Chuck Grassley

Mr. GRASSLEY

Mr. GRASSLEY. Mr. President, today the Senate turns to another judicial nomination, that of Mary Geiger Lewis, to be U.S. district judge for the District of South Carolina. Once again, for the third time this month, we have a nonconsensus nominee brought before the Senate. I oppose this nomination and urge all Senators to do likewise. We continue to confirm the President's nominees at a brisk pace. We already confirmed 149 nominees of this President to the district and circuit courts. We also have confirmed two Supreme Court nominees during President Obama's term. For those who claim this President is being treated differently, let me put that in perspective for my colleagues, with an apples-to-apples comparison. The last time the Senate confirmed two Supreme Court nominees was during President Bush's second term. During President Bush's entire second term, the Senate confirmed a total of only 119 district and circuit court nominees. If Ms. Lewis is confirmed today, we will have confirmed 31 more district and circuit nominees for President Obama than we did for President Bush, in similar circumstances. During the last Presidential election year, 2008, the Senate confirmed a total of 28 judges--24 district and 4 circuit. With a confirmation today, we will match that number. We have already confirmed five circuit nominees, and this will be the 23rd district judge confirmed this year. Some have complained about the length of time to confirm these judges, focusing only on one phase of the confirmation process. In reality, the timeframes are comparable for nomination to confirmation. For President Bush, that time frame was around 211 days; for President Obama, it is 222 days. We take this time for review because our inquiry of the qualifications of nominees must be rigorous. At the beginning of this Congress, I articulated my standards for judicial nominees. I want to ensure that the men and women who are appointed to a lifetime position in the Federal judiciary are qualified to serve. Factors I consider important include intellectual ability, respect for the Constitution, fidelity to the law, personal integrity, appropriate judicial temperament, and professional competence. Last year, I became increasingly concerned about some of the judicial nominations being sent to the Senate. In a few individual cases, it was very troublesome. The nomination of Ms. Lewis was one of those that gave me concern. When applying the standards I have articulated, it is my judgment that Ms. Lewis falls short and should not be confirmed. The Senate process for reviewing the professional qualifications, temperament, background, and character is a long and thorough process. These issues need to be fully examined; nominations are not just rubberstamped. At the conclusion of that lengthy process, a substantial majority of Republicans on the Judiciary Committee determined that this nomination should not be reported to the Senate. Nevertheless, we now have the nomination before us. Even so, there are reasons sufficient to oppose this nominee. Ms. Lewis has limited courtroom experience and little criminal law experience. Her responses in her questionnaire and hearing regarding her legal experience indicated her significant cases were handled more than 10 years ago and was more of a team effort than individual experience. At her hearing she was not prepared to discuss the legal principles involved in a case her firm took to the Supreme Court. For these reasons and others, I will vote nay on this nomination and urge my colleagues to do likewise. I suggest the absence of a quorum and ask unanimous consent that the time be equally divided.

Mr. GRASSLEY

Mr. GRASSLEY. Mr. President, yesterday, all time was yielded back on the Hurwitz nomination, post-cloture, and the nominee was then confirmed by voice vote. I was not aware we were going to vote on the nomination by voice. Had I known, I would have requested the yeas and nays. The following Members have informed my staff that if there had been a rollcall vote, they would have voted `nay' on final confirmation on the nomination of Andrew Hurwitz to the Ninth Circuit Court of Appeals: 1. Senator Chuck Grassley (R IA) 2. Senator Orrin Hatch (R UT) 3. Senator Mike Lee (R UT) 4. Senator Jeff Sessions (R AL) 5. Senator Richard Shelby (R AL) 6. Senator Lindsey Graham (R SC) 7. Senator Jim DeMint (R SC) 8. Senator John Cornyn (R TX) 9. Senator Kay Bailey Hutchison (R TX) 10. Senator Tom Coburn (R OK) 11. Senator James Inhofe (R OK) 12. Senator Mitch McConnell (R KY) 13. Senator Rand Paul (R KY) 14. Senator John Barrasso (R WY) 15. Senator Mike Enzi (R WY) 16. Senator David Vitter (R LA) 17. Senator Pat Toomey (R PA) 18. Senator Roy Blunt (R MO) 19. Senator Johnny Isakson (R GA) 20. Senator Saxby Chambliss (R GA) 21. Senator John Thune (R SD) 22. Senator Pat Roberts (R KS) 23. Senator Jerry Moran (R KS) 24. Senator Dan Coats (R IN) 25. Senator Thad Cochran (R MS) 26. Senator Roger Wicker (R MS) 27. Senator James Risch (R ID) 28. Senator Mike Crapo (R ID) 29. Senator John Hoeven (R ND) 30. Senator Mike Johanns (R NE) 31. Senator Richard Burr (R NC) 32. Senator Lamar Alexander (R TN) 33. Senator Bob Corker (R TN) 34. Senator John Boozman (R AR) 35. Senator Marco Rubio (R FL) 36. Senator Dean Heller (R NV) 37. Senator Ron Johnson (R WI) 38. Senator Kelly Ayotte (R NH) 39. Senator Ron Portman (R OH)

Mr. GRASSLEY

Mr. GRASSLEY. Madam President, I was shocked and disappointed to learn that the majority leader came to the floor to yield back all time and move immediately to a voice vote on the nomination of Andrew David Hurwitz to be U.S. Circuit Judge for the ninth circuit. I find this to be quite irregular and outside the recent precedents of this Senate. Typically, Members are informed of such actions in advance. I was not so informed, and I am the ranking member of the Judiciary Committee. I certainly did not intend to yield my time and, in fact, I intended to speak further on the nominee, particularly to make clear some corrections that I think needed to be made after I debated this yesterday. Regardless of yielding time or further debate, I expected a rollcall vote on this nominee. This has been Senate precedent recently. Before today, cloture was invoked on 22 different judicial nominees. Only 1 of those 22 was confirmed without a rollcall vote--Lavenski Smith to the eighth circuit. Cloture was invoked 94 to 3 on July 15, 2002, and he was confirmed by unanimous consent later that day. Even Barbara Keenan, fourth circuit, had a confirmation rollcall after cloture was invoked 99 to 0. Furthermore, it has been our general understanding around here for some time that circuit votes would be by rollcall vote. So I am extremely disappointed that there has been a breach of comity around here. Yesterday I outlined my primary concerns regarding the nomination of Andrew David Hurwitz to be U.S. Circuit Judge for the ninth circuit. I continue to oppose the nomination and will vote no on his confirmation. I want to supplement and correct the Record on a few issues that arose during yesterday's debate. One of the biggest misunderstandings is that opposition to Justice Hurwitz is based on a 40 year-old decision made by a Judge other than Justice Hurwitz. I do not oppose his nomination because of what somebody else did, or because Justice Hurwitz was a law clerk. My opposition, on this issue, is based on what Mr. Hurwitz himself takes credit for. He authored the article in question, not as a young law clerk, but when he was well established and seasoned lawyer, shortly before joining the Arizona Supreme Court. In that article Justice Hurwitz praised Judge Newman's opinion for its ``careful and meticulous analysis of the competing constitutional issues.'' He called the opinion ``striking, even in hindsight.'' Let me remind you, the constitutional issues and analysis he praises is Newman's influence on the Supreme Court's expansion of the ``right'' to abortion beyond the first trimester of pregnancy. This, Hurwitz wrote, ``effectively doubled the period of time in which states were barred from absolutely prohibiting abortions.'' Hurwitz's article was clearly an attempt to attribute great significance to decisions in which the judge for whom he had clerked had participated. I think by any fair measure, it is impossible to read Justice Hurwitz's article and not conclude that he wholeheartedly embraces Roe, and importantly, the constitutional arguments that supposedly support it. Now it would not be surprising to learn that Justice Hurwitz might not be a pro-life judge. The question is not his personal views, but his judicial philosophy. He defends the legal reasoning of Roe, despite near universal agreement, among both liberal and conservative legal scholars, that Roe is one of the worst examples of judicial activism in our Nation's history. I have also raised my concern that Justice Hurwitz's personal views do seep into his decisions as a judge. Yesterday, I discussed his troubling record on the death penalty and how he appears to be pro- defendant in his judicial rulings. Some of my colleagues came to the floor and stated they were unaware of even one case where his personal views influenced his judicial decision making. So I will review a bit of the record. While in private practice, Justice Hurwitz successfully challenged Arizona's death penalty sentencing scheme in Ring v. Arizona, even though the law previously had been upheld by the Supreme Court of the United States in Walton v. Arizona. After the Ring decision, Hurwitz, attempted to expand the ruling by asking the Arizona Supreme Court to either throw out each man's death sentence and order a new trial or to resentence each to life imprisonment with the possibility of parole, saying that allowing the previous death sentence to stand would be a ``dangerous precedent.'' The Arizona Supreme Court refused to overturn the convictions and death sentences on a blanket basis, ruling that the trials were fundamentally fair and that the U.S. Supreme Court's ruling didn't require throwing out all the death sentences. Justice Hurwitz didn't stop there. While on the Arizona Supreme Court, Justice Hurwitz continued to attempt to expand the scope of the Ring case. His personal opposition to the death penalty appears to have influenced his decisions on the Arizona Supreme Court. Justice Hurwitz was the lone dissenter in the case of State of Arizona v. Styers. In that case, a jury found James Lynn Styers guilty of the 1989 murder, conspiracy to commit first degree murder, kidnapping, and child abuse of four-year-old Christopher Milke. Four-year old Christopher was told he was being taken to see Santa Claus, but instead he was taken to the desert and brutally shot in the back of the head. After years of appeals, the case found itself in federal court, making its way to the Ninth Circuit. In 2008, nearly 19 years after the heart wrenching crime took place, the Ninth Circuit sent the Styers case back to Arizona. In June 2011, some 22 years after this horrific event occurred, the Arizona Supreme Court, in a 4 1 decision, upheld Styers' death sentence. Justice Hurwitz, attempting to cite Ring as authority--the case he argued in while in private practice--was the sole Justice on the Arizona Supreme Court who thought that Christopher's murderer should be given another trial, likely resulting in another round of delays. If he had his way, the victims in this crime would still be awaiting justice, Arizona taxpayers would be facing unnecessary expenses and society at large would still be waiting for a resolution of the case. In another death penalty case, State of Arizona v. Donald Edward Beaty, Justice Hurwitz was again the lone dissenter. Donald Beaty was convicted of the May 9, 1984 murder in Tempe of 13-year-old Christy Ann Fornoff. Thirteen-year-old-Christy was abducted, sexually assaulted and suffocated to death by Beaty while collecting newspaper subscription payments. Beaty, who has been on death row since July, 1985, was scheduled to die by lethal injection at an Arizona Department of Corrections prison in Florence at 10 a.m. on May 25, 2011, more than 27 years after the crime occurred. Beaty's execution was delayed for most of the day as his defense team tried to challenge the Arizona Department of Corrections' decision to substitute one approved drug for another in the state's execution-drug formula. The Arizona Supreme Court ruled 4 1 to lift the stay, with the majority saying Beaty's lawyers hadn't proved he was likely to be harmed by the change. Once again, Justice Hurwitz was the sole dissenter. If Justice Hurwitz had his way, the State would have had to start over with the death warrant process, leading to additional delays and pain to the victim's family. So there are two examples of where his death penalty views seeped into his judicial decision making. As a sitting Justice on the Arizona Supreme Court, Justice Hurwitz tends to be pro-defendant. A study by court watcher and Albany Law School Professor Vincent Bonventre validated the pro-defendant posture of Justice Hurwitz. In a 2008 study, Professor Bonventre examined the criminal decisions in which the Arizona Supreme Court was divided over the previous five years. His study found that Justice Hurwitz was the most pro-defendant member of the Court, siding with the pro-defendant position 83 percent of the time. This is well outside the mainstream for the other members of the Court during the five-year period. As reported by the study, he took a pro-prosecution posture during that five year period only once since he joined the court. Mr. President, my opposition to Justice Hurwitz is not because of any misbehavior in his youth, silly antics as a college freshman or immature writings in college. I am not suggesting anything like that is in his record, but such examples were raised in the debate yesterday. It is unfortunate that such arguments would have been raised in this serious debate. I oppose the confirmation of Justice Hurwitz based on his record as a Justice on the Arizona Supreme Court and because of his published views which reflect a judicial ideology that is outside the mainstream. Madam President, it seems to me that all the business of the Senate is based upon trust between one Senator and another. When the ranking member of the Judiciary Committee isn't notified of this action--or any other Senator--it seems to me that trust has been violated. I won't be satisfied that that trust has been restored unless there is some action taken to have a rollcall vote on this nomination. I yield the floor.

Mr. GRASSLEY. Mr. President, earlier today, the nomination of Andrew Hurwitz, to be United States Circuit Judge for the Ninth Circuit was agreed to by voice vote. It is unclear whether or not a motion to reconsider was made, whether or not a motion to table a motion to reconsider was offered, and whether or not a request was made to notify the President was part of the order. I object to any further proceedings, including those listed above, based on the fact that a rollcall vote was expected on this nomination.

Mr. GRASSLEY

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

Mr. GRASSLEY

Mr. GRASSLEY. Mr. President, I come to the floor to tell my colleagues why they should not support cloture on the Hurwitz nomination. On Saturday, December 2, 1989, this 4-year-old boy in the photo, Christopher, was dressed in his favorite clothes by his mother Deborah Milke. She told him James Styers, who shared the apartment with Debra, would take him to the mall to see Santa Claus. After picking up another man, Roger Scott, they stopped at a couple drug stores and then the two men and Christopher had pizza for lunch. Rather than taking Christopher to see Santa Claus at the mall, they drove him to the desert. Christopher was told they were going to look for snakes. Instead, Christopher was shot three times in the back of the head by Styers, his body left in the desert. James Styers, 63, was convicted of first-degree murder of the 4-year- old boy, conspiracy to commit first-degree murder, child abuse, and kidnapping--all supposedly at the request of the boy's mother. Debra Milke, James Styers, and Roger Scott were all sentenced to death for the killing. After years of appeals, the case found itself in Federal Court, making its way to the Ninth Circuit. In 2008, nearly 19 years after the terrible crime took place, the Ninth Circuit sent the Styers case back to Arizona, claiming that the State court did not adequately consider the post-traumatic stress disorder Styers suffered because of his military service in Vietnam. Just about 1 year ago, in June 2011, some 22 years after this horrific, evil event occurred, the Arizona Supreme Court heard the appeal. In a 4-to-1 decision, the court acknowledged Styers' post- traumatic stress disorder but nonetheless ruled it didn't outweigh the aggravating factors found during trial. Styers' death sentence was upheld, and he remains on Arizona's death row. The nominee before the Senate, whom we will be voting on, Justice Andrew Hurwitz, was the lone dissenter in that 4-to-1 decision. He was the sole person on the Arizona Supreme Court who believed that Christopher's murderer should be given another trial. Another trial would have resulted in another round of delays. If he had his way, the victim in this crime would still be awaiting justice. Arizona taxpayers would be facing unnecessary expenses, and society at large would still be waiting for a resolution to this case. Today, we are asked by the President and by the majority leader to confirm this judge to be a U.S. circuit judge for the Ninth Circuit. I strongly disagree he should be rewarded with a lifetime appointment to the Federal bench. For reasons I will outline, I oppose this nomination and urge all Senators to do likewise. I urge you to vote no on cloture, and, if it occurs, on any vote on final confirmation. In the Styers case, Justice Hurwitz acknowledged his position would result in further delay in the case and also conceded it was unlikely a new sentencing proceeding would produce a different result. In his dissent, he cited Ring v. Arizona. Ring v. Arizona was a case Judge Hurwitz had personally argued before the Supreme Court of the United States in 2002, before his appointment to the Arizona Supreme Court. In that case, he argued that Arizona's capital punishment sentence law was unconstitutional, although the Supreme Court had previously upheld the Arizona statute in a 1990 decision. Let me make this clear: Mr. Hurwitz, as an attorney, advocated against the death penalty. This was not just advocacy for a paying client or as a court-appointed attorney. As I have said before, judicial nominees should not be judged by the clients they represent. But in this case, Mr. Hurwitz volunteered for this case. He did it on a pro bono basis. Then, after advocating in this case in private practice, he used the same case as the basis for dissenting in another Arizona death penalty case. Timothy Stuart Ring was sentenced to death in 1996 by an Arizona Superior Court judge for the 1994 killing of John Magoch, an armored car driver. Mr. Hurwitz successfully challenged the Arizona death penalty statute. He then argued before the Arizona Supreme Court on behalf of the 29 inmates then on death row in Arizona. Mr. Hurwitz asked the Arizona Supreme Court to either throw out each man's death sentence and order a new trial or to resentence each to life imprisonment with the possibility of parole. According to press accounts at the time, Hurwitz said the next step following the Arizona v. Ring ruling should be to resentence the inmates to life in prison, saying that allowing the previous death sentence to stand would be a ``dangerous precedent.'' However, the State's high court refused to overturn the convictions and death sentences on a blanket basis, ruling that the trials were fundamentally fair and that the U.S. Supreme Court's ruling didn't require throwing out all death sentences. I believe there is strong evidence that Justice Hurwitz is unable to differentiate between his personal views and his responsibility as a judge. I believe Judge Hurwitz's record suggests that he allows his own personal policy preference to seep into his judicial decisionmaking. Others share this view. The fear that political activism would translate into judicial activism once on the bench was expressed in the following quote from a 2003 article summarizing the various candidates for the seat now occupied by Justice Hurwitz: But the final name on the list, Andrew Hurwitz . . . will be a controversial choice for Napolitano, in some ways. He is considered the most liberal of the candidates, even labeled by some as an ideologue. . . . He wears his passion for the law in the open, and eagerly engaged in debates with the commission members about recent death penalty decisions and his past as a member of the Arizona Board of Regents. . . . In the end, the commission almost didn't include Hurwitz's name on the list; he got just eight votes, barely a majority. We certainly do not need more of that on the Ninth Circuit. The Styers case was not the only death penalty case in which Justice Hurwitz was the lone dissenter. In another death case, Donald Beaty was convicted of the May 9, 1984, murder in Tempe of 13-year-old Christy Ann Fornoff. She was abducted, sexually assaulted, and suffocated to death by Beaty while collecting newspaper subscription payments for her Phoenix Gazette newspaper route. Beaty, who has been on death row since July 1985, was scheduled to die by lethal injection at an Arizona Department of Corrections prison in Florence at 10 a.m. on May 25 last year. Again, the victim's family and Arizona citizens had to wait 27 years for justice to be served, but they would have to wait a few more hours. Beaty's execution was delayed for most of the day as his defense team tried to challenge the Arizona Department of Corrections' decision to substitute one drug for another in the State's execution drug formula. State and Federal courts denied requests by inmate Donald Beaty to block his scheduled execution because of a last-minute replacement of one of three execution drugs. The Arizona Supreme Court ruled 4 to 1 to lift the stay. The majority held that Beaty's lawyers hadn't proved he was likely to be harmed by the change. Again, there was one dissenter: Justice Hurwitz. If he had his way, the State would have had to start over with the death warrant process, leading to additional delays and pain to the victim's family. Meanwhile, U.S. district judge Neal Wake, in Phoenix, refused to block the execution, and the Supreme Court declined to consider two stay requests for Beaty. Beaty was pronounced dead at 7:38 p.m., more than 9 hours after his execution had initially been scheduled. Arizona attorney general Tom Horne called the daylong delay a ``slap in the face'' to the Fornoff family. These cases are not just anecdotal evidence or isolated incidents taken out of context. A study by court watcher and Albany law school professor Vincent Bonventre validated the prodefendant posture of Justice Hurwitz. Let me summarize his results, which I have borrowed from the Professor's Web site. In a 2008 study, Professor Bonventre examined the criminal decisions in which the Arizona Supreme Court was divided over the past 5 years. His graph, the graph I have up here, portrays the voting spectrum--the ideological proprosecution versus prodefendant spectrum--of the justices. As shown in the graph, the greatest contrast is between the record of then-Chief Justice McGregor and Justice Hurwitz. At one end is her record of taking the more proprosecution position in all the divided cases during the 5-year period, and at the other end is Judge Hurwitz's record. According to this professor, Justice Hurwitz sided with the prodefendant position 83 percent of the time. This is well outside the mainstream for other members of this court. All of this leads me to believe that Justice Hurwitz, who in private practice only devoted about 2 percent of his litigation practice to criminal law, has deeply held views on the criminal justice system in general and the death penalty in particular. We do not need to add another prodefendant, activist judge to the Ninth Circuit or to any other court. Victims such as Christopher and Christy, their families, and society as a whole deserve better. There is another issue I find extremely troubling regarding Justice Hurwitz. In 2002 he authorized a Law Review article entitled ``John O. Newman and the Abortion Decision: A remarkable first year.'' His article examined two 1972 abortion decisions by Judge Newman, a district court judge for the District of Connecticut. Both of Judge Newman's decisions struck down Connecticut's law restricting abortions. Justice Hurwitz's article detailed how those two decisions proved to be incredibly influential on the Supreme Court's Roe v. Wade decision less than a year later. In fact, Judge Hurwitz argued that Judge Newman's opinions provided the framework for Roe. More specifically, the much criticized viability cutoff point that formed the basis of Roe came directly from Judge Newman's opinion. In his article, Judge Hurwitz noted how influential Judge Newman's opinion was on the Supreme Court's decision to adopt viability as a cutoff point for legal abortion, rather than the first trimester. He stated: Judge Newman's Abele II opinion not only had a profound effect on the United States Supreme Court's reasoning, but on the length of time that a pregnant woman would have the opportunity to seek an abortion. Justice Hurwitz had a unique perspective and insight into how these events unfolded. As a young lawyer, Justice Hurwitz clerked for Judge Newman in 1972 when he drafted the abortion decisions. Then, in the fall of that year and several weeks after Judge Newman's second abortion decision was released, Justice Hurwitz interviewed for Supreme Court clerkships. At the time, the Supreme Court Justices were considering Roe. In fact, they were trading drafts of the Court's opinion which was eventually handed down in January of 1973. Justice Hurwitz further noted in his article that when he interviewed for Supreme Court clerkships, it became clear to him how influential Judge Newman's opinion was on the Court, meaning the Supreme Court. Justice Hurwitz wrote: The author received some small inkling of the influence of Abele II on the Court's thinking in the fall of 1972, when interviewing for clerkships at the Supreme Court. Justice Powell devoted over an hour of conversation to a discussion of Judge Newman's analysis, while Justice Stewart (my future boss) jokingly referred to me as ``the clerk who wrote the Newman opinion.'' Now, I recognize that Judge Hurwitz was clerking for a Federal judge. It was Judge Newman who signed those abortion opinions and Judge Newman who was ultimately responsible for them. My primary concern rests on the article Justice Hurwitz wrote 30 years later, in 2002, embracing and celebrating the rationale and framework for Roe v. Wade. Justice Hurwitz praised Judge Newman's opinion for its ``careful and meticulous analysis of the competing constitutional issues.'' He called the opinion ``striking, even in hindsight.'' Let me remind everyone that the constitutional issues and analysis he praises are Newman's influence on the Supreme Court's expansion of the ``right'' to abortion beyond the first trimester of pregnancy. This, Hurwitz wrote, ``effectively doubled the period of time in which States were barred from absolutely prohibiting abortions.'' Furthermore, Newman's opinion in Abele II was even more drastic and far-reaching than Roe turned out to be. He said that the ``right'' to abortion could be found in the ninth amendment, a theory about unenumerated rights that the Supreme Court rejected in Roe and has not endorsed elsewhere. Hurwitz's article was clearly an attempt to attribute great significance to the decisions in which the judge for whom he had clerked had participated. I think that by any fair measure, it is impossible to read Justice Hurwitz's article and not conclude that he wholeheartedly embraces Roe and, importantly, the constitutional arguments that supposedly support Roe. He takes this view despite near universal agreement among both liberal and conservative legal scholars that Roe is one of the worst examples of judicial activism in our Nation's history. For example, Professor Tribe, a liberal constitutional law scholar, wrote: One of the most curious things about Roe is that behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found. Stuart Taylor wrote: Roe v. Wade did considerable violence to the constitutional fabric. When the 7 2 decision came down in 1973, very few scholars thought its result could plausibly be derived from the Constitution; not one that I know of considered Blackman's opinion a respectable piece of constitutional reasoning. Even Justice Ginsburg has repeatedly criticized Roe. She wrote that the Court's ``heavy-handed judicial intervention was difficult to justify and appears to have provoked, not resolved, conflict.'' We are not talking about an article published shortly after graduating from law school. Mr. Hurwitz published it 30 years after graduating from law school, when he was well established and a seasoned lawyer. In fact, he published this article shortly before joining the Arizona Supreme Court. All of this leads me to question his ability to be objective should this issue come before him if he is confirmed to the Ninth Circuit. I would note the following groups have expressed opposition to this nomination: the National Right to Life, Heritage Action, Concerned Women for America, Faith and Freedom Coalition, Liberty Counsel Action, Family Research Council, Eagle Forum, Traditional Values Coalition, Americans United for Life, Susan B. Anthony List, American Center for Law and Justice, Judicial Confirmation Network, and Judicial Action Group have written in opposition to this nomination. I ask unanimous consent to have printed in the Record a copy of these letters.

Mr. GRASSLEY. In addition, I ask unanimous consent to have printed in the Record a letter signed by a variety of leaders expressing their opposition to this nomination.

Mr. GRASSLEY. Mr. President, I yield the floor.

Mr. GRASSLEY

Mr. GRASSLEY. Mr. President, since we are talking about farm legislation as well as nutrition legislation, I think I should be very transparent when I talk about this and talk about my background and lifetime in farming. I don't want to say something about farm bills and then have people who don't know where I am coming from find out later that I am a farmer and might benefit from some of the farm programs. So in the vein of transparency and accountability, I will just say that since 1960, when my father died, I have been involved in farming. Since 1980, I have been involved with my son Robin renting my farmland, farming with what we call in Iowa 50 50 farming. Others might call it crop share. Basically, that means that he and I are partners, and I pay for half the expenses, and I get half of the crop to market, and he gets the land rent-free. When you are crop-sharing or when you are 50 50, that means I am not an absentee landowner collecting cash rent, that I have risks. With risks, you assume that maybe you might get a crop or not get a crop, and if you don't get a crop, you don't get your rent as a landlord. It is the same for my son. He has risks as well. If he doesn't get a crop, he won't have to pay rent, but he isn't going to have anything to live on if he doesn't have a crop. So that is kind of the situation I have been in since 1960 when I was farming on my own and then in partnership with my son. In the last 7 or 8 years, we have had a grandson, Patrick Grassley, who is a member of the State legislature, join our farming operation, and what I found out, with having a grandson in the farming operation, they don't have a lot of work for a grandfather to do. So last year about all I did was fall tillage with what we call in Iowa chisel plowing. With that background, I want to go to my statement. Growing up on my family farm outside of New Hartford, IA, where I still live today, I grew to appreciate what it means to be a farmer. The dictionary defines a farmer as ``a person who cultivates land or crops or raises animals.'' But that definition doesn't come close to fully describing what a farmer is. Being a farmer means someone willing to help a cow deliver a calf in the middle of the night when it might be 5 degrees outside. A farmer is someone who is willing to put all of their earthly possessions at risk just to put a bunch of seed in the ground and hope the seed gets rain at just the right time. Farmers work hard cultivating their crops and get the satisfaction of seeing the result of their hard work at the end of each crop season. They take great pride in knowing they are feeding this Nation. A farmer in Iowa produces enough food to feed 160 other people. So obviously we export about one-third of our agricultural production. Farmers tend to be people who relish the independence that comes with their chosen profession. They are people with dirt under their fingernails, and they also work very long hours. Often they are underappreciated for what they do to put food on America's dinner table, and they receive an ever-shrinking share of the food dollar. At this point, I would speak about a fellow Senator. I won't name the fellow Senator, but he is from an urban State. Throughout our years of service here, I like to say to him: Do you know that food grows on farms? And he says: Oh, does it? Well, the other night at the spouses' dinner we had, he came up to my wife and he said: I know food grows in supermarkets, but Chuck thinks it grows on farms. So that is the sort of camaraderie we have around here on agriculture, and I am very glad to have it. I always say that agriculture is probably a little easier in the Senate because I believe every Senator, even in Alaska, Hawaii, and New Hampshire, represents agriculture to some degree--maybe not as much as in the Midwest, where I come from, or California or Texas, but every State has some agriculture, and there is an appreciation of it. In the other body, our House of Representatives, I don't know an exact figure, but I would imagine that there are probably only 50 districts that really are agriculture-oriented districts and the rest of them are very urban or suburban. So we have an understanding of agriculture and how important it is. When I talk about it, I don't mean to talk down to my colleagues, but I do think I understand agriculture. It is not to say that other Senators don't understand agriculture, but I think if you have been involved in it for a lifetime the way three or four of us here in the Senate have been, it means a little more. Farmers have chosen a line of work that comes with risk. It is a risk that is inherent in farming and often out of their control. The risk inherent in farming is why we have farm programs. If I may digress a little bit here, from memory, just to show how there are a lot of issues with agriculture that are beyond the control of farmers--I am not just talking about natural disasters such as hail or drought. In 1972 Nixon wanted to get reelected so bad that he froze the price of beef. It was only for a short period of time, maybe 3 or 4 months, because they found out it was not working the way he wanted. He didn't care about the farmers. Iowa was No. 1 in beef production up to that time. After that, everybody got squeezed out of the beef business because of the freeze. We went from No. 1 down to No. 13. Now I think we are about fifth or sixth in the production of beef. Another example is when soybeans were being exported and they got up to $13 a bushel in 1973 or 1974--let's see. I am just trying to think. It was either when Nixon or Ford was President. At the time, one of them decided it was going to drive up the price of food in America, so they forbid the export of soybean. Soybean prices fell from $13 down to $3. Another time, Carter decided that it was wrong for Russia to invade Afghanistan. At that time, we were selling them wheat, until the decision was made that we were not going to sell them any more wheat, so the price dropped. I suppose I ought to think of things a lot more recent, but there are a lot of international politics that affect farming. Right now it is with Iran sanctions and oil. I am not sure to what extent that affects the price of energy, but agriculture is a big user of energy. So what I am trying to say with just a few examples--and I ought to have more from memory--is that there are so many things that are beyond the control of farmers that if you ever wonder why we have a farm safety net, that is why. Why do we have a farm safety net? For national security. As Napoleon said, an Army marches on its belly. We have to have food. Why do you think Japan and Germany protect their farmers so much today? Because they found in World War II that if they don't have food, they don't have very good national security. Or how long can a nuclear submarine stay underwater? Forever. Except if it runs out of food, it has to come up. Or what about the old adage of being nine meals away from a revolution? In other words, as a mother and dad, if you can't get food for your kids for 3 days, and they are crying, you might take any action to make sure they get food. So I think having a secure supply of food is very essential to the social cohesion of our society. We don't worry about that in America, do we? We go to the supermarket and the shelves are full, but there are a lot of places in the world where they don't have that. There are a lot of places in the world where they pay more than 50 percent of disposable income for food, and in America it is about 9, 10, or 11 percent. So there are plenty of reasons to make sure we have a sound agricultural system in America, and we ought to make sure we take it seriously, both from a national security standpoint and for our social betterment. If we want a stable food supply in this country, we need farmers who are able to produce it. When they are hit by floods, droughts, natural disasters, wild market swings, or unfair international barriers to their products, farmers need the support to make it through because so much is beyond the control of farmers. Most farmers I know wish there wasn't the need for a government safety net, but they appreciate that safety net when they do need it. For decade after decade, Congress has maintained farm programs because the American people understand the necessity of providing a safety net for those providing our food. That is not to say that each and every farm program ever created needs to continue. In fact, there is a lot in this farm bill we have before us that brings reform, and some programs not reauthorized, that prove what I just said--that just because we have had some for 60 years doesn't mean we have to have them for the next 5 years in this farm program. Just as there are shifts in the market, sometimes public sentiment toward certain farm programs also shifts. Take direct payments, for instance. There was a time and place for direct payments to help farmers through some lean years. But now times are OK in the agriculture industry, and the American people have rightly decided it is time for direct payments to end. With a $1.5 trillion deficit every year, it is also a reality that those payments can't continue from a budget point of view. So the Senate committee has responded, and we have proposed eliminating the direct payment program, and many farmers agree direct payments should go away as well. There are other reforms the American taxpayers want to see. There is no reason the Federal Government should be subsidizing big farmers to get even bigger. I might repeat myself as I go through my statement, but I want to say that a farm safety net ought to protect the people who don't have the ability to get beyond these things that are beyond their control--whether it is domestic politics or whether it is a natural disaster or whether it is international politics or energy policies or all of the things that can happen. There are some farmers who might not get over that hump because it is beyond their control--a problem that affects them financially. But there are some farmers who have that capability, and I think traditionally we have geared the farm program--not enough, from my point of view--but we have geared the farm program toward a safety net for small- and medium-sized farmers. We have a situation where 10 percent of the farmers in recent years-- the biggest farmers--are getting 70 percent of the benefits of the farm program. There is nothing wrong with getting bigger. I want to make that clear. In fact, in agriculture, with the equipment costs a farmer has to get bigger, but the Federal taxpayers should not be subsidizing farmers to get bigger. It isn't just a case of a principle not to do that; it is the economic impact. When we do that--provide the government subsidy to the big farmers--they go out and buy more land, which drives up the price of farmland or drives up the cash rent in a particular area. Consequently, it makes it very difficult for young people to get started farming. We want to be able--we have to pass this on to the young farmers. Many farmers understand that in order for us to have a farm program that is defensible and justifiable, it needs to be a program designed to help these small- and medium-sized farmers who actually need the assistance to get through rough patches out of their control. So what I have been trying to do for years, and it was finally put in this farm bill, is to put a hard cap on the amount of money one farming operation can get so, hopefully, we cut down that 10 percent of the largest farmers that gets 70 percent of farm payments, so it is more proportional to the benefit of small- and medium-sized farmers. That is in this bill at $50,000 per individual and $100,000 per married couple for the payments under the Agriculture Risk Coverage Program. It is in this bill. I know to a lot of people listening that $50,000 and $100,000 is too much, and it is even too much for most Iowans. But there are some sections of this country, such as the South and West, where we will find our fellow Senators--I don't know how open they are going to be about this, but behind the scenes they are raising Cain about this $50,000 cap. I just about had this put in the present farm bill in 2008, except I had 57 votes, and we know how things work around here. We have to have 60 votes to get something done if people want to push the point. So I didn't get 60 votes. Now it is in the farm bill. I don't know who is negotiating around here on amendments, but there is going to be somebody trying to take this out of here--somebody from the South, I would imagine--trying to take this $50,000 cap out. I expect to have the same considerations to this not being taken out by a 60-vote margin as I was kept from putting it in 5 years ago because if it had been put in 5 years ago, we would have saved $1.3 billion over that period of time. Taxpayers are tired of reading reports about how so many nonfarmers receive farm payments. I have been working to get reforms on the farm payment eligibility for years, and just as the tide has turned on the status quo for direct payments, the tide has turned on program eligibility. The bill contains crucial reforms to the ``actively engaged'' requirements. These reforms will ensure farm payments go to actual farmers. The American people are not going to stand idly by anymore and watch farm payments head out the door to people who don't farm. In other words, if they aren't out there working the land--if they are on Wall Street or something and have farmland in the Midwest-- they shouldn't be collecting these farm payments. There have been some people complaining about the payment limit reforms I have talked about. They complain it will detrimentally change the way some farm operations do things. Well, if they mean it will not allow nonfarmers to skirt around payment eligibilities and line their pockets with taxpayers' money meant for actual farmers, then the answer is, yes; that is what those reforms will do. Let me make it perfectly clear. The reforms contained in this bill will not impact a farmer's ability to receive farm payments. Furthermore, the reforms will not affect the spouse rule. In other words, if the husband and wife are together in the farming operation, and some Senator comes around and says the spouse who is working beside the other spouse in this farming operation can't get the benefit of it, they are wrong. These reforms reflect what we hear from the grassroots, which is Congress needs to be a better steward of the taxpayers' dollars. That is true if we are talking about farm programs or any other Federal program. Those who are against these reforms are asking the American people to accept the status quo and to continue to watch as farm payments go to megafarms and nonfarmers. We cannot and will not accept the status quo. In other words, 10 percent of the biggest farmers getting 70 percent of the benefits of the farm program ought to end. The Agriculture Committee should be proud of the improvements we are making to payment limitations in this bill. With these reforms we bring defensibility and integrity to this farm bill. In addition, it is probably the only bill that is going to pass this year that is going to cut any programs, and it is going to do that by $23 billion. In fact, without these reforms in the farm program, I wouldn't be able to support this bill. I urge my colleagues to voice their support for these important payment limitation provisions and join with me in resisting any attempt to weaken these reforms, particularly from people in the Southern States who say somehow we ought to still continue to allow these megafarmers to get these millions of dollars of payments. I yield the floor, and I suggest the absence of a quorum.

Mr. GRASSLEY. Mr. President, political leaders on the Democratic side of the aisle are now preemptively charging the Supreme Court with judicial activism if that Court would strike down President Obama's health care law as unconstitutional. I cannot remember when such a significant threat to judicial independence was made in attempting to affect the outcome of a pending case. It is an outrageous attack on the separation of powers. Democrats claim unless the Court rules in accordance with the policy preferences of a particular speaker, the Court's decision would be illegitimate. This is dangerous and this is wrong. President Obama wrongly argued it would be unprecedented for the Supreme Court to strike down a law that a large congressional majority passed. He was wrong on the size of the majority, and he was wrong about the Supreme Court's history in striking down laws they consider unconstitutional. The President of the United States knows better because he is a former constitutional law lecturer. He should know the Supreme Court has done just that on many occasions over more than two centuries, and it is just not the case, as Democrats claim, that the Supreme Court can strike down ObamaCare only by failing to follow established commerce clause jurisprudence. When the Judiciary Committee held a hearing last year on the constitutionality of the law, I asked whether the Supreme Court would need to overturn any of its precedents to strike down the individual mandate part of the health care reform. None of the witnesses--and most of those witnesses were selected by the majority Democrats--could identify a single precedent that would have to be struck down. No matter how many times liberals repeat the statement, it is just not so--the Supreme Court would not be an activist court if it struck down health care reform. What is unprecedented is health care reform's infringement on personal liberty. The Constitution establishes a very limited Federal Government. But when the Supreme Court asked him the obvious question of what limit to Federal power would exist if the individual mandate were upheld, the Solicitor General, arguing for the government and in support of the constitutionality, could not and did not provide an answer. So the Obama administration believes the Federal Government can force Americans to purchase broccoli or gym memberships, and don't believe anyone who says otherwise once we start down that road of unprecedented power of the Federal Government under the commerce clause. Critics contend that the whole body of law allowing Federal regulation of the economy would be threatened if the Supreme Court struck down the health care reform bill. They even say that such a ruling would harm the legitimacy of the Supreme Court. That is just plain nonsense. The Supreme Court has never addressed a law like this. Striking down ObamaCare would have no effect on any other existing law. The real change in the law--and to the country as a whole--would be if the health care reform bill were upheld as constitutional. People understand this instinctively. A recent Gallup poll found that 72 percent of Americans--including even 56 percent of people who call themselves Democrats--believe the individual mandate is unconstitutional. So they clearly would accept the legitimacy of a ruling striking down the individual mandate. There is a constitutional law professor I am familiar with who leans on the conservative side. He rarely discusses his work with his young children. But the health care case has generated such attention that his 8-year-old son asked him about it. The father explained that the case involved whether the government could make people buy health insurance. This is what his 8-year-old son said: ``They can't do that. This is a free country.'' So even 8-year-olds understand the overreach of health care reform. Unlike the supporters of ObamaCare, who really never bothered to think through the law's constitutionality before passing it, most Americans understand that this law threatens our freedom unlike any previous law. And I expect that the Supreme Court will agree. They understand that the law is not compatible with the Constitution and must be struck down. It is ridiculous to claim that striking down this law would be judicial activism. A ruling that ObamaCare is unconstitutional would recognize that the law departed from the text of the Constitution, the very structure of our federalism, and even against the history of our country. As former Judge McConnell has written, judicial activism cannot be defined one way when the meaning of actual constitutional text is at issue and another way when the words of the Constitution are silent on questions such as same-sex marriage and abortion. This is what Judge McConnell wrote: [T]here cannot be one set of rules for liberal justices and another set for conservatives. By threatening the Court in advance, the critics are showing that they now have real doubts that the health care reform bill is constitutional. Whether addressed to an individual Justice or to the Court as a whole, claims that only one possible result can be reached or the Court's ruling would be illegitimate are shockingly improper attempts to influence a pending case. But all the Justices seem to have agreed to combat what they see as any threat to their judicial independence. I suspect that inappropriate attempts to influence the Court's decisions on pending cases will backfire. They will make the Justices more determined than ever to show that they are adhering to their oath to defend the Constitution without regard to popular opinion. They will never want their rulings to appear to have been the result of political browbeating. So let the Justices undertake their proper responsibility in deciding the constitutionality of health care reform. Let them do it without threatening to pillory them in advance if we do not like the outcome. There is always time for reasoned criticism after any ruling and particularly this ruling. I yield the floor.

Mr. GRASSLEY

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

Mr. GRASSLEY. Madam President, today the Senate turns to another judicial nomination, Jeffrey J. Helmick to be U.S. district judge for the Northern District of Ohio. I want to tell the Senate why I oppose the nomination and urge all Senators to do likewise. We continue to confirm the President's nominees at a very brisk pace. Just 2 days ago we confirmed the 147th judicial nominee of this President to district and circuit courts. Let me put that in perspective for my colleagues. We also have confirmed two Supreme Court nominees during President Obama's term. The last time the Senate confirmed two Supreme Court nominees was during President Bush's second term. And during President Bush's entire second term, the Senate confirmed a total of only 120 district and circuit court nominees. We have already confirmed 27 more nominees for President Obama than we did for President Bush in a similar period of time. And this is in a Presidential election year--typically a time when judicial confirmations are limited to consensus nominees. Yet here we are considering a controversial nomination. Perhaps the Senate could better spend this time working on critical issues facing our Nation, such as our massive debt, intolerable deficit spending, an anemic economy, unacceptable unemployment levels, high energy costs, and national security issues. The advice and consent function of the Senate is a critical step in the appointment of Federal judges. In Federalist Paper No. 76, Alexander Hamilton wrote this: To what purpose then require the co-operation of the Senate? I answer, that the necessity of their concurrence would have a powerful, though, in general, a silent operation. It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attention, or from a view to popularity. In other words, the Senate has a role in preventing the appointment of judges who are unfit characters or political favors of any President or of those who are not qualified to serve as Federal judges. What did our current President, then-Senator Obama say about this duty? He stated: There are some who believe that the President, having won the election, should have the complete authority to appoint his nominee, and the Senate should only examine whether or not the Justice is intellectually capable and an all-around nice guy, that once you get beyond intellect and personal character, there should be no further question whether the judge should be confirmed. I disagree with this view. I believe firmly that the Constitution calls for the Senate to advise and consent. I believe that it calls for meaningful advice and consent that includes an examination of a judge's philosophy, ideology, and record. Our inquiry of the qualifications of nominees must be more than intelligence, a pleasant personality, or a prestigious clerkship. At the beginning of this Congress, I articulated my standards for judicial nominees. I want to ensure that the men and women who are appointed to a lifetime position in the Federal judiciary are qualified to serve. Factors I consider important include intellectual ability, respect for the Constitution, fidelity to the law, personal integrity, appropriate judicial temperament, and professional competence. In applying these standards, I have demonstrated good faith in ensuring fair consideration of judicial nominees. I have worked with the majority to confirm consensus nominees. However, as I have stated more than once, the Senate must not place quantity confirmed over quality confirmed. These lifetime appointments are too important to the Federal judiciary and the American people to simply rubberstamp them. This is not a pro forma process that we are engaged in. Last year I became increasingly concerned about some of the judicial nominees being sent to the Senate by this administration. In a few individual cases, it was very troublesome. Mr. Helmick's nomination fell into that category. When I apply the standard I mentioned and the standards that then-Senator Obama laid out or the standards expressed in the Federalist Papers, I reach the same conclusion. In my judgment, Mr. Helmick fails to meet the required standard and should not be confirmed. The Senate process for reviewing the professional qualifications, temperament, background, and character is a long and thorough process. In Mr. Helmick's case, there were some issues that needed to be fully examined. At the conclusion of that lengthy process, a substantial majority of my political party--the Republicans--on the Judiciary Committee determined that this nomination should not be reported to the Senate. Nevertheless, we now have the nomination before us. Even so, there are reasons sufficient to oppose the nomination. In 2000 Mr. Helmick faced disciplinary action for failing to comply with a court-issued subpoena. He refused to turn over an incriminating letter signed by a former client in the same case, which contained threats to a State witness. A grand jury issued a subpoena to obtain the letter, but Mr. Helmick refused to appear before the grand jury. The trial court found him in contempt of court. Mr. Helmick appealed, which caused the contempt sanction to be stayed. A three-judge panel of the Ohio Court of Appeals unanimously held that he was required to turn over the letter. Mr. Helmick then appealed to the Ohio Supreme Court, which held that he must comply with the subpoena, although they lifted the contempt citation. The Supreme Court of Ohio stated that Mr. Helmick's concerns regarding the attorney-client privilege were not enough to ``override the public interest in maintaining public safety and promoting the administration of justice.'' I do not think we should confirm to the bench individuals who are willing to put private interests over the public interest in the administration of justice. I am concerned about Mr. Helmick's view on national security, as evidenced by his handling of terrorism cases as a defense attorney. In looking at the arguments he has made in court representing terrorists, I am concerned he may believe terrorism cases are less serious than other criminal cases, and that in turn causes some concern about how he might handle terrorism cases that may come before him, if confirmed. For example, he represented the terrorist Wassim Mazloum. This terrorist was convicted by a jury of a conspiracy to kill U.S. troops overseas and of providing material support for terrorists. Those are very serious crimes. According to the sentencing guidelines, Mazloum deserved life in prison. Mr. Helmick argued ``that perhaps the life sentence that was called for in the advisory guidelines was too severe or too harsh.'' In the end, this terrorist did not receive a life sentence, rather he received only an 8-year sentence--hardly a punishment or deterrent. For these reasons and others I will vote no on this nomination and urge my colleagues to do likewise. I yield the floor and suggest the absence of a quorum.

Mr. GRASSLEY

Mr. GRASSLEY. Madam President, today, the Senate turns to another judicial nomination, that of Timothy Hillman, to be U.S. district judge for the District of Massachusetts. I support this nomination. We continue to confirm the President's nominees at a brisk pace. In fact, with today's confirmations, we will have confirmed 147 of this President's district and circuit court nominees. Let me put that in perspective for my colleagues. We also have confirmed two Supreme Court nominees during President Obama's term. The last time the Senate confirmed two Supreme Court nominees was during President Bush's second term. And during President Bush's entire second term, the Senate confirmed a total of only 120 district and circuit court nominees. We have confirmed 27 more nominees for President Obama than we did for President Bush in a similar time period. Judge Hillman received his B.A. from Coe College in 1970 and his J.D. from Suffolk Law School in 1973. He began his legal career in 1974 as a staff attorney at Murphy & Pusateri. In 1975 he became an assistant district attorney, where he prosecuted criminal cases for Worcester County. During this time, he also conducted limited private practice, which centered on drafting wills, representing clients in real estate transactions, and representing plaintiffs in motor torts. He left the D.A.'s office in 1978 and represented criminal defendants in private practice until 1988. He also represented multiple municipalities in this stretch of time as either city solicitor or town counsel. While working in these capacities, he represented the municipalities in court, gave legal advice to their boards and elected officials, and drafted and reviewed legal documents. In 1995 Judge Hillman was appointed to be associate judge of the Gardner District Court, and he became presiding justice there in 1997. From 1998 to 2006 Judge Hillman was a judge for the Massachusetts Superior Court, an appointed position. In 2006 Judge Hillman was appointed to be a U.S. magistrate judge for the U.S. District Court for the District of Massachusetts, Worcester Division. As a magistrate judge, he manages and tries civil cases with the consent of the parties, both jury and nonjury. He is also responsible for the initiation and management of criminal felonies, not including trial, and all aspects of criminal misdemeanors. The ABA Standing Committee on the Federal Judiciary unanimously rated him as ``well qualified'' for this position. I yield the floor.

Mr. GRASSLEY

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

Mr. GRASSLEY. Mr. President, I support Senator McCain's amendment. That amendment would allow drug importation from approved pharmacies in Canada. I have been a long-time proponent of safe drug importation. I am currently a cosponsor of the Pharmaceutical Market Access and Drug Safety Act, a bill I have worked on for many years with Senator Snowe and Senator McCain. In 2002 and 2003, I supported amendments similar to the one before us today that would permit the importation of prescription drugs from Canada. In the year 2004, the late Senator Kennedy and I worked together on a bill that would authorize drug importation, but it did not survive the partisan politics of this Chamber. I then introduced my own comprehensive drug importation bill in 2004. I entitled that bill the Reliable Entry of Medicine and Everyday Discounts Through the Importation of Effective Safeguard Act, and that naturally works out to an acronym. we called it the REMEDIES Act. In 2005, I combined that bill with the proposal sponsored by then- Senator Dorgan and Senator Snowe. And in 2007 and 2009, we reintroduced the version of that legislation with hopes that our combined efforts would finally lower the cost of prescription drugs for all Americans. During the health care reform debate in 2009, drug importation had a much better chance to pass than ever before. We had a Democratic supermajority in Congress and we had a Democratic President who supported drug importation in the past. But in backroom deals between the Obama White House and the pharmaceutical industry, those deals prevented us from finally lowering the drug costs for all Americans. So after all of this decade-and-a-half effort, we are back here again trying to accomplish the same goal with Senator McCain's amendment. I have always considered drug importation a free-trade issue. Imports create competition and keep domestic industry more responsive to consumers. Consumers in the United States pay far more for prescription drugs than those in other countries. For instance, U.S. prices are, on average, 52\1/2\ percent higher than Canadian pharmacy prices. If Americans could legally and safely access drugs outside the United States, then drug companies would be forced to reevaluate their pricing strategies. They would no longer be able to gouge American consumers by making them pay more than their fair share for the high cost of research and development. Because that is a fact. We pay for most of the research and development of new drugs because other countries are getting by dirt cheap and there is not enough money coming in from those countries to pay for all of the research it takes, because, as you know, most of the cost of a drug is the research and development, it is not the manufacture of that little pill or a big pill, for that matter. In the United States, it is a fact. We import everything consumers want. So why not pharmaceuticals? In fact, I look back at all my years working on trying to free up trade around the world through efforts to pass free-trade agreements, through efforts to get the President trade promotion authority, everything that would make global policies available to American consumers, and I can only think of two things our law prevents consumers in America from importing from other countries when everything else the consumers buy they can buy anywhere in the world if they want to--but not for pharmaceuticals or not for Cuban cigars. Some opponents of this amendment have concerns about what drug importation would mean to the safety of drugs. Obviously, we have to be concerned about drug safety because that is what the FDA is all about-- two things, making sure drugs are safe, and, No. 2, to make sure they are effective. Everyone who knows me knows I care deeply about the safety of drugs. I would not be standing here today urging support for Senator McCain's amendment if I did not think it would properly protect the safety of the Nation's prescription drug supply chain. The fact is that the unsafe situation is what we have today. Today patients who need a cheaper alternative are ordering drugs over the Internet from who knows where, and the FDA does not have the resources to do much of anything about it. The fact is the McCain amendment would not only help to lower the cost of prescription drugs for all Americans but will also establish a system where American patients can be certain that the drugs they are importing are safe. The amendment has requirements that a pharmacy must meet before the Secretary may approve them for participation. This includes product testing in labs designated by the Secretary. A list of approved pharmacies will be published on the FDA Web site. Patients who are already forced to purchase their medications outside the United States would be able to access the list to choose a safe option. Additionally, the amendment lays out criteria that must be met before any patient may import drugs from an FDA-approved pharmacy. Patients must have a valid prescription from a physician licensed to practice in our country. The purchase must be for personal use, and the drug must have the same active ingredient, route of administration, dosage form, and strength as a prescription drug approved by the Secretary of HHS. The McCain amendment would improve drug safety, it would not threaten drug safety. It would open trade to lower-cost drugs, and it would make other consumers around the world start paying for some of the research and development the American consumer is paying such a high price to provide. We should do all we can to get miracle drugs originated and developed, but the American consumer should not be paying the entire bill. We need to make sure Americans have even greater, more affordable access to lifesaving drugs by opening the doors to competition in the global pharmaceutical industry. Obviously, after a decade and a half, I am continuing to urge my colleagues to join in this effort on the importation of drugs, and in this particular area to give support to Senator McCain and support his amendment. I applaud him for the leadership he has shown in this area over a long period of time. I yield the floor.

Mr. GRASSLEY

Mr. GRASSLEY. My colleague from Illinois is correct.

Mr. GRASSLEY

Mr. GRASSLEY. Mr. President, first of all, I congratulate my colleague from Iowa and my colleague from Wyoming for the bipartisanship of this legislation. The FDA amendments of 2007 mandated basic public results reporting for all clinical trials supporting FDA-approved drugs and devices. Clinical trials results help both patients and doctors understand the benefits and efficacy of a particular medical product. Moreover, a July 2011 FDA report stated: Understanding variable characteristics in clinical trial sites is becoming increasingly important because of the international nature of current clinical trials. The sources of differences in efficacy results between the U.S. and foreign clinical trials sites have yet to be determined, but differences rooted in the conduct of the clinical trial should be evaluated. It has been 5 years since the passage of the FDA Amendments Act, and the National Institutes of Health is still in the process of writing proposed regulations. The clinicaltrials.gov program and title VIII of the FDA Amendments Act were considered major reforms and helped science information advances. If they are not being implemented well or adequately enforced, society will fail to reap the full benefits of the billions of dollars in good medical science research. This amendment before the Senate will impose a deadline by which the NIH will finalize both the proposed and final regulations. Further, 2 years after the regulation has been in place, the Government Accountability Office will conduct a study on compliance with regulations and will look at, among other things, whether the applicable clinical trial is conducted domestically, in foreign sites, or in a combination of sites. The rapid increase in trials being run overseas makes it imperative that the Government Accountability Office investigate this matter. Currently, ``80 percent of approved marketing applications for drugs and biologics contained data from foreign clinical trials.'' The ``FDA inspected 1.9 percent of domestic clinical trial sites and 0.7 percent of foreign clinical trial sites.'' We need stronger reporting requirements to ensure we understand what the implications are of this move to having so many trials conducted overseas. I encourage my colleagues to support this important amendment. Before I move on, I wish to talk about another amendment I am a cosponsor of, which is an amendment offered by Senator Portman that will make dangerous synthetic drugs such as K2 and bath salts schedule I narcotics. I have worked for over a year now to get this legislation passed through the Senate after a constituent of mine named David Rozga committed suicide shortly after smoking K2 with some friends nearly 2 years ago. I introduced the David Mitchell Rozga Act in March of 2011, and the Senate Judiciary Committee unanimously passed it out of committee along with two other related bills sponsored by Senator Schumer and Senator Klobuchar last July. Since that time, the use of synthetic drugs has grown very rapidly, with the number of calls into poison control centers going from as few as 19 in the year 2009 to over 6,000 in the year 2011. The House passed their version of this bill last December on a strong bipartisan vote, but one Senator has blocked consideration of this legislation in this Chamber up to now. So I am grateful we are finally able to have a vote on this issue, and I urge passage of the Portman amendment as well. Madam President, I wish to go to another amendment, if that would be appropriate at this time.

Mr. GRASSLEY. I call up amendment No. 2121.

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

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

Mr. GRASSLEY. Mr. President, I rise for the purpose of calling up amendment No. 2129.

Mr. GRASSLEY. Madam President, the bill before us, S. 3187, did not address a top priority of mine, and that is ensuring whistleblowers have adequate protections. Four months ago my office learned of a very abusive treatment by the FDA on certain whistleblowers due to those whistleblowers' protected communications with Congress and, more specifically, with this Senator's office. Once the agency learned of the communication, even though they were on personal e-mail, it began actively monitoring and observing employees' personal e-mail, as one might expect, and they observed those e-mail accounts for 2 years--for a whole 2 years--until the agency was able to have the employee fired. Whistleblowers shouldn't be fired for doing what is patriotic; that is, reporting wrongdoing to Congress. Regrettably, I was not shocked to learn that the FDA was mistreating whistleblowers within its agency, as it has done on more than one occasion, and as I have pointed out to my colleagues. I have been reporting those things ever since the Vioxx situation of 2004, I believe. What makes this example different, though--and even worse--is the FDA intentionally went after an employee because it knew this employee was not covered by the Whistleblower Protection Act. Now, it might surprise some of my colleagues that all employees aren't covered by the Whistleblower Protection Act. This employee in question was a member of the Public Health Service Commissioned Corps, and because of a decision from the Court of Federal Claims these employees--meaning the Public Health Service along with other members of the uniformed services--are not covered by the Federal employee whistleblower protections. I think the court case was wrong, but anyway, that is the way the Court of Federal Claims ruled. That ruling came as a result of the Verbeck v. United States case, and the Court of Federal Claims held that an officer in the Public Health Service Commissioned Corps is a member of the uniformed service and as such is not covered by the civilian Whistleblower Protection Act, nor even the Military Whistleblower Protection Act. This same logic extends to the commissioned corps of the National Oceanic and Atmospheric Administration as well. So under the precedent of this Verbeck case, the officers of both the Public Health Service and NOAA currently have no whistleblower protection under Federal law. This is particularly problematic when we consider that the Public Health Service and NOAA officers can be detailed to agencies such as the FDC or the Centers for Disease Control. There, these officers, working in another agency, happen to work side-by-side with civilian employees of that agency doing very critical work to review and approve drugs, oversee medical devices, and even work on infectious diseases. However, unlike their civilian colleagues who are employees of that agency and who are sitting right next to them, if these employees uncover wrongdoing, waste, fraud, and abuse, they can be retaliated against by the agency and have no recourse for it. That is exactly what happened to this Public Health Service employee working in the Food and Drug Administration when they reported wrongdoing at that agency to Congress. They did it by personal e-mail, and the FDA got on to it and then fired the one employee who was reporting to Congress but did not fire the employees who were protected by the Whistleblower Protection Act. So that is why I say this is wrong, and it needs to be fixed. This amendment will fix it. Whistleblowers point out fraud, waste, and abuse when no one else will, and they do so while risking their professional careers. Whistleblowers have played a critical role in exposing government failures, and retaliation against whistleblowers should never be tolerated. For this reason, I offered an amendment that expands whistleblower protection for uniformed employees of the Public Health Service. It corrects the anomaly pointed out by the Court of Federal Claims and ensures that officers in the Public Health Service have some baseline whistleblower protection. It expressly includes the commissioned corps of the Public Health Service within the protections of the Military Whistleblower Protection Act. This is consistent with the structure of the commissioned corps functioning like a military organization and matches the fact that these officers receive military-like benefits in retirement. Unfortunately, this amendment, which I was able to get into this legislation, only covers employees of the Public Health Service. It does not address the commissioned corps of NOAA because of other Senators' concern that is not related to the underlying bill. So I hope to be able to address that remaining gap in whistleblower protections in the near future so that all employees of the Federal Government are covered. All Federal employees should feel comfortable expressing their opinions both inside the agency they work for as well as to Congress. The inclusion of this language will ensure those opinions receive appropriate protections. I wish to take this opportunity, as I did in my opening comments on these two amendments, to express my appreciation to Senators Harkin and Enzi and their commitment and efforts over the years to reform and improve the FDA. I yield the floor.

Mr. GRASSLEY

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

Mr. GRASSLEY. Mr. President, today we will be considering and are considering a vital piece of legislation that not only includes all four user fee agreements but also includes policy proposals to improve the Food and Drug Administration review and approval of medical products, particularly in the pharmaceutical supply chain. In 2008, when Senator Kennedy was still in the Senate, he and I introduced the Drug and Device Accountability Act. This legislation was largely in response to the extensive oversight I conducted on the Food and Drug Administration. During these investigations, I identified serious problems at the FDA that included severe weaknesses in the inspection process, delays in informing the public of emerging safety problems, and lack of enforcement authority. Based on these findings, the Kennedy-Grassley legislation included provisions to ensure the safety of drugs, including foreign- manufactured drugs. It would have expanded FDA's authority to inspect foreign manufacturers and importers on a risk-based schedule. It would have required all manufacturers to register with the agency so they can properly identify the number of manufacturers and where they are located. This would have ensured that when a crisis occurs, we can quickly locate the questionable facility. And it would have increased civil and criminal penalties with respect to violations. Unfortunately, Senator Kennedy and I never had an opportunity to debate this legislation, let alone cast a vote on it. However, roughly a year ago Senators Harkin and Enzi forged a bipartisan working group to address these challenges. The group has worked tirelessly to produce a bipartisan bill that modernizes FDA's authority to ensure that drug products coming into the United States are safe for American patients. This bill incorporates many provisions in the Drug and Device Accountability Act Senator Kennedy and I introduced. It increases penalties for knowingly and intentionally counterfeiting drug products. It requires electronic submission of certain key information by a drug importer as a condition to grant entry. I would like to have seen additional enforcement tools included in the legislation. For example, granting FDA the authority to destroy unsafe products that are refused admission into our country would enhance FDA's ability to protect the public from tainted products. Likewise, I think FDA should have been granted subpoena authority and have it on a par with other Federal law enforcement authorities because currently FDA lacks subpoena authority and has to go through the Department of Justice, which is time-consuming and burdensome. Ultimately, this legislation is a needed step in the right direction toward securing our supply chain. This legislation did not address a top priority of mine; that is, ensuring whistleblowers have adequate protections. Four months ago, my office learned of an abusive treatment by the Food and Drug Administration toward whistleblowers due to their protected communications with Congress, more specifically with the office of this Senator. Once the agency learned of the communications, it began actively monitoring and observing employees' personal e-mail accounts for 2 years until the agency was able to have the employee fired. Regrettably, I was not shocked to learn that the FDA was mistreating whistleblowers within this agency as it has done on more than the one occasion in the past that I have identified. What makes the example different and worse is that the FDA intentionally went after an employee because they knew that employee had no protection under the Whistleblower Protection Act. The employee in question happened to be a member of the Public Health Service--the title is the Public Health Service Commissioned Corps. Because of the decision from the Court of Federal Claims, those employees are, in the Public Health Service, along with other members of the uniformed services, not covered by Federal employee whistleblower protections. In 2009, the Court of Federal Claims held in Verbeck v. United States that an officer in the Public Health Service Commissioned Corps is a member of the uniformed services and as such is not covered under the Civilian Whistleblower Protection Act nor the Military Whistleblower Protection Act. This same logic extends to the commissioned corps of NOAA. So under this precedent, officers of the Public Health Service and NOAA currently have no whistleblower protection under Federal law. This is particularly problematic when we consider that the Public Health Service and NOAA officers can be detailed to agencies such as the Food and Drug Administration or the Centers for Disease Control. That is the case here where that Public Health Service officer was working with FDA. At FDA they have to work side by side with civilian employees doing critical work to review and approve drugs, oversee medical devices, and even work on infectious diseases. However, unlike their civilian colleagues sitting right beside them, if these employees uncover wrongdoing, waste, fraud, and abuse, they can be retaliated against by the agency and have no recourse for it. This is wrong and needs to be fixed. Whistleblowers point out waste, fraud, and abuse when no one else will. They do so while risking their professional careers. Whistleblowers have played a critical role in exposing government failures, and retaliation against whistleblowers should never be tolerated whether they are in the Public Health Service or otherwise. For this reason, I will offer an amendment that expands whistleblower protection for uniformed employees of the Public Health Service. It corrects the anomaly pointed out in the Court of Federal Claims and ensures that officers in the Public Health Service have some baseline whistleblower protection. It expressly includes the commissioned corps of the Public Health Service within the protections of the Military Whistleblower Protection Act. This is consistent with the structure of the commissioned corps functioning like a military organization and matches the fact that these officers receive military-like benefits and retirement. All Federal employees should feel comfortable expressing their opinion both inside the agency and to those of us in Congress. The inclusion of this language will ensure those opinions receive appropriate protections. I want to take this opportunity to express my appreciation to Senator Harkin and Senator Enzi for their commitment and effort over the years to reform and improve the Food and Drug Administration. We have to do what we can to protect whistleblowers. They know where the skeletons are buried. They and enterprising journalists come to us in Congress so we can investigate. We need those sources of information. I yield the floor.

Mr. GRASSLEY

Mr. GRASSLEY. Madam President, I am pleased to see that Jessica Rosenworcel and Ajit Pai have been confirmed to the Federal Communications Commission. They are both highly qualified, and it is unfortunate that the FCC's stubborn refusal to respond to my very simple request for information forced me to place a hold on their nominations for the past 4 months in order to get the FCC to move on giving me the information to which any Member of Congress ought to be entitled. The FCC needs to learn a simple lesson from this episode: The public's business ought to be public, and transparency brings accountability. Eventually, the truth will be known, so you might as well get it out there when the questions first come up. I initially placed my hold on the FCC Commissioner nominees because the FCC had stonewalled a document request that I submitted on April 27 last year regarding their actions related to a company called LightSquared and the hedge fund, Harbinger Capital, that owns LightSquared. Before I wrote my letter on LightSquared, many concerns had already been raised regarding the company's plans for a terrestrial network and its potential to interfere with the global positioning system, or sometimes that is referred to as GPS. In my first letter, I raised those concerns as well. Unfortunately, the FCC does not appear to have taken those concerns seriously, but months later, independent testing verified the danger LightSquared posed to industries, from commercial aviation to even our own Armed Forces. It seems strange that a project that was so obviously flawed was allowed to go so far. But LightSquared had help. In total, LightSquared has paid 53 different lobbyists, some registered, some unregistered. They paid one former Governor, three former Senators, nine former Members of Congress, including a former Speaker and former minority leader, and a former White House Counsel to advocate for them. These lobbyists provided entry into the FCC and the White House. But they could not change the fact that LightSquared's network simply could not coexist with GPS. LightSquared has now declared bankruptcy, and it appears its plan to build a terrestrial network is over, but many questions still remain. Some of those questions: Why did the FCC give LightSquared this unusual waiver in the first place? Why did LightSquared's lawyers mention campaign contributions when they sought meetings at the White House? Why did a four-star general claim he had been pressured by the Obama administration not to criticize LightSquared? When I first asked the FCC for documents, I was told they would take about 2 years to respond to my request through the Freedom of Information Act. Then they told me they do not voluntarily turn over documents to the 99.6 percent of the Members of Congress who do not chair a committee with direct jurisdiction over FCC. After a lot of back and forth with the FCC, they told me the reason they do not respond to 99.6 percent of Congress is because of just a one-line statement in the Congressional Research Service report. The line reads, ``Oversight is most effective if it is conducted by Congressional committees of jurisdiction.'' Now, the FCC somehow took this quote and conveniently came up with the idea that they do not have to give this Senator any documents. Of course, to anybody in the Congress, this makes no sense whatsoever, but that is what the FCC hid behind. And, of course--you know me--I did not give up. The FCC's response to me is just another variation on what the Justice Department told me when I started asking questions about Operation Fast and Furious. Fortunately, we have Members of the House of Representatives who are not afraid to ask this administration some tough questions. In Fast and Furious, it was Chairman Issa who held the Justice Department's feet to the fire to make sure they responded fully and responded completely. With LightSquared, it was another committee in the House of Representatives, the House Energy and Commerce Committee. Chairmen Walden, Upton, and Stearns and their staff have done an excellent job in making sure the FCC is open, transparent, and provides documents to Congress, even when they do not want to give those documents to a Senator who asked for them, meaning this Senator. I would also like to thank Commerce Committee Chairman Rockefeller here in the Senate for pressing the FCC personally to release documents. With all of this help, we are making sure the FCC is open with the American people about the way they operate because transparency brings accountability. In over 30 years of conducting oversight, I can say that when it comes to providing documents to the Congress, the FCC is one of the worst Federal agencies I have ever had to deal with. Even after receiving a document request from the Energy and Commerce Committee in the House of Representatives, the FCC still tried to play the tired old games agencies play when they are not acting in good faith. When they finally turned over their first batch of documents--would you believe it?--those documents were already publicly available on the Internet through the Freedom of Information Act. So they weren't giving us anything we didn't already have access to. When they didn't convince us they were acting in good faith--because, quite frankly, they weren't--they gave us a second production. But in that production, of the first 1,968 pages they produced, all but 3--in other words, 1,965 pages--were newspaper clippings. Again, the FCC was playing games. And, of course, that is not acceptable. Fortunately, we have continued to press the FCC, and we now, with the help of the House of Representatives, have approximately 8,000 nonpublic internal documents. Still, we have not received all responsive documents from the FCC yet. We just received another 4,000 pages of documents, and I have been told that approximately 7,000 more documents are on their way to Congress. We now at least have a path forward. That is why I lifted my holds a couple weeks ago, so these nominations could move forward. I trust the House committee will ensure that the FCC provides those 7,000 or so additional documents. I have always said if you are hiding something, it is best to get it out in the open, because the longer you stonewall--in this case the FCC--the worse you are going to look when those facts finally come out. The FCC has attempted to stonewall my request for documents for almost a year, and they have failed. But they failed only thanks to the help provided by the House Energy and Commerce Committee, and because of that help we are finally able to review internal documents from the FCC--the very same documents we should have gotten when we first asked in our request on April 27 of last year. As I said when I initially filed my intent to object, I strongly believe it is critical for Congress to have access to documents in order to conduct vigorous and independent oversight. Whether it takes 1 day, 1 week, 1 month, or even 1 year--as it did in this case--I will continue to pursue transparency across the Federal Government because transparency brings accountability. That is essential so that Congress can practice its constitutional role of oversight over the Federal Government. The role of oversight is this simple: Congress passes laws and appropriates money. That is not the end of it. Our government is a government of checks and balances. We have a responsibility, after passing laws and appropriating money, to make sure the laws are faithfully executed and the money spent according to the intent of Congress. That is oversight. Even now as we review these documents we have already gotten and begin conducting interviews with key FCC staff, the investigation, obviously, continues. Step one was getting access to the FCC e-mails. We took this step so we could make sure we had the facts before we jumped to conclusions. Now it is time for step two--asking hard questions of the key FCC personnel who approved the LightSquared waiver. This process may continue to take more time, but however long the process takes, I will continue to press for transparency at the FCC because, again, with transparency comes accountability. This agency must operate in an open and transparent manner, and we must have answers regarding the LightSquared waiver. The people at the FCC work for the American people, they don't work for themselves. I yield the floor and suggest the absence of a quorum.