offers prices significantly lower than many of his competitors. Doug's business is a promising one, and he is undaunted by challenges, but at this point he has difficulty competing with dirty fuels such as coal that are allowed to pollute our environment for free, regardless of the costs they impose on the rest of society. Putting a price on carbon pollution would help Doug compete on a level playing field with other fuel sources.

Doug, like other clean energy supporters, has our country's best interests at heart. Doug says he wants to ``get it right'' by purchasing many of the solar panels from manufacturers in the United States, creating jobs here in America and keeping our energy dollars from flowing overseas. Nonetheless, he says American-made products are often more expensive or even sometimes unavailable. That is because other countries such as China and India are outpacing the United States in the advancement of wind and solar technology while we continue to subsidize coal and oil. We are deliberately losing this race at this point. It is long past due to make coal and oil start paying for the pollution they create in our environment and to begin investing in clean energy policies that will promote American businesses like Doug's.

Another constituent, Gary from Wakefield, wrote in after hearing that a wind farm in Texas was being built with turbines manufactured in China. He was understandably frustrated that the American economy didn't benefit from the jobs that made-in-America turbines would have generated. Gary demanded to know: ``What are we waiting for?''

Rhode Islanders overwhelmingly support energy reform that will create jobs and make polluters pay. Construction workers, small business owners, biodiesel producers, and renewable energy manufacturers wait anxiously for America to start catching up with our competitors around the globe. Schoolchildren want to know that the natural world and all its beauty and diversity will be preserved for their enjoyment and exploration well into the future. Consumers want to reap the benefits of energy efficiency technology that will let them keep money in their pockets that we are now sending overseas to fuel our oil addiction. Faith-based groups want to be good stewards of God's Earth, as they believe mankind is charged to be. Grandparents want to share the world as they have known it with their grandchildren and great-grandchildren.

As we move ever closer to the close of the 111st Congress, the question Gary asked rings even louder: What are we waiting for?

I wish to refer to an article in the Wall Street Journal from July 29, 2010, reporting a new assessment that concludes that the Earth has been getting warmer over the past 50 years and the past decade was the warmest on record. It describes the ``State of the Climate 2009'' report published Wednesday in a special supplement to the Bulletin of the American Meteorological Society. It was compiled by 300 scientists from 48 countries, and it drew on 10 climate indicators.

Seven of the indicators were rising: air temperature over land, sea- surface temperature, sea level, ocean heat, humidity--all going up. Three indicators were declining: Arctic sea ice, glaciers, spring snow cover in the northern hemisphere. Those are all declining.

``Each indicator is changing as we'd expect in a warming world,'' said Peter Thorne, the senior researcher at the Cooperative Institute for Climate and Satellites. The report concluded:

Global average surface and lower-troposphere temperatures

during the last three decades have been progressively warmer

than all earlier decades, and the 2000s (2000-09) was the

warmest decade in the instrumental record.

The scientists reported they were surprised to find Greenland's glaciers were losing ice at an accelerating rate. They concluded that 90 percent of the additional warmth over the past 50

years has ended up in the oceans. They can only absorb so much, and then it begins to affect us directly.

``A comprehensive review of key climate indicators confirms the world is warming and the past decade was the warmest on record,'' the annual state of the climate report declares.

The amount of increase each decade--about a fifth of a degree Fahrenheit--may seem small. . . . but the temperature increase of about 1 degree Fahrenheit experienced during the past 50 years has already altered the planet, the report said. Glaciers and sea ice are melting, heavy rainfall is intensifying, and heat waves are becoming more common and more intense.

I ask unanimous consent to have these two articles printed in the Record.

I will conclude by saying it is obviously not going to be easy to address real climate legislation, real clean energy jobs legislation here in this body. The big special interests have their way here far too often. They have spent years salting the fields of public opinion with their propaganda. Their power in this Chamber is immense. We may not have the luxury of waiting to take this on until it is easy. We may have to take this on while it is hard, while it is a fight against the entrenched interests, while it is a fight against the big polluters, while it is a fight against the propaganda and dissimulation and deceit and delay that are their stock-in-trade on this issue. But the one thing I think that can reassure us is that the public is with us, that the facts honestly looked at are clear, that the stakes by any standard are high, and that history's judgment of our failure will be a stern one.

I hope we can pull ourselves together to take on this issue so that the Rhode Islanders who communicate to me so often about this and the people from across this country who see clearly, without the fog of special interest money and influence, what is happening to our country and our world, that their voices are heard more than the big money and the big special interests.

I yield the floor.

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

Will the Senator yield for a question?

Through the Chair, if I can inquire of the junior Senator from Florida, is it not true that if one Member of his caucus, just one, had voted with us just a few moments ago on this vote, we would actually be on this bill and we could begin to move to amendments and consider the bill; is that not correct?

Mr. President, I rise to join Rhode Island's senior Senator Jack Reed and other colleagues to call attention to the recurring Republican roadblock of qualified nominees to circuit and district courts. On the circuit courts, I spoke some time ago about Albert Diaz and James Wynn to sit on the fourth circuit in North Carolina. I know the Presiding Officer has a

keen interest in those two. These two were reported out of the Judiciary Committee on January 28, 2010, 6 months ago yesterday. Albert Diaz was voted out 19 to 0. James Wynn was voted out 18 to 1. That means a combined score of 37 to 1 for these two candidates whom the two Senators from North Carolina had agreed on, a Republican Senator and a Democratic Senator. I came to the floor 3 months ago, given that background, on April 20 to ask unanimous consent for their confirmation. Senator Kyl, who voted for both of these nominees in committee, objected on behalf of his colleagues. That is the environment we are in.

Unfortunately, that environment has filtered down to district judges. Consider the four district court nominees currently on the Executive Calendar, voted out of committee by a party-line vote, who are ahead of our Rhode Island nominee and who have to be cleared before we get to our Rhode Island judge. Lewis Butler is a former Wisconsin Supreme Court justice. Ed Chen and Benita Pearson are long-serving and well- respected Federal magistrate judges in San Francisco and Akron, OH. Bill Martinez is a well-known and well-respected attorney in Colorado. Each nominee had the full support of both of their home State Senators. Each nominee would bring proper expertise, judicial temperament, and great diversity to the bench. Each nominee would be confirmed, if we could simply get them voted on by the Senate. The way these nominees have been treated stands in stark contrast to the way district court nominees were treated in the Bush administration. In 8 years, only one district court nominee during the Bush administration was reported by the Judiciary Committee on a party-line vote. That nominee got a vote and was confirmed on this floor 51 to 46.

Why is it that nominees of President Obama are being held to a different, new standard than applied to the nominees of President Bush? Why have we departed from the longstanding tradition of respect to the views of home State Senators who know the nominees best and who best understand their home districts? Is disregard for the views of home State Senators the standard Republicans want to live by during the next Republican Presidency? Is that the new precedent we wish to set here in the Senate? I ask this because we have a highly qualified nominee in Rhode Island, Jack McConnell, who was reported by the Judiciary Committee on June 17. It was a bipartisan vote, 13 to 6, with the support of Senator Lindsey Graham. Jack McConnell is a pillar of the legal community in Rhode Island. He is a pillar of the community generally in Rhode Island, serving with great generosity and distinction on numerous boards that help communities in Rhode Island. The Providence Chamber of Commerce has praised Jack McConnell as a well-respected member of the local community. Political figures from across our political spectrum have called for his confirmation, one of them being my predecessor as Rhode Island attorney general, Republican Jeffrey Pine. The Providence Journal, our hometown paper, has endorsed his nomination by saying that Jack McConnell, in his legal work and community leadership, has shown that he has the legal intelligence, character, compassion, and independence to be a distinguished jurist.

Notwithstanding the support of Senator Reed and myself, the two Senators from Rhode Island, notwithstanding that this is a district court nomination, notwithstanding the powerful support across Rhode Island from those who know Jack McConnell best, special interests from outside the State have interfered in his nomination. The U.S. Chamber of Commerce, not the Rhode Island chapter, the U.S. Chamber of Commerce has attacked Jack for having the temerity to stand up to big business, to the asbestos industry, to the lead paint industry, to the tobacco industry, and to have devoted his career to representing the rights of the powerless. In doing so, the U.S. Chamber has created a cartoon image of Jack McConnell that bears no relation to the man Senator Reed and I know as a great lawyer, as a great Rhode Islander, and somebody who will be a great judge.

I ask my colleagues--I see the distinguished ranking member of the Judiciary Committee here on the floor with us today, the distinguished Senator from Alabama--do we want to let powerful out-of-State interests trump the better informed views of home State Senators about district court nominees? That is not the tradition of this body. I again ask my colleagues: Is this the tradition they want to set? If they open the door to out-of-State special interests trumping the considered judgment of home State Senators on district court nominees, will they ever get that door closed again? I submit it is a mistake for this body to go that road. I urge colleagues on the other side to reconsider what I think is a terrible mistake, which is to allow out-of-State special interests to prevail over the considered judgment of home State Senators when they agree on the best qualified nominee for district court in their home State.

I yield the floor.

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

Mr. President, I know we are awaiting the arrival of the majority leader on the floor, but I wish to say a few words as in morning business.

Mr. President, almost every family in America has experienced the pain of a loved one who has been diagnosed with cancer. Today, I want to tell the story of the Grimes family from West Greenwich, RI.

According to the Rhode Island Department of Health, nearly 4 in every 10 Rhode Islanders will develop cancer sometime during their life. In a State as small as ours, this means almost everyone has a friend or a family member who is affected by this disease. For those of us who have been touched by cancer, directly or indirectly, those are memorable emotions. In my family, both my mother and father died of cancer.

Survival rates have greatly increased for many forms of cancer, thanks to new technology. But one form of cancer has not seen the same progress, and that is pancreatic cancer. Janet Grimes recently wrote to me about her mother Muriel who was diagnosed with pancreatic cancer this past April. Currently pancreatic cancer patients have about a 6- percent chance of living more than 5 years and about 75 percent die within the first year. These are dismal numbers.

Janet has watched this cancer deeply affect her mother's quality of life. Janet wrote me that her 82-year-old mother was active, sharp, vivacious, and living in her own home in North Carolina until this disease struck. Since then, Janet has had to move her mother to Rhode Island to care for her, taking a leave of absence from her work. In the past few months, her mother has lost 25 pounds, is frequently nauseated, and needs constant care. Janet is seeing all too clearly how devastating this disease can be. As I speak, it appears our thoughts and prayers need very much to be with the Grimes family.

Janet has authorized me to speak about what is happening in her family because she is concerned about pancreatic cancer research, that it suffers from a lack both of funding and of institutional focus, constituting less than 2 percent of the National Cancer Institute's research funding. According to the American Cancer Society, pancreatic cancer remains the fourth leading cause of cancer death overall. In fact, they estimate that in 2010, more than 43,000 people in the United States will be diagnosed with this disease, and nearly 37,000 will die.

We may not yet be able to cure this terrible disease, but there are important steps we in Congress can take. I have introduced the Pancreatic Cancer Research and Education Act to help address this funding and research gap. It is a bipartisan bill cosponsored by 20 colleagues, including 4 Republicans. It makes vital investments in research into new treatments and represents a strong Federal commitment to fight back against pancreatic cancer.

Specifically, this bill directs the Secretary of Health and Human Services to design and implement an initiative to coordinate and promote pancreatic cancer research and increase physician and public awareness of the disease. It creates an interdisciplinary committee to guide pancreatic research activities, develop an annual strategic plan, and make recommendations regarding the prioritization and award of NIH grants for pancreatic cancer research. Finally, it authorizes an NIH grant program for research institutions to develop innovative compounds or technologies for prevention, early detection, or treatment with cancers with 5-year survival rates of less than 50 percent. And, of course, pancreatic cancer is well less than 50 percent.

It authorizes the Secretary of Health and Human Services to designate two centers of research excellence focusing on pancreatic cancer research.

As I said, our thoughts and prayers this evening need to be with the Grimes family. Their story, however, is just one of many that my office has received calling for this much needed investment.

For these families and for others who will face the same dread diagnosis, we need to keep working toward advancing pancreatic research and awareness. I hope my colleagues will join me in support of this legislation.

Mr. President, I rise to speak about an important provision included in the Small Business Jobs Act that will significantly reduce fraud, abuse and waste of taxpayer dollars in Medicare. I commend the Senator from Florida, Mr. LeMieux, who introduced the idea earlier this year. I am a cosponsor of that legislation, and he and I have worked on it together with Senator Baucus. I am gratified that my colleagues have voted to include it in this bill.

Neither the public nor private sectors have done enough to detect and prevent health care fraud. The National Health Care Anti-Fraud Association estimates that private insurers and government health care programs lose at least $60 billion annually to fraud. In 2008, HHS estimated a 3.6 percent improper payment rate in Medicare fee for service, totaling $10.4 billion, and 10.6 percent rate in Medicare Advantage, or $6.8 billion. These funds should be used to provide health benefits for seniors but are squandered on criminals instead.

The Departments of Justice and Health and Human Services have taken important steps to attack the problem, creating a joint task force on health care fraud and a specialized unit--the Health Care Fraud Prevention and Enforcement Action Team--to prosecute fraud and abuse. But in a program as large and complex as Medicare, these efforts are too often hindered by technical blind spots. We can only pursue those offenders we can detect, and the volume and speed of Medicare reimbursement data too often overwhelms our ability to catch wrongdoers.

The fraud prevention provisions in this bill represent a paradigm shift in fraud detection and prevention, moving away from the ``pay and chase'' model to an environment in which fraudulent claims can be flagged and investigated before taxpayer funds are spent. The bill requires Medicare to deploy the most advanced technology at our disposal predictive modeling systems currently used in the credit card and banking industries to sift the chaff from the wheat, so to speak.

These systems can analyze significant volumes of data and identify patterns of behavior by certain providers as presenting a high risk of fraud. These claims can then be flagged for further investigation and denied if fraudulent.

In the program's first year, the system will be rolled out in 10 States that have the highest levels of waste, fraud and abuse. Ten more States will be added in the second year. The Department's inspector general will report on the effectiveness of the program at the end of each of these years. If such reports demonstrate to the Secretary's satisfaction that it saves taxpayer funds and operates correctly, the system will be expanded to Medicare claims nationwide.

We must marshal our best technical know-how to defeat the cheats and crooks that swindle the taxpayers and Medicare beneficiaries. This bill starts us down that road, and I applaud my colleagues for including it.

I yield the floor.

Mr. President, shortly I will be going into the closing script for the evening. But before I do that I wanted to first commend the Senator from Louisiana for her tenacity on the subject, Senator Cantwell of Washington State, Senator Merkley of Oregon, and others who have been equally determined. But Senator Landrieu has been the front and center voice, and it has been impressive to watch her in action. I wish her success and pledge her my complete support.