Sam Brownback

Mr. BROWNBACK

Mr. BROWNBACK. 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.

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

Mr. BROWNBACK. 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.

Mr. BROWNBACK. 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. BROWNBACK

Mr. BROWNBACK. 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.

Mr. BROWNBACK

Mr. BROWNBACK. 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.

Mr. BROWNBACK. 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.

Mr. BROWNBACK. 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. BROWNBACK. 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. BROWNBACK

Mr. BROWNBACK. 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. BROWNBACK. 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.

Mr. BROWNBACK

Mr. BROWNBACK. 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. BROWNBACK

Mr. BROWNBACK. 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.

Mr. BROWNBACK

Mr. BROWNBACK. 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.

Mr. BROWNBACK

Mr. BROWNBACK. Mr. President, I have a lot of sympathy for the comments made by the Senator from Arizona. I think he has accurate points. My colleague from Wisconsin makes points, as well, about the program overall. My point in rising is to say that the system is very difficult to change and to get things pulled out. That is why we have to change the system. What I have put forward for years is a proposal to take a BRAC- type process--the military base closing process--and have it looked at and make a recommendation to the Congress and then one vote on the entire package. That is a way we found to eliminate military bases. When a program like this is started, or others, there are people who say: Wait a minute. This works for my district even if it doesn't work for somebody else. This is a high-priority project, even if it is not for somebody else. That system is such that it is built to spend, not built to cull, where you can cull things out and say this one doesn't look good, but this does, in trying to get it through a body of 100 people. We are trying to get an Agriculture appropriations bill through that we have not been able to get done in 3 years. We haven't had floor time for an Agriculture appropriations bill. We are trying to move this forward. I think the Senator has some excellent points. We need to pass this sort of BRAC process for the rest of government so we actually do go at a culling process that everybody has faith in, which has worked before on military bases and we now can apply to the rest of government. That is a system where we can eliminate things, which we need to do in a number of areas. It is not going to happen on a one-shot-by-one-shot basis because some people say: This is a program that really works for my area. Then we get hung up on the floor with lengthy battles, and then we are never able to get the bill through. I urge my colleagues--and I hope some on the majority side will look at this CARFA bill, we call it, to see about putting that in place so we can get at these in a systematic way that everybody is agreeable to. I yield the floor.

Mr. BROWNBACK. I move to lay that motion on the table. The motion to lay on the table was agreed to.

Mr. BROWNBACK

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

Mr. BROWNBACK. Mr. President, I inform my colleagues, we are trying to get to a final conclusion on this bill. It is an important bill, but also a number of Members want to speak on the Sotomayor nomination to the Supreme Court. The attempt is to get this bill moving forward. I think we are close to a final UC to get to passage of this bill. I wish to comment before we move into that sequence about the importance of the agriculture industry. It is a key issue in my State, and it is a key issue in Wisconsin, the State of the leader of this subcommittee. It is an industry that has done better than a number of others have been doing during this recessionary time period. It is one that is a good performer for us on exports. We have one of the best exporting models, as far as business in agriculture, in this country. Because it is very competitive, it has a lot of capital intensity to it, a lot of intellectual brain power put behind it, both at the public and private level. It is one of those models in which we compete and do well globally. We are also aggressive in our trade policy to push for free trade, but if other countries are going to subsidize, we will back up our guys and say: If you subsidize your agricultural industry, then we are going to do it to fight you back on it. We don't take any guff around the world. We want a free-trade world, but if you are going to attack us, we are going to respond. If you have missiles, we have missiles, and we are going to do it. That model has worked well to create a very competitive, very growth-oriented, very export-oriented business that is globally competitive, high technology, and one I think that is moving well into the future. We have a lot of things going on in agriculture, and a number of them are funded in this bill. We want to see the industry expand in the energy business. A lot of us are very supportive of ethanol. Some are saying: I am for it, but I want the next generation of ethanol. We are funding that, as far as getting into cellulosic ethanol. We are looking at other types of fuels. One that is interesting for some people is on algae production into a diesel type of fuel. We are doing something on wind because wind is what generally blows across the Plains in your State, Mr. President, my State and a number of others and harvesting that in such a way that we can get it to other markets-- the electric markets--and add a cost-competitive rate so it is not one that drives it up. All of this does take a lot of effort. I want to acknowledge that some colleagues on my side are saying: I am not satisfied with this bill; I don't like some of the items in this bill. I say to them: I agree. There are provisions in this bill I don't like. But it is part of us getting a process to move an Agriculture appropriations bill through, something we have not been able to get through on the floor for over 3 years in a stand-alone type of bill, on a very important industry that is globally competitive, that has been a good one for us in this recessionary time period we are in. I note we have a lot of problems with this bill, but I also say I think we have a lot we are doing right with it and looking forward into the future of what we can do to be very supportive. I note a couple of things that are going on that are important for us as a country in agriculture on which we can get some crosscurrents. Norman Borlaug, an agronomist from Texas A&M, is known as the father of the green revolution that brought a lot of the new technology to feed the world. This has been over a career. He won the Nobel Peace Prize in 1970 for his contributions to the green revolution. I mention him because he is a key person in looking to the future of how the world is fed and fed at a good level. He notes it is important for us to do things in an environmentally sensitive and environmentally sound way but that we also need to fund high-yield, disease-resistant wheat varieties. We need to be able to use plant genetics that are in some places around the world. Some are saying: We don't like your alterations on plant genetics. We need to be able to do this. To feed a hungry world, we are going to have to use agricultural pesticides, insecticides, and fertilizer, and that gets into crosscurrents. They say: I want all the agricultural production, but I don't want these inputs brought into it. We don't have a model for that to work yet. It is important we support organic food markets and organic food production, but we cannot go that way fully. It is the sort of thing we cannot feed a hungry world on on a cost-competitive basis, a globally competitive industry, if you say we are going to pull out all these tools that have made the green revolution work. I think it is also important that we fund into the next generation of genetics and technology in this area. I was interested in one of my travels across Kansas. Last year, we had a time where some of my corn farmers could not plant for a couple days, and it was not because it was wet. It was because the satellite went down. Their global positioning system on their corn planter would not work, so they could not plant their corn because the satellite was down. I am going: Well, that is an interesting excuse. I haven't heard that one before. But it wasn't an excuse. It was a fact of life. To plant these crops and do the best job--and they apply just the right amount of fertilizer to that soil and that crop in that specific location will take--it takes a global positioning satellite that has had the data read into it and fed back. That is how high tech the industry is. I don't want us to move away from that level of technology and input; otherwise, I think we are going to lose our edge. We also have some developments in the environmental field that I think are interesting. We have people in Kansas and other places around the country who are working on things such as green concrete. You ask: What would that be? It is concrete that has soy oil brought into it to help it be an environmentally sound, renewable type of process. They already are making the foam matting in the seat in your car out of soybeans. So when you sit in a new Mustang--in particular, I know that car for sure--the foam rubber is made out of soybeans. I guess if you get caught in a Colorado blizzard and don't have anything to eat for a week or two, you can eat the seat. I don't think it is edible. But my point is, that, again, is an investment in the technology we are putting in this Agriculture appropriations bill to make new things that will work. This bill is an increase in funding. I don't like that because I think we should not be doing those sorts of funding increases. A major portion of that is the WIC Program. When we get into a recession, we get more and more people needing food. They are not able to pay for it themselves, and the government steps up. That is the problem when we have a recession--government costs go up, government receipts go down, and you get caught in this trap. One of the reasons why I think a program such as Cash for Clunkers is interesting is because it stimulates the economy, not the government. It gets that economy rolling, which is 80 percent of us balancing the budget. It is getting the economy moving. We have to restrain our spending and do a better job of that. I think we also need to be a lot more targeting of our programs. Programs such as the WIC Program and this Agriculture appropriations bill are a consequence of a bad economy. I don't like it, but I think the key for us is to be an economic stimulus and not a government stimulus. On the whole, while I think we have problems with this bill, I like the overall trend of what we are doing in the agricultural industry. I like what the chairman has focused on in this bill. On top of these items, I note for my colleagues, we put a special effort on the food aid program and getting the food aid program updated. To me, the needs of those who are in very difficult circumstances in refugee camps and different places around the world-- we spend too much on transportation and administration on food aid. Nearly 60 percent goes into those two. That number has to come down. But we need to get more food on the target because, in many cases, we are what stands between that person and starvation and death. It is the food aid, the generous food aid of the American people, that flows through this appropriations bill that does that. The Food and Drug Administration is also in this bill, and that is part of the increase. The development and the increasing need for different types of drugs are addressed in this bill as well. We have to get more innovative on FDA. I would like to see us in the neglected disease categories find more truncated procedures that approve drugs that have narrower, smaller marketplaces. That is in this bill. While I believe there are a number of things negative about this bill, I think the chairman has put together an overall good bill. I am glad we are getting to the point where we can move this one on through, conference it, and bring it back separately, as well so we can recognize this very important industry. It is important in my State and it is important in the States of all the Members, and we should do this separately instead of rolling it together in some sort of omnibus bill like we too often have done. I believe we are getting close to getting to a final UC. That would be my hope so we can move this bill forward. I suggest the absence of a quorum.

Mr. BROWNBACK. Mr. President, parliamentary inquiry: What is the next item of business?

Mr. BROWNBACK. Mr. President, with the Sanders amendment being the issue now, I will raise to my colleagues a point of order. I understand the difficulty the dairy industry is in. We have dairy industry in Kansas, and it is an important business. Certainly, prices are difficult and they are having trouble. However, the Sanders amendment would provide the Farm Service Agency with an additional $350 million. Unfortunately, even if we could agree that additional funding was necessary, the amendment was put in such a way that it cannot work; it is not drafted appropriately. There is no mechanism to move the funding from the FSA salaries and expenses account to the Dairy Product Price Support Program. For these reasons, regrettably, I cannot support the amendment. The pending amendment, No. 2276, offered by the Senator from Vermont, increases spending by $350 million. This additional spending would cause the underlying bill to exceed the subcommittee's section 302(b) allocation. Therefore, I raise a point of order against the amendment pursuant to section 302(f) of the Congressional Budget Act.

Mr. BROWNBACK. Mr. President, I ask for the yeas and nays.

Mr. BROWNBACK. Mr. President, I would like to also thank the Senator from Iowa for his comments. I agree with Chairman Kohl and Senator Harkin on this need and will work hard towards accomplishing this goal in conference. The recent H1N1 scare also illustrates the dangers of zoonotic diseases to the human and animal populations. If we know how to stop these diseases soon after they are diagnosed, we can help stop the spread of the disease in animals, and possibly the transmission to humans. The reverse is also true; the H1N1 scare also taught us that humans can also pass diseases to the animals. The more knowledge that can be discovered about emerging animal diseases, the more likely it is that we can address them before they become a significant problem. Ongoing funding provided for the NADC will be vitally important in protecting human and animal health. Emerging animal diseases, like the H1N1 virus, can have a devastating impact on animal agriculture in the form of reduced exports and slaughter of infected herds and flocks. Additional ongoing resources provided in this bill will make sure the livestock industry is in a safe and secure place.

Mr. BROWNBACK. Mr. President, I would like to raise an issue that has been brought to my attention by the Senator from Georgia, Mr. Isakson. The Senator was mistakenly credited with having requested funding for the Food and Agriculture Policy Research Institute in Senate Report 111-39. I want to assure him that this will be corrected during the conference negotiations on the Agriculture appropriations bill.

Mr. BROWNBACK. I appreciate working with the Senator from Oklahoma on various agriculture issues, and can address this issue in the conference report. Office of Advocacy and Outreach

Mr. BROWNBACK. Mr. President, I move to reconsider the vote and to lay that motion on the table. The motion to lay on the table was agreed to.