John Cornyn

Mr. CORNYN

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

Mr. CORNYN. Mr. President, I ask, in conclusion, for my colleagues to think about what we are doing. One-sixth of the economy is going to be affected by our decision on these health care proposals. What we do in these bills will literally affect the life of every man, woman, and child in the United States of America--all 300 million of us. I don't think it is too much to ask that we slow this down, that we get the text, the actual bill language, that we know how much it is going to cost, and we post it online so the American people can read it and give us their reaction. We are called representatives for a reason. We represent constituents. I am proud to represent 24 million Texans. I guarantee, they want to know what is in this bill and how it is going to impact them and their families. It is very important that we answer this question in the affirmative. That question again is: Will this be a transparent debate? That is the first question I have but not the last that I will be appearing back on the Senate floor in the coming days to ask. These are the kinds of questions that deserve a candid answer. I hope, in the interest of bipartisan good faith, we will somehow find a way to come together and help make this a more transparent process. Mr. President, I ask unanimous consent that the quorum call be reflected equally, taken from both times on each side.

Mr. CORNYN

Mr. CORNYN. Mr. President, today I wish to recognize the distinguished service of an outstanding Texan, Sally Hunter. Ms. Hunter is the recipient of the 2009 Preserve America Elementary History Teacher of the Year for Texas. This award recognizes outstanding American history teachers from elementary school through high school, as well as the crucial importance of American history education. One teacher from each State is chosen from thousands of exceptional teachers to receive this prestigious award. For almost 30 years, Sally Hunter has served the students of Texas as an instructor, mentor, and friend. Through recognizing and cultivating untapped potential within students, she has inspired countless youth to be men and women of character, vision and dedication. Ms. Hunter began serving students as an elementary teacher in Austin ISD in 1980, and has taught fourth grade since 1995. Since that time, she has positively impacted the lives of thousands of students by making history personal for them. In keeping with her great love of Texas history, Ms. Hunter has traced her very own family back to the 1850s when they were neighbors of Sam Houston. Ms. Hunter continues to encourage and foster the same love of research and history in her own students so that they may learn more about their own family history. Just 2 days after the fire that destroyed the Governor's Mansion in Austin, Ms. Hunter began to write the curriculum This House is Your House in order to ensure that students would learn about the richness of the mansion's history. Ms. Hunter's program is being used in classrooms across Texas, and continues to illustrate the mansion's tangible connections to people of the past, while challenging students to contribute to restoration and preservation. Ms. Hunter has a gift for recognizing the unique needs of students and has never failed to commit her time, energy, and resources to meeting their needs. Ms. Hunter's love for teaching has made a lasting impact on her students, and she exemplifies an outstanding teacher and historian. Sally Hunter's years of selfless service and unwavering devotion to the improvement of her students' lives have earned the respect of countless Texans. I thank Sally for her commitment to excellence in teaching the future leaders of Texas and send my best wishes for the years ahead.

Mr. CORNYN

Mr. CORNYN. Mr. President, I join my colleagues in appreciation and admiration of Senator Norm Coleman. Norm has been a faithful public servant to the people of Minnesota, a principled leader, and a good friend. He made a difference here in Washington, and I feel privileged to have served with him in the U.S. Senate. Norm and Laurie arrived in Washington at the same time as Sandy and me. We experienced many of the same challenges and adjustments that freshman Senators face, and we encouraged each other by facing them together. Norm and I found we shared a common approach to solving problems, and partnered to advance legislation whenever we could. Norm said his best ideas came from the people of Minnesota, and they can be proud of what he achieved in Washington. Norm supported conservation programs to protect his State's lakes, rivers, and woodlands. He had a real heart for children, especially those suffering from cancer or waiting to be adopted into loving homes. He was a champion of private-sector initiatives in alternative energy, including clean coal, wind power, and biomass technologies. Norm exposed fraud at the United Nations, waste in the Medicare Program, and tax evasion by defense contractors. Norm voted to put John Roberts and Samuel Alito on the U.S. Supreme Court. Norm consistently supported our troops in Iraq and Afghanistan and he believed in their mission. Some of my strongest memories of Norm were formed during our trip to Iraq in January of 2008, about a year after President Bush announced our surge of forces there. Norm had joined many Senators in supporting the surge, despite the political risk that support entailed. He understood that the strategy and leadership of GEN David Petraeus was America's best chance to succeed in Iraq. Norm and I, along with Senator Johnny Isakson, visited Baghdad together. We had dinner with General Petraeus and Ambassador Ryan Crocker, and discussed how we could facilitate political reconciliation in Iraq. We met with General Ray Odierno to discuss the new mission of population security, as well as the progress they were seeing in reducing violence and U.S. casualties. We toured a marketplace in western Baghdad, where U.S. and Iraqi forces had helped bring back shopkeepers and their customers by driving out insurgents and terrorists. During our visit, I got to see the Norm Coleman that Minnesotans know very well. At Maverick Security Station in Baghdad, I saw Norm honor troops who hailed from the Twin Cities and throughout his State. At a meeting with Iraqi civilian leaders, I saw him offer encouragement to Sunnis, Shias, and Kurds working to build a free and democratic nation in the heart of the Middle East. And wherever we traveled, I saw his easygoing manner, his wry sense of humor, and his appreciation of the honor bestowed on him by his fellow Minnesotans. Norm ran a tough race for reelection last fall, a race that lasted far longer than the Minnesota winter. He mounted a legal challenge based on a clear principle: no Minnesotan should be disenfranchised. As chairman of the National Republican Senatorial Committee, I was proud to support Norm as he pursued his case in the courts. And once the courts had spoken, I respected the grace with which he conceded the race, and the optimism he has shown for his own future, and that of our country. Norm accomplished much in Washington, but I think he remains proudest of what he achieved closer to home. After Minnesota's hockey team moved to my home state of Texas back in 1993, Mayor Norm Coleman of St. Paul led the effort to bring the National Hockey League back to the Twin Cities. Since the first puck dropped in 2000, the Minnesota Wild have sold out every game they have played, and every fan owes a debt of thanks to Norm Coleman. I too am thankful for Norm Coleman, because he set a good example for all of us. He never let public service go to his head. He always put his faith and family first. He fought hard to keep his seat, but never failed to keep his cool. I wish Norm and Laurie the very best, as their journey together continues.

Mr. CORNYN

Mr. CORNYN. Mr. President, today I speak on behalf of the farmers and ranchers of Texas. Like millions of Americans in other States, Texans love the land. From the hill country to the river valleys--from the panhandle to the gulf coast--our land helps define who we are. And for many Texans, the land is their livelihood. One in seven jobs in our State is tied to agriculture. We lead the Nation in several crop and livestock industries--including the production of cattle and cotton. Texas farmers and ranchers help feed and clothe Americans in every State--and in dozens of countries around the world. Our farmers and ranchers are tough people--and they are seeing tough times. Central and south Texas is experiencing some of the driest conditions in the country today. Seventy counties in our State are experiencing extreme or exceptional drought--the two worst classifications made by the USDA. These areas represent 42.5 million acres--about 25 percent of Texas--and nearly equal to the total land area of New England. The drought has severely impacted Texas farmers and ranchers. According to one recent study, economic losses will reach $3.6 billion by the end of this year--a little less than $1 billion in livestock losses--and the rest in crop losses. A few weeks ago, I met with some ranchers and farmers in San Angelo, TX. They shared with me how drought conditions were devastating production--even as the recession weakened demand. They also asked me a question: Where was the money Washington promised to help them through these tough times? Their question is the same question I am asking today: Where is the money Congress authorized last year for the Supplemental Revenue Assurance Program? The SURE Program was included in the farm bill we passed in June of 2008. It received broad bipartisan support. It created a trust fund of about $3 billion a year to help farmers and ranchers during tough times. Yet despite becoming law more than a year ago, the SURE Program has still not been implemented by the USDA. Not a single farmer or rancher has received any assistance from the trust fund so far. No payments had even been planned before December of this year--as it is the lowest of five priorities within USDA's disaster assistance program. On July 16, I wrote Secretary Vilsack. I asked him to tell me when our farmers and ranchers can expect to receive the assistance Congress authorized for them. I also cosponsored Senator Hutchison's amendment to the Agriculture appropriations bill, which expresses the sense of the Senate that USDA should expedite the drought relief we approved last year. This week, I spoke to Secretary Vilsack as he was traveling in Kenya. He told me that the SURE Program should be finalized by September, which is encouraging news. He also said that the Department's antiquated record-keeping, as well as new demands imposed on USDA in the stimulus bill, have prevented this program from being finalized sooner. Nevertheless, Mr. President, I am frustrated that we are discussing more money for cash for clunkers--when we should be asking: Where's the cash for crops? Where's the relief for ranchers? Other Senators may be asking a third question: Why should I care? I can think of two reasons. First, Texas isn't the only State susceptible to drought conditions. The Lone Star State is experiencing the worst of it now, but many other States in the South and West could experience similar conditions in the future. The SURE Program was created for farmers and ranchers in all of our States--so we all have a stake in seeing this program implemented quickly and successfully. Second, the implementation challenges of this program should be on our minds as we consider expanding or creating new programs. Mr. President, the SURE Program isn't a complicated program. It is a fairly straightforward disaster assistance initiative. This shouldn't be a heavy lift for the Federal bureaucracy. Yet if a simple program like this takes a year or more to get off the ground--Senators really should pause and take a deep breath before we create a vast new Federal bureaucracy to run a complicated cap-and- trade scheme, take control over one-sixth of our economy in the name of health care reform, or dump more taxpayers' dollars into the Cash for Clunkers Program.

Mr. CORNYN

Mr. CORNYN. Mr. President, I wish to address the nomination of Judge Sonia Sotomayor to be an Associate Justice of the U.S. Supreme Court as well. I have spoken about this nomination several times, both here on the Senate floor and on the Senate Judiciary Committee on which I serve. I have shared what I admire about Judge Sotomayor, including her long experience as a Federal judge, her academic background, which is stellar, and her record of making decisions that for the most part are within the judicial mainstream. I have also explained before why I will vote against this nomination and I wish to reiterate and expand on some of those comments here today as all of us are stating our intentions before this historic vote which I suspect will be held sometime tomorrow. First, I cannot vote to confirm a nominee to the U.S. Supreme Court who restricts several of the fundamental rights and liberties in our Constitution, including our Bill of Rights. Based on her decision in the Maloney case, Judge Sotomayor apparently does not believe that the second amendment right to keep and bear arms is an individual right. Indeed, she held in that case that the second amendment did not apply to the States and local jurisdictions that might impose restrictions on the right to keep and bear arms. Then based on her decision in the Didden v. The Village of Port Chester case, she apparently does not believe that the takings clause of the fifth amendment protects private property owners when that private property is taken by government for the purpose of giving it to another private property owner, in this case a private developer. I am very concerned when the government's power to condemn property for a private purpose conflicts with the stated intention of the Framers of the Constitution that the right of condemnation of private property only extend to public uses and then, and only then, when just compensation is paid. Then based upon her decision in the Ricci case--this is the New Haven firefighter case--which calls into question her commitment to ensure that equal treatment applies to all of us when it comes to our jobs or promotions without regard to the color of our skin. Indeed, in that case, because of her failure to even acknowledge the seriousness and novelty of the claims being made by the New Haven firefighters, she gave short shrift to those claims in an unpublished order and denied Frank Ricci, Ben Vargas, and other New Haven firefighters an opportunity for a promotion, even though they excelled in a competitive, race-neutral examination, because of the color of their skin. Fortunately, the Supreme Court of the United States saw fit to overrule Judge Sotomayor's judgment in the New Haven firefighter case. Millions of Americans became aware, perhaps for the first time, of this notorious decision and what a morass some of our laws have created when, in fact, distinguished judges like Judge Sotomayor think they have no choice but to allow people to be denied a promotion based upon the color of their skin for fear of a disparate impact lawsuit, even when substantial evidence is missing that such a disparate lawsuit would have merit or likely be successful. I cannot vote to confirm a nominee who has publicly expressed support for many of the most radical legal theories percolating in the faculty lounges of our Nation's law schools. We heard this during the confirmation hearings and, frankly, Judge Sotomayor's explanations were unconvincing. Previously, she said there is no such thing as neutrality or objectivity in the law--merely a series of perspectives, thus, I think undermining the very concept of equal justice under the law. If the law is not neutral, if it is not objective, then apparently, according to her, at least at that time, the law is purely subjective, and outcomes will be determined on which judge you get rather than what the law says. She has said in one notorious YouTube video that it is the role of judges to make policy on the court of appeals. She has said that foreign law can get the ``creative juices flowing'' as judges interpret the U.S. Constitution, and she has said, as we know, ethnicity and gender can influence a judge's decision and judges of a particular ethnicity or gender can actually make better decisions than individuals of a different gender or ethnicity. Third, I cannot vote to confirm a judicial nominee who testified before the Judiciary Committee that her most controversial decisions were guided by precedent, when her colleagues on the Second Circuit, and indeed the Justices of the U.S. Supreme Court who reversed her, said just the opposite; or who testified that she meant the exact opposite of what she said--every time she said something controversial and was trying to explain that; or a person who testified that she had no idea what legal positions the Puerto Rican Legal Defense and Education Fund was taking--even when she chaired the litigation committee of its board of directors. The hearings before the Senate Judiciary Committee have a very important purpose, and that purpose is informed by article II of the U.S. Constitution that provides for advice and consent on nominations. It is not to serve as a rubberstamp. I have heard colleagues say that elections have consequences, and the President won. Well, it is obvious and evident that elections have consequences and that President Obama won. But that doesn't negate or erase the obligation each Senator has under the same clause and article of the Constitution to provide advice and consent based on our best judgment and good conscience. In the case of Judge Sotomayor, the question becomes: What will she do with the immense power given to a member of the U.S. Supreme Court? What impact will she have on our rights and liberties over the course of a lifetime? Of course, this appointment is for life. In short, the question is, what kind of Justice will she be on the Supreme Court, where her decisions are no longer reviewed by a higher court as they were as a Federal district court or a court of appeals justice. The question is, will she be the judge she has been as a lower court judge, making decisions which, by and large, have been in the mainstream, with some notable exceptions, which I have talked about, or will she be untethered? Will she be the Judge Sotomayor of some of her radical speeches and writings, which cause me concern? The answers to these questions, I regret, are no clearer after the hearings than before. The stakes are simply too high for me to confirm someone who could redefine ``the law of the land'' from a liberal, activist perspective. I respect different views of Senators on this nomination, and I have no doubt that Judge Sotomayor will be confirmed. But I am unwilling to abdicate the responsibility I believe I have as a Senator when it comes to voting my conscience and expressing my reservations. The Senate developed our confirmation process for a very important purpose: to learn more about the individual nominees. But over the last several weeks, I think we have also learned more about a rising consensus with regard to what we should expect from a judge. I will highlight two important lessons we have learned. One is encouraging to me and one is worrisome. Let's start with the good news. I believe Republicans and Democrats on the Judiciary Committee, and indeed Judge Sotomayor herself, seem to say the appropriate judicial philosophy for nominees to the Federal bench is one that expresses fidelity to the law and nothing else. Over years, we have been debating whether we have an original understanding of the Constitution or some evolving Constitution, even though it can be interpreted in different ways, even though the words on the paper read exactly the same. We went back and forth on the merits, or lack of merits, of judicial activism--judges taking it upon themselves to impose their views rather than the law in decisions. On many occasions, our disagreements over judicial philosophy were anything but civil and dignified. I think of the nomination of Miguel Estrada to the District of Columbia Court of Appeals, which some have said is the second highest court in the land. Miguel Estrada, although an immigrant from Honduras who didn't speak any English when he came to the United States, graduated from a top university and law school in this country. He was filibustered seven times an denied an up-or-down vote. One member of the Judiciary Committee, disparaging Mr. Estrada's character, called him a ``stealth missile, with a nose cone, coming out of the right wing's deepest silo.'' Samuel Alito, an Italian-American who is proud of his heritage, had to defend himself against false charges of bigotry--accusations that left his wife in tears. Then there was Clarence Thomas--perhaps the one we remember the best--an African American nominee to the Supreme Court who described his experience before the Judiciary Committee this way: This is a circus. It's a national disgrace. And from my standpoint as a black American, it is a high-tech lynching for uppity blacks. These nominees were accused at various times of certain offenses, even though the real crime, as we all know, was a crime of conscience. They dared to be judicial conservatives--a philosophy that the nominee we are talking about today and Senate Democrats now appear to embrace. I hope the days of the unfair and uncivil and undignified Judiciary Committee hearings are behind us. I hope our hearings are more respectful of the nominees, as was this hearing for Judge Sotomayor. She herself proclaimed that she could not have received fairer treatment. I appreciated her acknowledging the fairness and dignity of the process. I hope the ``thought crimes'' of yesterday have now become the foundation for a new bipartisan consensus, including the views that Judge Sotomayor affirmed at her hearing and that we affirmed as both Republicans and Democrats, and the views that Judge Sotomayor rejected at her hearings and we rejected as both Republicans and Democrats. Let me give a few examples of our new bipartisan consensus on the appropriate judicial philosophy for a nominee to the U.S. Supreme Court. Judge Sotomayor, at her hearing, put it this way: The intent of the Founders was set forth in the Constitution. . . . It is their words that [are] the most important aspect of judging. You follow what they said in their words, and you apply it to the facts you're looking at. I cannot think of a better expression of a modest and judicially restrained philosophy that I embrace than what Judge Sotomayor said at her hearing. Both Republicans and Democrats appeared to be pleased with that statement. We agreed that foreign law has no place in constitutional interpretation. Notwithstanding her earlier statements, Judge Sotomayor said at the hearing: Foreign law cannot be used as a holding or a precedent, or to bind or influence the outcome of a legal decision interpreting the Constitution or American law. As I said, notwithstanding her earlier statements, I agree with that statement she made at the hearing. I believe both Republicans and Democrats were satisfied with that statement as well. We agreed that ``empathy'' or ``what's in a person's heart''--to borrow a phrase from then-Senator Obama--should not influence the decisions of a judge. I think we were all a little surprised when Judge Sotomayor, at the hearing, rejected President Obama's standard. She said: I wouldn't approach the issue of judging the way the President does. . . . Judges can't rely on what's in their heart. They don't determine the law. Congress makes the law. The job of a judge is to apply the law. And so it's not the heart that compels conclusions in cases--it is the law. I agree with that statement, and indeed Republicans and Democrats alike appeared to embrace that statement of an appropriate judicial philosophy. No one defended the statement that then-Senator Obama made with regard to empathy or what is in a person's heart. I was encouraged to see that. Mr. President, supporters of Judge Sotomayor appear willing to accept her statements that I have just quoted at the Judiciary Committee at face value. I hope they are right; I really do. I certainly intend to take my colleagues' agreement with these statements at face value. I expect future nominees to the Federal judiciary to conform to this new consensus articulated by Judge Sotomayor at her hearing and embraced in a bipartisan fashion by the members of the Judiciary Committee. Mr. President, I have no question about the outcome of this vote on Judge Sotomayor. I regret, for the reasons I have stated, that I cannot vote for her because I cannot reconcile her previous statements with her testimony at the Judiciary Committee hearing. Also, I wish Judge Sotomayor well as she serves on the Supreme Court. The concerns that I raised here, and the uncertainty I have about regarding what kind of Justice she will be--I hope she will prove those concerns unjustified by the way she distinguishes herself as a member of the U.S. Supreme Court. I hope her tenure will strengthen the Court, as well as its fidelity to the plain meaning of the Constitution. I congratulate her and her loved ones on her historic achievement. I yield the floor and suggest the absence of a quorum.

Mr. CORNYN

Mr. CORNYN. I know a number of our colleagues have come to the floor and talked about health care reform. I think this is not only an important debate, I think the American people deserve our best work and certainly our closest attention to something that will impact not just some of us but literally all 300 million of us living here in the United States. I want to focus my remarks on the next few minutes on what is missing, what is missing from the bills moving in the Senate and the House of Representatives. Millions of Americans are paying attention to what is in these bills. That is a good thing. Everybody wants to see what Congress is up to and everybody wants to understand what is in these bills and how it will impact their health care. As I talk to my constituents in Texas, they tell me that Congress may well make the problem worse, and for good reason. Families are worried that Congress will increase the cost of their health care or force them into a government plan, a pathway to a single-payer system. Small business owners are concerned that higher taxes and new mandates will make it harder for them to weather the current recession. Physicians and other health care providers are worried that we will not fix the problem with Medicare and Medicaid, and will make their hassles even worse by creating new government programs on top of flawed and unsustainable current government programs. Patients--that would be all of us--are worried about the quality of care and whether the government will ultimately deny treatment or delay treatment as in Canada and the United Kingdom and other places where the government has taken over health care. And everybody is, frankly, worried about spending more taxpayer dollars, especially after the spending spree we saw earlier this year with the flawed stimulus package which spent more than $1 trillion, including interest, of borrowed money, and which has failed so far to meet its intended goal of keeping unemployment down to 8 percent or less. I believe the people of this country will have greater confidence in Congress if we focus on reforms that will actually lower the cost of health care and not reduce access or quality, and that will actually increase access and quality. One proven way of doing that is not even on the table. I think the American people would be justified in asking: Why? Why is that not on the table? Why are we not talking about eliminating junk lawsuits that create the practice of defensive medicine and which do nothing but exacerbate and worsen high health care costs in this country? Medical liability laws exist for a very good reason, to compensate victims of negligence and other medical errors. Every victim of medical malpractice deserves access to the courts and for their case to be heard. But over the years our laws have somehow encouraged a wave of frivolous litigation which has done little but enrich trial lawyers and encourage the practice of defensive medicine and increase the cost of health care for all of us. It is estimated that defensive medicine costs the American taxpayer more than $100 billion every year, $100 billion of additional cost. That is according to economists Daniel P. Kessler and Mark B. McClellan. Yet despite this potential savings of $100 billion, trial lawyers have not been asked to make the same sacrifices as others have to lower health care costs. We know there is a lot of arm twisting going on here in Washington these days. Hospitals, drug makers, insurers, and others have all been asked to pitch in, make a commitment to help. But so far there is one contingent that has not been asked for one dime. That is the trial lawyers. They have not been asked to step up and take one for the team. Medical liability reform can lower costs while expanding access to care. I would respectfully suggest to my colleagues that they look to the experiment we have recently conducted in the State of Texas. It is a successful experiment to increase access and lower costs. Texas illustrates both the problem and the solution. In the early part of the decade, Texas was a trial lawyer's dream and a doctor's nightmare. Our State had become a haven for medical malpractice lawsuits. As a result, physicians' medical malpractice premiums had doubled and many insurers simply gave up and left the State and would no longer write medical malpractice insurance coverage at all. In fact, the number of physician liability insurers writing policies in Texas fell from about 17 to 4. Many doctors left the State or restricted the procedures they were willing to perform or simply retired early. This reduced access to health care as well as quality for millions of people across the State of Texas. Our legislature and our Governor at the time saw the problem, and in a series of legislative reforms culminating in 2003, they took action. They placed a $750,000 cap on noneconomic damages in medical malpractice cases. They required the punitive damages; that is, damages that are awarded for punishment, not as compensation, be approved by juries unanimously. They imposed a firmer statute of limitations saying you needed to bring your claim within a specified time rather than sit on your rights and allow this claim to be stale and witnesses' memories dim. They set a higher standard for expert witnesses, the so-called out-of-town folks with a briefcase who are willing to testify for or against a particular claim depending on their compensation. These and other reforms were designed to create an honest and predictable civil justice system, in which victims would receive just and timely compensation; bad actors would be held to account; and the good doctors could afford to practice in our State. As I indicated, the results of this experiment have been dramatic. Average premiums for medical malpractice fell by 27 percent on average, 27 percent lower premiums, and in some cases by more than 50 percent. Patients saw lower premiums for health care because doctors no longer had to pay skyrocketing premiums for their medical liability insurance. That translated into lower premiums for patients for their health care. More than 400,000 Texans are now covered by health insurance because premiums have become more affordable. That is 400,000 more since these reforms took place. Another amazing phenomenon here is that physicians literally flocked to our State. They literally returned to the Lone Star State in large numbers. We saw the overall growth rate of 31 percent in the number of new physicians moving to our State, including underserved areas such as El Paso, TX, where a 76-percent increase in that underserved area was seen as a result of this reform. We also saw a number of key medical specialists who had simply fled critical parts of our State--such as obstetricians, neurosurgeons, orthopedic surgeons--return to practice and provide access to good quality health care. Some Texans who had never had access to prenatal care or emergency care available in their county now have greater access, which means shorter drive times and wait times and healthier babies and happier families. The results in Texas, I would submit, have simply been remarkable. But what a great laboratory for us to learn from in enacting commonsense medical liability reform as part of our overall health care debate. But, of course, Texas is not unique in this experience. Other States have reformed their laws as well to similar effect, including California, Colorado, Florida, Indiana, Montana, and Virginia. They have seen lower costs and greater access to health care. What works in the State can also work here in Washington, DC and around the whole country generally if we were simply to have the courage to embrace it. We must include medical liability reform in eliminating junk lawsuits and frivolous litigation as part of any comprehensive health care reform bill. Specifically, we should enact standards that cap noneconomic damages, establish firmer statutes of limitations so that claims will be brought on a timely basis and not after memories fail and evidence is lost. We should implement several other reforms that have proved to be so successful both in Texas and around our States. These reforms will lower the cost of health care for all Americans. But do not take my word for it. Ask the Congressional Budget Office. The nonpartisan Congressional Budget Office has been under tremendous political pressure these days, including an unprecedented invitation by the President of the United States for the current Director to come over to the White House and explain why they have come back with such eye-popping, sticker-shock numbers as they have with some of the proposals that have been made. But the Congressional Budget Office took a look at the potential cost savings if Washington adopted national reform along the lines of what we have done in Texas. They estimated that the Federal Government alone would directly save $5.6 billion from these types of reforms and that total health care spending could be reduced further if these reforms reduced the practice of defensive medicine. CBO also concluded that such reforms would likely increase access to health care as we have seen in Texas, where doctors, instead of retiring, decide to continue to practice where they will feel less like hunted prey and more like the health care provider they always have wanted to be, and provide healing and comfort and care to people without access to care right now. Medical liability reform cannot solve all of the problems in our health care system, but no health care reform bill will ever be comprehensive without it. I would ask my colleagues why it is that every other idea under the Sun seems to have made its way into the health care reform bills we have been debating except for one of the most obvious, which is medical liability reform. Even President Obama acknowledged that huge liability judgments lead doctors to practice defensive medicine, which drives up the cost of health care for all of us. Now is the time for Congress to reach the same conclusion and to take steps that have proven so successful in a number of States. If we reform medical liability laws nationwide, eliminating junk lawsuits and frivolous litigation, we will lower the cost of health care, we will expand access to health care, and we will show the American people that we are listening to them and focusing on solutions that will work. I yield the floor. Amendment No. 1903 to Amendment No. 1813

Mr. CORNYN

Mr. CORNYN. Mr. President, I ask unanimous consent that a member of my staff, Ramona McGee, and four of our law clerks, Amanda Hinson, Belisa Lay, Marisa Maleck, and John Heath, be granted floor privileges for the remainder of this session.

Mr. CORNYN

Mr. CORNYN. Mr. President, I would like to address the nomination of Judge Sonia Sotomayor to be an Associate Justice of the U.S. Supreme Court. The Constitution confers upon the Senate the power to provide advice and consent on judicial nominations as one of the most solemn responsibilities we have. Supreme Court Justices have always had tremendous power within our constitutional system of separated and enumerated powers. In recent decades, growing concern has arisen over judicial activism on the Court, which has the necessary consequence of taking power away from the elected representatives, and thus the people themselves, and conferring it to those with life tenure, unelected judges who have occasionally used this power conferred upon them in the Constitution to impose their own views and their own agenda on the American people and substituting that for the views of their elected representatives. We now see that five votes on the U.S. Supreme Court can invent new rights that are not found in the Constitution or narrow the scope of rights that generations of Americans have come to view as fundamental. Each Justice serves for life, so every time a nominee comes before us I think it is entirely appropriate, indeed required, that we exercise due care in exercising this power of advice and consent. Yes, Senators exercise the power, and also the responsibility we have under the Constitution with great care and I believe with great respect for every nominee. Sadly, over recent years we have seen judicial nominees treated with the opposite of respect and fairness. Some nominations have become quickly politicized, before the nominees have even had a chance to speak for themselves or to answer important questions or, perhaps, to put their record in context. We have seen outrageous accusations used to score political points and to damage a nominee in the court of public opinion before they have had an opportunity to even answer those concerns themselves. It is no secret that I remain deeply frustrated by the treatment of nominees such as Miguel Estrada, who was nominated by President George W. Bush to the District of Columbia Court of Appeals, sometimes acknowledged as the second highest court in the land. Mr. Estrada was filibustered seven times by the Democratic minority and refused an up- or-down vote on the Senate floor--something that was literally unheard of in previous times. Many Senators share my view that had he been confirmed to the District of Columbia Court of Appeals, he could have been the first Hispanic nominated to the U.S. Supreme Court. Instead, that honor goes to the nominee we have before us, Judge Sonia Sotomayor. From the beginning I was determined to make sure Judge Sotomayor's nomination process and hearing would be different from that given to Miguel Estrada and others. When I first met with her in June, I pledged to her that I would do everything in my power to see that she was treated with fairness and respect. When individuals, and some organizations, said or did things that cheapened the process, I said so. When supporters and opponents of Judge Sotomayor made accusations of racism, I repudiated them because I believe all such accusations are incompatible with the respectful and dignified consideration of her nomination. In the end, I was pleased that Judge Sotomayor said she could not have received a more fair hearing and more fair treatment during the confirmation process. I believe a fair process and fair hearing means neither prejudging nor preconfirming a judicial nominee. Fair treatment means looking at the judge's record, including her public statements about the role of a judge in our separated powers of government. Fair treatment means giving the judge, the nominee, an opportunity to explain her record and her comments, and to put those in the appropriate context. Going into the hearings, I found much to admire about Judge Sotomayor's record. She is an experienced judge with an excellent academic background. She appears to be a tough judge--which may be to her credit--and demands a lot of the lawyers who appear in oral argument before her court. For the most part, her decisions as a district court judge and as a member of the court of appeals were within the mainstream of American jurisprudence. Yet going into the hearings I also had some very serious questions that I thought it was appropriate to ask her and that she needed to answer. While, as I said, her judicial record is generally in the mainstream, several of her discussions demonstrated cause for concern about the kind of liberal judicial activism that has steered the courts in the wrong direction over the past few years, and many of her public statements reflected a surprisingly radical view of the law. Some have said we just have to ignore her public statements and speeches and just focus on her decisions as a lower court judge. I disagree with that position. Judges on the lower courts; that is, the district court and the court of appeals, have less room to maneuver than a Supreme Court Justice who is not subject to any kind of appellate review. Supreme Court Justices can thus more easily ignore precedents or reject them. This is why Judge Sotomayor's speeches and writings on judicial philosophy should matter, and they concern me a great deal. These speeches and writings contain very radical ideas on the role of a judge. In her speeches she said things such as there is no objectivity, no neutrality in the law, just a matter of perspective. She said courts do, in fact, make policy and seemed to say that was an appropriate role for the courts of appeals. She even suggested that ethnicity and gender can and should impact on a judge's decisionmaking process. For 13 years of my life I served as a State court judge, a trial judge, and a member of the Texas Supreme Court. I strongly disagree with the view of the law that says there is no impartiality, no objectivity, no law, with a capital ``L,'' that a judge can interpret. It is, to the contrary of Judge Sotomayor's statements, merely a matter of perspective. There is no impartial rule of law. I don't know how one can reconcile her statement that there is no objectivity, no neutrality in the law, with the motto inscribed above the U.S. Supreme Court building which says ``Equal Justice Under the Law.'' If there is no such thing as objectivity and neutrality, only a matter of perspective, how in the world can we ever hope to obtain that ideal of equal justice under the law? I just don't know how one can reconcile those. Despite my concerns about some of Judge Sotomayor's decisions, as well as some of her statements about judging, I went into the hearing with an open mind. I believed she deserved the opportunity to explain how she approached some of the most controversial cases on which she has ruled and to put her public statements in context. I hoped she would use the hearings to clear up the confusion many of us had, trying to reconcile the Judge Sotomayor who served for 17 years on the bench with the Judge Sotomayor who made some of these statements and speeches. The hearings were an opportunity for Judge Sotomayor to clear up these things and ultimately, in my view, resulted in a missed opportunity to do so. Regarding her public statements about judging, I was surprised to hear her say she meant exactly the opposite of what she said; that she had been misunderstood every single time and that she doesn't believe any of these radical statements after all and that her views are aligned with those of Chief Justice John Roberts. Regarding some of her most controversial decisions, she refused to explain them on the merits. She did not explain her legal reasoning or the constitutional arguments she found persuasive, instead choosing to explain those in terms of process and procedure whenever she could. She assured us her decisions would be guided by precedent, even when many of her colleagues, both on the court of appeals and the majority of the Supreme Court of the United States, disagreed. At the end of the hearing, I found myself still wondering who is the real Sonia Sotomayor and what kind of judge will she be when she is confirmed to the Supreme Court. Some have argued if I am uncertain, or if another Senator is uncertain about the answer to that question, that we should go ahead and vote to confirm Judge Sotomayor. I disagree with that. Voting to confirm a judge, this judge, or any judge, despite doubts, would certainly be a politically expedient thing to do, but I do not believe it would be the right thing to do, nor do I believe it would honor the duty we have under the Constitution, providing our advice and consent on a judicial nominee. We all know the future decisions of the Supreme Court of the United States will have a tremendous impact on all Americans. The Court, for example, could weaken the second amendment right of Americans to keep and bear arms, and Judge Sotomayor's decisions on that subject reflect, I believe, a restrictive view that is inconsistent with an individual right to keep and bear arms for all Americans. The Court could fail to protect the fifth amendment private property rights of our people from cities and States that want to condemn their private property for nonpublic uses. Judge Sotomayor has rendered decisions on the Second Circuit Court of Appeals that tend to support the views that she has an opinion of the rights of the government to take private property for private uses, not for public uses, and that concerns me a great deal. The Court could, in fact, invent new rights that appear nowhere in the Constitution, as they have done in the past, based on foreign law, a subject that Judge Sotomayor has spoken and written on, but she did not settle any concerns many of us had about what role that would play in her decisionmaking process when she is confirmed. I believe the stakes are simply too high for me to vote for a nominee who can address all of these issues from a liberal activist perspective. And so I say it is with regret and some sadness that I will vote against the confirmation of Judge Sonia Sotomayor. I will vote with a certain knowledge, however, that she will be confirmed despite my vote. I wish her well. I congratulate her on her historic achievement. I know she will be an inspiration to many young people within the Hispanic community and beyond. And I hope, I hope, she proves me wrong in my doubts. The Justice she is replacing, after all, has proved to have a far different impact than the President who nominated that judge believed that judge would have. So perhaps Judge Sonia Sotomayor will surprise all of us. I yield the floor.

Mr. CORNYN

Mr. CORNYN. Mr. President, I want to speak briefly about a very important amendment, amendment No. 1725, which I think will help us restore the franchise, the vote, to our deployed military overseas. This is a bipartisan amendment. The lead sponsors are Senator Chuck Schumer and Senator Bob Bennett, the chairman and ranking member of the Rules Committee, but this builds on the work Senator Begich and I, Senator Chambliss, and others have put into this effort to address what can only be described as a national disgrace. Our military service members put their lives on the line to protect our rights and our freedoms. Yet many of them still face substantial roadblocks when it comes to something as simple as casting their ballots and participating in our national elections. Sadly, this is not a new problem. President Truman urged Congress to address obstacles to voting faced by troops serving in Korea. Today, however, troops deployed in Afghanistan and Iraq face many of the same problems. In 2006, less than half of the military voters who requested absentee ballots were successful in casting them, according to the U.S. Election Assistance Commission. In 2008, those problems continued. More than a quarter of the ballots requested by uniformed and overseas voters went either uncollected or uncounted, according to a recent survey of seven States with high military voting populations. In a soon to be released study of the 2008 cycle which looked at 20 States with large military populations, the Heritage Foundation has concluded that as many as three-quarters of our troops and their family members were ``disenfranchised by their inability to request an absentee ballot'' and that as many as one-third of the ballots that were requested never reached the appropriate election officials to be counted. Voting has remained a challenge for our troops and their families for many reasons. First, our election laws are complex and multiple levels of government are involved. Election challenges and other unforeseen events can delay the finalization of ballots. The high tempo of military operations often requires frequent deployments for our troops and their families. Let me describe what this amendment, which I hope we will adopt later today, does. Our legislation addresses several of the biggest roadblocks our troops and their families face when attempting to vote. First, this legislation will provide voter assistance services to every service member and family member upon transfer to a new military installation. As part of each installation's in-processing, every service member will now be offered an opportunity to fill out a simple form the Department of Defense will return to the appropriate election officials. That form will update the address on file with election officials and request absentee ballots for the next Federal election cycle. These voter assistance services will give our military personnel some of the support that civilians now enjoy through motor voter laws. Second, this legislation reduces the reliance on snail male for correspondence between troops and their election officials. Under current election laws, many troops must mail a request for an absentee ballot, then wait for the election officials to mail them the blank ballot, and then to return the completed ballot in time to be counted. This legislation requires elections officials to create electronic blank ballots and to post them online. Election officials must also accept faxes and e-mails to expedite correspondence with our troops. Together, these reforms will reduce dependence on snail mail until the service member is ready to return the completed ballot to be counted. Third, this legislation will expedite the return of the completed ballot to election officials. Under current law, each servicemember is responsible for making sure his or her ballot is postmarked and returned on time. This legislation requires the Department of Defense to take possession of completed ballots and ensure that they get to election officials on time by using Express Mail, if necessary. This legislation also requires election officials to give our troops 45 days, at least, to return their ballots. This important amendment contains many other commonsense reforms suggested by other Senators and will help end the effective disenfranchisement of our troops and their families. Our goal has been to balance responsibilities between elections officials and the Department of Defense, and I believe this amendment accomplishes that goal. As I said, this amendment would not be in its current posture without the leadership of Senator Schumer and Senator Bennett. And I appreciate them working to include two pieces of legislation I introduced earlier this year, something called the Military Voting Protection Act, which, just this weekend was unanimously endorsed by the National Association of Secretaries of State, and a second piece of legislation called the Military Voters' Equal Access to Registration Act. These two pieces of legislation have received broad bipartisan support from the beginning, including Senators Begich, Inhofe, Wyden, Vitter, and Hutchison. We have also worked closely with leaders in the House of Representatives, especially Congressmen Kevin McCarthy and Duncan Hunter. All of our work was not done in Washington. We relied on support and technical assistance from the Texas Secretary of State's Office, especially our Director of Elections, Ann McGeehan, dozens of military support organizations and veterans service organizations, and many other citizens and patriots who want our troops to enjoy their right to vote--that it be protected, particularly for those who defend all of us. I urge all of our colleagues to support this amendment when it comes to the Senate floor, I hope, later on today, and to give this important amendment our unanimous consent. I yield the floor.

Mr. CORNYN

Mr. CORNYN. Mr. President, I ask unanimous consent that MAJ Paul Taylor be granted the privilege of the floor for the remainder of this legislative session.

Mr. CORNYN

Mr. CORNYN. Mr. President, today I recognize the distinguished service of two Texans, as they approach retirement from Texas A&M in January 2010. For over 30 years, Dr. Joe D. Townsend and Dr. Christine Townsend, often referred to as ``Dr. Joe and Dr. Chris'' by their students, have served the students of Texas as instructors, mentors, and friends. By recognizing and cultivating the untapped potential within students, they have inspired countless youth to be men and women of character, vision, and dedication. Dr. Joe began serving students over 40 years ago as a vocational agriculture teacher in Aubrey, TX. Since that time, he has positively impacted the lives of thousands of students through many different roles. At Texas A&M University, Dr. Joe served as a professor, associate dean for student development in the College of Agriculture and Life Sciences, and most recently, associate vice president for student affairs. His office was known as refuge for students in need of wisdom and advice, and many relied on his support and encouragement to make the difficult transition from high school to college. Dr. Chris' career in higher education began three decades ago at Illinois State University. At Texas A&M, Dr. Chris has served as a professor, department head, undergraduate coordinator, and undergraduate adviser in the department of agricultural leadership, education, and development. She has a gift for recognizing the unique needs of students and never failed to commit her time, energy, and resources to meeting their needs. Dr. Chris' love for teaching students has made a lasting impact on her department and her departure will leave a void that will be difficult to fill, and a legacy that will be easy to remember. Their years of selfless service and unwavering devotion to the improvement of students' lives have earned the respect of countless Texans. I thank them for their commitment to excellence and send my best wishes for the years ahead.

Mr. CORNYN

Mr. CORNYN. Mr. President, today I wish to recognize the achievements of Eric Yang, a 13-year-old seventh grade student at Griffin Middle School in The Colony, TX. Eric recently competed in and won the 2009 National Geographic Bee, held here in Washington, DC. Out of a field of 55 contestants, one from each of the 50 States and territories, Eric won the competition in the third finals tie-breaker. Out of nine students, Eric was the only one who missed no questions. This has only occurred five times in the competition's 21-year history. In recognition of his success, Eric will receive a college scholarship worth $25,000, a lifetime membership in the National Geographic Society, and a trip to the Galapagos Islands with the moderator of the National Geographic Bee and host of ``Jeopardy!,'' Alex Trebek. To achieve this honor, Eric won a nationwide contest comprised of nearly 5 million students in the fourth through eighth grades who had participated in the local geographic bees held in the 50 States and five territories. The winning question was: ``Timis County shares its name with a tributary of the Danube and is located in the western part of which European country?'' The answer, ``Romania,'' was given correctly by Eric Yang after two other tie-breaker questions. Eric is the first Texan to be named champion in the competition's 21-year history. According to Eric's mother, the main reason for his success has been his curiosity, saying that it ``is a major part of Eric. He reads everything from history books to cookbooks to learn about other places and cultures.'' Eric's desire to learn is also evident in his scholastic record. At age 13, Eric scored a 2200 on the SATs out of a possible score of 2400. Young Texans, such as Eric Yang, prove that persistence and a curious mind are the keys to unlocking opportunities for success. I congratulate Eric on this important accomplishment and encourage him as he continues his quest for knowledge.

Mr. CORNYN

Mr. CORNYN. Mr. President, today I would like to address America's policies toward two nations. Each of these nations has strong democratic institutions. Each of these nations is a key trading partner of the United States. And each of these nations offers even more potential for cooperation in the future--if the administration makes the right choices going forward. These two nations are India and Honduras. First, I would like to discuss America's relationship with India. India is the world's largest democracy--and one of the world's largest and most dynamic economies. During this decade, India and the United States have cooperated more closely than ever before. America is now India's largest trading and investment partner. Last year Congress authorized a new era in civil nuclear cooperation between our two countries--which I was proud to support. India has joined the United States and many nations in supporting the people of Afghanistan. India has committed more than $1.2 billion to reconstruction efforts there. Our nations work closely together to fight terrorists--especially since the devastating attacks in Mumbai last year. And since 2004, India and the United States have built a strategic partnership--based on our common values--and committed to expanding opportunities in education, energy, and beyond. As cochairman of the Senate's India Caucus, I strongly support closer ties with our strategic partner in South Asia. Yesterday, several of my colleagues and I had breakfast with Secretary Clinton at the State Department. I am pleased that she sees India as a top priority for our Nation's diplomatic engagement. I appreciate her determination to strengthen our strategic partnership with India in security, trade, and many other issues. I wished her well in her visit to India in the coming weeks. I also took the opportunity to bend the Secretary's ear on the subject of Honduras. Honduras and the United States have been good friends and neighbors for many years. We are trade partners through the Central American Free Trade Agreement. Our two peoples cherish our independence and liberty--and have helped others claim their freedom. Honduras joined the United States as one of the first contributors to Operation Iraqi Freedom. Most of all, the people of Honduras and the United States respect the democratic institutions we have built--and we honor the rule of law. Honoring the rule of law means that no one is above the law-- including the President. In Honduras, the President is limited to a single term in office. Their Constitution--like the U.S. Constitution-- places strict limits on the executive power. These limits are important to the Honduran people because of the history of authoritarian rule in their country--including periods of military dictatorship. Unfortunately, President Zelaya was not happy with the limits to his power--so he tried to get the Constitution changed. First he tried to do so legally. Then he tried to do so illegally. Eventually he tried to order the military to help him get his way. In short, President Zelaya saw himself as the Honduran Hugo Chavez. And he has relied on Chavez's political and material support--including Venezuelan-owned media--in his quest for more power. President Zelaya's attempts to subvert the Constitution became too much for the people of Honduras. It was too much for their supreme court, for their Congress, and for their military--all of whom agreed that President Zelaya had acted way beyond the powers of his office. So the other branches of government acted and removed Mel Zelaya from office on June 28. I met with representatives of the Honduran people yesterday. They included two former Presidents of Honduras, several Honduran Congressmen, and two leaders who helped draft their Constitution in 1982. They all agreed that the legislative and judicial branches of government acted properly. They acted justly. They acted constitutionally. I believe the United States should stand with the Honduran people and with the Constitution they wrote. Unfortunately, the Obama administration has loudly taken the wrong view on Honduras. From day one, the White House and the State Department have issued strong statements in defense of Mel Zelaya and offered no support to all the other constitutional officers in Honduras. Just this week in Moscow, President Obama again called for the return of Mel Zelaya to power--just as Hugo Chavez, Raul Castro, and Daniel Ortega are doing. The United States should not be standing with the dictators and demagogues of our region--we should be standing with the people of Honduras and all who wish to live in freedom and under the rule of law. So I told Secretary Clinton yesterday that she should rethink the administration's approach to Honduras. I said I shared her hope that mediation by President Arias of Costa Rica would be successful. Yet I also made clear that America's priority should be to nurture freedom and support the rule of law and not excuse or enable the ambitions of tyrants.

Mr. CORNYN

Mr. CORNYN. We yield back the remainder of our time. I ask for the yeas and nays.

Mr. CORNYN. Mr. President, I rise to speak, once again, on the nomination of Harold Koh, whom the President has nominated to be Legal Adviser for the State Department. To put this in context, as the Senator from Massachusetts has addressed, the Legal Adviser is a very important job at the State Department. He is responsible for providing guidance on important legal questions, including treaty interpretation and other international obligations of the United States. He gives the Secretary of State legal advice during negotiations with other nations. So the Legal Adviser can be a very influential voice in diplomatic circles, especially if he or she has particularly strong views on America's obligations to other nations and multilateral organizations. Based on my review of Dean Koh's record, I don't believe he is the right man for this job. His views are in tension with what I believe are core Democratic values, in that he would subjugate America's sovereignty to the opinions of the so-called international common law, including treaty obligations that the Senate has never ratified. Indeed, they are not obligations, but he nevertheless would impose them on the United States. When the Senator from Massachusetts says he believes the U.S. Constitution is primary, I would have felt much better if he had said it was the exclusive source of American law, together with the laws that we ourselves pass as representatives of the people; not just a consideration but the consideration when it comes to determining the obligations and rights of America's citizens, rather than subjecting those to international opinion and vague international norms which I heard the Senator refer to. It is true Professor Koh is an advocate of what he calls transnational jurisprudence. He believes Federal judges--these are U.S. judges--should use their power to ``vertically enforce'' or ``domesticate'' American law with international norms and foreign law. As I mentioned, this means judges using treaties and ``customary international law'' to override a wide variety of American laws, whether they be State or Federal. Of course, we understand treaties that have been ratified by the Senate are the law of the land, but Professor Koh believes that even treaties that the United States has not ratified can be evidence of customary international law and given legal effect as such. The Legal Adviser to the State Department has an important role, as I mentioned, in drafting, negotiating, and enforcing treaties. That is why it is so crucial he understands that no treaty has the force of law in the United States until it has been ratified, pursuant to the Constitution, by the Senate. Do we want a top legal advisor at the State Department who believes that norms that he and other international scholars make should become the law, even if they are rejected or not otherwise embraced by the Congress? That can't be within the mainstream. That is outside the mainstream; indeed, I believe a radical view of our obligations in the international community. In 2002, Professor Koh delivered a lecture on the matter of gun control. He argued for a ``global gun control regime.'' I don't know exactly what he means by that, but if he means that the second amendment rights under the U.S. Constitution of an individual American citizen to keep and bear arms are somehow affected by global gun control regimes, then I disagree with him very strongly. Our rights as Americans depend on the American Constitution and American law, not on some global gun control regime or unratified treaties because of some legal theory of customary international law. On the matter of habeas corpus rights for terrorists, in 2007, Professor Koh argued that foreign detainees held by the U.S. Armed Forces anywhere in the world--not just enemy combatants at Guantanamo Bay--are entitled to habeas corpus review in U.S. Federal courts. Those are the rights reserved to American citizens under our Constitution and laws, not to foreign terrorists detained by our military in farflung battlefields around the world. If Professor Koh were correct--and he is not--this would mean that even foreign enemy combatants captured on the battlefield fighting against our troops in Afghanistan and held at Bagram Air Force Base would be able to sue in the U.S. courts seeking their release. On this issue, fortunately, Dean Koh's radical views are not shared by the Obama administration, which filed a brief recently arguing that habeas corpus relief doesn't extend to detainees held at Bagram Air Force base in Afghanistan. Do we want a top legal adviser in the State Department working to grant terrorists and enemy combatants even more rights than they have now? There is the issue of military commissions, something Congress has spoken on at some length after lengthy debate. Professor Koh's views of military commissions also deserve our attention. Military commissions, it turns out, have been authorized since the beginning of this country--by George Washington during the Revolutionary War, by Abraham Lincoln during the Civil War, and by Franklin Roosevelt during World War II. Yes, military commissions have been authorized both by our 43rd and 44th President of the United States in the context of the war on terror. President Obama has said that ``military commissions . . . are an appropriate venue for trying detainees for violations of the laws of war.'' I agree with him. Of course, military commissions, as I alluded to a moment ago, have had bipartisan support and have been authorized by the Congress. But somehow Professor Koh takes a more radical view. He believes military commissions would ``create the impression of kangaroo courts.'' He said they ``provide ad hoc justice.'' He said they do not and cannot provide ``credible justice.'' Do we want the top legal adviser at the State Department undermining both the will of Congress and the President regarding the time-tested practice of military commissions during wartime? Again, here is another example of Professor Koh's views that are radical views--certainly outside of the legal mainstream. Senators should also take a look at Professor Koh's views on suing or prosecuting lawyers for providing professional legal advice in the service of their country. My position is clear: Government lawyers--and I don't care whether they are working in a Democratic administration or a Republican one-- should not be prosecuted or sued for doing their jobs in good faith. They should not be punished for giving their best legal advice under difficult and novel situations, even if it turns out that some lawyer somewhere later disagrees with that advice. As dean of the Yale Law School, Professor Koh has enabled and empowered the leftwing attempt to sue one of its own alumni, John Yoo, who worked at the Office of Legal Counsel in the Bush administration. The Yale Law School's Lowenstein International Human Rights Law Clinic has filed suit against John Yoo for the legal advice he provided to policymakers during his service on behalf of the American people. I wonder if Professor Koh is willing to hold himself to the same standard and agree that individuals can sue him for his official acts if he is confirmed as Legal Adviser to the State Department--if later on lawyers, and perhaps prosecutors, disagree with that legal advice and say it was wrong. Suppose Professor Koh gives legal advice that certain GTMO detainees should be released. If they return to the battlefield, as many have, and end up killing Americans, or our allies, should the victims' families be allowed to hold Professor Koh legally responsible in a court of law? Or suppose Professor Koh gives legal advice that authorizes military actions in Afghanistan or Pakistan. If those operations result in collateral damage, or civilian casualties, would the victims have standing in Federal Court to sue Professor Koh? Do we want a top Legal Adviser at the State Department who is so compromised by the fear of being sued or prosecuted that he could not be trusted to give honest, good-faith legal advice to the Secretary of State or the President of the United States? Perhaps most timely, given the civil unrest in Iran--and the Senator from Massachusetts was critical of the fact that I quoted a 2007 writing of Professor Koh, but it is true from this writing, and I will read it in a moment--Professor Koh appears to draw a moral equivalence between Iran's regime's political suppression and human rights abuses, on one hand, and America's counterterrorism policies on the other. In 2007 he wrote: The United States cannot stand on strong footing attacking Iran for ``illegal detention'' when similar charges can be and have been lodged against our own government. He goes on to say that U.S. Government criticism of Iranian ``security forces who monitored the social activities of citizens, entered homes and offices, monitored telephone conversations, and opened mail without court authorization,'' was ``hard to square'' with our own National Security Agency's surveillance programs. Do we want to confirm a top Legal Adviser at the State Department who can't see the difference between counterterrorism policies approved by the Federal courts and the Congress and the brutal repression practiced by a theocratic regime? We have heard enough moral equivalence about Iran over the last week, and we have heard enough apologies for the actions of the United States, and enough soft-peddling of the actions of the Iranian theocracy, which is a brutal police state. We don't need another voice in the administration whose first instinct is to blame America and whose long-term objective is to transform this country into something it is not. For these reasons, I urge my colleagues to oppose the nomination of Harold Koh as the top Legal Adviser to the State Department. I yield the floor and reserve the remainder of my time.

Mr. CORNYN

Mr. CORNYN. Mr. President, I rise to introduce the Federal Research Public Access Act. I am very pleased to be joined again by my good friend and colleague, Senator Joe Lieberman, who has remained dedicated to seeing this important legislation passed. This bipartisan bill is the same legislation we introduced in the 109th Congress. The purpose of this legislation is to ensure American taxpayers' dollars are spent wisely, which is even more important now in this time of fiscal tension. To put things in perspective, the Federal Government spends upwards of $55 billion on investments for basic and applied research every year. There are approximately 11 departments/agencies that are the recipients of these investments, including: the National Institutes of Health, National Science Foundation, NASA, the Department of Energy, the Department of Defense, and the Department of Agriculture. These departments/agencies then distribute the taxpayers' money to fund research which is typically conducted by outside researchers working for universities, health care systems, and other groups. While this research is undoubtedly necessary and is beneficial to America, it remains the case that not all Americans are capable of experiencing these benefits firsthand. Usually the results of the researchers are published in academic journals. Despite the fact that the research was paid for by Americans' tax dollars, most citizens are unable to attain timely access to the wealth of information that the research provides. Some Federal agencies, most notably the NIH, have recognized this lack of availability and have proceeded to take positive steps in the right direction by requiring that those articles based on government- funded research be easily accessible to the public in a timely manner. I am proud to report that the NIH's public access policy has been a success over the past few years. By the NIH implementing a groundbreaking public access policy, there has been strong progress in making the NIH's federally funded research available to the public, and has helped to energize this debate. Although this has surely been an encouraging and important step forward, Senator Lieberman and I believe there is more that can and must be done, as this is just a small part of the research funded by the Federal Government. With that in mind, Senator Lieberman and I find it necessary to reintroduce the Federal Research Public Access Act that will build on and refine the work done by the NIH and require that the Federal Government's leading underwriters of research adopt meaningful public access policies. Our legislation provides a simple and practical solution to giving the public access to the research it funds. Our bill will ask all Federal departments and agencies that invest $100 million or more annually in research to develop a public access policy. Our goal is to have the results of all government-funded research to be disseminated and made available to the largest possible audience. By speeding access to this research, we can help promote the advancement of science, accelerate the pace of new discoveries and innovations, and improve the lives and welfare of people at home and abroad. Each policy that these departments and agencies develop will require that articles resulting from federal funding must be presented in some publicly accessible archive within six months of publication. In doing so, the American taxpayers will have guaranteed access to the latest research, ensuring that they do not have to pay for the same research twice--first to conduct it and then again to view the results. This simple legislation will provide our government with an opportunity to better leverage our investment in research and in turn ensure a greater return on that investment. All Americans stand to benefit from this bill, including patients diagnosed with a disease who will have the ability to use the Internet to read the latest articles in their entirety concerning their prognosis, students who will be able to find full abundant research as they further their education, or researchers who will have their findings more broadly evaluated which will lead to further discovery and innovation. While a comprehensive competitiveness agenda is still a work-in- progress, this legislation is good step forward. Providing public access to cutting-edge scientific information is one way we can encourage public interest in these fields and help accelerate the pace of discovery and innovation. In promoting this legislation, I hope to guarantee that students, researchers, and every American can access the published results of the research they funded.

Mr. CORNYN

Mr. CORNYN. Mr. President, I rise to introduce the Federal Research Public Access Act. I am very pleased to be joined again by my good friend and colleague, Senator Joe Lieberman, who has remained dedicated to seeing this important legislation passed. This bipartisan bill is the same legislation we introduced in the 109th Congress. The purpose of this legislation is to ensure American taxpayers' dollars are spent wisely, which is even more important now in this time of fiscal tension. To put things in perspective, the Federal Government spends upwards of $55 billion on investments for basic and applied research every year. There are approximately 11 departments/agencies that are the recipients of these investments, including: the National Institutes of Health, National Science Foundation, NASA, the Department of Energy, the Department of Defense, and the Department of Agriculture. These departments/agencies then distribute the taxpayers' money to fund research which is typically conducted by outside researchers working for universities, health care systems, and other groups. While this research is undoubtedly necessary and is beneficial to America, it remains the case that not all Americans are capable of experiencing these benefits firsthand. Usually the results of the researchers are published in academic journals. Despite the fact that the research was paid for by Americans' tax dollars, most citizens are unable to attain timely access to the wealth of information that the research provides. Some Federal agencies, most notably the NIH, have recognized this lack of availability and have proceeded to take positive steps in the right direction by requiring that those articles based on government- funded research be easily accessible to the public in a timely manner. I am proud to report that the NIH's public access policy has been a success over the past few years. By the NIH implementing a groundbreaking public access policy, there has been strong progress in making the NIH's federally funded research available to the public, and has helped to energize this debate. Although this has surely been an encouraging and important step forward, Senator Lieberman and I believe there is more that can and must be done, as this is just a small part of the research funded by the Federal Government. With that in mind, Senator Lieberman and I find it necessary to reintroduce the Federal Research Public Access Act that will build on and refine the work done by the NIH and require that the Federal Government's leading underwriters of research adopt meaningful public access policies. Our legislation provides a simple and practical solution to giving the public access to the research it funds. Our bill will ask all Federal departments and agencies that invest $100 million or more annually in research to develop a public access policy. Our goal is to have the results of all government-funded research to be disseminated and made available to the largest possible audience. By speeding access to this research, we can help promote the advancement of science, accelerate the pace of new discoveries and innovations, and improve the lives and welfare of people at home and abroad. Each policy that these departments and agencies develop will require that articles resulting from federal funding must be presented in some publicly accessible archive within six months of publication. In doing so, the American taxpayers will have guaranteed access to the latest research, ensuring that they do not have to pay for the same research twice--first to conduct it and then again to view the results. This simple legislation will provide our government with an opportunity to better leverage our investment in research and in turn ensure a greater return on that investment. All Americans stand to benefit from this bill, including patients diagnosed with a disease who will have the ability to use the Internet to read the latest articles in their entirety concerning their prognosis, students who will be able to find full abundant research as they further their education, or researchers who will have their findings more broadly evaluated which will lead to further discovery and innovation. While a comprehensive competitiveness agenda is still a work-in- progress, this legislation is good step forward. Providing public access to cutting-edge scientific information is one way we can encourage public interest in these fields and help accelerate the pace of discovery and innovation. In promoting this legislation, I hope to guarantee that students, researchers, and every American can access the published results of the research they funded.

Mr. CORNYN

Mr. CORNYN. Mr. President, I ask unanimous consent that four law clerks on my staff, Eka Akpakip, Kristina Campbell, Nick Rotsko, and Roberto Valenzuela be granted floor privileges during the remainder of this session.

Mr. CORNYN

Mr. CORNYN. Mr. President, would the Senator withhold the quorum call?

Mr. CORNYN

Mr. CORNYN. Mr. President, I rise to speak on the nomination of Harold Koh whom the President has nominated to be legal advisor to the State Department. This is a relatively obscure but very important position at the State Department. The legal advisor operates frequently behind the scenes but on such important issues as international relations, national security, and in other areas. One area that is very important is that the legal advisor is often the last word at the State Department on questions regarding treaty interpretation; that is, international agreements between countries. The legal advisor often gives legal advice to the Secretary of State and the President of the United States during important negotiations with other nations. We also know from experience that the legal advisor can be a very important voice in diplomatic circles, especially if he or she views America's obligations to other nations and multilateral organizations in a particular way, particularly if they have strong views. Professor Koh has an impressive academic resume and professional background. He is an accomplished lawyer and a scholar in the field of international law. Nevertheless, I do not believe that Professor Koh is the right person for this job. I believe that many of his writings, his speeches, and other statements are in tension with some very core democratic values in this country. I believe that his legal advice on transnational law, if taken to heart, could undermine America's sovereignty or security and our national interests. I urge my colleagues not to take my word for this but look for themselves at Professor Koh's record and consider whether he is the right person to be advising Secretary Clinton and other diplomats at the State Department on legal issues pertaining to our relationship with other nations and such key issues. I mention this notion of transnational jurisprudence, which is a little arcane, but I will explain what it is all about. Professor Koh has been an advocate for transnational jurisprudence, which is the idea that Federal judges should look at cases and controversies as opportunities to change U.S. law and to make it look more like international or other foreign law. I am not saying that all foreign law is bad, but our Founders acknowledged that when we take the oath of office here, we pledge to uphold and defend the Constitution of the United States of America, not some unsigned, unratified international treaty or an expansive notion of international common law which Professor Koh embraces and advocates. We know Americans don't have a monopoly on virtue and wisdom and certainly we can benefit from exchanging ideas with other democratic countries. But Professor Koh's notion that it is appropriate and proper for a Federal judge to look at foreign law in deciding what the Constitution of the United States means, and what the laws of the United States require, to me, is at complete tension with this idea that we will uphold American values and the American Constitution and American laws passed by our elected officials. We do not appropriately ask Federal judges to look at unratified treaties, some notion of international common law and, certainly, the laws of other countries in interpreting our laws in the United States. Professor Koh seems to have a different view. He said Federal judges should use their power to ``vertically enforce'' or ``domesticate'' American law with international norms and foreign law. He has argued that Federal judges should help ``build the bridge between the international and domestic law through a number of interpretive techniques.'' Where will these ``interpretive techniques'' lead us? Evan Thomas and Stuart Taylor asked that question in Newsweek magazine earlier this year. They answered based on their investigation: Were Koh's writings to become policy, judges might have the power to use debatable interpretations of treaties and ``customary international law'' to override a wide array of federal and state laws affecting matters as disparate as the redistribution of wealth and prostitution. Transnational jurisprudence is not the only controversial view professor Koh holds. Again, as a law professor and dean of Yale Law School, I understand law professors advocating cutting edge and, indeed, provocative legal interpretations. But to say this is appropriate not in the classroom as a teaching exercise but, rather, important for Federal judges to do in the exercise of their article III powers is an entirely different notion altogether. In 2002, Professor Koh gave a lecture titled ``A World Drowning in Guns,'' in which he argued for a ``global gun control regime.'' In 2007, he argued that foreign prisoners of war held by the U.S. Armed Forces anywhere in the world--not just enemy combatants held at Guantanamo Bay--are entitled to the same rights as American citizens under habeas corpus law as applied by our Federal courts. Perhaps most timely, Professor Koh appears to draw a moral equivalence between the Iran regime's political suppression and human rights abuses, on the one hand, and America's counterterrorism policies on the other hand. Professor Koh has written: [U.S.] criticism of Iranian ``security forces [who] monitor the social activities of citizens, entered homes and offices, monitored telephone conversations, and opened mail without court authorization'' is hard to square with our own National Security Agency's sustained program of secret, unreviewed, warrantless electronic surveillance of American citizens and residents. Furthermore, the United States cannot stand on strong footing attacking Iran for ``illegal detentions'' when similar charges can be and have been lodged against our own government. The U.S. policies that Professor Koh is criticizing were authorized by the Congress in a bipartisan fashion, and each of us is accountable to our constituents for the decisions we make. It is offensive to compare the policies of the U.S. Government with those of a theocratic dictatorship that responds to criticism with brutal violence against its own people. We have heard enough moral equivalence regarding Iran over the last week and a half. We have heard enough apologies for the actions of the United States--and enough soft-peddling of the brutal suppression by the Iranian regime of their own people. We don't need another voice in the administration whose first instinct is to blame America--and whose long-term objective is to transform this country into something it is not. For these reasons, I urge my colleagues to vote no on the cloture motion on this nomination. I yield the floor and suggest the absence of a quorum.

Mr. CORNYN

Mr. CORNYN. I would like to use the next 10 minutes or so to address the nomination of Judge Sonia Sotomayor to be the next Associate Justice of the U.S. Supreme Court. I spoke last week a little bit on this nomination and the constitutional responsibility of the Senate to conduct a fair and, I believe, dignified hearing that will be held, now, on July 13, just a couple of short weeks from now. As I said then, and I will say it again, she deserves the opportunity to explain her judicial philosophy more clearly and to put her opinions and statements in proper context. I think every nominee deserves that. But I don't think it is appropriate for anyone--this Senator or any Senator--to prejudge or to preconfirm Judge Sotomayor or any judicial nominee. This is an important process, as I said, mandated by the same clause of the Constitution that confers upon the President the right to make a nomination, and it is the duty of the Senate to perform something called advice and consent, a constitutional duty of ours. It should be undertaken in a responsible, substantive, and serious way. Last Thursday I raised three issues I will reiterate briefly with regard to Judge Sotomayor's record. I would like to hear more from her on the scope of the second amendment to the Constitution and whether Americans can count on her to uphold one of the fundamental liberties enshrined in the Bill of Rights: the right to keep and bear arms. I would also like to hear more from Judge Sotomayor on the scope of the fifth amendment and whether the government can take private property from one person and give it to another person based on some elastic definition of public use. And, I want to hear more from her on her thoughts on the equal protection clause of the 14th amendment of the Constitution, which reads in part: No State shall . . . deny to any person within its jurisdiction the equal protection of the laws. Obviously, the third issue is going to be very much in the news, probably again as soon as next Monday, when the Supreme Court hands down its decision in the Ricci v. DiStefano case, a case in which Judge Sotomayor participated on the panel before her court of appeals. That case, as you may recall, involves firefighters who took a competitive, race-neutral examination for promotion to lieutenant or captain at the New Haven Fire Department. The bottom line is, the Supreme Court could decide the Ricci case in a matter of days, and the Court's decision, I believe, will tell us a great deal about whether Judge Sotomayor's philosophy in that regard, as far as the Equal Protection Clause is concerned, is within the judicial mainstream or well outside of it. The Ricci case is one way the American people can get a window into Judge Sotomayor's judicial philosophy. Another way is to look at some of her public comments, including speeches made on the duty and responsibility of judging. The remarks that have drawn the most attention are those in which she said: I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life. As I said before, and I will say it again, there is no problem-- certainly from me, and I do not believe any Senator--if she is just showing what I think is understandable pride in her heritage, as we all should as a nation of immigrants. But if the judge is talking about her judicial philosophy and suggesting that some people, some judges, because of their race, because of their ethnicity, because of their sex, actually make better decisions on legal disputes, then that is something Senators will certainly want to hear more about, this Senator included. Judge Sotomayor has made other public remarks that deserve more scrutiny than they have received so far. For example, in a speech in 2002, Judge Sotomayor embraced the remarks of Judith Resnick and Martha Minow, who are two prominent law professors who have each proposed theories about judging that are far different than the way most Americans think about these issues. Most Americans think the people elect their representatives, Members of the House and Senate, to write the laws, and the judges, rather than rewriting those laws, should interpret those laws in a fair and commonsense way, without imposing their own views on what the law should be. Most Americans think that when judges impose their own views on a case, when they substitute their own political preferences for those of the people and their elected representatives, then they undermine Democratic self-government and they become judicial activists. Professors Resnick and Minow have very different ideas than I think the mainstream American thinks on what a judge's job should be. Their views may not be controversial in the ivory tower of academia. Academics often encourage each other to engage in provocative theories so they can write about them and get published and get tenure. But the American people generally do not want judges to experiment with new legal theories when it comes to judging. They have a more commonsense view that judges should follow the law and not the other way around. So where does Judge Sotomayor stand on some of these academic legal theories, which I think are far out of the mainstream of American thought? I am not sure. But in her 2002 remarks she said this: I accept the proposition that as [Professor] Resnick describes it, ``to judge is an exercise of power.'' And: as . . . Professor Minow . . . states ``there is no objective stance but only a series of perspectives--no neutrality, no escape from choice in judging.'' If I understand her quotes correctly, and those are some things I want to ask her about during the hearing, that is not the kind of thing I think most Americans would agree with. They do not want judges who believe that there is no such thing as neutrality in judging because neutrality is an essential component of fairness. If you know you are going to walk into a courtroom only to have a judge predisposed to deciding against you because of some legal theory, then that is not a fair hearing. And we want our judges to be neutral and as fair as possible when deciding legal disputes. The American people, I do not think, want judges who believe they have been endowed with some power to impose their views for what is otherwise the law. Americans believe in the separation of powers, the separation between Executive, legislative and judicial power and that judges should, by definition, show self-restraint and respect for our branches of government. I hope Judge Sotomayor will address these academic legal theories during her confirmation hearing. I hope she will clarify what she sees in the writings of Professors Resnick, Minow, and others whom she finds so admirable. I hope she will demonstrate that she will respect the Constitution more than those new-fangled legal theories and that she will respect the will of the people as represented by the laws passed by their elected representatives and not by life-tenured Federal judges who are not accountable to the people. I yield the floor.

Mr. CORNYN

Mr. CORNYN. Mr. President, health care reform is very much in the news and very much on the agenda of the Senate, as the American people know. So far, they have learned very little about how Congress plans to address what is broken in our health care system. As the Presiding Officer knows, two committees in the Senate are primarily given the responsibility for writing a health care reform bill. Of course, the HELP Committee--the Health, Education, Labor and Pensions Committee--chaired by Senator Kennedy, the Senator from Massachusetts, and the Finance Committee, chaired by Senator Baucus. The ranking member, of course, is Senator Chuck Grassley from Iowa. These two committees, as well as the President of the United States, are considering numerous proposals that deserve the careful attention of the American people and of Congress, because this legislation, however it turns out, could fundamentally affect the relationship between patients and their doctors as well as the relationship between the individual and our government. In the Kennedy bill, which has been proposed and which is pending now before the Health, Education, Labor and Pensions Committee, there are several troublesome provisions. One, a government-run plan which would compete, allegedly, with the private sector. But as we all know, the government is the 800-pound gorilla, and there is no true competition when government is involved. In fact, one projection is that as many as almost 120 million people would ultimately find themselves in a single- payer, government-run system, because essentially the Federal Government would undercut those private health plans to the point where individuals would find themselves with no choice other than to have the government direct their health care. Another troublesome provision is the so-called pay or play mandate. It goes without saying, almost, but I will say it anyway, that small businesses create the vast majority of jobs in America. Yet this proposal, I think mistakenly, would impose a punitive tax on small businesses that are unable to keep their doors open and provide health insurance for their employees. We want to allow small businesses to provide health care to their employees by bringing down the costs, and we have a number of mechanisms to do that. But the idea that we are going to impose a punitive tax on small businesses that do not provide a health care plan for their employees will destroy jobs, so people will not only be without insurance, they will be without jobs, period-- a bad idea. Third, the Kennedy bill would provide new Federal subsidies to individuals making as much as $110,000 a year--astonishing. At a time when we are looking at spending or borrowing as far as the eye can see and deficits up to $2 trillion, unfunded liabilities in the tens of trillions of dollars, there is actually a proposal before the HELP Committee that would increase the size of Federal entitlement programs and increase the tenuous position of this Medicaid Program which would then fund health insurance for people making up to $110,000 a year. Fourth, the Kennedy bill would impose a medical advisory council. I always get a kick out of the innocuous names given to some pretty sinister stuff up here. I would say it is sort of akin to calling the former Soviet Union's politburo an advisory council. In fact, this medical advisory council--comprised of unelected and unaccountable bureaucrats--would have the power to dictate personal health decisions. I don't know anybody who thinks that is a good idea; certainly nobody I have talked to. This Kennedy proposal, with all due respect to our friend and colleague from Massachusetts, is chock full of bad care policies. The worst part of it is, they will not lower health care costs for people who have health insurance now. In fact, they will make our debt burden and the debt burden of our children and grandchildren much worse. The price tag on government programs keeps growing and growing and growing here in Washington, DC. In fact, the President's proposal for his budget this year projected a ``downpayment on health care reform.'' Well, I have told people that where I come from we don't make downpayments on something unless we know exactly what it is we are buying. So far the American people don't know what they are being asked to buy. Indeed, the other part of that--and this just staggers my imagination--is that we already spend almost twice as much as the next closest industrialized nation on health care per capita. We spend roughly 17 percent of our economy--our gross domestic product--on health care. Why does anybody think it is a good idea to spend even more? If we were getting a good value for that spending, that would be one thing, but we know this current level of spending is full of fraud and waste and other problems. So why in the world would we want to make matters worse by spending more money on top of a flawed health care delivery system? Talking about money--and I know it is hard to imagine how much we are talking about--it used to be that $1 million was a lot of money; then a billion dollars seemed like a lot of money--and it is--and now we are sort of becoming increasingly immune to these big numbers when people talk about trillions of dollars and more. For example, earlier this month, the proposal that Senator Kennedy made--that is pending now in front of the Health, Education, Labor, and Pension Committee--was scored by the Congressional Budget Office, which is responsible for giving us good numbers in an impartial, nonpartisan way, so we can make sound policy decisions. They said the Kennedy bill would cost more than $1 trillion over the next 10 years. The problem is, that was only for part of the bill. In other words, that was not the complete cost of the bill proposed by our friend and colleague from Massachusetts, Senator Kennedy. To make matters worse, the Congressional Budget Office said the bill would only cover one-third of the uninsured. Ironically, it would ultimately chase millions of people off the insurance coverage they have right now. So it strikes me as a very bad answer to a very real problem. Last week, we also learned of the Congressional Budget Office's estimate for the Senate Finance Committee proposal--the second committee that is dealing with health care, and the committee on which I am privileged to serve. Here again, the Congressional Budget Office-- the number crunchers, the folks with the green eyeshades who try to call them as they see them so we can take that into account in determining policy decisions--said the proposal coming out of the Finance Committee would cost $1.6 trillion more over 10 years. So on top of the 17 percent of our gross domestic product, we are talking about proposals that would spend $1 trillion to $1.6 trillion of additional money on top of a broken system. Well, two things are becoming increasingly clear so far; that is, it seems like there is less concern in Washington about lowering health care costs than shifting those costs to the taxpayers. The costs related to a Washington takeover of health care keep going up and up. You would think these huge price tags would convince some folks in Washington we ought to call a time out, to back up and come back with a different idea. You would think it would cause Senators and Congressmen and other leaders here in Washington--the President--to come up with a new approach, to be open to different alternatives where we could actually lower costs, not only for the taxpayers but for small businesses and individual consumers. Instead, we see proposals coming out of the White House and the Halls of Congress calling for more spending and more debt. Of course, one thing that happens around Washington when people don't like the news being delivered by nonpartisan agencies, such as the Congressional Budget Office, is they try to shoot the messenger. Last week, Speaker Pelosi accused the Congressional Budget Office of providing misleading analyses of health care reform bills. I don't believe that is the case. I actually believe the professionals at the Congressional Budget Office are doing very difficult but unpopular work. They are speaking truth to power here in Washington and making the folks who would pass these enormous unfunded bills and impose this huge debt on generations hereafter somewhat unhappy. But I think they are doing an important service by telling us the facts. Last week, I commended the Director of the CBO--Dr. Doug Elmendorf-- for saying that CBO will ``never adjust our views to make people happy.'' God bless Dr. Doug Elmendorf for his integrity and his commitment to telling the truth. We need to learn how to deal with the truth, not try to remake it or cover it up. The second part of these proposals that causes me grave concern is this notion that we actually need to spend more money in order to be able to save money in the end. We need to spend money to save money. I know the distinguished occupant of the Chair had a very successful business career, and maybe that is true in the private sector-- sometimes you have to invest money in order to make money or save money later--but I can't think of a single Federal Government program where that worked--you have to spend more money in order to save money. It does not happen around here. Let me cite somebody who perhaps is certainly more authoritative than I am: Professor Katherine Baicker of the Harvard School of Public Health. She said: Universal insurance is likely to increase, not reduce, overall health care spending. Professor Baicker predicted months ago what the Congressional Budget Office has recently concluded. The Congressional Budget Office said: By themselves, insurance expansions would also cause national spending on health care to increase, in part because insured people generally receive somewhat more medical care than uninsured people. The Washington Post recognizes this as well. In an editorial this morning, it said: It is quite likely that any legislation that emerges will create a hugely expansive health-care entitlement with no guarantee of the upward cost spiral being slowed. The Post also said: . . . given a national debt already growing out of control and the risks that health-care costs won't be controlled, you may worry about taking on a large new burden ($1.6 trillion over 10 years . . . ). I think that is exactly right. That is what makes people anxious about what they hear coming out of Washington under the name of health care reform. I think it is fair to say that the ``spend more to save more'' thinking is what resulted in the wasteful and counterproductive stimulus bill that was passed earlier this year--a bill that we got on our desks--the conference report--at 11 p.m. on a Thursday night and were required to vote on less than 24 hours later, when virtually no one had even had a chance to read it. I was comfortable with my vote, because I voted against it, for many reasons but one of them being I didn't know exactly what was in there. The stimulus bill was a very partisan bill, passed over the nearly unanimous opposition of congressional Republicans. But we were told something along the lines of what we now hear: Spend more to save more. We heard that spending was good, for its own sake, and that borrowing and spending was the quickest route to economic recovery. We were told we had to rush through this binge of spending--borrowed money--or else unemployment would rise to over 8 percent. Well, the results are in, and they are not very good. The national unemployment rate is now 9.4 percent--not 8 percent. In many States, it is well into double digits. A lot of stimulus money has been simply wasted, and the bulk of it is stuck here in Washington. I think what we ought to do is take it and return it to deficit reduction, so we can, hopefully, lower the burden we have imposed on our children and grandchildren under a ruse, under the pretense that we were actually going to use that money to get the economy back on track. It hasn't happened. While we are seeing some so-called green shoots of the economy beginning to spring up, with improved results on Wall Street, we know unemployment is very high and we are not out of the woods yet. Indeed, we are looking at the prospect of runaway inflation, unless the Fed does a very tricky balancing act as it contracts its balance sheet and unwinds a lot of lending it has done in the past. Because one result is that as the economy improves, inflation will be a great risk. Of course, the Fed has a tough balancing act to play, because if they crank up interest rates too soon, it may well kill the recovery and we will be back in the position we find ourselves in now. The bottom line is, we can't spend more to save more. It didn't work in the stimulus bill, and it is not going to work when it comes to health care. Proponents of a so-called public plan or government plan-- what I call a government takeover, or Washington takeover of health care--are saying that it works as well as Medicare at keeping costs low. As a matter of fact, that is the model they started out with. They said: Medicare for all, until they realized that wasn't a very good example because of the fiscal unsustainability of Medicare spending that we see now with tens of trillions of dollars in unfunded liabilities and also the fact that a lot of Medicare beneficiaries, while they have the promise of coverage--of Medicare--they can't find a doctor to see them. Medicare rates are so low that many physicians--for example, where I live, in Travis County, in Austin, TX, only 17 percent of physicians will see a new Medicare patient because reimbursements rates are so low. We need to fix Medicare, yes, but we don't need to take the current broken system and blow it up and make it the system for 300 million people and consider that we have done our job. I mentioned the $38 trillion in unfunded liabilities. It is estimated Medicare will go insolvent in the year 2017 unless we do something about it. In fact, many beneficiaries of Medicare know it is inadequate alone, so they buy supplemental policies. Medicare forces many providers, as I mentioned, to limit the number of patients they accept because reimbursement rates are so low. Here is another part of why Medicare is a bad model. The Washington Post estimates that $60 billion of taxpayer money is stolen or wasted or lost to fraud in Medicare each year. Surely, we need to fix that problem. Senator Martinez and I have introduced legislation that we believe will cut that figure down dramatically and make sure more of that money goes to treat Medicare beneficiaries rather than being stolen or defrauded by some unscrupulous health care providers. Medicaid only works as well as it does because of cost shifting to people with private insurance. Economists will tell us that cost shifting occurs when a health care provider accepts low government reimbursement rates but can only do so if it anticipates collecting higher rates from those with private insurance. This cost shifting acts like a hidden tax on millions of American families and small businesses. One respected actuary estimates that cost shifting increases the average American family's health care premium by more than 10 percent or $1,500. That means those listening who have private health insurance, their family will pay $1,500 more each year because of this cost shifting phenomenon because Medicare and Medicaid reimburse at below-market rates. So those are hardly a model for what we ought to be doing. Adding another new government plan on top of the ones we have, of course, will only increase the costs. We will never lower health care costs by putting Medicare all in place or what some might call Medicare on steroids. We need new approaches. Mr. President, there are better alternatives. We have a bill that has been proposed by Senators Burr and Coburn on our side of the aisle. Several members on the Finance Committee, including myself, are working on a proposal that will empower patients and consumers, and not the government; that will not get between doctors and patients and will not rely on denying or delaying access to care in order to keep costs down. We believe innovation is one of the things that has made health care in America among the greatest in the world, and that is why we believe we need to retain, protect and nurture that innovation and that quality health care: to empower patients to use a market that plays by the rules to help lower their costs. I have seen that as recently as a few weeks ago in Austin, TX, when I visited with a number of employees of the Whole Foods Company that is headquartered in Austin--a grocery company--where these workers have health savings accounts or high deductible insurance. They call them wellness accounts. I was told that 80 percent of the employees at Whole Foods don't have to pay any money out of pocket for health care. Since they have wellness accounts, or money they control, they have been empowered to become good, smarter consumers in health care. So they will call health care providers and say: How much are you going to charge me for this? They will shop and compare different providers to make sure they are getting the best price for the best quality outcome. I think that kind of thing, which imposes market discipline but which requires transparency, is one way we can hold down costs and empower individuals rather than just turn it all over to Uncle Sam. Let me say, in conclusion, we keep hearing we must put health care reform on the fast track in Washington, DC, although we see the schedule slipping because of the sticker shock at the huge numbers coming out of the CBO. I have told folks back in Texas that we know the train is leaving the station, but we don't yet know whether that train will safely arrive with all of its occupants healthy and alive or whether what we are witnessing is, in essence, a slow-motion train wreck in Washington, DC. The more the American people learn about what is in these bills and how much they cost, they will want us to slow down so we can make better decisions and we can get this right. I think we owe them that. I yield the floor.

Mr. CORNYN

Mr. CORNYN. Mr. President, the Presiding Officer wishes to speak for 5 minutes. I would be glad to speak after that. I ask unanimous consent that following the Senator from Virginia being recognized to speak for up to 5 minutes, then I be recognized to speak.

Mr. CORNYN

Mr. CORNYN. Mr. President, I ask unanimous consent to speak for up to 15 minutes.