John Cornyn

Mr. CORNYN

Mr. CORNYN. Madam President, I am going to ask unanimous consent, with the indulgence of my colleagues, to allow me to speak for up to 10 minutes. I probably will speak about 5 minutes or so, unless I get particularly wound up, which could take 10 minutes. But I ask unanimous consent for an additional 10 minutes.

Mr. CORNYN

Mr. CORNYN. I thank the Chair. I assure my colleagues, I will not use the full hour, which I am sure is good news. Mr. President, I oppose the ratification of the New START treaty for the reasons many of my colleagues have articulated and to which I have previously spoken. The treaty requires unilateral reductions of the United States on strategic nuclear weapons. It fails to address tactical nuclear weapons--an area in which the Russian Federation has a 10-to-1 advantage. This is not an idle or incidental matter. GEN Nikolai Patrusheb, Secretary of the Russian National Security Council, a body in charge of military doctrine, has declared that Russia may not only use nuclear weapons preemptively in local conflicts such as Georgia or Chechnya but may deliver a nuclear blow against the aggressor in a critical situation, based on intelligence evaluations of his intentions. I submit also that the verification provisions of this treaty are weak, allowing only 18 inspections a year for an arsenal of more than 1,500 weapons. Obviously, the ability to get more than a sampling of Russian Federation compliance would be impossible given the relatively few number of inspections permitted under the treaty. As we have discussed off and on over the last few days, the preamble of the treaty itself is ambiguous and has been construed by the Russians themselves as limiting the ability of the United States to expand its own missile defense system. I realize the President of the United States has submitted a letter stating his unilateral opinion of what that treaty obligation means, but, of course, treaty obligations are not unilateral declarations, they are bilateral agreements. Of course, the consequence of a misunderstanding over this important issue of missile defense could allow either side to withdraw from the treaty and, indeed, the threat of withdrawal from the treaty because of this misunderstanding is something that could be avoided in the first instance if, in fact, some of the amendments addressing missile defense were allowed and the treaty modified to that extent. At that time, the Russians could then be asked: Will you agree with this modification, and we would know upfront, not on the back end, their sincere intentions. But I would say that the New START treaty has flaws when you look at it, not only in its various provisions; that is, when you reason from the whole to its parts, but I would suggest the treaty also fails when you look at it the other way around, when you reason from the parts to the whole, when you see this treaty is another example, another symptom, of a foreign policy that sends a message of timidity, even ambivalence, not only about our own security but about America's leadership role in a very dangerous world. This larger strategic context is what we need to keep in mind. We all know that President Obama has set incredibly high expectations for his Presidency in terms of how he would conduct American foreign policy. In an early Presidential debate, for example, he promised to meet with the leaders of five rogue nations--Iran, Syria, Venezuela, Cuba, and North Korea--``without precondition during the first year of [his] administration.'' Well, we now know that never happened. After he won the nomination, you will recall, in his famous speech he gave in the city of Berlin, while still a candidate for the Presidency, he declared he was a ``citizen of the world.'' Also, he said: ``This is the moment when we must come together to save this planet.'' President Obama was not the only one promoting a grandiose vision of his Presidency. Remember the Nobel Prize Committee received his nomination for the Peace Prize less than 6 weeks after President Obama took office. In the citation for the award last year, they said: [President] Obama has as President created a new climate in international politics. . . . Only very rarely has a person to the same extent as Obama captured the world's attention and given its people hope for a better future. You might ask, What relevance does this have to our consideration of the START treaty? The relevance is that a big part of this utopian dream of a ``new climate in international politics'' has been the elimination of all nuclear weapons. In that Berlin speech, then-Senator Obama said that one of his priorities was to ``renew the goal of a world without nuclear weapons.'' The citation for the Nobel Peace Prize included this observation: The Committee has attached special importance to Obama's vision of and work for a world without nuclear weapons. The vision of a world free from nuclear arms has powerfully stimulated disarmament and arms control negotiations. Indeed, in an op-ed piece, authored by the Secretary of State Hillary Clinton, dated April 7, 2010, in the Guardian, she argues that the START treaty is an important step toward a nuclear-free world. So you might ask, what is wrong with a vision of the world without nuclear weapons? Can't we hope and dream? Of course, even without nuclear weapons, we know that in World War I and World War II tens of millions of people lost their lives in armed conflict. So it is not as if a world without nuclear weapons is a world without war and a world without danger for peace-loving nations such as ours and our allies. We also know that any number of foreign policy experts have expressed serious reservations about indulging in this fantasy of a world without nuclear weapons. George Kennan has said: The evil of these utopian enthusiasms was not only or even primarily the wasted time, the misplaced emphasis, the encouragement of false hopes. The evil lay primarily in the fact that those enthusiasms distracted our gaze for the real things that were happening. . . .The cultivation of these utopian schemes, flattering to our own image of ourselves, took place at the expense of our feeling for reality. The President of the United States has not only mused about fantastic notions that have no basis in the real world, he has criticized his own country on foreign soil so often that some called that particular trip ``the world apology tour.'' So what should our competitors and would-be adversaries make of these statements of a fantasy world that is nuclear free and a President who travels abroad and apologizes for America's strength? Regretfully, I can only conclude it sends an impression of weakness and a lack of determination to maintain America's leadership in the world. We know there are dangerous consequences associated with an interpretation by others that America has lost its resolve to lead the world or to maintain its own security and to protect its allies. President Reagan said famously: We maintain the peace through our strength; weakness only invites aggression. Experience has proven the truth of those words. We should recall that the President of the United States conducted YouTube diplomacy by recording a video for Iran's leaders--but then withheld comment when those same leaders were brutally crushing a pro- democracy movement and their own people's hopes for freedom. The President has treated several of our allies without the respect they deserve. Some have been, like Britain, slighted; others, like Israel, have been lectured; and other of our allies have been thrown under the bus on missile defense, like Poland and the Czech Republic. He has been so idealistic and naive, you might say, about the subject of nuclear weapons that President Sarkozy of France remarked about it publicly at a meeting of the United Nations Security Council. He said: We live in the real world, not in a virtual one. . . . President Obama himself has said that he dreams of a world without nuclear weapons. Before our very eyes, two countries are doing exactly the opposite at this very moment. President Sarkozy said: Since 2005, Iran has violated five Security Council Resolutions. . . . He said: I support America's ``extended hand.'' But what have these proposals for dialogue produced for the international community? Nothing but more enriched uranium and more centrifuges. And last but not least, it has resulted in a statement by Iranian leaders calling for wiping off the map a Member of the United Nations. I fear the New START treaty will serve as another data point in the narrative of weakness, pursuing diplomacy for its own sake--or indulging in a utopian dream of a world without nuclear weapons, divorced from hard reality. Last week, I mentioned that Doug Feith, formerly of the Defense Department, helped negotiate the Strategic Offensive Reductions Treaty, known as the SORT treaty. Mr. Feith said that during the negotiations of the SORT treaty, the Russians were constantly trying to get the United States to negotiate away our right to defend ourselves from missile attacks through a robust missile defense program. The Bush administration rightly rejected those Russian demands and-- you know what--we got a good treaty anyway. The Obama administration, on the other hand, gave Russia what it wanted--or what it says it wanted--among other concessions. But that is not the only concession that was given under the New START treaty. I would ask my colleagues, Where are the concessions that Russia made to us in this treaty? Where are the concessions that Russia made to us? And what in the treaty is a good deal for the United States? But my colleagues may reply, So what. So what if the Obama administration's world view is a little bit naive. So what if the Russians negotiated a much better deal for themselves than the Obama administration got for the United States. Shouldn't we go ahead and approve the treaty anyway? What harm could it do? Couldn't it help build a better relationship with the Russian Federation and help transform America's reputation in the world? Those are actually good questions. But the answers are sobering. The administration has long argued that its approach to diplomacy was not only good for its own sake, but it would strengthen relationships with nations all around the world. I would ask you, how has that worked out? Charles Krauthammer reviewed the global response to President Obama's diplomatic overtures in this way. He said: Unilateral American concessions and offers of unconditional engagement have moved neither Iran nor Russia nor North Korea to accommodate us. Nor have the Arab states--or even the powerless Palestinian Authority--offered so much as a gesture of accommodation in response to heavy and gratuitous American pressure on Israel. Nor have even our Europe allies responded: They have anted up essentially nothing in response to our pleas for more assistance in Afghanistan. And, of course, we could look at the results of the New START treaty itself. Russian leaders have responded to American concessions with contempt. Russian Foreign Minister Sergey Lavrov has said that the treaty ``cannot be opened up and become the subject of new negotiations.'' Prime Minister Putin has threatened a new arms race if Russia does not get its way with this version of the treaty. Russian leaders have the temerity to lecture and attempt to intimidate the Senate from discharging our constitutional responsibilities. We should not succumb. In deciding whether to vote for the treaty, I would respectfully ask whether some Senators have been asking themselves the wrong question. Instead of asking ourselves the question, Why not ratify? What is the harm? I would suggest that the better question is, Why should we? I would urge my colleagues to vote against this treaty not because I do not care about the message it will send to Russia and other nations but because I do care about that message, and it is time we stop sending a message of weakness that only encourages our adversaries. I urge my colleagues to vote no on this treaty, to require the administration to go back to the negotiating table with the Russians, to get a better deal for the United States, and to make clear that the era of unilateral American concessions is over. Mr. President, I yield the floor. Mr. VITTER addressed the Chair.

Mr. CORNYN. Mr. President, may I inquire, is there any time limitation on Senators at this point?

Mr. CORNYN

Mr. CORNYN. Mr. President, I would like to briefly join my colleagues in explaining some of my concerns, first of all, about the process by which we are taking up something as important as a treaty with regard to nuclear arms. Of course, this is the second part of a two-part constitutional process. The President sent this treaty to the Senate, along with a transmittal letter dated May 13, 2010, and here we are on December 16, shortly before the Christmas holidays and adjournment, taking up a treaty as important as this. Of course, under article II, section 2 of the United States Constitution, a treaty cannot be ratified without the vote of at least two-thirds of the Members of the Senate. I know everyone--whether they are for this treaty, whether they are against this treaty, whether they are merely questioning some aspects of the treaty and are perhaps seeking to make some modifications--I believe everyone is approaching this issue with the kind of seriousness and gravity that should be required of a Senator approaching something this serious. But I have to make this observation: Here we are, as I said, on December 16, 2 days--2 days--after having dropped on us a 1,924-page Omnibus appropriations bill which calls for the Federal Government to spend an additional $1.2 trillion. The idea that we would later today take up the issue of funding the Federal Government and consider this Omnibus appropriations bill while we would have to basically detour and lay this treaty by the side--this is, to me, just irresponsible. I do not know any other word to describe it. We have, in fact, been in session 151 days during 2010. That is right. You heard me correctly. The Senate has actually been in session 151 days this year. I think most people would love to get a paycheck across America and only be expected to show up and do their job 151 days a year. Now, I know when we go back home, we continue to work with our constituents, to listen to their concerns and otherwise, but my simple point is, when the President sends this treaty over on May 13, 2010, and at the same time, simultaneously, we are being asked to consider this huge Omnibus appropriations bill of $1.2 trillion--some 2,000 pages long--the idea that we would try to jam through or give expedited consideration to the serious, substantive issues being raised by this treaty is, as I said, poor time management, to say the least, and I think irresponsible. I want to raise some of the substantive concerns I have about the treaty on which I know there will be further discussions. First of all, I would point out that the treaty does not itself address tactical----

Mr. CORNYN. I would be glad, after I get through my remarks, to yield for some questions.

Mr. CORNYN. Mr. President, I have the floor.

Mr. CORNYN. Mr. President, I would note, as others have noted, that the treaty completely excludes consideration of a limitation on tactical nuclear weapons, even though Russia possesses a significant superiority in terms of numbers over the United States for these types of weapons. I would just note that some at the Department of Defense have noted that the difference between strategic weapons and tactical weapons has become somewhat muddled and less meaningful in recent decades. I believe a legitimate cause for concern is why we would exclude tactical nuclear weapons, that the Russians have numerical superiority of, and not even seek to regulate or contain those at all, while we are focused strictly on strategic nuclear weapons, of which the United States would have to cut our current numbers and the Russians not at all in order to meet the goals of the treaty. I would say, secondly, I have concerns about the treaty's provisions on verification. Of course, President Reagan was famous for saying we should trust, but verify when it comes to this type of treaty. I would point out that Brent Scowcroft, in 1997, pointed out the importance of when we are actually reducing the overall number of weapons, verification becomes that much more important. He said, in 1997: Current force levels provide a kind of buffer because they are high enough to be relatively insensitive to imperfect intelligence and modest force changes. . . . As force levels go down, the balance of nuclear power can become increasingly delicate and vulnerable to cheating on arms control limits, concerns about nondeployed ``hidden missiles'' and the actions of nuclear third parties. So we need to be extraordinarily careful, even more careful now than perhaps we have been in the past with regard to the verification measures. We know the Russians have taken every advantage to cheat on previous treaties and to be untrustworthy. According to the official State Department reports on arms control compliance, the Russians have previously violated--or are still violating, even as we speak-- important provisions of most of the key arms control treaties to which they have been a party, including the original START treaty, the Chemical Weapons Convention, the Biological Weapons Convention, the Conventional Forces in Europe Treaty, and Open Skies. The New START treaty does not close that gap on verification loopholes that the Russians are already exploiting or, in fact, evading. As my colleague, Senator Bond--who is, notably, the vice chairman of the Senate Select Committee on Intelligence--has told us, the annual 10-warhead limit on inspections allowed under this treaty permit us to sample only 2 to 3 percent of the total Russian deployed force and, therefore, it will be impossible--it will be literally impossible; limited to 10 annual warhead inspections over a 10-year treaty--to inspect all, much less most, of the 1,550 limit on deployed warheads. So why would we call this a robust verification provision if we are only allowed to see 2 to 3 percent of the total Russian force? The New START treaty, unlike its predecessor, permits any number of warheads to be loaded on a missile. So even if the Russians fully cooperated--which I do not believe they have in the past, nor can be trusted to do so in the future--even if they do cooperate with all of the provisions in the New START treaty, these inspections cannot provide the sort of conclusive evidence that you would think would be required given the gravity of the potential risk. They cannot provide conclusive evidence that the Russians are, in fact, complying with the warhead limit. Third, the New START treaty handcuffs the United States from deploying new capabilities we need to defend our Nation and our allies from missile attacks. I would just point out that this chart I have in the Chamber demonstrates the ballistic missile threat that is presented in a map of Europe and Africa and Asia. You will notice that Russia is not even on this map. But you will notice a number of other ballistic missile threats that could affect not only the United States but most certainly our allies. This map is a compilation from the Missile Defense Agency based on information from several agencies in the intelligence community and shows that more than a dozen nations--more than a dozen nations--have developed or are developing ballistic missile capabilities. Several of these nations are notorious for that--North Korea, Iran, and Libya, just to name a few. But we know others, such as Yemen and Pakistan, have al-Qaida operatives or other extremist groups operating within their borders. The fact is, we need a robust missile defense capability, not to protect us from Russian ballistic missiles but from ballistic missiles from some of these other nations that have developed them, some of whom have groups such as al-Qaida and other terrorist organizations there that would love to get their hands on some of these weapons and use them against America or our allies. That is why it makes absolutely no sense to constrain our future missile defense options in exchange for reductions in the strategic nuclear weapons of just one country, and that is Russia. Now, some of my colleagues may be arguing there are no limitations on missile defense in the treaty and that the language in the preamble, which ties our strategic offensive arms to our strategic defensive arms--for the first time ever, by the way--that this preamble language does not mean anything, does not operate as a constraint on our missile defense programs. But that is not what the Russians have said. That is not how they read it. Of course, the Senate has been denied the negotiating record by which we could actually clarify what was said by American negotiators and Russian negotiators in coming up with this language. Isn't that something you would think the administration would want clarified, if they could clarify it by providing this information? But, no, we have been stonewalled and told: You cannot have it, Senate, even though under article II, section 2 of the Constitution, you have a constitutional duty when it comes to treaty ratification. I just think it is a very poor way to do business, to say the least, and causes me to question whether there is a uniform understanding of constraints on our missile defense system. Again, you can see that the risk is not just from Russia, it is much more widespread, unfortunately, than that. Russia has also made a unilateral statement that it claims the right to withdraw from the New START treaty if the United States does, in fact, expand our missile defense capability. Doug Feith shed some light on this issue earlier in an op-ed piece in the Wall Street Journal. Mr. Feith, of course, as you remember, is a former Under Secretary of Defense under the Bush administration, and he helped negotiate the Strategic Offensive Reductions Treaty, known as the SORT treaty. He says during those negotiations, the Russians were constantly trying to get the Americans to negotiate away our right to defend ourselves from missile attacks. The Bush administration rightly rejected those Russian demands, and they got a good treaty anyway. But the Obama administration, in this treaty, gave Russia what it wanted when it came to our missile defense, among other concessions as well--a very serious concern, I would say. The New START treaty has other flaws, but even if it was an outstanding treaty, I think the gravity of what we are about here--in considering this treaty, and reductions in nuclear arms, and trying to make the world a more secure and safer place--that it warrants more careful and deliberate consideration of this treaty than we are going to be able to give during this lameduck session. I have heard people talk about, well, the fact that this is the Christmas season--of course, we would all like to be with our families. But we recognize the fact that we have important obligations to perform in the Senate. I think all of us are willing to perform those. But the problem is, we have had an election on November 2, and there are a lot of people, as the Senator from Oklahoma said, who were just elected by the American people who would be denied an opportunity to let their voice be heard on such an important issue if this treaty is jammed through during the waning days of the 111th Congress. Now, we know the legitimacy of our government itself rests upon the consent of the governed. The fact is, during the most recent election the American people said they don't like the direction Washington is heading and they want us to change. The idea that we would then--after the election takes place but before the new Senators in Congress are actually sworn in--try to rush through such important matters such as this treaty and deny them an opportunity, and the voices of the people who elected them to be heard, to me, does not speak well of this process, and I think indeed denies us the legitimacy of the consent of the governed, or certainly many of them. Let's be clear about what is happening. We know the administration wants a vote on this New START treaty because they think they have a better chance of passing it now than when these new Senators are sworn in on January 5. There is no one I have heard who has suggested there is a national security threat to the United States from delaying the ratification of this treaty by a month. No one. I don't think they could plausibly make such a contention. I think there is a little bit of an attempt to focus our attention away from the $1.2 trillion spending tsunami that was unleashed on Congress just 2 days ago in which we are told Senator Reid, the majority leader, is going to insist be voted on in just a few days. I think a better alternative to that, and certainly a better alternative than to go through this unnecessary drama about government shutdowns, is to pass a one-page continuing resolution that would keep the government operating until January or February, at which time these newly elected Senators and House Members would be able to participate. It would be the time when we could certainly take up this treaty and give it thoughtful and careful consideration, the kind of debate and amendment process I think our responsibility requires rather than trying to move it through in this irresponsible manner. This omnibus bill I mentioned earlier will no doubt be called up later today, perhaps, and be attached to a continuing resolution and then cloture filed, asking 60 Senators to agree to close off debate, denying any opportunity for amendments and the kind of consideration I think the American people would want us to have for a $1.2 trillion spending bill. We know Christmas is almost here and many Americans look forward to celebrating that important holiday and reflecting on what comes with the new year. I hope our friends on the other side of the aisle will reconsider the tactics they are employing during this lameduck session to try to gloss over or ignore the important substantive concerns many of us have about this very significant treaty and to ram through unpopular legislation just as happened last year on Christmas Eve with the passage of the health care bill. Many Americans remember passing that bill on Christmas Eve in the Senate, and they were outraged by the process, by the back-room negotiations and deals that took place in order to get over the 60-vote threshold. So this year I would submit that millions of Americans want just one thing from Congress, and that would be a silent night. Let's pray they get it. If the Senator still has a question or two for me, I would be glad to yield for that purpose. I thank the chair and yield the floor.

Mr. CORNYN

Mr. CORNYN. Mr. President, I join my colleagues in appreciation and admiration of Senator Bob Bennett. Senator Bennett understood the perspectives of America's small business owners. After all, he was one of them. As CEO of Franklin Quest, Bob grew the company from 4 employees to over 1,000. During his tenure the firm became one of the best known providers of time management seminars and products, and became listed on the New York Stock Exchange. Reducing obstacles for small business owners has been one of Senator Bennett's top priorities in Washington. In his first 6 months of service, he took to the floor to identify three ways the Federal Government was growing at the expense of the entrepreneur. Those three obstacles--increased regulation, increased taxation, and increased difficulty in capital formation--remain challenges to job creators today, and Bob has never stopped voicing their concerns. Senator Bennett was elected to the U.S. Senate from his beloved State of Utah, which his father, Senator Wallace Bennett, represented for many years. And by the time I was elected to the Chamber, Senator Bennett had already been one of the ``wise ones'' in his own right for many years. I have long admired Bob's sincere appreciation and respect for the traditions and history of the Senate--to which he and his father have both contributed tremendously. Throughout his service here in Washington, Bob's family has helped keep him grounded--all 6 children and 20 grandchildren. Sandy and I wish the best for Bob and his wife Joyce. Sam Brownback Mr. President, I join my colleagues in appreciation and admiration of Senator Sam Brownback. Sam's commitment to public service grew out of the farmlands where he was raised and where his parents still reside. As a student, Sam earned the respect of his peers as State president of the Future Farmers of America and student body president at Kansas State University. The people of Kansas have put their trust in Sam multiple times: as their Secretary of Agriculture, as one of their members in the House of Representatives, and for 14 years in the U.S. Senate. Sam drew upon his experience in Kansas to shape legislation here in Washington. He offered legislation to create more opportunity for America's farmers, and to reduce foreign trade barriers to their products. In time Sam rose to become a leader on the Senate Appropriations Committee, as well as the Energy and Natural Resources Committee. Sam also has a heart for victims of disease and human rights violations all over the world. He proposed incentives for drug companies to offer discounts for life-savings medications for people of developing nations. He boldly called for the end to human rights violations in Darfur and Iran. I have been proud to stand with him on numerous pieces of human rights legislation, including the Iran Democratic Transition Act in this Congress. Sam's tenure in the Senate has come to an end, but not his service to the people of Kansas. They overwhelmingly called him back home to serve as their Governor, and begin the next chapter in his remarkable career. Sandy and I wish him and his family all the best. Judd Gregg Mr. President, today I would like to join with my colleagues in appreciation and admiration of Senator Judd Gregg of New Hampshire. Judd is a native of New Hampshire and after practicing as an attorney in Nashua, where he was born, he began a devoted career of public service to his State. Before coming to the Senate, Judd served as a member of his State's executive council, as a Representative, and then on to become, as his father Hugh Gregg had been before him, Governor of the Granite State. Judd was a successful and accomplished Governor. When he left Concord to join the Senate, he left his State with not only a balanced budget but a surplus as well. His leadership and record of fiscal responsibility has served as an example for our entire Nation to follow. His expertise on budgetary and fiscal issues has benefitted all his fellow Senators on the Budget Committee. As both chairman and ranking member of the committee, Judd put together both excellent staff and the resources necessary to advance our goals of cutting spending, balancing the budget, and reducing our nation's debt. With steps such as his successful sponsorship of the fiscal year 2006 budget resolution, which reduced mandatory spending for the first time in years, hard-working American taxpayers have saved billions thanks to Senator Gregg's efforts. Senator Gregg and I worked hard together in fighting to reduce our government's burden on taxpayers and the excessive spending that fuels it. We have both fought hard for our government to take our financial future seriously and to make the tough decisions necessary for it to be secured for our generation and for many more to come. I would like to thank Senator Gregg again for his leadership on these important issues, and his extensive service to the people of New Hampshire. My wife Sandy and I wish Senator Gregg, his wife Kathy, and their family all the best. Kit Bond Mr. President, I join my colleagues in appreciation and admiration of Senator Kit Bond. Kit has been a faithful public servant to the people of Missouri for many years. I feel privileged to have had the opportunity to serve alongside him in the U.S. Senate. Before being elected to this body, Kit made a strong impression as a student, a lawyer, and a public servant. He graduated Cum Laude from Princeton University, and was first in his law school class at the University of Virginia. He practiced law as an assistant attorney general for the State of Missouri under John Danforth, who himself was a future Senator from the ``Show-Me State.'' His colleagues at that time included John Ashcroft, who also went on to serve in this Chamber, and future Supreme Court Justice Clarence Thomas. Kit often jokes that he transitioned from the second most hated career--a lawyer--to the first: a politician. The people of Missouri have repeatedly affirmed that he made the right choice. They elected him to be their State Auditor. They elected him as the youngest Governor in Missouri's history. And they have elected him four times to represent them in the U.S. Senate. Senator Bond brought many of his passions as Governor to this Chamber, including his longtime support for Missouri's successful Parents as Teachers Program. He also kept a special place in his heart for issues relating to children. In time he rose to become a senior member of the Appropriations Committee as well as the Environment and Public Works Committees. Senator Bond and I worked most closely together on issues relating to national defense and foreign affairs. In this Congress alone, he and I jointly introduced the Military Voting Protection Act of 2009, the Iran Democratic Transition Act of 2010, and a resolution affirming Israel's right to self-defense. His leadership as vice chairman of the Select Committee on Intelligence has been a lasting contribution to the security of our Nation, Kit has helped shape legislation that will govern our Nation for years to come, but his spirit is what I will miss the most. As he has said: ``Serving Missouri has been my life's work. I have walked the land, fished its rivers and been humbled by the honesty and hard work of our people. The highest honor is to receive and safeguard the public trust.'' In his retirement, Kit will now have the opportunity to focus his time on his other loves: his wife Linda, his son Sam, and his new daughter-in-law Margaret. The Mizzou Tigers and the St. Louis Cardinals will also likely see him in the stands more often. Sandy and I wish both Kit and Linda the very best as they continue their journey together. Jim Bunning Mr. President, I join my colleagues in appreciation and admiration of Senator Jim Bunning. Millions of American baseball fans know Jim as one of the most accomplished athletes of his generation. Jim pitched for both the Detroit Tigers and Philadelphia Phillies during his 17-year career. He was the second pitcher in history to notch 100 wins and strike out 1,000 batters in both the American and National Leagues, and when he retired he was second on the all-time strikeout list. His impressive career earned him a spot in the Baseball Hall of Fame. While he wore the uniforms of teams in Michigan and Pennsylvania, Jim's heart never left his native Kentucky. Six years after retiring from baseball, Jim decided to run for public office and won a city council seat in Fort Thomas, KY. He was later elected to the Kentucky State Senate and became the Republican leader. Kentuckians then elected Jim to the U.S. House of Representatives for the 4th District of Kentucky where he served until 1998. During his time in the House, Jim committed himself to defending Social Security as chairman of the Social Security Subcommittee. His unwavering stance on protecting Social Security contributed to the establishment of the Social Security Administration as a separate agency. Jim was elected to the Senate in 1998 and quickly became a strong voice for fiscal responsibility. He became the first native Kentuckian on the Finance Committee in 40 years, and also served on the Budget Committee--and in both capacities I had the opportunity to work with him. Jim also served as chairman of the Banking Committee's Economic Policy Subcommittee, where he authored legislation that reformed the National Flood Insurance Program and made it possible for millions of Americans to protect their homes affordably. Jim's passion for policymaking has helped him shape legislation that will govern our Nation for years to come, but his greatest legacy is his family. He and Mary raised 9 children and have 35 grandchildren and 4 great-grandchildren. Sandy and I offer our best wishes to the entire Bunning family, and we thank him for his years of service to our great Nation. George Voinovich Mr. President, I join my colleagues in appreciation and admiration of Senator George Voinovich. Senator Voinovich represents the great State of Ohio--and in some sense he has never left. He was born and raised in Cleveland, earned a bachelor of arts degree in government from Ohio University, and received a law degree from the Moritz College of Law at the Ohio State University. After more than four decades of public service, he and Janet still live in Cleveland with their family. Before coming to Washington, Senator Voinovich established a long record of service to the people of the Buckeye State: as a member of the State legislature, a Cuyahoga County Commissioner, the Lieutenant Governor of Ohio, mayor of Cleveland and Governor of Ohio. As mayor of Cleveland, he helped turn around the local economy after the city declared bankruptcy in the 1970s. As Governor, George spearheaded economic recovery efforts after Ohio fell into a recession during the early 1990s. He helped reduce Ohio's unemployment rate to a 25-year low and maintained the lowest budgetary growth levels in 30 years. Along the way, he became the only person to hold the highest leadership positions in both the National Governors Association and the National League of Cities. The people of Ohio sent George to Washington to serve in the U.S. Senate in 1998 and then reelected him 6 years ago in a landslide victory. Senator Voinovich's policy accomplishments reflect his dedication to maintaining fiscal responsibility, enhancing national security, increasing America's global competitiveness, and improving the federal government's efficiency. His Mortgage Relief Act of 2007 was the first piece of legislation to be signed into law that aimed to lessen the impact of America's foreclosure crisis. Senator Voinovich has also been a strong voice for America's interests and values all over the world. He has been a strong proponent of NATO expansion, U.N. reform, and U.S. public diplomacy efforts. He has also spoken out strongly against global anti- Semitism, racism and other forms of intolerance. Sandy and I wish all the best to George and Janet, as well as their three children and eight grandchildren. And we thank George for his many years of service in the U.S. Senate. Jim Bunning

Mr. CORNYN

Mr. CORNYN. Mr. President, this week, the U.S. Senate took an important vote to prevent the largest tax increase in American history--and help get America's job creators off the sidelines. I voted for this bill for one simple reason: raising taxes during a recession on anyone is not a good idea. This bill prevents tax increases on every American who pays income taxes, because it keeps the lowest bracket at 10 percent; keeps the highest bracket 35 percent; preserves relief from the marriage penalty--as well as the $1,000 per child tax credit; blocks higher taxes on capital gains and dividends; protects at least 21 million families from the alternative minimum tax; and reduces the ``death tax'' by 20 percent from what it would have been on January 1. Some of my fellow conservatives have reservations about this bill, and I share them. This bill certainly falls far short of what I think we would see if Republicans controlled both Chambers of Congress and the White House. I think we would see a permanent extension of all the 2001 and 2003 tax relief; a much lower estate tax; and zero new spending or tax breaks for special interests. But given that President Obama will hold the veto pen for at least 2 more years--and given all the class-warfare rhetoric that the President and the majority have indulged in over the last few years--I consider an extension of tax relief for every American taxpayer to be a remarkable legislative achievement for Republicans. One pundit summed up the agreement this way: ``If someone had told me, the day after Election Day 2008, that tax rates on income and capital would not increase for the next four years, I would have laughed at them. Now it's about to come true, and Presidents Obama and Clinton are helping make it happen.'' The only thing I would add to that statement is that several of my colleagues deserve credit for making this agreement happen--especially Senator McConnell, Senator Kyl, and Senator Grassley. Some of my colleagues on the other side of the aisle have also raised objections to this legislation--and I would like to respond to just one of those objections: the claim that it is hypocritical to say you are concerned about the deficit but then vote to keep taxes low on American families and small businesses. Let me set the record straight on what actually happened to the deficit once the tax relief Congress originally passed in 2001 and 2003 began to kick in to our economy. As our colleagues remind us constantly, deficits did go up during the first years of the Bush administration--in part due to the collapse of the dot-com bubble, the recession, and 9/11. In fact, by fiscal year 2004, the deficit was up to $413 billion, or 3.5 percent of GDP. But then, just as the 2001 and 2003 tax relief started to kick in, a strange thing happened to the deficit: It went down to $318 billion in fiscal year 2005, then down again to $248 billion in fiscal year 2006, and then down to $161 billion in fiscal year 2007. By then our deficit was only 1.2 percent of GDP. Now why did the deficit go down in those years? One big reason is that tax relief helped grow the economy; got about 8 million more people on the payroll between 2003 and 2007; and therefore generated more tax revenue. I think the person who said it best was Austin Goolsbee, the chairman of the President's Council of Economic Advisers. On ``Meet the Press'' Sunday, he had this to say: ``You cannot reduce the deficit if the economy is not growing, period.'' I agree. Now I also agree that preventing a massive tax increase is not the only thing we must do to get our national debt under control. We must cut government spending--and that means killing the $1.3 trillion omnibus spending bill the majority introduced yesterday. We must study the proposals of the President's Debt Commission--and take action to prevent the looming fiscal catastrophe that they described. We must address head-on the need for reform in our entitlement programs like Social Security and Medicare--and put them on a sustainable path. And we must pass a balanced budget amendment to the U.S. Constitution. We can begin addressing all of these tough decisions in just a few weeks--once the new Congress elected by the American people is sworn in. Today, our urgent decision is whether we want taxes to go up on January 1, or rather extend the tax relief and remove a huge element of uncertainty among our job creators. I believe the choice is clear, and so do the American people. 69 percent of the American people support this legislation, according to a poll released yesterday by the Washington Post and ABC News. As usual, the American people have got it right.

Mr. CORNYN

Mr. CORNYN. Mr. President, I rise today to discuss the upcoming cloture vote on the motion to proceed to the DREAM Act. I have great sympathy for students brought to the United States at a very young age who have no moral culpability for being in this country in violation of our laws. I have listened to many stories about how our broken immigration system has failed these students, and I have discussed this issue with many Hispanic leaders in Texas and across the Nation. Last week, we learned that the unemployment rate went back up to 9.8 percent in November--and more than 15 million Americans cannot find a job. In the Hispanic community, things are even worse. The unemployment rate is up to an astonishing 13.2 percent the highest rate in 27 years. And it has been above double digits every month since the stimulus bill became law in February 2009. That's why I agree with my Republican colleagues that the only items on our agenda during this lameduck session should be time-sensitive issues focused on the economy. Those time-sensitive issues include passing a continuing resolution to keep the government running, as well as preventing the largest tax hike in U.S. history. Everything else that can wait should wait until the new Congress convenes in January. Nevertheless, I do have sympathy with students who would benefit from the DREAM Act. And that is why I voted for a version of this legislation in the Judiciary Committee in 2003. But as I said then and continue to say today: it is important to get the details right with sensitive legislation like this. Unfortunately, the version of the DREAM Act before us has several problems we have identified previously over the last several years. Under this version of the DREAM Act, a 30-year-old illegal immigrant with only 2 years of post-high school education would be eligible for a green card--regardless of whether he or she ever earned a degree. Under this version of the DREAM Act, a thirty year old illegal immigrant who has been convicted of two misdemeanors would be eligible for a green card--and let's remind ourselves that many misdemeanors are not minor offenses. In many States, they include: driving under the influence; drug possession; burglary; theft; assault; and many other serious crimes. In New York, ``sexual assault of a minor in the third degree'' is a misdemeanor offense. Someone with two convictions for any of these crimes would be eligible for a green card under this legislation. And that doesn't even include people who are prosecuted for felonies--but who plead guilty to a misdemeanor as part of a plea agreement. This version of the DREAM Act also has very weak protections against fraud. As we saw in 1986, any time we expand eligibility for an immigration benefit we will create a new opportunity for fraud if we are not careful. Yet this bill actually protects the confidentiality of a DREAM Act application--even if it contains false information. These are just some of the problems in this version of the DREAM Act that should have been debated in the Judiciary Committee, and subject to amendment under the regular order. None of these concerns with the DREAM Act are new, by the way. Like other Senators, I have made clear for years my concerns about loopholes for convicted criminals as well as protections against fraud. Washington's credibility is the obstacle to broader immigration reform and rushing a flawed version of the DREAM Act in a lameduck session will only weaken Washington's credibility even further. I also believe that these tactics show a lack of respect for those of us who want to see credible immigration reform. We all know that the majority--as well as the White House--have not kept their promises on immigration reform. They clearly hope a last-minute push for the DREAM Act during a lameluck session will outweigh 2 years of inaction and broken promises on this issue. These tactics clearly represent political gamesmanship: a cynical attempt to play on the hearts and minds of those who want real reform. I continue to believe that our Nation would benefit from the DREAM Act being introduced and debated in committee; amended to address concerns with the bill; and incorporated into a credible immigration reform package that begins with border security and can win the support of the American people. That is the kind of approach we need--the kind of approach I hope we can get once the new Congress takes up its responsibilities in January.

Mr. CORNYN

Mr. CORNYN. Mr. President, I intend to defer to Senator Harkin for I understand 15 minutes. I wish to offer a brief unanimous-consent request that following Senator Harkin's speech for up to 15 minutes I be recognized for 5 minutes, and that any remaining time on our side be reserved for Senator Enzi, the Senator from Wyoming.

Mr. CORNYN. I thank the Chair.

Mr. CORNYN

Mr. CORNYN. Mr. President, I want to briefly draw attention to a resolution that the conference of Republican Senators and Senators- elect adopted yesterday, one that I think fits the times we are living in, one which has seen historic levels of Federal spending and debt and deficits, as well as unsustainable debt that will be inherited by our children and grandchildren, unless we take responsibility for it. This resolution, I think, would demonstrate the seriousness that we would have as a Congress to get our Nation's fiscal house in order. This resolution reads: It is Resolved by the United States Senate Republican conference: That a Balanced Budget Amendment to the United States Constitution is necessary to restore fiscal discipline to our Republic; That a Balanced Budget Amendment should require the President to submit to Congress a proposed budget prior to each fiscal year in which total federal spending does not exceed total federal revenue; That a Balanced Budget Amendment should include a requirement that a supermajority of both houses of Congress be necessary to increase taxes; That a Balanced Budget Amendment should include a limitation on total federal spending. I thank the 20 Republican Senators and Senators-elect who cosponsored this resolution and the members of the conference who voted to adopt it. Let me share with you a few factoids that I think will demonstrate the compelling nature of this joint resolution and constitutional amendment. In fiscal year 2010, our deficit was $1.3 trillion or 8.9 percent of the gross domestic product. That is actually down from 9.9 percent in fiscal year 2009, but certainly nothing to celebrate. The Congressional Budget Office baseline estimates that Federal deficits will average $605 billion each year through 2020, and the budget that the President submitted to us this year, itself, if implemented, would call for an average of $1 trillion of deficit each year for the next 10 years. We know that the Budget Act passed by Congress, signed by the President, requires the President of the United States to submit his budget by the first Monday in February. I can tell you that I am anxiously awaiting to see in that budget proposal submitted by the President by the first Monday in February his commitment to fiscal discipline--now particularly since the American people have spoken so loudly and clearly about their concerns over reckless spending and endless debt. We know a balanced budget amendment actually works, because virtually every State in the Nation has one, including my State of Texas. Only the Federal Government has no requirement of a balanced budget and can spend huge deficits and borrow money it does not have. No family in America, or small business, when income goes down, can continue to spend at the same level. They have to live within their means. So should the U.S. Government. We also know that a balanced budget amendment is popular with the public. A recent referendum held by Florida voters showed that 71 percent approved a nonbinding resolution supporting a balanced budget amendment. We have had votes in the Senate on this not that long ago. I believe it was in 1997, so I will let you judge whether it was long ago. Sixty-six Senators at the time voted in favor of a balanced budget amendment or 1 shy of the two-thirds necessary, including 11 colleagues on the other side of the aisle, demonstrating the bipartisan support for a balanced budget amendment. It is important to note that at that time, when 66 Senators voted on a bipartisan basis for a balanced budget amendment, the deficit was only 1.4 percent of GDP. Today, it is 8.9 percent. I think if a balanced budget amendment was a good idea--at least in the minds of 66 Senators--in 1997, it is even a better idea today. So I hope colleagues on both sides of the aisle will join with me to offer ideas on drafting this joint resolution. Of course, as you know, under Article V of the Constitution of the United States, a constitutional amendment can emanate from Congress itself with a two-thirds vote or it can be the result of a constitutional convention. Under either circumstance, three-quarters of the States would be necessary to ratify it. I think if Republicans and Democrats can listen to the voice of the American people and get behind a joint resolution, it will restore some of the public's lost confidence in our ability and our willingness both to heed their voice and also live up to our responsibility. I think a balanced budget amendment would be a big step forward in the cause of fiscal discipline but, of course, not the only step. As the cochairs of the President's debt commission have already indicated, we need other measures. One that caught my eye they called a ``cut and invest committee,'' charged with trimming waste and targeting investment. They noticed a good example at the State level, in my State of Texas, where we have a sunset commission that requires, every 10 years, every State agency to go through a process to determine whether the programs and the agency itself continue to have good reason to exist at the spending levels authorized. We need something such as that, which will provide a tremendous ability for us to have additional tools to contain costs and avoid wasteful spending. To that end, I have put forth a model of the bill of the Texas sunset commission, called the United States Authorization and Sunset Commission Act. I urge my colleagues to take a look at that, and I can assure you that, come January, when we have a new Congress, I will offer that legislation. I yield the floor.

Mr. CORNYN

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

Mr. CORNYN

Mr. CORNYN. Mr. President, this past summer the people of Alaska lost one of its favorite sons, and many of us in the U.S. Senate lost one of our mentors and friends. His name was Senator Ted Stevens. By the time I took my seat in this Chamber, Senator Stevens had already held his for more than three decades. He chaired numerous committees, served as President pro tempore, and was widely regarded as one of the most gifted parliamentarians on our side of the aisle. His forty years of service is the longest tenure of any Republican in the history of the United States Senate. Senator Stevens championed landmark legislation that has transformed Alaska, America, and the world. He helped settle land claims of Native Americans, guard fisheries and protect natural wonders of his home State. He helped guide the Trans-Alaska Pipeline Act into law, which has dramatically improved our Nation's energy security. He helped strengthen our Armed Forces to defend America's interests and values. He helped reform the United States Olympic Committee, and has given generations of American athletes the chance to succeed at the highest levels of international competition. Ted Stevens' devotion to his adopted home State extended well beyond his service in Washington. After earning a Distinguished Flying Cross in World War II and graduating from Harvard Law School, he served as U.S. attorney in Fairbanks. In 1958, as legislative counsel for the Department of the Interior here in Washington, he helped shepherd Alaska's Statehood Act into law. In 1999, his State's legislature named him the ``Alaskan of the Century.'' As one of his family members put it, the legacy of Ted Stevens is the 49th star on the American flag. Four other individuals perished in the plane crash that claimed the life of Senator Ted Stevens on August 9, and we pray for all those who lost loved ones on that night. Sandy and I especially keep in our hearts those whom Ted Stevens loved most: his wife Catherine, his 6 children, his 11 grandchildren, and the nearly 700,000 Alaskans who cherish the memory of ``Uncle Ted.''

Mr. CORNYN

Mr. CORNYN. Mr. President, today my colleague Senator Hutchison and I have introduced legislation to repeal a House provision in the Education Jobs Bill that discriminates solely against the state of Texas. As a result of the House language, Texas will be denied over $800 million in federal funding. The Hutchison-Cornyn bill will strip the language requiring Texas to make a commitment for three years of funding in order to be eligible for any of the $10 billion in the Education Jobs Fund. To be in compliance with the provision, the state would have to violate its own constitution. The Texas Legislature has sole authority to determine state appropriations--they cannot be dictated by the federal government. Additionally, one legislature cannot bind a future legislature. Moreover, this provision singles out Texas because all other states must only commit to one year of funding in order to receive Education Jobs Program funding. The House language also stipulates that Texas must distribute funds through Title I funding formula, rather than allowing the governor to determine the funding distribution, as is the case in the other states and territories. In Texas this would preclude 31 districts from receiving any funds, and will result in less funding for 66 percent of the state's school districts. Unfortunately, on September 9, 2010 the U.S. Department of Education denied an application from Texas Education Commissioner Robert Scott for $830 million from the Education Jobs Fund. The real impact of the House language, however, is felt in school districts across our state. Recently, for example, I received a letter from the Superintendent of the Hamlin Independent School District informing me that the West Texas school district was forced to cut more than $80,000 from the district's budget to cover rising salary costs. If Texas is prohibited from applying for the Education Jobs Fund, Hamlin ISD stands to lose over $90,000 in federal dollars, an amount that could compensate for the district's current budget cuts. Our bill would put a stop to Texas Democrats' efforts to play politics with much-needed funding for Texas schools and teachers. Texas taxpayer dollars belong in Texas schools--not in California or New York, as the Doggett Amendment would have it. I urge my colleagues to pass our bill so we can remove this partisan roadblock and move quickly to restore critical Federal funding to Texas schools.

Mr. CORNYN

Mr. CORNYN. Mr. President, I will vote against the nomination of Jane Stranch to the Sixth Circuit Court of Appeals. While several aspects of Ms. Stranch's record concern me, I will be voting no primarily because of Ms. Stranch's responses during her nomination process that demonstrate that it is proper for American judges to rely on contemporary foreign or international law in interpreting the U.S. Constitution. Reliance on contemporary foreign law to interpret our Constitution undermines democracy, American sovereignty, and the rule of law. In American democracy, the people are sovereign. The Constitution was ``ordained and established'' by ``We the People of the United States.'' As Chief Justice Marshall explained in McCulloch v. Maryland, ``[t]he government proceeds directly from the people'' and is established ``in the name of the people.'' When judges look to foreign nations to find new limitations on what laws the American people can enact through their elected representatives, they undermine democracy and make the will of the American people subservient to the opinions of foreign judges. Furthermore, because there are so many sources of foreign law available in the world, judges often pick and choose foreign citations that correspond with their own personal politics, preferences, and feelings in an effort to create the illusion that the judges' personal political agenda are somehow mandated by law. Under our Constitution, the people's right to govern themselves and make laws through their elected representatives is limited only by the Constitution itself, not by the opinions of foreign judges. In recent years, however, some judges have looked to foreign nations to strike down democratically enacted laws. For example, in Roper v. Simmons, the Supreme Court ruled that legislatures cannot impose capital punishment for heinous crimes committed by individuals under the age of 18. Justice Kennedy's majority opinion emphasized the ``weight of international opinion'' and cited the United Nations Convention on the Rights of the Child, among other sources. Just this year, in Graham v. Florida, the Supreme Court relied on ``the overwhelming weight of international opinion'' to find that life sentences are unconstitutional for juvenile criminals who commit crimes other than homicide. This trend of American judges overruling the will of the American people in favor of the opinions of foreign judges is worrisome. I was therefore disappointed in Ms. Stranch's statements to the Judiciary Committee that seem to endorse this practice. Specifically, Ms. Stranch took the position that American judges may use foreign law in their opinions ``for such purposes as extrapolating on societal norms and standards of decency, refuting contrary assertions or confirming American views.'' She actually praised the Supreme Court for what she called its ``restraint'' in citing foreign law, and argued that the Supreme Court's recent use of foreign law in cases such as Roper and Graham should be a ``model for the lower courts.'' This is a very troubling view. The Supreme Court's increasing reliance on the opinions of contemporary foreign judges has not been restrained, and should not be a model for American judges. Rather, American judges interpreting the U.S. Constitution should constrain themselves to interpreting the text and meaning of that document alone. Because Ms. Stranch's answers indicate that she will rely on foreign law as a pretense for imposing her personal political beliefs on the American people, and because reliance on contemporary foreign law in interpreting the U.S. Constitution threatens democracy, American sovereignty, and the rule of law, I will vote no on this nomination.

Mr. CORNYN

Mr. CORNYN. Mr. President, today my colleague Senator Hutchison and I have introduced legislation to repeal a House provision in the Education Jobs Bill that discriminates solely against the state of Texas. As a result of the House language, Texas will be denied over $800 million in federal funding. The Hutchison-Cornyn bill will strip the language requiring Texas to make a commitment for three years of funding in order to be eligible for any of the $10 billion in the Education Jobs Fund. To be in compliance with the provision, the state would have to violate its own constitution. The Texas Legislature has sole authority to determine state appropriations--they cannot be dictated by the federal government. Additionally, one legislature cannot bind a future legislature. Moreover, this provision singles out Texas because all other states must only commit to one year of funding in order to receive Education Jobs Program funding. The House language also stipulates that Texas must distribute funds through Title I funding formula, rather than allowing the governor to determine the funding distribution, as is the case in the other states and territories. In Texas this would preclude 31 districts from receiving any funds, and will result in less funding for 66 percent of the state's school districts. Unfortunately, on September 9, 2010 the U.S. Department of Education denied an application from Texas Education Commissioner Robert Scott for $830 million from the Education Jobs Fund. The real impact of the House language, however, is felt in school districts across our state. Recently, for example, I received a letter from the Superintendent of the Hamlin Independent School District informing me that the West Texas school district was forced to cut more than $80,000 from the district's budget to cover rising salary costs. If Texas is prohibited from applying for the Education Jobs Fund, Hamlin ISD stands to lose over $90,000 in federal dollars, an amount that could compensate for the district's current budget cuts. Our bill would put a stop to Texas Democrats' efforts to play politics with much-needed funding for Texas schools and teachers. Texas taxpayer dollars belong in Texas schools--not in California or New York, as the Doggett Amendment would have it. I urge my colleagues to pass our bill so we can remove this partisan roadblock and move quickly to restore critical Federal funding to Texas schools.

Mr. CORNYN

Mr. CORNYN. Mr. President, I rise to thank and congratulate my colleagues for passing the Secure and Responsible Drug Disposal Act by unanimous consent. I am proud to have worked closely with Senator Klobuchar to draft and introduce the bill, and I thank her and her chief counsel, Paige Herwig, for their ideas and advocacy of commonsense drug disposal solutions. The Secure and Responsible Drug Disposal Act will make a cost-free change to the Controlled Substances Act to permit State and private entities to accept unused controlled substances through drug take-back programs. As the Senate unanimously recognized, the Secure and Responsible Drug Disposal Act is necessary because up to 17 percent of prescribed medication goes unused every year. State, local, and private entities already have established drug take-back programs to keep some of this unwanted medication away from children and drug abusers. But the Federal Controlled Substances Act, CSA, currently prevents these drug take-back programs from accepting the most dangerous medications--controlled substances. The CSA particularly prohibits people prescribed controlled substances from giving them to any person or entity without express permission from the Drug Enforcement Administration. As a result, individual consumers and long-term care facilities now either stockpile unwanted controlled substances or dispose of them in improper ways, such as flushing them into the water supply. This can lead to drug diversion or water pollution. Diverted prescription drugs contributed to a 114-percent increase in overdose deaths involving prescription opioids between 2001 and 2005, and the number of treatment admissions for prescription opioids increased 74 percent from 2002 to 2006. Troublingly, over one-third of new prescription drug abusers are teenagers, who now abuse prescription drugs more than any controlled substance except marijuana. This bill will fix the problems of unwanted prescription drug stockpiling and improper disposal by amending the CSA to allow the Attorney General to draft regulations permitting authorized entities to accept and dispose of controlled substances. These regulations will enable state, local, and private entities to operate drug take-back programs for all prescription drugs in a safe and effective manner consistent with diversion controls. In discussing how the bill will allow drug take-back programs to accept unwanted controlled substances, I want to highlight certain provisions we added to the bill after collaborating with House colleagues and their staff. First, in authorizing new drug disposal regulations, the bill makes clear that ``the Attorney General shall take into consideration the public health and safety, as well as the ease and cost of program implementation and participation by various communities.'' Representative Jay Inslee, who has been a strong advocate for drug disposal programs, suggested this important provision. It ensures that the planned drug disposal regulations will give States and private entities wide latitude to design the most effective take-back programs for their communities. This includes considering the differences between rural and urban communities. Second, the bill notes that the Attorney General's regulations ``may not require any entity to establish or operate a delivery or disposal program.'' Representative Joe Barton, along with other members of the House Energy and Commerce Committee, proposed this language to clarify that no State, town, or business will have to run a drug take-back program unless they want to do so. This provision is a welcomed change from the type of unfunded mandates we so often see in Federal laws. Third, the bill allows long-term care facilities to dispose of their residents' medications, and it permits ``any person lawfully entitled to dispose of [a] decedent's property'' to deliver the decedent's unused medication for disposal. These common-sense provisions were advanced by Representatives Bart Stupak, Henry Waxman, Lamar Smith, and other House members. They address the specific concerns of long-term care facilities and the practical worries of anyone who loses a loved one. These collected provisions, along with the bill's ``no cost'' estimate from the Congressional Budget Office, are among the many reasons the bill enjoys the support of 41 State attorneys general, the Department of Justice, and the National Association of Chain Drug Stores. They also prove that this bill is bicameral in its design, as well as bipartisan. By passing this bill, we have taken a major step toward getting unwanted prescription drugs out of medicine cabinets and off our streets. We have given State, local, and private groups more authority to serve their communities, and we have done so in a cost-free manner. I believe the Secure and Responsible Drug Disposal Act exemplifies the type of bipartisan legislation Congress should look to pass. I thank my colleagues again for supporting it unanimously, and I look forward to it becoming law.

Mr. CORNYN

Mr. CORNYN. Mr. President, I want to address the nomination of Solicitor General Kagan to serve on the U.S. Supreme Court. Earlier this week, I discussed my opposition to the nomination, but at that time I didn't go into any depth about my concerns with regard to her participation in the military recruiting policy that banned the U.S. military from the Office of Career Services at Harvard Law School. While this incident has been discussed a lot, I think it is very important to establish for the record exactly what happened. I believe a due respect for the men and women of our military and the gravity of this debate demand a full review of the facts behind what Elena Kagan did as dean of the Harvard Law School to exclude and stigmatize the U.S. military. Harvard Law School adopted an antidiscrimination policy in 1979. This policy states that any employer that wished to use the Office of Career Services at the law school had to sign a statement affirming that it does not discriminate on various bases, including sexual orientation. The military--not just because of its policy but because of the policy of the Congress and the law that we passed--could not sign this statement because of the don't ask, don't tell policy adopted during the Clinton administration. In 1993, when a Democratic Congress and the Clinton administration changed the military's outright ban on gays in the military to adopt this don't ask, don't tell policy, Harvard took the position that the military was still not in compliance with its antidiscrimination policy. As a result of Harvard's policy, from 1979 through 2002, the U.S. military was barred from recruiting individuals at the Harvard Law School's Office of Career Services, where everyone else who was recruiting on campus was allowed to conduct interviews and recruit potential candidates. While this ban on the services of the Office of Career Services was in effect, the Harvard Law School Veterans Association essentially took the place of the Office of Career Services and established an off- campus interview forum for law students interested in serving their country in the U.S. military. So because they were banned from the Office of Career Services, the military had to look for an alternative venue or forum provided by the Harvard Law School Veterans Association in order to conduct those interviews. But then something very important happened. In 1995, Congress enacted another law, popularly known as the Solomon Amendment. The Solomon Amendment said you cannot receive Federal funds--if you are an educational institution--if you, in effect, prohibit military recruiting on your campus. In other words, they could have continued their policy of discrimination against the military, but they would have been denied Federal funds under the plain wording of the Solomon Amendment passed in 1995. The Secretary of Defense, under the Solomon Amendment, has to make a finding that the school is not offering access to military recruiters that is ``equal in quality and scope to the access that the school provides other employers.'' That was the 1995 law. In 2002, the Secretary of Defense of the United States found that Harvard's exclusion of military recruiters from the Office of Career Services was not ``equal access.'' In response to this Federal law and the finding by the Secretary of Defense, Ms. Kagan's predecessor, Robert Clark, essentially capitulated and gave the military access to the Office of Career Services in 2002. So Dean Robert Clark, Dean Kagan's predecessor, rather than be denied Federal funds to Harvard by violating the Solomon Amendment and denying access to military recruiters to the Office of Career Services, decided in 2002 to change Harvard's policy. Thus, when Ms. Kagan became dean of the law school in the spring of 2003, the military had full access to the Office of Career Services to recruit interested candidates for military service. For a while, Dean Kagan maintained the military's access to the Office of Career Services in compliance with the Solomon Amendment. But it is clear that Dean Kagan did not like that because she voiced her political opposition to the don't ask, don't tell policy--in other words, the law enacted by Congress and to which the Department of Defense was accountable for enforcing--in an e-mail she sent to all of Harvard's law students saying that she ``abhorred'' the ``don't ask, don't tell policy'' and she considered it ``a moral injustice of the first order.'' In January 2004, Dean Kagan joined 53 other members of the Harvard law faculty in filing a friend of the court brief supporting a challenge to the Solomon Amendment in the Third Circuit Court of Appeals. So even though she maintained access for a while, inherited that policy under her predecessor, in 2004, when a lawsuit was filed to challenge the Solomon Amendment, Dean Kagan and other Harvard Law School faculty joined in a friend of the court brief to try to strike down the Solomon Amendment. In November of 2004, a split panel on the Third Circuit Court of Appeals actually held that the Solomon Amendment was reasonably likely to be unconstitutional and sent the case back to the district court with instructions to issue an injunction halting the Solomon Amendment's enforcement. Now, this is very important because the Third Circuit is one of our circuit courts of appeal in the United States, but it is not the U.S. Supreme Court. By that I mean when it makes a decision, its decision only applies to the territory or that part of the United States that is within the Third Circuit. That is important because Harvard is not in the Third Circuit. Harvard is in the First Circuit. So in effect, the Third Circuit panel's decision had no legal effect on Harvard Law School. Nevertheless, the very next day, after the Third Circuit issued its decision, Dean Kagan changed the Harvard Law School policy to once again bar the military from using the services of the Office of Career Services. In other words, she was not compelled to do so by law but exercising her discretion as dean, she chose to reinstate this policy of barring military recruiters from the Office of Career Services. Then, in January of 2005, the Third Circuit issued an order staying its enforcement pending a decision by the U.S. Supreme Court. After this, of course, the Third Circuit ruling did not even have any effect even in the Third Circuit, much less in the jurisdiction in the circuit with jurisdiction over Harvard. But even after the order was stayed, Ms. Kagan continued the policy of barring military recruiters from the Office of Career Services. While her policy barring military recruiters from the Office of Career Services was in effect, Dean Kagan approached the Harvard Law School Veterans Association and asked them to serve as an alternate channel for military recruiting at Harvard Law School. In 2005, the law school veterans declined, writing: Given our tiny membership, meager budget, and lack of any office space, we possess neither the time nor the resources to routinely schedule campus rooms or advertise extensively for outside organizations, as is the norm for most recruiting events. In short, the law school veterans told Dean Kagan that the separate access she wanted them to offer the military would not be equal because they didn't have the ability to match the resources of the Office of Career Services. In May 2005, the Supreme Court of the United States then said they were going to hear an appeal of the Third Circuit's decision, and they granted the writ of certiorari to the Defense Department's appeal of that case to review their finding on the Solomon Amendment. Over the summer of 2005, the Defense Department notified Dean Kagan that it would rescind Harvard's funding--in other words, it would deny Federal funding to Harvard pursuant to the Solomon Amendment--if she continued to deny the military access to the Office of Career Services. Faced with this ultimatum, on September 20, 2005, Dean Kagan finally ended her 10-month unlawful denial of access and announced that pending the Supreme Court's decision she would lift the ban and give the military access to the Office of Career Services. But in the meantime, she filed another friend of the court brief, this time in the Supreme Court of the United States, arguing the Solomon Amendment should not apply to her actions barring the military from the Harvard Law School's Office of Career Services. Ultimately, the Supreme Court unanimously rejected Dean Kagan's position and unanimously upheld the Solomon Amendment. To recap: Dean Kagan's ban on military recruiters lasted for 10 months--from November of 2004 through September of 2005. During that entire span of time, the Department of Defense position was always--was always--that the ban violated the congressionally passed Solomon Amendment. Never in that span of time did the Supreme Court, the First Circuit, or any other court with jurisdiction over Harvard adopt Dean Kagan's view regarding the scope or enforceability of the Solomon Amendment. In that span of time, only a split panel of the Third Circuit held that the Solomon Amendment was unenforceable, and for all but 2 months of that time, the Third Circuit's order was stayed. Despite all of this, Dean Kagan persisted in barring military recruiters from the Office of Career Services and insisted that the military could obtain separate but equal access to Harvard Law School through alternate routes. Dean Kagan held that the Supreme Court's position ran afoul of the Solomon Amendment, the findings of the Secretary of Defense, and ultimately the legal judgment of the entire Supreme Court. I believe these are the undisputed facts of the case. So why do Ms. Kagan's actions matter? I would argue that they matter for two reasons. First is the message her actions sent about her lack of respect for the U.S. military at Harvard Law School during her deanship. Ms. Kagan claims she holds the military in the highest respect, but I have to ask you, this notion that you are going to provide separate but equal access to interviewing services is not one that shows respect. It is one that provides an unnecessary and really reprehensible stigma on the U.S. military, which had no control over a policy passed by Congress under the Solomon Amendment. Of course, she did this at a time when hundreds of thousands of young men and women deployed to Iraq and Afghanistan were wearing the uniform of their country to protect their fellow citizens and the rule of law. Dean Kagan's actions in taking every step legally possible to relegate the military to what she herself believed was separate but equal status placed an unmistakable stigma on the military during a time of war. I believe her decision to stigmatize the military is reason enough to oppose her nomination to a lifetime seat on the U.S. Supreme Court, but her actions as dean are troubling for another reason as well. I believe her actions as dean indicate strong evidence that, as a Justice, someone sitting in judgment on the U.S. Supreme Court, she would tend to advance her political preferences rather than take a traditional approach of a judge in following the law. Many of our colleagues have pointed out correctly that Ms. Kagan has never been a judge. While that is not a requirement to serve on the Supreme Court, this lack of judicial experience makes it difficult to tell whether Ms. Kagan would adopt a judicial activist philosophy if she takes a seat on the Court. Because she has never held the job of a judge--we don't have any record to judge her by--we must look to the jobs she has held and the actions she has taken to see how she is likely to perform her job as a member of the U.S. Supreme Court. In the 10 months during which she banned the U.S. military from the Harvard Law School campus, I believe Dean Kagan showed a willingness to bend the law and facts to advance her own political goals of protesting the don't ask, don't tell policy and, as I said, stigmatizing the military in the process. Despite the lack of any binding authority, she adopted an interpretation of the Solomon Amendment so tenuous that it could not garner the vote of a single Justice on the U.S. Supreme Court, and she did so for the express purpose of advancing her objections to a policy she said she abhorred. Bending the law and the facts to reach a preferred result is exactly what judicial activists do, and there is a pattern in Ms. Kagan's legal career of bending the law and facts to advance her preferred policy results. So while Ms. Kagan has never been a judge, she has established a disturbing pattern of doing what judicial activists do. Ms. Kagan's actions in her previous jobs showed she is very likely not to embrace the role of a judge who decides cases based on the Constitution as written and the law as passed by Congress that she is responsible for enforcing if they are, in fact, constitutional but, rather, she gives every indication of someone who believes it is within her role and prerogative as a Justice to basically make the law rather than to enforce the law as written. No Member of this Chamber should be surprised if, for the rest of her life as a Supreme Court Justice, Ms. Kagan does not merely follow the law as written but, rather, bends the law to advance her progressive political agenda. Our Constitution is too precious and the Supreme Court is too powerful for us to accept without question a President's nominee to the Supreme Court. The Framers of the Constitution recognized the importance of this appointment and the power given to a Supreme Court Justice, who serves for life without any political accountability to the electorate. That is why they gave us the responsibility to give our advice and consent. The nomination and confirmation of a Supreme Court Justice is really a two-step process. First, the President makes his nomination. The President can nominate anyone the President wants who meets the qualifications of the Constitution. But then it is our responsibility to exercise our constitutional duty to provide advice and consent. I believe Ms. Kagan has failed to embrace the traditional view of judging that I believe all judges must adhere to at the risk of, rather, them becoming a lawmaker, which is incompatible with the role of a Justice. I believe a judge who assumes a role of being a policymaker or a lawmaker is, in essence, a lawbreaker. Indeed, Ms. Kagan's career up to this point shows a willingness to bend the law and the facts to advance her own beliefs, and I fear this trend will continue in an activist tenure on the Supreme Court. For these reasons, I oppose her nomination and will vote no.

Mr. CORNYN

Mr. CORNYN. Madam President, as an elected representative of the great State of Texas, I swore a solemn oath to uphold and defend the Constitution. So it is a great disappointment to discover that some Members of the other body are attempting to undermine the separation of powers enshrined in our Constitution. I am speaking, of course, about the House-passed language that was included in Senate amendment No. 4575, which I opposed earlier today. The language in the amendment unfairly requires the State of Texas to maintain fiscal year 2011 levels of State funding for elementary, secondary, and higher education spending for 2 additional fiscal years in order to receive a portion of the $10 billion Education Jobs Fund. This places an undue burden on a single State that is likely an unconstitutional condition on funding in violation of the Supreme Court's holding in South Dakota v. Dole. Specifically, the language conditions Texas's receipt of Federal education dollars on an event that would violate the Texas Constitution. The Texas Governor cannot make the required assurances because the Texas legislature, not the Governor, decides how to spend the State's money. Any attempt by the Governor to bind the legislature's hands would be ineffective because that office lacks the power, and the mere attempt could violate the Texas Constitution. Nor can the Governor make an assurance regarding the actions of a future legislature, as the amendment requires. Such conditions, which cannot be lawfully met, can have no possible relation to the Federal interest in education spending. According to the Congressional Research Service, the State's share of the $10 billion is estimated to be over $830 million. By ensuring that the State will not be able to access these funds, the Texas provisions effectively create a significant and substantial amount of discretionary funds available to the Secretary of Education. The practical effect of this petty, partisan gamesmanship will be to saddle future generations of Texans with a debt for which they are unlikely to receive any benefit. This was a shameful, irresponsible exercise in raw political power. Texas students deserve more than to be political pawns. Forcing the legislature and Governor to choose between violating the Texas Constitution or accepting Federal dollars is an abuse of Federal power and is a clear threat to the separation of powers. A State's elected government should not be made subjects of political appointees and unelected bureaucrats at the Department of Education.

Mr. CORNYN

Mr. CORNYN. Mr. President, today I am introducing the Economic Growth and Jobs Protection Act of 2010. This legislation would repeal the 3.8 percent tax on investment income that was included in the Health Care Reconciliation Act of 2010, P.L. 111-152, signed into law by the President earlier this year. I am pleased that Senator Roberts and Senator Crapo are cosponsors of this legislation. We know that taxpayers already face the largest tax increase in history when the 2001 and 2003 tax relief expire at the end of the year. Unless Congress acts, in less than 150 days: the highest individual tax bracket will rise from 35 percent to just under 40 percent; people in the lowest tax bracket will see a 50 percent tax increase, from 10 percent to 15 percent; the marriage penalty will increase; the child credit will be cut in half; and taxes on capital gains and dividends will increase. In other words, every taxpayer will pay higher taxes to Washington. But while taxpayers may be concerned about the upcoming tax shock, many may not be aware of another unpleasant surprise that will soon follow. The Health Care Reconciliation Act that was jammed through the Senate along partisan lines includes a $123 billion tax on the capital gains, dividends, rents, and interest earned by certain taxpayers. Enacting this permanent tax hike was a mistake then and is a mistake now. It will discourage savings and investment; it will reduce productivity and will depress wages and the standard of living for millions of Americans. According to the Institute for Research on the Economics of Taxation--a non-profit economic policy research and educational organization, a 2.9 percent tax would depress economic growth by 1.3 percent and reduce capital formation by 3.4 percent. The damage on job and economic growth would be even greater from a 3.8 percent investment tax. Simply put, increasing taxes on investment income is a job killer and increases uncertainty at a time that the Chairman of the Federal Reserve has told Congress that the economic outlook is ``unusually uncertain.'' Taxpayers, including small businesses, are already scheduled to get hit with the largest tax increase in history in less than 160 days if Congress fails to act. In fact, the top tax rate on capital gains will eventually be 23.8 percent as the rate bounces back to 20 percent from 15 percent. And the top tax rate for dividends will eventually rise to 43.4 percent. Why do we want to pile on the backs of working families and job creators with more taxes that do nothing to create jobs at a time that the national unemployment rate remains 9.5 percent and where in some States, such as Nevada, there is record unemployment? We know the key to job creation is to grow the economy and allow small businesses to flourish, invest and create jobs. In fact, according to the Federal Reserve Bank of Boston, we will need several years of very strong growth to reach 5 percent unemployment. For example, to reach 5 percent unemployment by the end of 2013, the economy would need to average 5 percent per year. To reach 5 percent unemployment by 2015 would still take growth of 4.2 percent a year. This is just one reason, that during the health care debate I offered a motion that would have directed the Senate Finance Committee to report the bill back without the 3.8 percent tax on the investment income. Although my attempt to strip out this job-killing tax fell short, I want to take this opportunity to note that 6 of my colleagues on the other side of the aisle supported my motion. Not only will this legislation protect jobs and the investment security of taxpayers, it will also make sure that Congress restores one of the President's campaign promises. On September 12, 2008, then- candidate Obama promised the American people that, ``Everyone in America--everyone--will pay lower taxes than they would under the rates Bill Clinton had in the 1990s.'' But when combined with the President's budget proposal, this additional tax on investment will raise taxes on many Americans higher than they were under the rates President Clinton had in the 1990s. I ask that my colleagues support this legislation that will repeal this job-killing tax on small business investment, and thus will protect economic growth, jobs, and the retirement savings of taxpayers. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. CORNYN

Mr. CORNYN. Mr. President, today I am introducing the Economic Growth and Jobs Protection Act of 2010. This legislation would repeal the 3.8 percent tax on investment income that was included in the Health Care Reconciliation Act of 2010, P.L. 111-152, signed into law by the President earlier this year. I am pleased that Senator Roberts and Senator Crapo are cosponsors of this legislation. We know that taxpayers already face the largest tax increase in history when the 2001 and 2003 tax relief expire at the end of the year. Unless Congress acts, in less than 150 days: the highest individual tax bracket will rise from 35 percent to just under 40 percent; people in the lowest tax bracket will see a 50 percent tax increase, from 10 percent to 15 percent; the marriage penalty will increase; the child credit will be cut in half; and taxes on capital gains and dividends will increase. In other words, every taxpayer will pay higher taxes to Washington. But while taxpayers may be concerned about the upcoming tax shock, many may not be aware of another unpleasant surprise that will soon follow. The Health Care Reconciliation Act that was jammed through the Senate along partisan lines includes a $123 billion tax on the capital gains, dividends, rents, and interest earned by certain taxpayers. Enacting this permanent tax hike was a mistake then and is a mistake now. It will discourage savings and investment; it will reduce productivity and will depress wages and the standard of living for millions of Americans. According to the Institute for Research on the Economics of Taxation--a non-profit economic policy research and educational organization, a 2.9 percent tax would depress economic growth by 1.3 percent and reduce capital formation by 3.4 percent. The damage on job and economic growth would be even greater from a 3.8 percent investment tax. Simply put, increasing taxes on investment income is a job killer and increases uncertainty at a time that the Chairman of the Federal Reserve has told Congress that the economic outlook is ``unusually uncertain.'' Taxpayers, including small businesses, are already scheduled to get hit with the largest tax increase in history in less than 160 days if Congress fails to act. In fact, the top tax rate on capital gains will eventually be 23.8 percent as the rate bounces back to 20 percent from 15 percent. And the top tax rate for dividends will eventually rise to 43.4 percent. Why do we want to pile on the backs of working families and job creators with more taxes that do nothing to create jobs at a time that the national unemployment rate remains 9.5 percent and where in some States, such as Nevada, there is record unemployment? We know the key to job creation is to grow the economy and allow small businesses to flourish, invest and create jobs. In fact, according to the Federal Reserve Bank of Boston, we will need several years of very strong growth to reach 5 percent unemployment. For example, to reach 5 percent unemployment by the end of 2013, the economy would need to average 5 percent per year. To reach 5 percent unemployment by 2015 would still take growth of 4.2 percent a year. This is just one reason, that during the health care debate I offered a motion that would have directed the Senate Finance Committee to report the bill back without the 3.8 percent tax on the investment income. Although my attempt to strip out this job-killing tax fell short, I want to take this opportunity to note that 6 of my colleagues on the other side of the aisle supported my motion. Not only will this legislation protect jobs and the investment security of taxpayers, it will also make sure that Congress restores one of the President's campaign promises. On September 12, 2008, then- candidate Obama promised the American people that, ``Everyone in America--everyone--will pay lower taxes than they would under the rates Bill Clinton had in the 1990s.'' But when combined with the President's budget proposal, this additional tax on investment will raise taxes on many Americans higher than they were under the rates President Clinton had in the 1990s. I ask that my colleagues support this legislation that will repeal this job-killing tax on small business investment, and thus will protect economic growth, jobs, and the retirement savings of taxpayers. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. CORNYN

Mr. CORNYN. Madam President, Solicitor General Elena Kagan has been nominated to fill the upcoming Supreme court vacancy left by the retirement of Justice John Paul Stevens. I know of few, if any, responsibilities of the Senate that are more important than the confirmation process providing, in the terms of the Constitution, ``Advice and Consent'' to the nomination of an individual to serve for life on the U.S. Supreme Court. There are two constitutional responsibilities that are invoked every time a nominee is chosen. One is by the President of the United States. It is his prerogative to choose whomsoever he wishes. But that is not the end of it. The second constitutional duty that is invoked anytime a vacancy occurs and a nomination is made is that of the Senate to provide, again in the terms of the Constitution, ``Advice and Consent'' on the nomination. That is what we are engaged in doing now--in deciding whether that advice and consent should be, yes, she shall serve, she shall be confirmed or, no, she should not be confirmed. We know judges are different. In the words of the high school civics class, we are called the three branches of government, and all three serve different functions. But the role of the judge is entirely different from the role of a Senator or the role of the President because they are nominated and appointed to serve for life and protected from having to run for office and seek election. They are given a limited but very important role in our government; that is, to render impartial justice, to make decisions based on the law, not based on perhaps their own political or ideological preference or a political agenda. I think it is very important that this process be fair and dignified, and I commend not just the chairman of the Judiciary Committee, Senator Leahy, but the ranking member, Senator Sessions of Alabama, who is in the Chamber, for making sure this nominee got the kind of confirmation hearing in the Judiciary Committee that, frankly, she deserves and that every nominee deserves whether or not they are confirmed. But at the same time, we need to make sure in addition to a dignified and fair process that it is thorough and it is careful and it is comprehensive. It is vital, in my view, to recall the core principles that should guide the Senate in carrying out its constitutional duty because I think today there is more of a sense than there has been at any other time in my adult life that the Federal Government simply does not recognize any constraints imposed upon its authority under the Constitution. Frankly, I think there is a widespread feeling across the country that the Federal Government--the National Government--believes it is, in effect, the only government in our country anymore and that the States and local governments are just the servants of the National Government. But that isn't, of course, how our Framers of the Constitution conceived of this unique form of government known as federalism, where the Federal Government, under our Constitution, is a government of delegated--or sometimes it is called enumerated--powers, and all rights--or all power--not given to the Federal Government are reserved, under the terms of the tenth amendment of the Constitution, to the people and to the States. I am afraid that Washington, DC, and particularly this Congress at this particular time, seem to have that turned around. Unfortunately, I worry that a Supreme Court Justice who does not recognize the limited nature of the authority given to the Federal Government, and who isn't willing to enforce it, is not qualified to serve on the U.S. Supreme Court. As the Federalist Papers remind us in Federalist 78: The courts must declare the sense of the law; and if they should be disposed to exercise will instead of judgment, the consequence would equally be the substitution of their pleasure to that of the legislative body. That is a little archaic--that kind of language, of course, going back a couple of centuries--but, basically, it means the people who are responsible for making policy are those who are elected and who have to stand before the people and ask for their vote; namely, the Members of Congress or the Chief Executive, the President, and not judges who are completely insulated from any political accountability for their decisions. The only reason the Constitution gives that sort of lifetime tenure and protection from the voters is because under the Constitution judges are not supposed to be making policy but merely enforcing the law that is made by the Congress and the President. It is very important that the power to make new laws belongs to the people--we the people--and not to unelected judges. When the Supreme Court presumes to create new rights, the Justices take away the power of the people to govern themselves through their elected representatives. It is completely turning democracy on its head--this idea of saying judges ought to be making policy even though unelected and serving with lifetime tenure and substituting their view for the views of the people and their elected representatives. That is not the way our democracy is supposed to work. Some have disagreed over the years and embraced this concept of judicial activism. According to those who subscribe to this view, the Constitution is somehow not a written document that we can read and understand what is in it, but it has become a ``living document,'' which has changed over time, even though the words on the paper remain the same. Unfortunately, this notion of a living document often is an excuse for judges to reach a desired outcome or a result in a lawsuit. This activist view takes the power to make and change the law away from we the people and gives that power to unelected judges who are insulated from any kind of accountability for their decisions, and it lets the Supreme Court decide what rights we have and what rights we don't have, which is the opposite of what the Framers thought they were doing when they wrote our constitution and when the States ratified it. The question raised by every Supreme Court nomination is whether the nominee believes in this activist vision for judges or whether, in contrast, they believe in a traditional role for judges. The question is, Will the nominee enforce a written constitution and laws passed by Congress or will they presume to be able to invent new rights according to their subjective view of the law? Will the nominee enforce a written constitution or will he or she see that it is their job to change the Constitution to match their policy preferences when they do not like the outcome? To be confirmed, I believe a nominee must establish that he or she should embrace the role of a traditional vision of a judge. I believe that is absolutely critical because someone who presumes to say: After I get confirmed, I am going to call cases the way I see them; and if I don't like the way the Constitution calls for those cases to be decided, or the way Congress has written the law, I am going to substitute my opinion for that and I am going to twist the law to reach a particular result--in my view, a judge who presumes to be a lawmaker by twisting the law to accomplish a particular result, in effect, becomes a lawbreaker. A judge who presumes to be a lawmaker, I believe, is a lawbreaker. Elena Kagan, our nominee, is obviously enormously bright. She has excellent academic credentials and has had an accomplished career. Her testimony before the committee, however, did not persuade me that she agrees with this traditional role for a judge. In fact, her testimony about judicial philosophy is open to multiple interpretations and was intentionally vague. In her own responses following the hearing, for example, Solicitor General Kagan indicated that she would decide cases based on not the written Constitution, not the laws passed by Congress, but based on her ``constitutional values.'' But she acknowledged that her constitutional values can point in different directions at different times and claimed that she would exercise prudence and judgment in resolving the tension between them. Well, that all sounds pretty fine and well, but what that means is she would not agree that her decisions should be confined to the written Constitution that has been ratified by we the people and the laws passed by the elected representatives of the American people, for which we are electorally accountable every election. She presumes, it seems to me, by her vague and subjective language, to suggest that her constitutional values--which point in different directions depending on the case--and the fact that she says she would exercise prudence and judgment in resolving tensions is somehow a substitute for taking an oath to uphold the Constitution and laws of the United States. That is simply unacceptable. In voting on a Supreme Court nominee, I think we need more certainty than the simple assurance that a nominee would exercise their judgment. Of course, we expect for the nominee to exercise judgment, but that is not sufficient. We need a Justice who will follow the law, someone who will follow and enforce the Constitution of the United States. You know what. If we don't like the Constitution as written, and we think it needs to be amended, well, under article V of the Constitution there is a process to do that. And you know what. If we don't like the law Congress makes, well, Congress, of course, is free to change it. But if we the people still don't like the way Congress writes the law, and they refuse to respond to the will of the people, we have a right to replace Members of Congress. That is the way a democracy is run, not by a judge dictating to us what he or she thinks is good for us. In voting on a nominee, I think we need more assurance from the nominee than she will simply exercise her judgment and she will exercise prudence in resolving tensions in the constitutional values. Solicitor General Kagan also testified the Constitution is written in general terms that enable the courts to change the law in response to ``new conditions and new circumstances''--changes that she testified occur ``all the time.'' She says that because the Constitution is written in general terms, the courts are empowered to change the law in response to new conditions and new circumstances--changes that she testified ``occur all the time.'' Well, I have an alternative suggestion. Rather than ceding to an unelected Supreme Court or a Federal judiciary, why isn't it that we the people have the right to petition Congress to change the law? That is the way democracies are supposed to work. It is the job of a judge to enforce that law, and if we don't like the way the Constitution is written, well, we have passed 27 amendments during the course of our history amending the Constitution. But that reserves the right to we the people and does not cede that authority to any unelected, lifetime- tenured judge. I was also troubled by a couple of other specific areas and her interpretation of the law--one that has to do with the power of the Federal Government. I mentioned that a moment ago. Under the commerce clause of the Constitution, the Supreme Court has previously basically given the Federal Government almost limitless powers. We have seen that at play in the debate over the individual mandate in the health insurance bill that was recently passed, with an unprecedented reach of Federal power into your living rooms, where we are sitting on our couches, and which says: You know what. The Federal Government demands that you purchase a government-approved health insurance policy. If you don't, we are going to penalize you. That power is unprecedented. That is why it is being litigated now. But Solicitor General Kagan did not seem to recognize that the Federal Government's powers are one of enumerated powers, delegated by the States and by the people, and all rights not delegated were reserved to the people and to the States. I was also troubled by her testimony with regard to the second amendment--the right to keep and bear arms. She did say the recent decisions in Heller and McDonald are ``settled law,'' but I worry that her interpretation of settled law means until there are five new Justices who take a look at that settled law and just decide to change it. Unfortunately, we saw the same sleight of hand with Justice Sotomayor's testimony regarding the second amendment. Last year, she testified that Heller was settled law. But last month, she joined in a dissenting opinion in McDonald urging it be overturned, saying she did not believe the second amendment conferred a fundamental individual right to keep and bear arms. I think the second amendment, and all of the amendments of the Constitution, in the entire Constitution, are too important to leave to such an empty promise. Madam President, I see my friend and colleague from Utah here to speak. Let me just say that the last thing I wanted to address--and I will plan on coming back, assuming we have enough time to talk about it--is, frankly, the stigma that Ms. Kagan and the folks at Harvard imposed on our men and women of the military by banning them from the Career Services Office at Harvard Law School and, in effect, stigmatizing them and causing people to disrespect them, even though they were merely applying the law that Congress passed and over which they had no control. I am very troubled by that, and I will come back to talk about that more as time permits. But for these reasons I have given, and others I will expand upon later, I oppose the nomination. I yield the floor.

Mr. CORNYN

Mr. CORNYN. Mr. President, I join my colleagues in appreciation and admiration of Senator Robert Byrd. By the time I took my seat in this Chamber, Senator Byrd had already held his for more than four decades. He had already held numerous leadership positions, including Senate majority leader and President pro tempore. He had already become a master of parliamentary procedure. He had already championed many Federal projects that still bear his name in his home State of West Virginia. Senator Byrd won the admiration of all his colleagues for his study of the history of this body. He delivered hundreds of addresses on Senate history and procedure, as well as the debt we owe to the original Senate that governed Ancient Rome for centuries. For such work, Senator Byrd has earned the gratitude of all future generations of Americans. Texans especially appreciate Senator Byrd's attention to the contributions of our Senators to the history of this body. Senator Sam Houston, the original occupant of the seat I hold, was described by Senator Byrd in this way: The flamboyant Sam Houston of Texas used to stride into the old Senate chamber wearing such eye-catching accessories as a leopard-skin waist-coat, a bright red vest, or a Mexican sombrero. . . . He would while away the time in the old chamber by whittling, creating a pile of shavings beneath his desk, and pages would bring him his pine blocks and then clean up the shavings. Senator Byrd also devoted several speeches of his history to the tenure of Senator Lyndon B. Johnson, which were all collected into a single chapter upon publication. In personal interviews with then- current and former Senators, Senator Byrd documents a remarkably personal account of Senator Johnson's leadership style and his influence over landmark legislation, including the Civil Rights Act of 1957. During his discussion of Senator Johnson's use of the quorum call, Senator Byrd was asked to yield by his friend, Senator Russell Long of Louisiana, who wished to clarify his own recollection of the matter. Senator Long then continued with a fitting tribute to the Senator from West Virginia: I have no doubt that in years to come, his will be the most authoritative text anyone will be able to find to say what did happen and what did not happen in the Senate, both while the Senator from West Virginia was a member and in the years prior thereto. I can offer no better epitaph to Senator Byrd than that offered by his former colleague more than two decades ago. He and his beloved Erma have now been reunited, and we offer our condolences to their children, grandchildren, great-grandchildren, and all who miss him most.