Thomas Coburn

Mr. COBURN

Mr. COBURN. Going back to the Congolese, most of the victims were women, children, and the elderly. Some were decapitated. Remember, these are U.N. peacekeeping forces--peacekeeping. Others were chopped to death by machete, beaten to death with clubs as they tried to flee. They may not have been actual U.N. officers, but the U.N. was supplying all the logistics, all the transportation for this group of people. Where is the oversight? U.N. contribution: Compiling forecasts of global agriculture production and identifying areas of likely famine and the risk of severe hunger, to facilitate food assistance. We make a contribution to the U.N. The Food and Agriculture Organization is currently hosting a U.N. conference, a food summit in Rome, where the opening speaker is Zimbabwe President Robert Mugabe who has literally destroyed his Nation, which used to be the bread basket of Africa and which is now dependent on food imports. We are helping to pay for President Mugabe-- who can't travel hardly anywhere else in the world because he is such a rogue dictator--we are sponsoring, through our dollars, meetings where he is the headline speaker. The meeting was branded a failure within a couple of hours of its start after the 192 participating countries unanimously rebuffed the United Nations' appeal for commitments of billions of dollars in yearly aid to develop agriculture in poor nations. It is not because they don't care about people having problems with food; it is they recognize the U.N. is ineffective at doing that and they are not going to commit more money, but we continue to commit more money. The U.N. Environment Programme spends $1 billion a year--20 percent of it our money--on global warming and its effect on agriculture. The U.N. has coordinated efforts by the global shipping industry and governments to prevent and respond to acts of piracy on the high seas. It was totally ineffective. Do you know why we decreased the amount of piracy on the high seas? It is because of Task Force 51, which was formed by the U.S. Navy because the United Nations was totally ineffective in accomplishing that purpose. I could go on and on. But the fact is, the United Nations is not only morally bankrupt in its leadership and efficiency, it is filled with fraud, waste, and, as noted, tremendous acts of violence through the peacekeeping armies it sends throughout the world. Yet we are going to have people say we shouldn't take some of that money away. We are not taking all the money away with this amendment anyway; we are just taking a small portion to pay for our bill. We are going to have people actually vote to continue to do these things, instead of taking care of our veterans and not steal it from our children. I heard Senator Tester speak about the wonderful things in this bill to help people who drive to VA clinics and VA hospitals. There is a better idea. If a veteran is deserving of care, give him a card. Let them go wherever they want. Why should they have to drive 160 miles, when they can get the care right down the street from somebody they trust and they know. But instead we say: We are going to promise you health care, but you can only get it here. Real freedom for our veterans--real health care for our veterans is to honor their commitment by saying: Here is your card, you served our Nation, go get your health care wherever you want. If you want to get it next door or if you want to go to the M.D. Anderson or Mayo Clinic, you can. You can go wherever you want because we are going to honor your commitment. I recognize our VA hospitals have done a magnificent job in improving their care, but I will tell you the test for the VA hospital system is this: Go ask any doctor coming out of training who experienced part of their time in a VA hospital and ask them to choose for their family: Do you want your family treated at a VA hospital or somewhere else where you trained? Nary a one will pick a VA hospital because the care isn't as good. It is better, and it is getting better all the time, but it is not as good. So we are saying to veterans: Here is where you have to go, when what we should say is: Thank you for your service. Here is what we owe you. Go get care wherever you want to get it or wherever you think you can get the best treatment. On prosthetics, the VA is the best in the world. Nobody compares. On post-traumatic stress disorder, they are the best in the world. Nobody can compare. They are underfunded in those areas. This bill is right on that. But the real commitment is to give the choice. The veteran fought for freedom. Give them the choice, the freedom to choose what they want for them. Why is it important we change how the Senate operates in terms of making hard decisions? The reason it is important is there are millions of these little girls out there. I have five of them, five grandkids just like her. She has a little sign around her neck. She says: ``I am already $38,375 in debt and I only own a dollhouse.'' Of course, when you divide up the $12 trillion which we passed this week in directly owned debt; it doesn't count the billions--I mean the trillions--we have borrowed from Social Security and the other trust funds, such as the waterway trust fund and all these other organizations we have stolen from, it doesn't include that. But that is for every man, woman, and child in this country. It is over $30,000 now, this year. I think when you look at her, you have to say, certainly, we ought to be making some changes. By the way, between now and 2019, that number goes to over $96,000 per man, woman, and child. But she is a child. This doesn't apply to veterans, but it applies to almost everything else we are doing. This is what Thomas Jefferson said: The democracy will cease to exist when you take away from those who are willing to work to give to those who would not. If you think about what is happening in our country right now and how things are being shifted, what we are doing is, we are on the cusp of a dramatic change in our country in terms of balance. This huge bill, which I will talk about later, is a major move in that direction. Senator Byrd and I were talking this morning about this. In this bill is a 5-percent tax on cosmetic surgery. Just the day before yesterday, the U.S. Preventive Task Force Services recommended--because it is not cost effective--that women under 50 not get mammograms unless they have risk factors. You tell that to the thousands of women under 50 who were diagnosed with breast cancer last year with a mammogram. Tell them it is not cost effective. But also in this bill is a 5-percent tax on breast reconstruction surgery after they have had a mastectomy. They are going to tax having their breasts rebuilt after their breasts have been taken off because it is an ``elective'' plastic surgery. It is an elective cosmetic surgery. We are going to have a tax on it because we have taxed elective cosmetic surgery. We are in trouble as a nation because we have taken our eye off the ball. I see the majority whip is back. I told him I would be happy to yield. At this time, I will reserve the remainder of my time and yield the floor to the majority whip. Exhibit 1 Rebuttal of State Department Talking Points on Coburn Amendment 2785 The State Department Bureau of Legislative Affairs opposes the Coburn amendment to S. 1963, the Caregivers and Veterans Omnibus Health Services Act of 2009 (S. 1963). In its formal opposition, it lists a number of programs as reasons to support the U.N. and oppose the Coburn amendment. Many of the programs and activities that the State Department listed have experienced severe problems in execution or are taking credit for activities by national governments or private entities. (Their document is after the rebuttal). Below is a list of those ``accomplishments'' and facts that should be considered. U.N. Contribution: Facilitating and holding elections in Afghanistan and Iraq (U.N. Secretariat). Response: The United Nations cannot account for tens of millions of dollars provided to the troubled Afghan election commission, according to two confidential U.N. audits and interviews with current and former senior diplomats. The Afghan election commission, with tens of millions in U.N. funding and hundreds of millions in U.S. funding, facilitated mass election fraud and operated ghost polling places. ``Everybody kept sending money'' to the elections commission, said Peter Galbraith, the former deputy chief of the U.N. mission in Afghanistan. ``Nobody put the brakes on. U.S. taxpayers spent hundreds of millions of dollars on a fraudulent election.'' Galbraith, a deputy to the senior U.N. official in Afghanistan, was fired last month after protesting fraud in the elections. As of April 2009, the U.N. spent $72.4 million supporting the electoral commission with $56.7 million coming from the U.S. Agency for International Development. The Special Inspector General for Afghanistan Reconstruction states that the United States provided at least $263 million in funding for the election. In one instance, the United Nations Development Program paid $6.8 million for transportation costs in areas where no U.N. officials were present. Overall the audits found that U.N. monitoring of U.S. taxpayer funds was ``seriously inadequate.'' U.N. Contribution: Monitoring nuclear programs in North Korea and Iran. Response: In 2002, the North Korean government used United Nations Development Program, UNDP, aid to purchase conventional arms, ballistic missiles. It also transferred millions of dollars in cash to the government of North Korea with no oversight of how the money was spent. In September 2009, North Korea announced to the United Nations Security Council that it was almost complete in ``weaponizing'' nuclear materials from its nuclear reactor. Last week, North Korea announced the processing was complete. As of this morning, Iran had rejected the U.N. offer to send enriched uranium out of the country to prevent it from developing nuclear weapons. U.N. Contribution: Funding 17 U.N. Peacekeeping Operations, including those in Haiti, Liberia, Lebanon, Darfur and the Democratic Republic of Congo. Response: U.N. Peacekeeping operations plagued by rape and sexual exploitation of refugees--In 1994, a draft U.N. report was leaked detailing how peacekeepers in Morocco, Pakistan, Uruguay, Tunis, South Africa and Nepal were involved in 68 cases of rape, prostitution and pedophilia. The report also stated that the investigation into these cases is being undermined by bribery and witness intimidation by U.N. personnel. In 2006, it was reported that peacekeepers in Haiti and Liberia were involved in sexual exploitation of refugees. In 2007, leaked reports indicate the U.N. has caught 200 peacekeepers for sex offenses in the past three years ranging from rape to assault on minors. In all of these cases, there is no known evidence of an offending U.N. peacekeeper being prosecuted. Just this month, Human Rights Watch reported that Congolese armed forces, supported by U.N. peacekeepers in the eastern Democratic Republic of Congo have brutally killed hundreds of civilians and committed widespread rape in the past three months in a military operation backed by the United Nations. Most of the victims were women, children, and the elderly. Some were decapitated. Others were chopped to death by machete, beaten to death with clubs, or shot as they tried to flee. The U.N. peacekeeping mission provides substantial operational and logistics support to the soldiers, including military firepower, transport, rations, and fuel. The attacking Congolese soldiers made no distinction between combatants and civilians, shooting many at close range or chopping their victims to death with machetes. In one of the hamlets, Katanda, Congolese army soldiers decapitated four young men, cut off their arms, and then threw their heads and limbs 20 meters away from their bodies. The soldiers then raped 16 women and girls, including a 12- year-old girl, later killing four of them. The U.S. now pays 27 percent of all U.N. peacekeeping operations. Reducing our contribution to these wasteful efforts could help ensure that U.N. peacekeepers are not funding widespread rape and exploitation of refugees. U.N. Contribution: Compiling forecasts of global agricultural production, identifying areas of likely famine and risk of severe hunger, to facilitate emergency food assistance (FAO). Response: The FAO (Food and Agriculture Organization) is currently hosting a U.N. food summit in Rome, where the opening speaker is Zimbabwe President Robert Mugabe. Mugabe is barred from travel to most Western countries because of his atrocious human rights record, but receives an exception for U.N. sponsored events. No G-8 leader attended the event save the Prime Minister of Italy, the host nation. ``The meeting was branded a failure within a couple of hours of its start after the 192 participating countries unanimously rebuffed the United Nations' appeal for commitments of billions of dollars in yearly aid to develop agriculture in poor nations.'' The U.N. Environment Program spends over $1 billion annually on global warming initiatives (and weighs in on its effect on agriculture) but there is almost no auditing or oversight being conducted. The U.N. Environment program has one auditor and one assistant to oversee its operations. According to the task force it would take 17 years for the auditor to oversee just the high-risk areas already identified in UNEP's work. U.N. Contribution: Coordinating tsunami and earthquake relief projects in Indonesia and Pakistan (U.N. Secretariat/

Mr. COBURN. Mr. President, the majority whip is a formidable orator and he is appreciated in lots of ways. We work together on subcommittees on the Judiciary Committee. I have a fondness for him. Although one area he did not agree to work with me is to pay for it. Never have I said I don't want us to do this for our veterans. Not once. The reason we are on the floor, the only reason we are on the floor having this debate is because of my hold; otherwise, we would never have gotten here to have the debate which I think is valuable for the people in this country. But there has to come a time--every time I offer an amendment on this floor is never a good time--to start making our choices. That is what we hear all the time. Over 600 times in the last 4\1/2\ years, it is never a good time to start making hard choices. That is just what we heard. The Senator from Illinois referenced Congo. Just this month the Congolese army, with the assistance of the United Nations, slaughtered a bunch of people. And we are supposed to continue? I put two other things out there. Under Federal law, the Accountability and Transparency Act, the United Nations is required to tell the American people how our money is spent because the State Department is required to find it out and put it online. They have refused to do it. So we have no idea what it is. Two years ago in the Foreign Ops bill, an amendment was agreed to by 100 Senators that there would be transparency. Our money going to the United Nations would be conditioned on the fact that the United Nations would be transparent on how it was spent. That was voted 100 to 0 in the Senate. Guess what happened on the way to the bank coming out of the conference committee. It was eliminated. So now we send over $5 billion directly, $5.2 billion, plus billions more through USAID through the United Nations, and we do not have any idea how it is spent. What we do know is that the United Nations is fiscally and morally bankrupt. It is loaded with fraud, loaded with duplication, and loaded with excess. It would be a wonderful thing to send the United Nations a wonderful fire shot across the bow that they have to start being accountable for the dollars that the American taxpayer, that this little girl is sending them out of her future every year. It would be a wonderful thing for us to say that. It is unfortunate, every time when we get down to the point where we have to make a hard choice, we always choose not to make the hard choice. That spells disaster for our country, and it also spells a total lack of leadership on our part to recognize what the real problems are that are confronting this country. Our veterans deserve us to take care of them. I am for that. Our children deserve for us to do it in a way that protects their future-- the very thing for which our veterans serve. Unfortunately, we will not do that with this amendment or any other time until the American people decide they have had enough of the careerism, the elitism, the lack of integrity, the lack of courage that is so often represented in the votes we cast in this body. I reserve the remainder of my time, and I yield in my absence any time the Senator from North Carolina wishes to take from my time.

Mr. COBURN. I reserve the remainder of my time and yield to the chairman and ranking member.

Mr. COBURN

Mr. COBURN. Mr. President, I seek recognition to speak on the nomination of Judge Hamilton.

Mr. COBURN

Mr. COBURN. I come to the floor--I am a member of the Judiciary Committee--to raise significant concerns about this nominee. There is no question he is a fine man. There is no question he has a lot of experience, a great education. But there is also no question in my mind that he is a highly activist Federal judge who will be promoted to a level of making final determinations on most of the decisions that come before him and his circuit. He does have a distinguished history, but his history is complicated by, in my opinion, a view that it doesn't matter what the Congress says; that it doesn't actually matter what precedent says; it doesn't matter what stare decisis, the precedent of the Supreme Court, says; he believes he can rule against that. After attending his hearings, I would note there were over 10,000 pages of decisions and his vote on the committee was well before we could actually consider all 10,000 pages of decisions. He was voted out of our committee. I want to raise in detail some of my problems and then give some case histories to back them up. For example, I asked Judge Hamilton whether he thought it was appropriate for a judge to consider foreign law when interpreting the Constitution. Rather than recognize the court should not be looking to foreign law when interpreting our Constitution, Judge Hamilton used an analogy of judges considering law review articles of American lawyers with consulting decisions of foreign courts. He stated: [C]ourts . . . will look to guidance from wise commentators from many places--professors from law schools, experts in a particular field who have written about it. And in recent years, the Supreme Court has started to look at some courts from other countries where members of the Court may believe that there is some wisdom to be gained. As long as it is confined to something similar to citing law professors' articles, I do not have a problem with that. I have serious concerns with that. Let me put out what those are. What he fails to recognize when he equates the two is that professors who are writing on American law in American journals are writing about the interpretation of our Constitution based on American statutes and American values. They begin their analysis with an understanding of the creation of our Constitution by our Founders and our system of limited government. When American courts look to foreign law, they are considering opinions and wisdom of people who do not share our values and who are unfamiliar with American statutes and constitutional interpretations. By conflating the two types of references, Judge Hamilton tries to minimize the damage courts can inflict on our Constitution when they look to foreign courts for guidance. I was even more disturbed by Judge Hamilton's answers to my written questions following his hearing. In his responses, Judge Hamilton embraced President Obama's empathy standard, writing that empathy was ``important in fulfilling [the judicial] oath.'' As a matter of fact, Supreme Court Justice Sotomayor cited just the opposite. What she said was that she looks at facts, not empathy. She rejected the empathy standard. He also explained why he believed he fit this standard and emphasized his effects-based approach, stating: Because I will continue to do my best to follow the law, to treat all parties who come before me with respect and dignity, and to understand how legal rules or decisions will affect behavior and incentives for different people and different institutions. That is nowhere in the oath of a judge. Nowhere is that. Considering the consequences of his ruling and how that might affect people should not be part of the decisionmaking, in making the ruling. These statements following his hearing only confirmed what I feared prior to his hearing: that Judge Hamilton embraces a liberal activist philosophy and has implemented that philosophy in his legal decisions. As evidence of his activist tendencies on the bench, I will turn now to some of his opinions as a district court judge that illustrate his propensity to allow his personal biases to influence his decision. In the case of Women's Choice v. Newman, Judge Hamilton succeeded in blocking the enforcement of a valid Indiana law for informed consent for 7 years--7 years. The law required doctors to give certain medical information to women in person before an abortion could be performed and required a waiting period before an abortion was performed. There is already precedent, clearly by Casey, in the Supreme Court. When overturning Judge Hamilton's ruling, the Seventh Circuit harshly criticized his decision by stating: [F]or seven years, Indiana has been prevented from enforcing a statute materially identical to a law held valid by the Supreme Court in Casey, by this court in Karlin, and by the Fifth Circuit in Barnes. No court anywhere in the country (other than one district judge in Indiana) has held any similar law invalid in the years since Casey . . . Indiana (like Pennsylvania and Wisconsin) is entitled to put its law into effect and have that law judged by its own consequences. That is a harsh review. Further, Judge Coffee, in his concurring opinion in this case, was even more critical of Judge Hamilton's opinion, and he specifically criticized Hamilton's reliance on one study which was conducted by the Planned Parenthood-affiliated Guttmacher Institute. Here is what he said about Judge Hamilton's decision: [His decision] invades the legitimate province of the legislative and executive branches. That is the problem with judicial activists. They see no limits. They take a personal bias, and they use that bias rather than interpreting the statutes and looking at precedent. They make their own decision. For 7 years Indiana was without a duly-passed statute passed by the elected representatives of that State, in error, because Judge Hamilton believed something different. He didn't rely on precedent. He relied on his personal bias, a strong personal bias that said that wasn't right, when all the other courts had recognized the precedent by Casey. Here is what Judge Coffee also said: As a result, literally thousands of Indiana women have undergone abortions since 1995 without having had the benefit of receiving the necessary information to ensure that their choice is premised upon the wealth of information available to make a well-informed and educated life-or-death decision. I remain convinced that [Judge Hamilton] abused his discretion when depriving the sovereign State of Indiana of its lawful right to enforce the statute before us. I can only hope that the number of women in Indiana who may have been harmed by the judge's decision is but few in number. As the Seventh Circuit properly notes, as a result of his activism, Judge Hamilton effectively prevented the people of Indiana from enforcing a duly enacted, reasonable restriction on abortion in violation of existing law and Supreme Court precedent. In two other cases, Judge Hamilton succeeded in excluding traditional religious expression from the public square. In the case of Hinrichs v. Bosma, Judge Hamilton prohibited prayers in the Indiana State Legislature that mentioned Jesus Christ while allowing those that mentioned Allah. The Seventh Circuit reversed that decision. In another case, Grossbaum v. Indianapolis-Marion County Building Authority, Judge Hamilton's decision prohibited a rabbi from placing a menorah in a public building. A unanimous Seventh Circuit court panel reversed Judge Hamilton's ruling and noted that he had ignored two Supreme Court cases that were directly on point. Why would a learned judge ignore precedent? There is only one reason for ignoring precedent, and that is a judicial activist bias that he does not have to follow the law; that he is not limited by the Constitution, but he is limited to his personal feelings and his personal beliefs. That is the exact opposite of what we want in terms of neutrality of those directing court proceedings. Judge Hamilton's record also suggests he is empathetic toward criminal defendants rather than the victims of crimes. According to the Almanac of the Federal Judiciary, local practitioners have said Judge Hamilton ``is the most lenient of any judge in the district. . . .'' ``He is one of the more liberal judges in the district.'' ``He leans towards the defense.'' ``He is your best chance for downward departures.'' ``In sentencing, he tends to be very empathetic to the downtrodden or those who commit crimes due to poverty.'' Blind justice doesn't recognize wealth when you commit a crime. It doesn't recognize wealth. If, in fact, that were the case, we should have more severe penalties for people who have greater means. But, instead, we treat everybody the same under the law. I believe his judicial record confirms the statements of these local practitioners. For example, in the case of United States v. Woolsey, Judge Hamilton ignored the prior conviction of a defendant in order to avoid imposing a life sentence and was reversed by the Seventh Circuit. He ignored a prior conviction. He chose to ignore it. Activist, not following the law, not following the Code of Judicial Conduct. You do not get the choice to ignore it. It is a breach of his judicial oath. Yet he does it. Here is what the Seventh Circuit said as they criticized Judge Hamilton's decision: [The] Indiana district court was not free to ignore Woolsey's earlier conviction . . . we have admonished district courts that the statutory penalties for recidivism . . . are not optional, even if the court deems them unwise or an inappropriate response to repeat drug offenders. In yet another case demonstrating his empathy toward criminals, Judge Hamilton took the unusual step of issuing a separate written order of judgment and conviction ``so that it may be of assistance in the event of an application for executive clemency'' because he believed the 15- year mandatory sentence he was forced to impose on a child pornographer was too harsh. In this case, U.S. v. Rinehart, the defendant, a police officer, pled guilty to two counts of producing child pornography after he took pictures of a 16-year-old girl engaged in ``sexually explicit conduct'' and took videos of himself and a 17-year-old girl engaging in sexual relations. These images ended up on his home computer, and he was charged under the Child Protection Act of 1984. In a separate written order of judgment, Judge Hamilton concluded by stating his personal views in this case and urging executive clemency. He is stating his personal views in this case, in other words, not that of a judge. He has stepped out of being a judge. Now, using the role of a judge, he is using his personal views to influence clemency. Here is what he said: This case, involving sexual activity with victims who were 16 and 17 years old and who could and did legally consent to the sexual activity, is very different. But because of the mandatory minimum sentence of 15 years required by 18 U.S.C., 2251(e), this court could not impose a just sentence in this case. The only way that Rinehart's punishment could be modified to become just is through an exercise of executive clemency by the President. The court hopes that will happen. He later confirmed to us that he thought that action was appropriate. When Congress passed the Child Protection Act of 1984, at issue in this case, it determined that in order to strengthen Federal child pornography laws, a child is defined as someone under the age of 18. So what did Judge Hamilton do? He said what we say doesn't make any difference. The fact that the legislative body signed it, and it was put into law by the executive branch--he didn't think that counted because he didn't agree with it. So he went outside of it to try to get clemency based on him thinking we were wrong. He didn't have any basis of law to do it, but then did it anyway. In our constitutional system of government the power to create legislation is assigned to the Congress and a judge must simply interpret the law as it is written. This judge refused to do that. When a judge second-guesses Congress, criticizes its legislative decisions as being unfair, and invites a grant of clemency, he undermines the rule of law and the confidence the American people have in their government. Judge Hamilton's action in this case belies his tendency to empathize with criminal defendants. These are just a few of the statements and opinions in Judge Hamilton's record that form the basis of my opposition. I believe he is an activist jurist. He has shown that he will allow his personal biases and prejudices to affect the outcome of cases before him. I do not believe he deserves a promotion to the Seventh Circuit where he will be even less constrained by precedent and the possibility of a reversal on appeal. I will be voting against his confirmation, and I believe the people of this country should be very wary of other judges who have an activist bent, who disrespect the rule of law, who believe they do not have to look at precedent, who, because their personal bias is different than what the law says, believe they can be in a position to effect change in the law rather than have it come through, or all the way to the court, to do that. The job of the judge is to interpret the law and the facts carefully. This judge does not do that. I yield the floor. I suggest the absence of a quorum.

Mr. COBURN

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

Mr. COBURN. Madam President, I know we are going to vote at 5:30 on an amendment and on a motion to commit. I send a motion to commit to the desk at this time.

Mr. COBURN. Madam President, this motion to commit is based on the fact that we have a need among veterans that has an upcoming authorization bill but there is no money in this bill for it. The motion to commit would instruct the conferees to expand those eligible to all veterans who have the same need, to find the money to pay for the first year of this in that bill and not charge it to the next generation. The idea behind the motion to commit is that our veterans are a priority, and if they are, we ought to defund things that are less of a priority and make sure we take care of them. The obligation for us to fulfill our commitment to veterans is not obviated by the lack of our obligation to fulfill our commitment to the generation that follows. I would appreciate the support of my colleagues on the motion to commit.

Mr. COBURN. Madam President, I ask for the yeas and nays.

Mr. COBURN. I thank the Chair. I will try not to consume that amount of time to move this along. Last weekend, the Senate, prior to Veterans Day, had the urgency of passing a bill that will, in fact, help a specified group of veterans, but it won't help veterans who have identical needs to that group of veterans because they were excluded from it. The Caregivers Act also will require, at a minimum, $3.7 billion in spending over the next 5 years, and none of it--there was no decision to make in terms of that bill on any priorities about what we get rid of. As a matter of fact, the intent, as stated by the majority whip, was that we needed to pass this before last Wednesday so that people could get care. Well, the truth is, no care will come about if there is no money in this bill for that program. The whole purpose for this motion to commit is to do two things: One, send the committee back and eliminate the discrimination against veterans in the first gulf war, against veterans in the Vietnam war, the Korean war, and World War II who have identical needs that require family caregivers and include them in it. The second aspect of the motion to commit is to find it from the available funds we have today. We suggest some opportunity for that but don't mandate where it comes from. But we should reduce spending somewhere else to pay for this. The reason that is important is, this past year, 43 cents out of every dollar we spent we borrowed from our grandchildren. So in making a motion to commit this bill, we are doing three essential things. No. 1 is that we are actually being truthful that we really want to take care of this need and will do it in this fiscal year. No. 2 is that we are not discriminating against other veterans who have identical needs. No. 3 is that we are not discriminating against our children and grandchildren by not making hard choices to pay for it within existing funds. I have no illusions that this motion to commit will succeed. But it doesn't change the very real facts that are in front of this Nation-- that we cannot continue to spend money without making choices about what is most important. None of us disagree that taking care of those who have sacrificed for us has to become No. 2 behind the defense of this Nation in terms of the priorities for this country. Nothing else is higher in priority. Yet the bill we have before us doesn't make that a priority and the authorizing language doesn't make that a priority. As a matter of fact, the bill before us asks the VA to study this issue rather than actually go on and fund this issue by making the appropriate changes. There is a significant increase in this bill, and outside of foreign expenditures, it is over 5.5 percent. It is not objectionable that it would be there, that kind of increase, given the demand our troops have had and their injuries and what they have suffered in terms of defending this country and fighting two ongoing wars. However, some of that money ought to be winnowed down so that we can take care of the very people who protect us. We have had these tremendous speeches on why we have to do it now. If those speeches aren't going to ring hollow, we ought to commit the bill to make sure we have money for the Veterans Caregiver Act. Amendment No. 2757 The other area I wish to spend time on is that in this bill we also have various and sundry reports that have been requested by the committee of different branches of the Federal Government. One of the most important ways to build trust in the Congress today is for us to create and increase the level of transparency for the American people to see our actions. This amendment is simply an amendment that says any reports that do not divulge or put at risk national security data should be made available to all the Senators, all the Congress, and all of the American people. This has been in several of the appropriations bills we have passed in the Senate. Unfortunately, rarely has it stayed in the conference report because there are those who don't want the American people to see what we are doing and how we are doing it. I will sum up. We find ourselves in a big pickle right now as a nation. We soon will be voting in this body to increase the debt limit to $12.1 trillion. That figures out as a significant amount of money for every individual in this country--well over $35,000--but it is a very small amount compared to what is getting ready to happen in the next 9 years as our debt triples. Our debt will triple in the next 9 years, which means we will go from 30-some thousand dollars per individual to very close to $100,000 per individual. That doesn't compare to the unfunded liability. If you take everybody in this country who is 25 years of age and younger--that is 103 million Americans--and you ask what is the consequence to those young Americans 20 years from now, the consequence is that they are going to be paying for another $1 million in debt for which they got no benefit, and the interest costs on that alone will be over $70,000 per year, per individual under age 25 today and under 45 20 years from now and all their kids. The idea that we ought to pay for the new things we do by eliminating the things that aren't important, that we ought to pay for the new things we do by eliminating some of the $300 billion worth of waste, fraud, and duplication in the Federal Government every year is not a novel idea outside Washington; it is only a novel idea inside Washington--the very fact that the next generation will be put at a disadvantage because we lack the same courage and clarity of moral character our troops have in terms of making tough choices. My hope is that with the motion to commit, in fact, the body will look and say we really can fund this and find waste and we can make choices about what is most important versus what is not most important, and not only will we help the veterans who are deserving of our assistance at this time, but we will also help the veterans' children and grandchildren by not plugging a credit card in and saying: Whatever we are going to do for veterans today, we are going to charge to you. Instead, I hope that we are going to carry the load and that we are going to embrace the heritage of our country, the heritage of sacrifice and of creating opportunity that is better for the generations that follow than the opportunities that were given to us. That is not happening right now in our country. We are going to have a larger deficit next year than we have this year. We are going to take 43 cents out of every dollar we actually spend next year and we are going to charge that all to those two generations that follow us. That is not what made this country strong. That is not what our veterans fought for. That is not the country they want to see in the future. It is time we made some hard choices. The resistance will be: I don't want to eliminate my earmark; I don't want to eliminate the parochial things I have done for my State to take care of veterans. They will not come out and say that, but that will be the result of the vote. The vote is, take care of the politicians, say you are taking care of the veterans, but undermine the future of the next two generations. That is what the vote is going to be about on the motion to commit--a lot of controversy and emotion associated with not doing things on time. But I would rather do things right and do things that will secure the future rather than destroy it. I would rather do things that honor the sacrifice rather than dishonor the sacrifice. We can claim all we want when we pass a veterans caregiver bill, but if we don't fund it and there is no money for it, it is an announcement that we care but no action behind it. If we don't cover all the veterans who have the same need, we know it is political only. The motion to commit makes sure that we cover all veterans, that we treat them all equally, and if they have the same kinds of needs, they will get the same kinds of service--not because they are young and served in the war on terror but because they served this great Nation and preserved it with their courage, valor, and commitment. I yield the floor and suggest the absence of a quorum.

Mr. COBURN. Madam President, I think under the agreement I will have 30 minutes to discuss this and the other amendment I have; is that correct?

Mr. COBURN

Mr. COBURN. Madam Presiding, during today's conversation, the Senator from Illinois stated that S. 1963 had been on the Senate calendar since September 25, 2009. In fact, S. 1963 was read the second time and placed on the calendar on October 29, 2009. A request was not made for unanimous consent to pass the bill on the minority side until Friday, November 6, 2009. There are currently 35,000 veterans receiving aid and attendance benefits from the Department of Veterans Affairs, which provides funding for veterans who need extra help at home but do not need institutional care. The aid and attendance program assists all disabled veterans of all wars. Out of this population, around 2,000 veterans received their injuries after September 11 and would qualify for extra caregiver assistance in this bill. However, caregivers for tens of thousands of veterans of prior wars would not. Of course, that assumes that the House passes the Caregiver Assistance Act in its Chamber and the President signs it into law. Then it assumes that next year, in the discussion on the fiscal year 2011 budget, the President requests funding for caregiver assistance, or that both appropriations committees include funding, and that the President signs this into law. The absolute earliest that a caregiver would receive assistance is October 1, 2010. However, that date is not likely given the performance of the Department of Veterans Affairs. Right now, the average processing of a disability claim is 162 days at the Department. Given that the Department will have to make rules on this new benefit, it will be well into 2011 before any caregiver benefits from this program. However, passing this bill before Veterans Day will give benefits to politicians, who will have made an empty promise in 2009 that might not be realized until 2011, and even then, would be paid for by our children and grandchildren.

Mr. COBURN. What I would tell my colleague is you do it routinely on the appropriations bill. So why is this any different? My question to my colleague is: If in fact this is so important to get done today, knowing there is no money in this bill for this--my colleague would agree with that, would he not, that there is no money in this appropriations bill for this act? Is that a correct statement?

Mr. COBURN. Absolutely, but when was the hold? Less than 3 weeks ago. It wasn't brought to the floor before then.

Mr. COBURN. If we are going to do this bill, yes, I would.

Mr. COBURN. I would answer my colleague that we do that 280 billion times a year.

Mr. COBURN. Okay, 5 weeks. Pardon me.

Mr. COBURN. I wish to finish my statement first. I listened to the Senator's statement earlier today on the floor, so let me finish my statement. The other thing that is concerning is we have a bill before us right now--this appropriations bill--that has no money for this in it, one, and authorizations aren't required. So $280 billion of the money we appropriate every year is not authorized. The fact there is no money in this bill for this program tells me something, that the urgency of getting a press release isn't near the urgency of the needs of our veterans. Because if we allow the normal process to happen, it will be 18 months from now before any money comes forward for this bill. Finally, we have offered up a list of programs we think have much lower priority than our veterans' health care, and so I think of my brother, who is a veteran, and I ask myself: What did he serve for? What did he fight for? Did he fight so we could come back here and undermine the future by not making the same tough choices that are required for every family and, more importantly, not demonstrate the courage in our service that the veterans demonstrate in their service-- which is putting yourself at risk to do what is best for our country? That is what they do, but we ought to be doing the same thing. We ran a very large deficit this last year. Forty-three cents of every dollar we spent this last year was borrowed. None of the people in this room will ever pay a penny toward that debt. It will be our children and grandchildren. And the fact is we will not make the hard choices to pay for this so that tomorrow we can say, we are going to eliminate these programs so this program can go forward, and we are going to take the money that is going for these programs so this program can go forward. What this appropriations bill does, as a matter of fact, is ask for a study from the Veterans' Administration on the need of this bill. So if this bill is certainly a priority, the funding for it should have been in this appropriations bill, and it is not. Nobody can deny it is not. So I come to the question: When will enough be enough? When will we stop playing a game on dollars and ultimately make the same hard choices and demonstrate the courage our veterans have demonstrated? I can't think of many veterans who want now what is paid on the backs of their children or grandchildren. What they want to see us do is the hard work, as they do the hard work, to put ourselves at risk by telling some people no so we can tell veterans yes. What we are doing today is we are going to tell veterans yes but we are going to tell our children no. I can easily outline for my colleagues $300 billion--that is ``B'' for billion--of waste, fraud, and duplication in the Federal budget. They may disagree with some of that, but there is no question you could get a consensus on $3.7 billion of that. On 1 percent of it, you could get a consensus. But there is no effort made on this authorization bill to create priorities. What we hear all the time is: Well, that is not the way it works up here. Authorization bills are simply that, and it has to go through the appropriations, and you are not spending any money. Well, if we are not spending any money on this bill, then we are not solving the problems for our veterans. And if we don't have any money for this program in this appropriations bill, we are holding out a hollow promise. I ask my colleagues to work with us. Let's offset the price for this, demonstrate the same courage and the same level of commitment. There has been no secret on who has said we should not pass this by unanimous consent, and there has never been a time that we refused to talk to anybody about that. My hope is the American people are listening. Sure, we do want to do the right things for our veterans, but there has to come a time when we are forced to make hard choices, and we are not seeing that. We are not seeing that in this bill, and we are not seeing it in the authorization for this veterans and caregivers omnibus bill. With that, I yield to my colleague from Illinois, and retain the time until he has finished asking whatever question he may have.

Mr. COBURN. There is not. So we are going to say we are going to authorize something in the hopes that we have to do it right now, knowing that unless we have an omnibus or a supplemental this won't actually happen until we get to this bill again next year.

Mr. COBURN. Yes, sir.

Mr. COBURN. Madam President, I ask unanimous consent to, No. 1, offer an amendment, which I will do in 3 or 4 minutes, and then spend 3 or 4 minutes on that amendment and then ask unanimous consent for 15 minutes to talk on the Executive Calendar as well as speak in morning business.

Mr. COBURN. Madam President, I ask that the pending amendment be set aside and that amendment No. 2757 be called up.

Mr. COBURN. I ask unanimous consent that the reading of the amendment be dispensed with.

Mr. COBURN. No, I will not concede that. Because what it does is it causes us--and I enjoy debating my colleague from Illinois. Here is my point on authorization bills. We can authorize and authorize and authorize, and when we do, we are telling veterans they are going to get this. That is what we are telling them. We are communicating to every veterans organization and we are telling them we are going to do this. So if we are going to tell them we are going to do it, we ought to put in process the way to do it. And if we are saying it has to happen right now, then where is the money? Show me the money to make it happen right now. The fact is--and I will reclaim my time--we play games, and the game we are playing is that we can authorize and send out a press release but then we are not held accountable to do what we have authorized. There are a lot of good key components in this bill. My objection is twofold: One, it discriminates against previous veterans, which I think is uncalled for; and two, we don't eliminate any of the waste in terms of authorizations so that we more focus the Appropriations Committee. There is no question the Appropriations Committee has the power to fund money anywhere they want and they do it whether the bills are authorized or not authorized. I will be glad to give the Senator from Illinois a list of the $280 billion we spend every year that is not authorized. It is a spurious argument to state that we should not have fiscal accountability when we authorize programs. We should have and we ought to make the tough choices. The problem is, we do not do any oversight, to speak of, to cause us to know the programs that are not working that we could eliminate so we will not have duplicate funding and so we will not spend it. The question veterans ask me is what is our priority with our money. The first priority has to be defending the country. The second priority ought to be about taking care of veterans. What we do is we have $300 billion a year in waste, fraud, and duplication on things that do not do either of those and that are extremely wasteful. Nobody with common sense would say they ought to continue. Yet we continue down the process. I have taken more than my time and I know my colleagues are going to vote. I would tell my colleague from Illinois we have had this debate a large number of times. We have a frank disagreement about the fiscal discipline that should be required of us as Senators. The fact is, we are going to authorize a bill and we are not going to make any tough choices about anything else and we are not going to take away any options from the Appropriations Committee when it comes to funding. To me, that abrogates our responsibility to be good authorizers. I will stand by that conviction as long as I am in the Senate. We had that debate on the bridge to nowhere, which my colleague supported, which was in an authorizing bill--and multiple times. With that, I yield the floor and I am prepared to listen to my colleague from Illinois.

Mr. COBURN. Madam President, this is a very straightforward amendment. This is an amendment I have offered on all appropriations bills to date. We passed it on Housing and Urban Development- Transportation. We passed it on Energy and Water. We passed it on Interior. We passed it on the Defense appropriations bill. It is an amendment that says that the reports that are asked for in this appropriations bill, unless there is reason to not yield to the people of this country the information contained in that report for either national security or defense purposes, that those studies will be made available to the American citizens and the rest of the Senate. Each appropriations bill, in proper fashion and by a good job by the Appropriations Committee, asks for reports and reviews on how the money is spent. All this amendment does is require that the reports that are required to be submitted by a Federal agency in this act be posted on a public Web site of that agency for all Members of Congress and all Americans to see. There is an exception for reports that contain classified or proprietary information. In the House and Senate version of this bill, the following reports are--I won't go through all of them--what action DOD and the State Department have taken to encourage host countries to assume a greater share of the defense burden--that is something that ought to be shared with the American people; an annual report on operation and maintenance expenditures for each individual general or flag officer quarters at each of our bases around the country during the prior year; a report of the Secretary of Veterans Affairs on approved major construction projects for which funds are not obligated within the timeframe provided for in the act--in other words, to know what we are getting ready to spend, what is obligated; a report detailing the current planned use of property estimated to have greater than $1 million in annual rental costs; a detailed report on how the $3 billion that has already been appropriated for information technology projects at the Veterans Administration' is spent, including operations and maintenance costs, salaries, and expenses by individual project; and then finally, a quarterly report on the financial status of the Veterans' Administration, a health status. This is just plain, good, open government. It creates transparency, and it allows the American people to hold us to account. By requiring that Federal agencies produce reports funded in this bill and publicize them on a Web site, everybody will have easy access to the reports. That is not the case today in the Senate or in the Congress. Evaluating and reading these reports may prompt a congressional hearing, Federal legislation, or even termination of a Federal program or policy. This is a straightforward amendment. It is my hope our colleagues will accept this amendment and it will become part of this appropriations bill as well. Nomination of Judge Andre Davis Madam President, I now wish to spend a few moments talking about Judge Andre Davis, who is the nominee for the Fourth Circuit Court of Appeals. I sit on the Judiciary Committee, and I voted against Judge Davis's nomination coming out of the Judiciary Committee. I thought the American people ought to know why. He is definitely an individual of integrity. He is a very pleasant individual. I enjoyed the banter back and forth during the hearing. But as a Federal district judge, Judge Davis has been reversed by the Fourth Circuit Court numerous times. A lot of judges get reversed, but there is a trend with Judge Davis where we have seen the law misapplied. So I have some real concerns. This is a lifetime appointment to this circuit court, No. 1. No. 2, the Supreme Court only hears 80 cases a year, so if a case comes to a circuit court, most often that is a final determination. Let me spend a little bit of time on characteristics of these reversals because they are very concerning to me. He has been reversed by the Fourth Circuit Court in six different cases where he was noted to suppress evidence. For those of you like me who are not lawyers, let me explain what that means. Suppressing evidence in a criminal case most often results in a defendant not being convicted of a crime and a victim and their family not receiving justice. Not only do the victim and victim's family not get justice but the government has to spend taxpayer dollars and resources to appeal the case to the next level. Let me give some examples. In the case of U.S. v. Kimbrough, Judge Davis suppressed the statement of a defendant who, while in the presence of police, told his mother he had a gun in the room. The officer was trying to give him his Miranda warnings at the time when the mother asked him if there was anything else in the basement, besides the cocaine that was readily visible to her and the officer. In reversing Judge Davis's decision, the Fourth Circuit offered a harsh rebuke stating that since the mother ``is a private citizen, her spontaneous questioning of [the defendant] alone, independent of the police officers, could never implicate the Fifth Amendment.'' The court further stated that Judge Davis's conclusion that `` `Miss Kimbrough's involvement in questioning her son was the equivalent of official custodial interrogation,' . . . is at best incomplete and, taken literally, is simply erroneous.'' The Fourth Circuit said that a statement made in these circumstances should ``never'' be suppressed and Judge Davis's reasoning was ``simply erroneous.'' In U.S. v. Siegel, Judge Davis suppressed evidence of the defendant's 20-year history of scheming and plotting to take money from previous husbands in a case where the defendant was accused of dating the victim, taking his money, and then killing him. The facts of this case are particularly worrisome. The defendant had met the victim and started dating him, eventually taking his money and trying to have him institutionalized. After failing at having him institutionalized, she killed the victim and hid his body. Although the body was found in 1996, it was not identified until 2003. During that time, the defendant remarried and continued to collect the man's Social Security checks. When the body was identified, Federal agents contacted her and she told them the victim was alive and had run off with some other woman. She was arrested and charged with murdering the victim to prevent him from reporting her fraud. When the prosecution sought to introduce the defendant's prior bad acts at trial, Judge Davis refused. According to the Fourth Circuit, Judge Davis was concerned about the length of the trial. The Fourth Circuit reversed, finding that the evidence was admissible and, because the government charged the defendant with committing murder to prevent being reported for fraud, this evidence was an essential element of the government's case. As for Judge Davis's concern about a lengthy trial, the Fourth Circuit concluded that was an improper basis for excluding wholesale this clearly probative and relevant evidence of other crimes. On remand, the defendant was found guilty. In the case of U.S. v. Jamison, Judge Davis suppressed the confession of a felon who shot himself, called out to police for help, and then gave the confession during the routine police investigation into his injury. He was charged with being a felon in possession of a firearm. The court of appeals reversed Judge Davis's ruling and said the man's confession was admissible in the case. In U.S. v. Custis, the defendant was prosecuted for several Federal drug and firearm offenses. The evidence used against him included weapons and drugs that were seized by the police from his truck and residence. The police search was based on a warrant obtained with evidence they compiled from an informant who had given them reliable data on the defendant's drug operation. Judge Davis granted the defendant's suppression motion, finding that the search warrant was faulty. The Fourth Circuit reversed, stating that Judge Davis erred in granting the defendant's motion to suppress the evidence, and that if Judge Davis had read the supporting affidavit in a ``commonsense, rather than hypertechnical manner, as he was required to do,'' he would not have excluded the evidence. There are many other cases where Judge Davis has incorrectly suppressed evidence that I will not go into at this time. There are many other reasons, whether it be violating the sentencing levels according to the Fourth Circuit, an abuse of discretion, remanding for resentencing, or being more than a neutral arbiter in terms of plea arrangements. Here is what the Fourth Circuit said about Judge Davis's role in terms of the plea arrangements: We have not found a single case in which the extent of judicial involvement in plea negotiations equaled that in the case at hand. The district court repeatedly appeared to be an advocate for the pleas rather than as a neutral arbiter, and any fair reading of the record reveals the substantial risk of coerced guilty pleas. We can only conclude that the district court's role as advocate for the defendant's guilty pleas affected the fairness, integrity, and public reputation of judicial proceedings. I won't go on, but those six cases I outlined are enough for me to not be able to support this judge, who is obviously a very fine gentleman and a good man, but who I believe has made some significant inexcusable errors on the bench. Finally, I want to spend a moment talking about a bill several of my colleagues have brought up, and it is the veterans caregivers omnibus bill. Regardless of what the news reports say, and my colleagues say, I am not opposed to us making sure we keep each and every commitment we make to veterans. I think many of the programs that are in this bill are ideally suited for the problems our veterans have. What I object to is the fact we are going to create $3.7 billion worth of spending--and that is a CBO score, not my score, the $3.7 billion worth of spending-- over the next 5 years and not make any effort whatsoever to eliminate programs that don't have anywhere near the priority this program does. The other thing I object to is the timing. There is no question we need to do this, especially for our wounded warriors. But we are excluding our Vietnam veterans from having access to this same care, and we are excluding the first gulf war veterans from having the same access. They have the same needs. Nobody can deny they don't have some of the same needs, but we are excluding them, and from a constitutional standpoint, I am not sure we can ever get to the point where we would agree that is fair treatment for our veterans.