Chuck Grassley

Mr. GRASSLEY

Mr. GRASSLEY. Mr. President, it is my distinct pleasure to bring before the Senate today the achievements of some of the most brilliant, inventive young minds in the United States. I take this time to acknowledge the 19 recipients of the 2009 Davidson Fellows Award, a scholarship awarded to exceptional students to assist them in furthering their education. These scholarships are given by the Davidson Institute for Talent Development to profoundly gifted individuals under the age of 18 who have completed academically rigorous projects that demonstrate a potential to make a significant, positive contribution to society. This year's recipients achieved academic distinction in the areas of science, literature, philosophy, out-of-the-box thinking, technology, and music. These young individuals are more than deserving of this honor and our recognition. I would like to take a few moments to describe what each recipient has accomplished. In the realm of science, we have eleven remarkable young people, including Eric Sherman, from Ephrata, PA, who developed a technique that allows scientists to identify potential bone marrow donors for 6 percent of the cost and 1 percent of the time of traditional techniques. Using polymerase chain reaction and cycle sequencing, he sequenced the genes that determine a person's Human Leukocyte Antigen type. Eric then wrote a computer program to analyze the DNA sequence and return possible antigen matches. This technique can potentially be used to identify donors for other transplantable organs, such as kidney, liver, and lung, creating the opportunity to save hundreds of lives and millions of dollars each year. Eric is 15 years old. A 17-year-old young woman from Albuquerque, NM, Erika DeBenedictis researched methods of identifying low-energy paths for spacecraft. By carefully planning the route a spacecraft will take, it is possible to reduce the amount of fuel needed by utilizing the natural gravity and motion of planets in the solar system. Erika developed an itinerary- based algorithm to reach specified destinations, which streamlines the process of finding low-energy paths. Such orbits are particularly useful for heavy spacecraft, in which self-propulsion is especially difficult. Use of low-energy paths would allow these spacecraft to reach previously impractical destinations. A 17-year-old young man from Rochester, MI, Rahul Pandey created a negative index refraction lens made of metamaterials. Metamaterials have the unique property to bend electromagnetic waves of a certain frequency backward, so an image is possible on the opposite side of a lens. He modeled the energy flow of negative index materials in terms of lens geometry, refractive index, focal length, and source distance, finding a perfectly linear relationship. Rahul's work has applications in stealth technology, antenna elements, radio frequency signal switching, and lenses that do not adhere to the diffraction limit. Aditya Palepu, from Oakton, VA, developed a pattern classification algorithm that extracts linear and Gaussian relationships from raw data using a bottom-up approach. Given any data set, all possible models are generated, iteratively weeded down, and refined to better fit the data. This algorithm is effective on benchmark Iris data and synthetic distributions, and was designed so the model library can be expanded to more data sets. Aditya's work has applications in facial/object recognition, data mining, trend analysis, and was used to classify a Washington, DC crime database revealing the clustering of criminal activity. Aditya is 17 years old. From Woodbury, MN, Prithwis Mukhopadhyay researched the molecular mechanism by which carrageenan may induce pre-malignant cell transformation. Carrageenan is an FDA-approved food additive found in dairy products, processed meats, dog food, infant formula, and cosmetics. Using mammary epithelial cells, he found carrageenan reduced ASB activity and increased sulfated sGAG, especially chondroitin sulfate, which induced cell migration and pre-malignant transformation. At 16 years old, Prithwis' work shows how carrageenan influences breast cancer cell proliferation and migration. Fiona Wood, from North Haven, CT, explored the brain's ability to perceive and measure interval time using late-spiking (LS) neurons. She created the first biophysically realistic computational model of an LS neuron, and used it to construct neural networks that can accurately and realistically encode time. For all animals, an ability to perceive and measure time is essential for a wide variety of tasks. Fiona's work can lead to better understanding of brain diseases in which interval time encoding is impaired, such as Parkinson's, Huntington's, and schizophrenia. Fiona is 17 years old. A 17-year-old young man from Winston Salem, NC, Darren Zhu worked to develop more efficient data storage technologies by exploring nanofabrication methods for spintronics. Spintronics, or spin-based electronics, are inherently more powerful than electronics, as they exploit electron spin and subsequently are more sensitive than integrated circuit technology. He incorporated molecular self-assembled monolayers, or SAMs, into spintronics and performed surface analyses to find that isocyanide-based SAMs are a viable candidate for implementation in nanoscale spintronics fabrication. Darren's work has strong applications in nanotechnology, specifically in the field of nanolithography. A 16-year-old young man from Addison, TX, Roman Stolyarov designed and produced an omnidirectional dielectric mirror for visible light using a unique one-step fabrication process. The mirror is composed of 12 ultrathin alternating layers of two chalcogenide glasses, which were deposited by thermal evaporation onto a transparent silicon dioxide glass substrate. Simulations show that doubling the number of alternating layers would produce near perfect reflectivity, a phenomenon impossible for silvered mirrors, given their inherent losses in the visible spectrum. Roman's process will allow for rapid manufacturing of wavelength specific mirrors with applications in radar filtration and fiber technologies. From Teaneck, NJ, Yael Dana Neugut studied arsenic metabolism and renal function in an arsenic-exposed population in Bangladesh. She found that the association between urinary excretion of arsenic metabolites and creatinine is likely due to their shared metabolic pathway, and that creatine may be an effective way to prevent and treat long-term exposure to arsenic. More than 100 million people worldwide are chronically exposed to high levels of arsenic and are at risk of serious diseases, such as cancer and heart disease. A randomized trial of creatine supplementation is currently underway in Bangladesh. Yael is 17 years old. A 17-year-old young man from East Setauket, NY, Jason Karelis studied an enzyme called MenD that plays a role in the biosynthesis of a lipid called menaquinone in Staphylococcus aureus, the bacterium that causes staph infections. Menaquinone is an electron carrier crucial to S. aureus. Jason constructed a mutant strain of S. aureus with a disrupted MenD gene and observed its growth on media only with menaquinone added, evidence that MenD is vital for S. aureus. Staph infections are a major public health concern and Jason's work provides a platform for a new class of antibiotics. From Hilo, HI, Nolan Kamitaki designed a computer simulation to determine how viral characteristics and medical supply distribution patterns affect an epidemic's spread across a social network. Starting with a particle-based simulation to analyze basic interaction rates, he moved to a small world network, modeling an epidemic's spread across a population. Nolan's findings showed that children, due to their greater degree of social connection, are most useful for prevention and are the most effective recipients of medical processes. Nolan is 16 years old. In the area of literature, we have a young woman from North Potomac, MD. Amy Levine, a 16-year-old, examines the shades of gray between black and white in her literature collection, Grayscale Unraveled. She demonstrates how life choices that have the greatest impact initially do not appear to be choices at all, but have the potential to be the most transformative. Amy's portfolio explores the small yet important events that determine who we are and how we live, while breaking down the black and white decisions people make to show the grayscale that describes the world. Also in the area of literature, we have Nicole Rhodes, a 17-year-old from Vancouver, WA, who created the portfolio The Dictionary of Distance to explore different facets of distance in writing. She considers the distance between a piece's narrator and characters, the space between the author and the work, and the space separating characters and other elements to determine how distance alters memory. Through this examination, Nicole is able to analyze the writing process, the writer's perspective, and the final written product. Her portfolio includes a variety of forms, styles, and subjects, united in this investigation. From Indianapolis, IN, Doreen Xu explores the foundation of evil in her philosophy portfolio, The Roots of Evil. She delves into the human psyche to examine several distinct sources of evil, concluding that all human evil is caused by frustrated human desire. Doreen explores this newly defined dimension of evil with an enlightened perspective, fostering a new method of viewing evil. She hopes this will allow evil to be more effectively combated, leading to a more progressive and harmonious global society. Doreen is 16 years old. The first recipient in the world of music is Melody Lindsay, from Honolulu, HI, who believes we celebrate mankind's best achievements through music. In her portfolio, Harping Around the World: Cultural Leadership for the 21st Century, she draws on her experience as a harpist to connect with audiences. She is particularly interested in inspiring young people to discover and pursue their own passion for classical music. Melody, at age 17, has performed on and serves as a Cultural Ambassador for NPR's ``From the Top'' and was a Focus on Youth Performer for the ninth and tenth World Harp Congresses. From La Crescenta, CA, Connie Kim-Sheng seeks to convey the insights of classical composers in her portfolio, Inspired by Beauty: Piano Masterworks. Her performance of pieces by Bach, Beethoven, Chopin, Debussy, and Ginastera provide musical texts that illuminate the span of human feeling and experience, demonstrating a multitude of complex harmonies. At 17 years old, Connie has performed on NPR's ``From the Top,'' and for audiences in Sydney, Australia; Calgary, Canada; and Los Angeles. Through her music, Connie hopes to encourage greater respect for cooperation and pluralism in society. A 13-year-old young woman from San Diego, CA, Sarina Zhang strives to show the beauty and emotional value of classical music in her portfolio, Reaching out to the World with the Magic of Music. Through performance, she strives to connect with her audience, moving them with the simple truth of classical music. A pianist and cellist attending The Juilliard Pre-College Division, she has been featured on NPR's ``From the Top,'' performed at Carnegie Hall, and toured internationally with the San Diego Civic Youth Orchestra. For exemplary works in the category of ``Outside the Box,'' recipients include Allison Ross from Mercer Island, WA. She created a portfolio, African and Western Heroes' Journeys in Literature: An Exemplification. Against the backdrop of August Wilson's fiction and the constructs of Joseph Campbell's Hero's Cycle, she explores the relationship between classical Western and African hero mythologies. Allison, at 16, investigates the derivations, common motives and cultural differences between the two traditions offering original narratives and critical analysis. Through this work, Allison hopes that others will share her enthusiasm for exploring themes that unite our heritages. And finally, in his ``Outside the Box'' project, a 15-year-old young man from Cupertino, CA, Anshul Samar seeks to make learning a side effect of fun with his project, Igniting Interest in Chemistry with Elementeo Chemistry Card Game. In Elementeo, players battle with their element army, activate reactions, create compounds, and conquer opponents using black holes and slippery bases. Anshul hopes that by introducing young people to chemistry in a fun and interactive manner, they will discover a passion for science and pursue it throughout their lives. These brilliant young men and women are essential for the success of their generation. It is our duty to recognize, support, and nurture their progression through academia as they mature into the leaders of their generation. We should consider ourselves privileged that some of the triumphs of these ingenious young minds have already born fruit. I would like to thank the Davidson Institute for making such scholarships available and for taking the time to seek out these worthy candidates. I would also like to thank each winner and applicant of the Davidson Award for showing to us the promise and potential your generation holds. We can rest assured that our future is in good hands.

Mr. GRASSLEY

Mr. GRASSLEY. Mr. President, I come to the floor today to pay tribute to a fellow Iowan, Dr. Norman Borlaug, a 1970 Nobel Peace Prize laureate. That honor--Dr. Borlaug's winning the Nobel Peace Prize--was because he was the father of the Green Revolution. Dr. Borlaug passed away over the weekend at the age of 95. I am honored to have known Dr. Borlaug. He was a remarkable man, a true son of the Iowa soil. A tenacity found through wrestling, a love of the soil, and a twist of fate helped Dr. Borlaug develop the scientific breakthroughs to ease malnutrition and famine around the globe. His effort to spare people from the sharp hunger pains that strike an empty stomach is an example for generations to come that one person can, in fact, make a difference--and, in his case, a big difference. Dr. Borlaug's notoriety most often comes, as I have just said, as the father of what is called the Green Revolution, a time when drastically increased crop yields over a short period of years helped alleviate world hunger. It is from this work that he is credited with saving more lives than any other person in history. It is said that Dr. Borlaug's desire for a sufficient food supply came from his childhood. He grew up in a small town on a family farm in northeast Iowa. His education came in a one-room schoolhouse full of immigrant children. It was there where he and his schoolmates learned the common threads between them, similar to what their own parents learned, that working together to provide food for their families was more important than any ethnic differences that might divide them. In true Iowa tradition, as a young man Dr. Borlaug was an outstanding wrestler. His wrestling skills took him to the University of Minnesota, where he, besides wrestling, earned a bachelor's and master's degree in forestry and, by a twist of fate, a doctorate in plant pathology. It was after his graduation and World War II service that Dr. Borlaug first saw the plight of poverty-stricken wheat farmers in rural Mexico. In the early going, his work in Mexico was discouraging, but Dr. Borlaug showed his tenacity and willingness to get dirt under his fingernails and, in fact, over a period of time ingratiated himself to the local farmers. With the help of Mexican farmers, Dr. Borlaug and his scientific team eventually developed a disease-resistant wheat--a breakthrough in the fight against hunger. His success in Mexico gave Dr. Borlaug the opportunity to help developing countries all around the world. His innovative work brought an agricultural revolution to poor and hungry countries. I don't think it is a stretch to say that Norman Borlaug transformed these countries. His work helped these countries avoid starvation and famine, but he also helped to lift the social conditions and create more peaceful societies. His commitment to this important cause has been recognized worldwide. I already alluded to the fact that he was a 1970 Nobel Peace Prize winner. He is one of only five people to be awarded three different medals of honor: the Nobel Peace Prize, the Presidential Medal of Freedom, and this Congress awarded him the Congressional Gold Medal. That may not sound like much, but let's just put that into context. The other four recipients of all three of those awards--again, the Nobel Peace Prize, the Presidential Medal of Freedom, and the Congressional Gold Medal--include Nelson Mandela, Elie Wiesel, Mother Teresa, and Dr. Martin Luther King, Jr. Mr. President, Dr. Borlaug may not be a name known at every kitchen table, but this man is one of the greatest humanitarians who have ever lived. He dedicated his life to the development of scientific breakthroughs in order to ease malnutrition and famine all over the world. One of Dr. Borlaug's latest efforts began in the early 1980s. There wasn't anything in the Nobel armada of prizes that represented agriculture, which is why he received the Peace Prize for recognition of his research in agriculture, and so Dr. Borlaug thought there ought to be an annual award for research in agriculture and helping with the problems of food production. Through his initiative, the World Food Prize was initiated. It recognizes the achievement of individuals who have advanced human development by improving the quality, quantity, and availability of food in the world. Just as Dr. Borlaug dreamed, the World Food Prize is helping to continue to inspire future generations of scientists and farmers to innovate and lift those mired in poverty and preserving Dr. Borlaug's legacy over the years. The World Food Prize is the idea of Dr. Borlaug, and so his scientific work will live on. The World Food Prize exists today because of the John Ruan family endowing it. They are an outstanding Des Moines business family, and they have endowed this. President of the World Food Prize is the former Ambassador to Cambodia, Dr. Ken Quinn. The World Food Prize has been headquartered in Des Moines since 1992, about 4 or 5 years after its founding. An extraordinary man, with a brilliant vision and Iowa common sense who turned his dreams into reality--that was Dr. Norman Borlaug. I yield the floor.

Mr. GRASSLEY

Mr. GRASSLEY. Mr. President, I am pleased to submit a resolution designating the month of October, 2009 as the National Medicine Abuse Awareness Month. The abuse of prescription drugs and cold medicine is currently the fastest growing drug abuse trend in the country. According to the most recent National Survey of Drug Use and Health, NSDUH, nearly 7 million people have admitted to using controlled substances without a doctor's prescription. People between the ages of 12 and 25 are the most common group to abuse these drugs. However, more and more people are dying because of this abuse. The Centers for Disease Control and Prevention report that the unintentional deaths involving prescription narcotics increased 117 percent from the years 2001 to 2005. Abuse of over-the-counter, OTC, cough and cold medicines is also alarming. While these common cold medicines are safe and effective if used properly, the abuse of these medicines can also be destructive. According to a study conducted by the Partnership for a Drug-Free America, nearly one in ten young people between the ages of 12 and 17 have intentionally abused cough medicine to get high off its main ingredient Dextromethorphan. These are statistics that can no longer be ignored. Millions of Americans use these medicines every year to treat a variety of symptoms due to injury, depression, insomnia, and the effects of the common cold. Many legitimate users of these drugs often do not use as much medication as the prescription contains. As a result, these drugs remain in the family medicine cabinet for months or years because people forget about them or do not know how to properly dispose of them. However, many of these drugs, when not properly used or administered, are just as addictive and deadly as street drugs like methamphetamine or cocaine. According to the NSDUH, more than half of the people who abuse these drugs reported that they obtained OTC and prescription drugs from a friend or relative or from the family medicine cabinet. As a result, groups like the Community Anti-Drug Coalitions of America, the Consumer Healthcare Products Association, and the Partnership for a Drug-Free America have been reaching out to communities throughout the nation to raise awareness of this growing drug abuse trend and encourage communities to tackle the problem head on. Many community anti-drug coalitions, public health officials, and law enforcement officials have been holding town halls, organizing community ``clean out your medicine cabinet'' events, and holding many other events to raise awareness of this growing abuse in an effort to reverse this trend. We can stop the growing trend of medicine abuse in its tracks, but it will require all sectors of the community to join together to make it happen. The National Medicine Abuse Awareness Month Resolution promotes the message that over-the-counter and prescription medicines must be taken as directed, and when used recreationally or in large doses they can have serious and deadly consequences. This resolution will help remind parents that access to drugs that are abused doesn't just happen in alleys and on the streets, but can often occur right in the home. I urge all my colleagues to join me in supporting this resolution.

Mr. GRASSLEY

Mr. GRASSLEY. Mr. President, I, Senator Chuck Grassley, do not object to proceeding to the nomination of Carmen R. Nazario to be Assistant Secretary for Family Support of the Department of Health and Human Services, Calendar No. 304, dated September 8, 2009.

Mr. GRASSLEY

Mr. GRASSLEY. Madam President, this morning a funeral service will be held in Sioux City, IA, for a 44-year-old woman who began working for the people of Iowa in my office in January of 1988. Mary Jo Hoffman was a loyal and trusted adviser to me and a beloved friend to my wife, Barbara, our family, and many of my Senate staff who served with her more than a decade ago and still, in a sense, are serving with her today. Always filled with purpose, Mary Jo spent the last 2 years 4 months fighting cancer with the tenacity, strength, and determination we all knew and loved about her. When Mary Jo set her mind to something, she didn't let much get in her way. She was that way when I met her when she was a bright young college student at the University of Northern Iowa, my alma mater, and she was that way when she worked effectively to serve constituents, first as a legislative correspondent, then as scheduler and as a top aide in my Senate office, and later on when she worked for my political campaigns. I valued her judgment and appreciated her hard work and commitment to quality in every position she held. Mary Jo also taught at night as a volunteer and earned a master's degree while working on Capitol Hill. She reached out and gave to others in so many ways through her church, in her community, and even on the U.S. Air Force base in Greece where she lived for a short period of time with her husband while he was serving. Someone in need had a friend in Mary Jo. She always got a lot done, and she did it in a way that was generous, spirited, and committed to ideals. Mary Jo was a person of great faith. She provided leadership wherever she went through worship and fellowship and with the example she set with her own life. Mary Jo was a faithful witness for Christ and never more so than the darkest hours and days of her last 2 years. She will continue to inspire those of us who were lucky enough to have her in our lives. We all mourn Mary Jo's departure, and our heart goes out to her family, including her devoted husband, Brent, and mother, Karen. I know Mary Jo's beautiful young children, Silas and Lydia, will miss her every day. I pray that they find comfort in the honorable life lived by their mother and my dear friend Mary Jo. She served the people of Iowa and the Lord with distinction and humility. She left this world for the next with courage and grace. I wish to read one sentence from the Sioux City Journal which I think sums up her life: ``Her words were like thunder because her life was like lightning.'' Madam President, I ask unanimous consent to have the full text printed in the Record.

Mr. GRASSLEY

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

Mr. GRASSLEY. Madam President, for a second time now, I come to the floor to voice my opposition to the nomination of Judge Sotomayor to be an Associate Justice. I cannot support her nomination because I am not persuaded she has the right judicial philosophy to be on the Supreme Court. I have spoken many times and have again spoken at the Judiciary Committee and on the floor at some length about my reasons for opposing the judge's confirmation, but I want to reiterate some of these reasons before we vote on her nomination about 2 hours from now. It is the Senate's constitutional responsibility to thoroughly review the qualifications of the President's judicial nominations. This advice and consent process is especially important when we consider nominees to the Supreme Court, which obviously is the highest court in our land. Both Chairman Leahy and Ranking Member Sessions did an admirable job in conducting a fair but very rigorous examination of the judge's record. The nominee was asked tough questions, but she was also treated fairly and with respect, as is appropriate for all judicial nominees. We want to make sure judicial nominees have a number of qualities, but superior intelligence, academic excellence, distinguished legal background, personal integrity, and proper judicial demeanor and temperament are not the only qualities we must consider in a judicial nominee. Judges, and in particular Supreme Court nominees, must have a true understanding of the proper role of a Justice as envisioned by the writers of the Constitution as well as an ability to faithfully interpret the law and Constitution without personal bias and prejudices. Since becoming a member of the Senate Judiciary Committee the very first year I came to the Senate in 1981, I have used this standard to confirm both Republican and Democratic Presidents' nominees for the Supreme Court. Because Supreme Court Justices have the last say with respect to the law and have the ability to make precedent, they do not have the same kinds of restraints lower court judges have. So we need to be convinced these nominees have judicial restraint--in other words, the self- restraint to resist interpreting the Constitution to satisfy their personal beliefs and preferences. We need to be persuaded these nominees will be impartial in their judging and bound by the words of the Constitution and legal precedent. We need to be certain these nominees will not overstep their bounds and encroach upon the duties of the legislative and executive branch. That is our checks-and-balances system of government. Our American legal tradition demands that judges not take on the role of policymakers, reserved to those of us in the legislative branch, but that instead they check their biases and preferences and politics at the door of the courthouse. The preservation of our individual freedoms depends on limiting policymaking to legislators rather than on elected judges who have a lifetime appointment. When then-Senator Obama voted against now-Chief Justice Roberts, he spoke from his desk over there about how a judge needed to have, in his words, ``empathy'' to decide the hard cases. He said: That last mile can only be determined on the basis of one's deepest values, one's core concerns, one's broader perspective on how the world works and the depth and breadth of one's empathy. . . . in these difficult cases the critical ingredient is supplied by what is in the judge's heart. In another speech, President Obama further elaborated on this empathy standard: In those 5 percent of cases, what you've got to look at is what is in the Justice's heart. What's their broader vision of what America should be . . . We need somebody who's got the heart--the empathy--to recognize what it's like to be a young teenage mom, the empathy to understand what it's like to be poor or African-American or gay or disabled or old--and that's the criteria by which I'll be selecting my judges. He spoke very well in that quote about the empathy those of us who were elected ought to have, but I think he spoke incorrectly about what judges should have. And when the President then nominated Judge Sotomayor to the Supreme Court, he did that with the belief that she meets his empathy standard. President Obama's empathy standard has been widely criticized as contrary to the proper role of judges--and that is my point--and that is because an empathy standard necessarily connotes standards of impartiality. That is a very radical departure from our American tradition of blind impartial justice. In fact, even Judge Sotomayor repudiated President Obama's empathy standard at her confirmation hearing. A judge's impartiality is so critical to his or her duty as an officer in an independent judiciary that it is mentioned three times in the oath of office for Federal judges. Every judge swears ``to administer justice without respect to persons,'' to ``do equal right to the poor and to the rich,'' and to ``faithfully and impartially discharge and perform all [his] duties.'' That is from the oath judges take. Therefore, empathetic judges who choose to embrace their personal biases cannot uphold their sworn oath. If we are to have a government of laws and not of men and women, then our judges must not favor any party or class over another, whether they be historically privileged or historically disadvantaged. Our judges must decide the cases before them on the law this Congress writes and what it requires, even if the law compels a result that is at odds with the judge's personal, deeply held feelings. The fact that we have an independent judiciary means that it is not a political body. In exchange for remaining unchecked by the will of the people, the judicial branch is required to maintain impartiality. This country was founded on the principle that justice is the same for everyone. No one is entitled to special treatment, whether by fate or fortune, because no man or woman is above the law. No matter what you call it--empathy, compassion, personal bias, or favoritism--it can have no place in the decisionmaking process of a judge--it can have a place in decisionmaking by a Senator--but especially in the case of the judicial branch, notably the Supreme Court or a Supreme Court Justice. While justice is not an automated or mechanical process, it also is not a process that permits a patchwork of cases where the outcome is determined not by the law but by the judge's personal predilections. Judges may differ on what the law is, but they should never reach a conclusion because of a difference in ideology or because of their empathy for one of the parties. An empathy standard for judging would betray the very cause of equality that it purports to champion by creating classes among our citizens in the eyes of the law. That is what is so dangerous about President Obama's standard and why we should be cautious in deferring to his choices for the judicial branch. That is why we should continue to assess judicial nominees based on their fidelity to the rule of law and not on some well-intentioned hope or belief that the personal biases they will rely on in judging will be the right ones. Unfortunately, Judge Sotomayor's speeches and writings over the years reveal a judicial philosophy that highlights the importance of personal preferences and beliefs in her judicial method. Her speeches and writings reveal her views of a judge and judicial decisionmaking process that are quite contrary to what our American tradition demands of the judiciary and our system of justice. I will cite a few troubling statements she has made. She questioned ``whether achieving the goal of impartiality is possible at all in even most cases'' and also ``whether by ignoring our differences as men, women, people of color, we do a disservice to both the law and the society.'' She promoted identity politics where she openly admitted that ``[my experiences] will affect the facts I choose to see'' and that ``I willingly accept that . . . judge[s] must not deny the differences resulting from experience and heritage.'' She claimed that the court of appeals is where ``policy is made.'' She said that a ``wise Latina would more often than not reach a better conclusion than a white male.'' She disagreed with a statement by Justice O'Connor that ``a wise old woman and a wise old man would eventually reach the same conclusion in a case.'' She said that ``unless American courts are more open to discussing the ideas raised by foreign cases, and by international cases, that we are going to lose influence in the world,'' as if it is for the Supreme Court Justices to worry about our influence in the world. It seems to me the chief diplomat of our country is the President of the United States. She urged judges to look to foreign law so they can get their ``creative juices'' flowing. At her confirmation hearing, Judge Sotomayor attempted to distance herself from these statements and explain them away, most likely recognizing that they were controversial and out of the mainstream. However, in my mind, she was not very successful. Even the Washington Post said Judge Sotomayor's testimony about some of her statements before the Judiciary Committee was ``less than candid'' and ``uncomfortably close to disingenuous.'' I was not the only one who had problems reconciling what Judge Sotomayor said at the hearing with the statements she has repeated over and over throughout the years. That is because the statements made at the hearing and those made in speeches and in law review articles outside the hearing are polar opposites. Some of her explanations were contrived or far-fetched. In my opinion, these statements in her writings and speeches cannot be reconciled with her hearing testimony. I am not sure which Judge Sotomayor I am to believe. She appears to be Justice Ginsburg in her speeches and writings but made statements like Chief Justice Roberts in her confirmation hearing. So I think the Washington Post's conclusions are worth repeating: Judge Sotomayor's attempts to explain away and distance herself from that [wise Latina] statement were uncomfortably close to disingenuous, especially when she argued that her reason for raising questions about gender or race was to warn against injecting personal bias into the judicial process. Her repeated and lengthy speeches on that matter do not support that interpretation. I am not only troubled by the speeches and writings of the judge-- these were produced during her time as a sitting judge on the Second Circuit--and her contradictory statements before the Judiciary Committee but I also have concerns with cases Judge Sotomayor decided when she sat on the Second Circuit. Some cases raise serious concerns about whether Judge Sotomayor will adequately protect the second amendment right to bear arms and the fifth amendment property rights. Statements she made at the hearing raise concerns that she will inappropriately create or expand rights under the Constitution. Other cases raise concerns about whether she will impose her personal policy decisions instead of those of the legislative or executive branch. In addition, Judge Sotomayor's track record on the Supreme Court is not a particularly good one. She has been reversed 8 out of 10 times and was criticized in another of the 10 cases. At the hearing, Judge Sotomayor was asked about her understanding of rights under the Constitution, including the second and fifth amendments and the right to privacy. She was asked about her legal analysis in certain cases, like the Ricci, Maloney and Didden cases. She was also asked about how she views precedent and applies it in cases before her. Ultimately, I wasn't satisfied with her responses, nor was I reassured that Judge Sotomayor would disregard her strong personal sympathies and prejudices when ruling on hard cases dealing with important constitutional rights. With respect to the Ricci case, I wasn't persuaded by Judge Sotomayor's claims that she followed precedent, nor her explanation as to why she could dismiss such a significant case in summary fashion. The only reason this case found its way to the Supreme Court was because her Second Circuit colleague read about it in the newspaper, recognized its importance, and asked to have it reconsidered. When the Supreme Court reversed Judge Sotomayor's decision, it held that there was no ``strong basis in evidence'' to support her opinion. In fact, her legal reasoning in Ricci was so flawed, all nine Justices rejected it. With respect to the Maloney case, I was concerned with Judge Sotomayor's explanation of her decision holding that the second amendment right to bear arms is not ``fundamental,'' as well as her claims that she was simply following Supreme Court and Seventh Circuit precedent. I was also concerned with her refusal to affirm that Americans have a right of self-defense. If Maloney is upheld by the Supreme Court, the second amendment will not apply against State and local governments, thus permitting potentially unrestricted limitations on this important constitutional right. With respect to the Didden case, I was troubled with Judge Sotomayor's failure to understand that her decision dramatically and inappropriately expands the ability of State, local, and Federal Governments to seize private property under the Constitution. In fact, based on the Didden holding, it is not clear whether there are any limits to the ability of State, local, and Federal Governments to take private property. I also was concerned with Judge Sotomayor's mischaracterization of the Supreme Court's holding in Kelo. And I wasn't satisfied with her explanation about why she summarily dismissed the property owner's claims based on the statute of limitations. I don't think these concerns are off the mark--the Didden case has been described as ``probably the most extreme anti-property rights ruling by any federal court since Kelo.'' So Judge Sotomayor's discussion of landmark Supreme Court cases and her own Second Circuit decisions raise questions in my mind about whether she understands the rights given to Americans under the Constitution. I question whether she will refrain from expanding or restricting those rights based on her personal preferences. Almost two decades ago, then-Judge Souter during his confirmation hearing spoke about courts ``filling vacuums'' in the law. That discussion struck me as odd and troubled me, because clearly it is not the role of a court to fill voids in the law left by Congress. Although Judge Souter backtracked on his courts ``filling vacuums'' statement when I pressed him about it, I believe that his decisions on the Supreme Court actually reveal that he does believe courts can and do fill vacuums in the law. It is no secret that I regret my vote to confirm him. And because of that, I have asked several Supreme Court nominees about the propriety of judges ``filling vacuums'' in the law at their confirmation hearings. So this question shouldn't have come as a surprise to Judge Sotomayor when I asked her about it at her confirmation hearing. Unfortunately, I wasn't satisfied with her lukewarm answers to my question. In fact, it just reinforced the concerns I had with her hearing testimony, cases, speeches and writings. Judge Sotomayor has overcome many obstacles to get to where she is today. There is no doubt that Judge Sotomayor is an engaging, talented, intelligent woman. She has tremendous legal experience and many other good qualities. I very much enjoyed meeting with her and getting to know her personally. But I can't just base my decision on these things. I have to look at her judicial philosophy and determine whether I believe it is one that is appropriate for the Supreme Court. That is my constitutional responsibility. And based on her answers at the hearing and her decisions, writings, and speeches, I am not comfortable with what I understand to be Judge Sotomayor's judicial philosophy. I am not persuaded that she will protect important constitutional rights, and I am not convinced that she will refrain from creating new rights under the Constitution. I am not persuaded that she won't allow her own personal biases and prejudices to seep into her decisionmaking process and dictate the outcome of cases before her. So it is with regret that I must oppose her nomination to the Supreme Court. I said this in the Judiciary Committee, and I repeat it now on the floor. Only time will tell which Judge Sotomayor will sit on the Supreme Court. Is it the judge who proclaimed that the court of appeals is where ``policy is made,'' or is it the nominee who pledged ``fidelity to the law?'' Is it the judge who disagreed with Justice O'Connor's statement that a wise woman and a wise man will ultimately reach the same decision, or is it the nominee who rejected President Obama's empathy standard? Only time will tell.

Mr. GRASSLEY

Mr. GRASSLEY. Mr. President, I want to speak in opposition to the amendment of the Senator from Arizona to strike funding for Iowa State University's Rural Vitality Center. According to the Small Business Administration, Iowa historically has ranked near the bottom nationally in business startups. Small businesses with less than five employees account for 86 percent of Iowa businesses, yet these enterprises increasingly are bypassed by existing entrepreneurial assistance and capital networks, particularly in nonmetro areas. The Iowa Rural Vitality Project is Iowa State University's response to help foster innovation and economic vitality in rural Iowa. The Vitality Center engages with academic institutions, community leaders, and economic development agencies to leverage resources. The center provides statewide leadership by building community capacity for assisting and supporting entrepreneurs and community foundations. During the past year, the Vitality Center has led an effort to organize a statewide microloan foundation and complementary community microenterprise development initiatives. The program targets low- and moderate-income people and underserved rural areas. The microloan program helps fund businesses that don't quite meet the commercial lenders' requirements for credit, which is even more important during these tight lending times. This initiative is creating two to three new business startups per month that would not otherwise exist. According to Iowa State University, the funding approved for fiscal year 2010 will be used to encourage the development of 20 community- based entrepreneurial development systems, allow for expanded philanthropic capacity in 10 community foundation projects, and research new strategies for enhancing rural vitality for rural and underserved communities. Their program, with this funding, will help continue their creation of jobs across the State. The Feds aren't the only ones supporting this center. They have received grants from private sources and the State legislature for their efforts. It also receives a $1 for $1 match from each community demonstration project for approximately 10 projects, and approximately a $2 non-Federal to $1 Federal match from Iowa State University on the center operations budget. I urge my colleagues to oppose the amendment to strike the funding for this center. amendment no. 2030

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 want to discuss the nomination of Judge Sotomayor to be Associate Justice. I want to begin by saying that I have a lot of respect for her. I think she is an incredibly talented individual who has worked very hard and has had an extraordinary life story. I am impressed with the way Judge Sotomayor was able to beat the odds and reach new heights. Unfortunately, as I voted in committee, I vote on the floor. I cannot support her nomination because of my concerns with her judicial philosophy. There are a number of qualifications a Supreme Court nominee should have: a superior intellect, distinguished legal experience, integrity, proper judicial demeanor, and temperament. But the most important qualification of a Supreme Court nominee is truly understanding the proper role of a Justice as envisioned by our great Constitution. In other words, a Justice must have the capacity to faithfully interpret the law and Constitution without personal bias or prejudice. It is critical that judges have a healthy respect for the constitutional separation of power and the exercise of judicial restraint. Judges must be bound by the words of the Constitution and legal precedent. Because the Supreme Court has the last word as far as what the lower court says, Justices are not constrained like judges in the district and appellate courts. In other words, the Supreme Court and its Justices have the ability to make precedent. Because there is no backstop to the Supreme Court, Justices are accountable to no one. That is why we must be certain these nominees will have the self- restraint to resist interpreting the Constitution to satisfy their personal beliefs and preferences. A nominee to the Supreme Court must persuade us that he or she is able to set aside personal feelings so he or she can blindly and dispassionately administer equal justice for all. That is what I was looking for when I reviewed Judge Sotomayor's record. That is what I was looking for when I asked Judge Sotomayor questions both at the hearing and in writing. Unfortunately, I now have more questions than answers about Judge Sotomayor's judicial philosophy. I am not convinced that the judge will be able to resist having her personal biases and preferences dictate her judicial methods when she gets to the Supreme Court. I find it very troubling that President Obama is changing the standard by which our country's Federal judges are selected. Instead of searching for qualified jurists who can be trusted to put aside their personal feelings in order to arrive at a result required by the law, President Obama has said he is looking for a judge who has ``empathy,'' someone who will embrace his or her personal biases instead of rejecting them. This concept represents a very radical departure from the normal criteria for selecting Federal judges and Supreme Court Justices. In his statement opposing the confirmation of Chief Justice John Roberts, then-Senator Obama compared the process of deciding tough cases in the Supreme Court--can you believe it--comparing it to a marathon. He said: That last mile can only be determined on the basis of one's deepest values, one's core concerns, one's broader perspective on how the world works and the depth and breadth of one's empathy. . . . Legal process alone will not lead to you a rule of decision. . . . [i]n those difficult cases the critical ingredient is supplied by what is in the judge's heart. That is the end of the quote from then-Senator Obama. Until now, judges have always been expected to apply law evenhandedly and to reach the result that the law requires. When speaking about the law, lawyers and judges often talk about what the law is or what the law requires, instead of what the law should be. We expect judges not to confuse the two. We expect judges not to bend the law in order to reach a result that they would want personally instead of what the law requires. We expect judges not to decide cases in favor of a particular litigant because he or she may be more worthy of compassion. We don't ask what the judge's heart says about a particular case of a legal issue. We ask what the law says. A mandate of judicial empathy turns that traditional legal concept on its head in favor of a lawless standard. If empathy for a litigant's situation becomes a standard for deciding cases, then there is no limit to the effect on American jurisprudence. If a judge's decision in the hard cases is supplied by the content of his or her heart, then that decision cannot be grounded upon objective legal principles. If the last mile that then-Senator Obama referred to is determined by a judge's deepest feelings instead of legal precedent, then the outcome will differ based on which judge hears the case. Predictably and consistently, hallmarks of the American legal system will be sacrificed on the altar of judicial persuasion and compassion. When a judge improperly relies on his or her personal feelings instead of relying solely on the law, it leads to creation of bad precedent. If a judge's decision is affected by his or her empathy or sympathy--whatever you want to say--for an affected party or group, then the law of unintended consequences dictates that others will be affected in the future, beyond the present case, and they will be judged by a standard that should not be applied to them because of what a previous judge did about personal sympathy instead of what the law says. Justice is blind. Empathy is not. Empathetic judges take off the blindfolds and look at the party instead of merely weighing the evidence in light of what the law is. Empathetic judges put their thumbs on the scales of justice, altering the balance that is delicately crafted by the law. Empathetic judges exceed their role as part of the judicial branch and improperly take extraneous, nonlegal factors into consideration. That is why President Obama's judicial standard of empathy is problematic, and why we should be cautious in deferring to his choices for the judicial branch. Judge Sotomayor's speeches and writings reveal a judicial philosophy that bestows a pivotal role to personal preferences and beliefs in her judicial method--although Judge Sotomayor attempted to spin away her statements. At her confirmation hearing I had difficulty reconciling what she said at the hearing with statements she has repeated so often throughout the years. That is because the statements made at the hearing and those speeches and law review articles outside the hearing cannot be reconciled. Since 1994, the judge has given a number of speeches where she responded to a remark by Justice O'Connor that a judge's gender should be irrelevant to judicial decisionmaking process. Judge Sotomayor said that she ``hope[d] that a wise Latina woman . . . would more often than not reach a better conclusion than a white male who hasn't lived that life.'' This statement suggests, very contrary to the Constitution, that race and gender influence judicial decisions and that some judges can reach a ``better conclusion'' solely on the basis of belonging to a particular demographic. When questioned about this issue, Judge Sotomayor initially stood by her words, saying that they were purposefully chosen to ``inspire the students to believe that their life experience would enrich the legal system,'' and that it was merely their context that ``ha[d] created a misunderstanding.'' Even if that were the case, repeatedly misrepresenting to her audience one of the most fundamental principles of our judicial system demonstrates inappropriate and irresponsible behavior for a judge. However, Judge Sotomayor proceeded to contradict those very words by saying that she ``does not believe that any ethnic, racial, or gender group has an advantage in sound judging,'' and claimed that her criticism was actually agreeing with Justice O'Connor's argument, saying the words she used ``agree[d] with the sentiment that Justice Sandra Day O'Connor was attempting to convey.'' I fail to see how Judge Sotomayor can reconcile her views with those of Justice O'Connor because it is clear that they stand in direct contradiction to each other. The judge continued to confuse us, claiming that hers and Justice O'Connor's words ``literally made no sense in the context of what judges do.'' Assuming that Judge Sotomayor truly does agree with Justice O'Connor, then I find it troubling that she doesn't recognize that it is important for judges to understand their gender and ethnicity should have no bearing on their judicial decisions. Moreover, the judge contradicted herself again when she later attempted to brush aside these remarks, claiming that they were a ``rhetorical flourish'' and ``can't be read literally.'' However, if she truly believed that these words ``fell flat,'' why would she continue to use the same words on at least four more separate occasions? Some of my colleagues claim that the significance of Judge Sotomayor's ``wise Latina'' statement has been exaggerated. Unfortunately, we are not concerned with just one statement. The judge has a record of freely articulating a judicial philosophy at odds with the fundamental principles of our legal system. Justice Story once said that, without justice being impartially administered: Neither our persons nor our rights nor our properties can be protected. That is the end of Justice Story's quote. In her opening testimony Judge Sotomayor appeared to agree with Justice Story, saying she seeks to strengthen ``faith in the impartiality of our justice system.'' However, that statement is contradicted by her long history of expressing skepticism toward judicial neutrality and impartiality. In at least four separate speeches Judge Sotomayor said that ``the aspiration to impartiality is just that--it's an aspiration.'' It is easy for a nonlawyer like me to become very cynical when I hear that. But when questioned about that statement, Judge Sotomayor argued that she ``wasn't talking about impartiality [being] impossible'' and tried to reconcile her views as ``talking about academic question.'' In other speeches, the judge also expressed skepticism with Judge Cedarbaum's belief that judges must transcend their personal sympathies and prejudices, saying that she ``wonder[ed] whether achieving that goal is possible in all, or even most cases.'' That is enhancing my cynicism. At the hearing, Judge Sotomayor failed to sufficiently explain those troubling remarks. Instead, she departed from the clear meaning of her words, arguing that they were actually intended ``to make sure that one understood that a judge always has to guard against those things affecting the outcome of a case.'' Once again, her contradictory interpretation of her own words makes me question her sincerity and candor with our committee. In another speech in a law journal article, Judge Sotomayor declared that she ``willingly accept[s] '' that judges ``must not deny the differences resulting from experiences and heritage, but attempt, as the Supreme Court suggests, continuously to judge when those opinions, sympathies and prejudices are appropriate.'' So I am concerned that these words radically depart from the bedrock principle of judicial impartiality that judges swear to uphold when they take their oath of office. When questioned about these words, Judge Sotomayor made the far- fetched claim that her words were actually ``talking about the very important goal of the justice system to ensure that personal biases and prejudices of a judge do not influence the outcome of the case.'' Once again, I fail to see how Judge Sotomayor can reconcile both of those statements. Furthermore, her statement is especially concerning within the context of other ideas she expressed in the same ``Raising the Bar'' speech. That is her title of her speech, ``Raising the Bar.'' For example, Judge Sotomayor openly questioned whether ``ignoring our differences as women, men or even people of color, will do a disservice both to the law and to society.'' Reason to be cynical, once again. This is yet another example of an out-of-the-mainstream judicial philosophy. The majority of Americans understand that allowing physiological differences to influence judging is a disservice to the law and demonstrates a blatant lack of regard for the principle of blind justice. At the hearing, the judge attempted to justify her words as simply part of an ``academic discussion.'' Contrary to the plain meaning of her words, she claimed that she was not encouraging or attempting to encourage the belief that ``personal characteristics'' and ``experiences'' should drive the result. These excuses ring hollow and contradict other parts of the same speech where she declared, ``I accept there will be some differences in my judging based on my gender and my Latina heritage.'' Similarly and even more concerning, she expressed in that speech on at least five other occasions that ``I accept the proposition that a difference there will be by the presence of men and women, people of color on the bench, and that my experiences affect the facts I choose to see as a judge.'' When explaining those remarks at the hearing, the judge continued to display troublesome evasiveness, claiming that she ``did not intend to suggest that it is a question of choosing to see some facts or another.'' Taken together, I remain unconvinced that Judge Sotomayor's history of freely delivered speeches demonstrates an appropriate understanding of the importance of approaching the law neutrally and upholding judicial impartiality. I am also concerned that over the past 13 years the judge has articulated that judges play a role as a policymaker. At a Duke University panel discussion she claimed that, ``The court of appeals is where policy is made.'' Likewise in her Suffolk University law review article, the judge embraced the notion that judges should encroach on the constitutional power of legislatures by changing the law to adapt to social needs. She lamented that ``our society would be straitjacketed were not the courts, with the able assistance of the lawyers, constantly overhauling the law and adapting to the realities of ever-changing social, industrial and political conditions.'' And in the same article, the judge noted that ``a given judge or judges may develop a novel approach to a specific set of facts or legal framework that push the law in a new direction.'' I thought that was part of our checks and balances system of government. That is why we had a separate legislature, to make policy. Because if a Supreme Court Justice makes policy, they have got a lifetime position. You cannot vote them out of office, whereas if we make wrong policy, our constituents have an opportunity at every election to put us out on the street. So not understanding the proper role of a Justice is a problem for me. Even more alarming is that the judge has, on multiple occasions, expressed her own personal role in shaping policy in the bench. When describing the role of judges in a November 2000 speech before the Litigators Club, the judge stated, ``Our decisions affect not only the individual cases before us, but the course of litigation and the outcomes of many similar cases pending. This fact has made me much more aware of the policy impact of the decisions I have drafted or worked on.'' In at least two other speeches, the judge told her audience, ``I wake up each morning excited about the prospects of engaging in the work that fulfills me and gives me the chance to have a voice in the development of the law.'' These statements demonstrate either a lack of understanding or a blatant disregard for the proper constitutional role of judges. Rather than seriously addressing this aspect of her judicial philosophy at her confirmation hearing, the judge capriciously changed her views. She appeared to retract all of her previous statements by telling Senator Coburn that ``judges do not make law,'' and in responding to my questions about vacuums in the law by saying that judges are ``not creating law.'' I find these statements disingenuous because in her posthearing written responses, the judge endorsed her previous views by justifying judges who ``apply broadly written statues by filling in gaps in the laws according to their personal common sense.'' This is troubling because judges who fail to uphold their constitutional role and impose their own policy preferences undermine democracy and undermine our checks and balances system of government. Also, I was disturbed by Judge Sotomayor's general lack of candor at the hearing. Throughout her testimony, she repeatedly contradicted statements she had openly and unequivocally expressed on numerous occasions from her own bench. Even the Washington Post characterized Judge Sotomayor's hearing testimony as ``less than candid,'' and ``uncomfortably close to disingenuous.'' That is not a Republican Senator making the statement, that is the Washington Post, one of the guardians of democracy, as the first amendment allows newspapers to be. For example, despite her 7-year history of telling at least six different audiences that ``my experiences affect the facts I choose to see as a judge,'' and, `` I accept there will be some differences in judging based on my gender and my Latina heritage,'' she also told us, ``I do not permit my sympathies, personal views, or prejudices to influence the outcome of my cases.'' Likewise, when I questioned her about whether it was ever appropriate for judges to allow their own identity politics to influence their judgment, the judge answered ``absolutely not.'' While I agree with her answer, it is still troubling and significant that it completely contradicts her previously expressed views. I find it interesting that she appears to have had a sudden confirmation conversion. I am also concerned about Judge Sotomayor's involvement with the Puerto Rican Legal Defense and Education Fund and her denials that she did not work on matters in a substantive or policy role relative to controversial issues during her tenure at that organization. During her supervision of this Defense and Education Fund, the organization took a number of radical positions on abortion, including the view that abortions on demand could not be restricted for any reason; that taxpayers should be required to pay for abortions; and that parents did not have the right to even be notified if their minor daughter was going to get an abortion. I find it hard to believe that the chair of the litigation committee of the organization had no substantive or policy involvement in the formulation of these legal briefs. Even when asked whether these positions were extreme and allowed an opportunity to disavow them, Judge Sotomayor refused to do that. I also was dismayed that the judge was not straightforward about her philosophy toward the use of foreign law. In a recent speech before the ACLU of Puerto Rico, the judge advocated and justified American judges using such foreign law. She told her audience that, ``International law and foreign law will be very important in the discussion of how to think about the unsettled issues in our own legal system.'' She went on to say, ``To suggest to anyone that you can outlaw the use of foreign or international law is a sentiment that's based on a fundamental misunderstanding . . . nothing in the American legal system stops us from considering those ideas.'' As examples of using foreign law to strike down American statutes, she favorably cited Roper v. Simmons and Lawrence v. Texas, saying the courts were using foreign law to ``help us understand whether our understanding of our own constitutional rights fell into the mainstream of human thinking.'' However, at the hearing, Judge Sotomayor contradicted herself saying, ``Foreign law cannot be used . . . to influence the outcome of a legal decision interpreting the Constitution or American law.'' Which Sotomayor, comparing those two quotes, is going to judge from the bench of the Supreme Court? In that same speech, Judge Sotomayor also openly disapproved criticisms by Justice Scalia and Justice Thomas on the use of foreign law saying she shared the ideas of Justice Ginsburg that, ``Unless American courts are more open to discussing the ideas raised by foreign cases, and by international cases, then we are going to lose influence in the world,'' and, ``foreign opinions . . . can add to the story of knowledge relevant to the solution of a question.'' However, at the hearing, Judge Sotomayor reversed herself, claiming that she ``actually agreed with Justice Scalia and Thomas on the point that one has to be very cautious even in using foreign law with respect to things American law permits you to.'' So, once again, comparing those two statements, which Sotomayor view is going to be used on the bench of the Supreme Court? Once again, either Judge Sotomayor's beliefs were extremely short lived, or she failed to openly present her true opinions during her hearings. A few days after testifying that, ``Foreign law could not be used to interpret the Constitution and the statutes,'' Judge Sotomayor advocated her previous beliefs that, ``Decisions of foreign courts can be a source of ideas in forming our understanding of our own constitutional rights'' and ``to the extent that the decisions of foreign courts contain ideas that are helpful to that task, American courts may wish to consider those ideas.'' Supporters of Judge Sotomayor discount her controversial statements and writings made over the years as a sitting judge and urge us to look at her judicial record. So I have had the opportunity to do that, and am still not convinced. I participated in the confirmation hearing and listened to her discuss her cases. For the most part, Judge Sotomayor refused to give a clear answer to our questions and in the end left us with more questions than we had before the hearing started. Most lawyers understand that hard cases say the most about a judge. And as we all know, the Supreme Court only takes hard cases. Yet those are the kinds of cases that raise the most concerns about the judge and what she will do if she is confirmed to the highest Court. Statements she made at the hearing raise concerns that she will inappropriately create or expand rights under the Constitution. Further, some of her cases raise questions about whether she will impose her personal policy decisions instead of those of the legislative or executive branch. Moreover, Judge Sotomayor's record with the Supreme Court is unimpressive. When the Supreme Court reviewed her work, it rejected her outcome 8 out of 10 times and disagreed with her analysis on another one of those cases. I am not sure a 1 in 10 record warrants elevation to the Nation's highest Court. What is troubling to me is how Judge Sotomayor has handled cases of first impression or important constitutional issues that have appeared before her on the Second Circuit Court of Appeals. I am concerned that she dismisses cases with cursory analysis in order to obtain a politically desired result. The firefighters case Ricci v. City of New Haven is a case that should not be overlooked in an examination of Judge Sotomayor's judicial philosophy. Judge Sotomayor admittedly is opposed to and has litigated against standardized tests because she believes they are racially biased. This is the background she brought to the Ricci case, which she dismissed without writing an opinion. But the fortunes of the firefighters changed when Judge Cabrenas discovered the case by reading the local newspaper. Judge Cabrenas recognized that a detailed analysis of this case would serve a jurisprudential purpose and wanted the Second Circuit to reconsider it. The Second Circuit voted 7-6 not to reconsider this important case, with Judge Sotomayor casting the deciding vote. One has to question whether Judge Sotomayor allowed her personal biases against standardized test to seep into her decisionmaking process. Although Judge Sotomayor continued her efforts to sweep this case under the rug, the firefighters, because Judge Cabrenas highlighted the importance of the case in a dissenting opinion, were able to justify appealing to the Supreme Court. The Supreme Court issued an opinion which held that there was no ``strong basis in evidence'' to support the ruling made by Judge Sotomayor. All nine Justices rejected the legal reasoning applied by Judge Sotomayor's three judge panel. Justice Alito summarized the case best in his concurring opinion, where he stated ``a reasonable jury could easily find that the City's real reason for scrapping the test results was not a concern about violating the disparate impact provision of Title VII, but a simple desire to please a politically important racial constituency.'' As such, ``Petitioners were denied promotions for which they qualified because of the race and ethnicity of the firefighters who achieved the highest scores on the City's exam.'' As to Judge Sotomayor's expressed empathy for ruling against the firefighters, Justice Alito wrote: the dissent grants that petitioners' situation is ``unfortunate'' and that they ``understandably attract this Court's sympathy.'' But ``sympathy'' is not what petitioners have a right to demand. What they have a right to demand is evenhanded enforcement of the law--of Title VII's prohibition against discrimination based on race. And that is what, until today's decision, has been denied them. At the hearing, I wasn't persuaded by Judge Sotomayor's claims that she followed precedent in reaching her decision. I also was not convinced with Judge Sotomayor's explanation about why she dismissed this case with no legal analysis. I was left with the impression that Judge Sotomayor either she didn't understand the importance of the claims before her, or she issued a ruling based on her own personal biases. Some colleagues argue that her critics can only point to one controversial case over a 17-year career on the Federal bench. That is not quite accurate, because there are several of her decisions that raise concerns. For example, Judge Sotomayor issued another troubling decision in Didden v. Village of Port Chester, where Mr. Didden presented evidence that local government officials attempted to extort him in exchange for not seizing his property. When Mr. Didden refused to be extorted, the Village took his property and gave it to another private developer. This case was on the heels of the Supreme Court's decision in Kelo v. City of New London, which held that the government is not ``allowed to take property under the mere pretext of a public purpose, when its actual purpose is to bestow a private benefit.'' Yet Judge Sotomayor dismissed Mr. Didden's claim with a one paragraph opinion. I asked Judge Sotomayor about the Didden case, but wasn't satisfied with her answers. First, she inaccurately characterized the Supreme Court's holding in Kelo. I was also troubled with her failure to understand that her decision expanded the ability of State, local, and Federal governments to seize private property under the Constitution. Further, she told me that she had to rule against Mr. Didden because he was late in filing his claim. Mr. Didden had 3 years to file his claim. He filed it January 2004, 2 months after he was approached with what he classified as an extortion offer. Judge Sotomayor told us that Mr. Didden should have filed his claim in July 2002, before he was extorted and before he knew the city was going to take his property in November 2003. This is simply not a believable outcome, especially in a one paragraph opinion, where it was never explained to Mr. Didden why the government could take his property. I specifically asked her how Mr. Didden could have filed his claim before he knew he had a claim. Judge Sotomayor did not answer this question directly, but the net result is, as Professor Somin stated, property owners in this situation will never be able to have their day in court: the panel's ruling that [the plaintiffs] were required to file their claims before their property was actually condemned creates a cruel Catch-22 dilemma . . . If [the plaintiffs] had filed a Takings Clause claim before their property was condemned, it would have been dismissed because it was not yet ``ripe''). . . It is surely both perverse and a violation of elementary principles of due process to rule that the government can immunize unconstitutional condemnations from legal challenge simply by crafty timing. There might not be a decision more disturbing than Judge Sotomayor's summary dismissal in Maloney v. Cuomo. If this summary dismissal is allowed to stand, the right to bear arms as provided for in the second amendment will be eviscerated. Instead of carefully considering whether the District of Columbia v. Heller case properly left open the question of whether owning a gun is a fundamental right, Judge Sotomayor in one paragraph held that it is settled law that owning a firearm is not a fundamental right. The Supreme Court noted in Heller that it declined to address the issue of whether owning a firearm was a fundamental right. At the hearing, I was concerned with Judge Sotomayor's explanation of her holding that the second amendment is not ``fundamental'' and her refusal to affirm that Americans have a right of self-defense. In my mind, and I think anyone who reads the second amendment, when the Supreme Court does consider this issue, we will find that Judge Sotomayor was once again on the wrong side of an opinion. So based on her answers at the hearing and her decisions, writings and speeches, I am not convinced that Judge Sotomayor has the right judicial philosophy for the Supreme Court. I am not convinced that she will be able to set aside her personal biases and prejudices and decide cases in an impartial manner based upon the Constitution. I am concerned about Judge Sotomayor's dismissive handling of claims raising fundamental constitutional rights--I am not convinced that she will protect those rights, nor am I convinced that she will refrain from creating new rights. For these reasons, I must vote against her nomination.

Mr. GRASSLEY

Mr. GRASSLEY. Mr. President, I thank the Senator from Rhode Island for his kind remarks. We are only 9 months into fiscal year 2009, and for the first time in American history the Federal deficit has reached and exceeded $1 trillion. This is not one of those firsts for our great Nation that calls for celebration, and there will not be any celebration. Unfortunately, the bad fiscal news is not yet over for the year. We are still on track for a year-end deficit of over $1.8 trillion for fiscal year 2009. That is not according to this Senator, that is according to our official scorer, the Congressional Budget Office, the nonpartisan organization. This 2009 deficit as a percentage of gross domestic product will be a staggering 13 percent, the highest rate since the end of World War II. I have a chart that shows this, a chart that puts the deficit in context. Here is also a chart that puts the debt into context. I want to remind the Senate that I agree with President Obama that he did, in fact, inherit part of these deficits and debt. What is not often pointed out is this: The deficits and debt were bequeathed back then on a bipartisan basis because the Democrats controlled the last Congress. Starting in the year 2007 that Congress wrote the budget, it wrote the spending bills; that democratically controlled Congress wrote the financial bailout bill. A Republican President, George W. Bush, signed those spending bills. President Bush signed the financial bailout bill. The chart shows the bipartisan deficit President Obama inherited--and that would be the gray part of the deficit chart--and the chart shows the bipartisan debt President Obama inherited. That would be on the chart as well. Today we have seen more revisionist fiscal history from many of my friends on the other side. It boils down to two very basic propositions. The first proposition is, all good economic policy and beneficial fiscal effects are due to the partisan tax hike of 1993. The second proposition is that all bad economic policy and detrimental fiscal effects of this decade are due to the bipartisan tax relief plans of 2001 and 2003. How convenient for my friends on the other side of the aisle. If we take this fiscal revisionism to its logical extreme, the answer of some on the other side might be to tax every dollar of income earned by the American taxpayer. There seems to be an attitude that any policy that allows Americans to keep more of their own money is just automatically bad, while any policy which takes more of their money and spends it is automatically good. I think it is fairly clear the fiscal revisionists on the other side do not have a problem with huge deficits; rather, they are threatened by the prospects of Americans deciding what they want to do with their very own money. In fact, the deficit effects of the stimulus bill passed within a short time after Democrats assumed full control of the Federal Government exceeded the deficit impact of the 8 years of the bipartisan tax relief. Again, this is comparing the tax relief with the stimulus as you see in the chart. Since the stimulus package spilled a lot of red ink, let's take a look at how the economy has done. Unemployment currently stands at 9.5 percent, the highest rate in the last 26 years. The economy has shed 6.4 million jobs since this recession began, and that also includes, though, 2.6 million jobs lost since President Obama took office. Even with the passage of the massive $787 billion stimulus bill in February, the promise of jobs, jobs, jobs that went with that $787 billion stimulus bill, there is still no end in sight to the rise of unemployment and job losses. The President himself recently said: My expectation is that we will probably continue to see unemployment kick up for several months. While the short-term news is bad, I have bad news for you. The long- term news is much worse. If the Obama budget is adopted, by 2019 we will have added over $9 trillion to the national debt held by the public, and our debt as a percentage of the economy will grow in excess of 80 percent, in excess of 80 percent, a level also that has not been seen since this country was in World War II. Let me say, the 50-year average of that national debt, according to the economy, has been about 40 percent. So we are talking about more than doubling what it has been over the last 50 years. The huge spike in spending that we have seen over the course of the past 9 months has been advertised as temporary. But even so, the deficit as a percentage of GDP in 2019 is projected to be 5.5 percent, a level that everybody, including the President, agrees is unsustainable. You can see that on our charts as well. Looking beyond the 10-year window paints an even bleaker picture. I have a chart from the Congressional Budget Office that projects a terrifying rise in debt held by the public as a percentage of GDP over the next 40 years. As we can see from the dotted line, the highest level of debt held by the public as a percentage of GDP, 107 percent, occurred in 1945 as a result and at the end of World War II. In either of the two scenarios outlined in the Congressional Budget Office's long-term budget outlook, shown by the red and green lines on the chart respectively, we are on a course to break this record sometime in the next 15 to 35 years and reach ratios of debt to GDP of up to 128 percent or, at the extreme, 321 percent by 2050. The Congressional Budget Office's own words are these: The systemic widening of budget shortfalls projected under CBO's long-term scenarios has never been observed in U.S. history. Some may ask: Why is this a big deal? What does debt held by the public have to do with my everyday life? The Congressional Budget Office makes three points answering this question. This is the Congressional Budget Office, a nonpartisan group of experts whose sole job is to project, at least 10 years ahead of time, what the situation is with every spending bill and the impact of the deficit. This is what they say: If the ratio of debt to GDP continues to rise, lenders may become concerned about the financial solvency of the government and demand higher interest rates to pay for the increasing riskiness of holding government debt. No. 2, if the debt-to-GDP ratio keeps increasing and the budget outlook is not improved, both foreign and domestic lenders may not provide enough funds for the government to meet its obligations. And No. 3, if the first two points happen, no matter whether the government resolves the fiscal crisis by printing money, raising taxes, cutting spending or going into default, it is certain that economic growth will be seriously disrupted. Whenever economic growth is seriously disrupted, job growth is seriously disrupted as well. Clearly, a debt-to-GDP ratio approaching 100 percent would have a disastrous impact on everybody's everyday life. So where do we go from here? Clearly, we are well on our way to fiscal catastrophe unless we change course. What is the best way to break out of this recession, to start creating jobs, to reverse the mountainous growth of deficit and debt and get the economy moving again? That is a very important and long question. Let me see if I can answer. In general, Democrats and Republicans seem to have opposing viewpoints when it comes to the solution to this problem, with Republicans favoring lower taxes and lower spending, while Democrats favor higher taxes and higher spending. However, both Republicans and Democrats agree that health care reform is a crucial ingredient to solving the long-term budget crisis. Both Republicans and Democrats agree health care reform needs to be paid for as well. The Congressional Budget Office is also on the same page, asserting that, in their words: In the absence of significant changes in policy, rising costs for health care will cause federal spending to grow much faster than the economy, putting the federal budget on a nonsustainable path. Over the past few months, the rising cost of health care has been characterized by a few creative illustrations. First, we have heard the chairman of the Budget Committee refer to the rising cost of health care as ``an 800-pound gorilla.'' Second, we have heard the President describe the rising cost of health care as ``a ticking timebomb.'' Today I wish to add a third illustration. The rising cost of health care is a massive, fire-breathing debt and deficit dragon. In the King Arthur legend, the greatest knight among the Knights of the Round Table was Sir Lancelot. Sir Lancelot was also a dragon slayer. In order for Sir Lancelot to strike down the dragon, he had to be equipped with suitable weapons. The same is true today with the rising cost of health care. As Congress contemplates ways to cut down on the massive, fire- breathing debt and deficit dragon, it must wield the proper weapons. As you can see here, we have the debt and deficit dragon. A few weeks ago, House Democrats proposed a graduated surtax of up to 5.4 percent on taxpayers making over $280,000 to partially offset their health care reform bill. This small business surtax would push the top marginal tax rates up to between 43 percent and 46.4 percent, a rate that would jump to over 50 percent in 39 States with Medicare and State and local taxes added in. This is according to the Tax Foundation. So is this small business surtax the proper weapon to strike down the debt and deficit dragon? I have a chart that shows not Sir Lancelot but Sur Taxalot on his way to slay the debt and deficit dragon with his mighty surtax. This is Sur Taxalot, as we can see. The surtax is a large, heavy, painful weapon and lethal to America's job engine, the goose that lays the golden egg, small business America. Take a good look at Sur Taxalot. However, it is not effective against the debt and deficit dragon because it does nothing to slow the dragon's exponential growth. The cost of health care that the dragon feasts upon will continue to increase much faster than the revenues that Sur Taxalot can collect with his surtax. CBO Director Doug Elmendorf testified in front of the Budget Committee 2 weeks ago. Dr. Elmendorf stated: None of the legislative changes looked at by CBO so far, including the House Democrats' small business surtax, ``represent the sort of fundamental change of the order of magnitude that would be necessary to offset the direct increase in federal health costs from the insurance coverage proposals.'' Clearly, unlike Sir Lancelot, Sur Taxalot is no dragon slayer. Now let's look at how House Democrats' small business surtax works. In 2011 and 2012, singles making between $280,000 and $400,000 and families making between $350,000 and $500,000 will pay an extra 1- percent surtax. Singles making between $400,000 and $800,000 and families making between $500,000 and $1 million will pay an extra 1.5 percent. Finally, singles making more than $800,000 and families making more than $1 million will pay an extra 5.4 percent. Then in 2013 and after, these surtax rates go up to 2 percent, 3 percent, and 5.4 percent, respectively. The only way these rates would not go up in 2013 is if the President's adviser, the Director of OMB, determines in 2012 that there will be more than $675 billion realized in estimated health care savings by the year 2019. That is right: The trigger mechanism is back. The House Democrats have made the surtax rate increase subject to a trigger. They have left the judgment on whether to pull the trigger in the hands of a partisan Presidential adviser, not a nonpartisan organization such as the Congressional Budget Office. As Members of Congress, we should jealously guard our constitutional prerogatives to be the one branch of government tasked with deciding whether revenue is raised by increased taxes or revenue is reduced through decreased taxes. As the great Chief Justice John Marshall said almost 200 years ago: The power to tax is the power to destroy. So why would we hand such an enormous power over to the executive branch? I recall, over the last 8 years, hearing from the other side of the aisle that the executive branch was attempting to usurp congressional authority. So where is that jealous guardian of congressional authority now? It seems to be absent. We have seen this trigger mechanism from the Democrats before. While it has been a couple years, I have spoken at length about this trigger right here on the floor of the Senate. I ask unanimous consent that a copy of my speech of May 9, 2007, entitled ``A Trigger and a Tax Hike on the American People'' be printed in the Record.

Mr. GRASSLEY. I have a chart here from the 2007 speech that deals with perhaps the most famous trigger. Of course, I refer to Trigger, the horse belonging to the cowboy actor Roy Rogers. As I mentioned in the past, Trigger is no longer with us. Today he is stuffed and on display at the Roy Rogers-Dale Evans Museum in Branson, MO. Even so, Trigger, in his current stuffed state, is still much more imposing than the House Democrats' trigger device. While past Democratic trigger proposals were bad, the current House Democrats' trigger proposal is even worse because it is under the control of a partisan OMB Director and is based upon an OMB Director's estimate--I repeat, an estimate--of health care savings for the years 2013 to 2019. I do not think anyone really expects this trigger to be pulled. Even the nonpartisan Joint Committee on Taxation, in its $544 billion revenue estimate of the House Democrats' small business surtax proposal, assumes that the estimated savings targets will not be reached and the rates will go up, for sure, in 2013. Clearly, on the question of how to pay for health care reform, Republicans and Democrats appear to be drifting in different directions. Republicans want to pay for health care reform through changes in the health care system--mostly on the spending side but also on the revenue side--to make health care more accessible and more affordable. In contrast, House Democrats' most recent proposal to pay for health care reform--the small business surtax--goes far outside the universe of health care. By abandoning the universe of health care in their financing scheme, House Democrats are clearly indicating that the goal of their health care reform proposal is increased coverage at any cost. Even the New York Times--now, believe this: Even the New York Times, hardly a strident critic of the Democrats in Congress or the White House, cautions against this coverage-at-any-cost approach: If the government simply extends subsidized insurance to millions of uninsured people but fails to force fundamental changes in the delivery or financing of health care, then federal health care costs will keep escalating at excessive rates. That will drive up deficits in subsequent decades unless new taxes are imposed or new savings found. That is the end of the quote from the New York Times. We need to reform our health care system, but we need to do it right. That is why I am working with Senator Baucus, chairman of the Senate Finance Committee, along with Senators Snowe, Enzi, Conrad, and Bingaman, to reach a bipartisan solution. My Finance Committee colleagues and our staffs have been working hours and hours each day and night, and weekends, to navigate through the numerous complex issues of health care reform. Has it been easy? Obviously not. However, I am very hopeful we can reach a bipartisan agreement that makes health care in America more accessible and more affordable, while at the same time protecting taxpayers and preventing the Federal Government from taking over health care. President Obama, in his prime time press conference last week, expressed his agreement with these principles. While stating generally that the reform he is proposing will keep government out of health care decisions, President Obama specifically made the following promises: I'm not going to sign a bill that, for example, adds to our deficit. I won't sign a bill that doesn't reduce health care inflation so that families as well as government are saving money. I'm not going to sign a bill that I don't think will work. I will take the President at his words on these promises, but I am going to hold him to them. The President is sending a clear signal that he could not sign the Pelosi bill, the Health, Education, Labor, and Pensions bill, or similar pieces of legislation. Why? Because each of those would drastically expand the Federal Government's control of the health care system, increase the deficit, and fail to reduce long-term health care inflation. Here is the bottom line. When the long-term budget outlook warns that rising health care costs will cause Federal spending to grow so fast as to put the Federal budget on an unsustainable path, Congress needs to take action. But, at the same time, when our goal is to reform 17 percent of the economy, while facing a nearly $2 trillion annual deficit, more than $9 trillion in new debt over the next decade, and a projected debt-to-GDP ratio of over 300 percent by 2050, we have to make sure we are doing this job right. That is what we are trying to do in the Senate Finance Committee. When we get finished, however long it takes, I hope we can send a deficit-neutral health care reform bill to President Obama that increases access, cuts costs, and puts us on a fiscally sustainable path for years to come. Mr. President, I yield the floor.

Mr. GRASSLEY

Mr. GRASSLEY. Mr. President, I ask unanimous consent that Greg Deschler of my Finance Committee staff be given the privilege of the floor during the remainder of July 2009.

Mr. GRASSLEY

Mr. GRASSLEY. Mr. President, I, Senator Chuck Grassley, intend to object to the proceeding to H.R. 885, the Improved Financial and Commodity Markets Oversight and Accountability Act, and a similar Senate bill, S. 1354, dated July 29, 2009, for the following reasons.'' I object to provisions regarding inspectors general in H.R. 885, and a similar Senate bill, S. 1354, based on my reading of the language in the Improved Financial and Commodity Markets Oversight and Accountability Act. The act is intended to require Presidential appointments and Senate confirmation for the following five inspectors general: Commodity Futures Trading Commission, CFTC; the National Credit Union Administration, NCUA; the Pension Benefit Guaranty Corporation, PBGC; the Board of Governors of the Federal Reserve System, FRB; and the Securities and Exchange Commission. In essence, the act will change dramatically the historical and longstanding classification of these five organizations from ``designated federal entities'' DFE, under the original Inspector General Act of 1978, to Presidential appointees. These IGs, who are all nonpartisan civil servants, oppose H.R. 885. I have come to agree with their conclusion that the act will neither improve the independence of the five IGs nor enhance their accountability to the American people. Requiring that these five IGs be made Presidential appointees introduces the potential for partisan politics where none currently exists. This is especially true because we have an administration that is not even a year old and three IGs have already been dismissed. I have not yet seen a consistent policy reason articulated for treating these five IGs differently from other DFE IGs. If Congress wants to increase the independence and accountability of all inspectors general, there are numerous, more effective ways of doing so, and I would be eager to work toward that common goal. However, this legislation has not had a full and, complete hearing in the Senate, targets only five of the DFE inspectors general for reasons that are unclear, and does not appear to achieve its stated purpose.

Mr. GRASSLEY

Mr. GRASSLEY. Mr. President, I want to note for the record that I will object to any unanimous consent request relating to the nomination of Thomas A. Shannon Jr., to be Ambassador to Brazil. On July 28, I wrote a letter to Secretary of State Hillary Clinton and U.S. Trade Representative Ron Kirk asking for a clarification of the President's position regarding the U.S. ethanol tariff in light of Mr. Shannon's stated view on the tariff. I will continue to object to any unanimous consent request proffered with respect to Mr. Shannon's nomination until such time as the administration responds to my letter and I have an opportunity to review such response.

Mr. GRASSLEY

Mr. GRASSLEY. Mr. President, I, Senator Chuck Grassley, intend to object to proceeding to the nomination of George Wheeler Madison to be General Counsel of the Department of the Treasury, Calendar No. 302, and to the nomination of Carmen R. Nazario to be Assistant Secretary for Family Support of the Department of Health and Human Services, Calendar No. 304, dated July 23, 2009, for the following reasons. My support for the final confirmation of Mr. Madison rests on his continued responsiveness, and the responsiveness of the Treasury Department, to my questions. I am very concerned that the Special Inspector General for the Troubled Asset Relief Program is not getting the cooperation Congress entitled him to from the Treasury Department and that his recommendations are not being seriously considered. Regarding Ms. Nazario, I still have an outstanding issue regarding the release of key data on States' TANF participation rates that need to be resolved.

Mr. GRASSLEY

Mr. GRASSLEY. Mr. President, I rise today to support the section 1072 of S. 1390, National Defense Authorization Act of 2010. This section authorizes the Comptroller General of the United States to assess military whistleblower protections. As everyone knows, I strongly believe whistleblowers play an important role in the accountability of all government. This should also be true for the men and women who wear uniforms and serve in the Armed Forces. In 1988, Congress passed legislation that gave members of the armed services unique whistleblower protections. Despite this military whistleblower law, I have concerns that military whistleblowers could be underserved by the regulations and processes created by the Department of Defense, DOD, and the DOD, Office of Inspector General, OIG. During the course of my own investigation of several military whistleblower cases, I learned some matters which may question how effectively military whistleblower reprisal cases are handled by the DOD and DOD OIG. The Government Accountability Office, GAO, has noted in its past work that the effectiveness of the Federal protection for military whistleblowers rests principally on a two-stage process of investigation and administrative review. The first stage involves a DOD, service, or guard inspector general's investigation of the specific facts and interpretation of issues associated with a whistleblower reprisal allegation. In the second stage of the investigation/administrative review process, the DOD OIG reviews and approves the findings of the service or guard inspectors general. This review is designed to provide assurance that the findings and recommendations in a report were made in compliance with applicable investigatory guidelines and meet legal sufficiency. The second stage of this procedure is crucial for the military whistleblower process to work as intended. In addition to the tasking included in S. 1390, the military whistleblower reprisal appeal process should be examined by the GAO as well. The military whistleblower law, 10 USC Sec. 1034, gives the Boards for the Correction of Military Records--BCMR--of each armed service the appeal authority in these often unique and complex matters. I believe the report requested by the underlying bill is important and I support its inclusion. However, it is important for the GAO to also study the effectiveness of the BCMR appeal process to ensure military whistleblowers are afforded a fair administrative process to combat reprisal. Last year, I first introduced the idea of a GAO military whistleblower study when I requested this work of the Acting Comptroller General Gene L. Dodaro in a letter dated July 18, 2008. I followed up on my letter to the GAO with a legislative proposal through a filed amendment to the Defense Department appropriations bill for 2009 which instructed the GAO to conduct a comprehensive analysis of this issue. Unfortunately, that amendment did not make it through the legislative process. I thank Chairman Levin and Ranking Member McCain for including this sensible military whistleblower study in the current bill. Accordingly, I offer this latest amendment to include a review and analysis of the military whistleblower reprisal appeals heard by the Boards for the Correction of Military Records.

Mr. GRASSLEY

Mr. GRASSLEY. Mr. President, I rise to discuss the high rate of taxation that is about to take place if the House of Representatives passes its health reform bill. I would also raise the issue about the effect the same level of taxation--not quite as high--would have under the budget adopted by this body back in March. I wish to address the tax hikes, particularly as they apply to small business, that President Obama and my colleagues on the other side of the aisle have proposed. The latest tax hike proposal is the House Democrats' graduated surtax of up to 5.4 percent on those making more than $280,000. For those Americans who are married but file separate returns, this surtax increases taxes for those making over $175,000. I refer to this surtax as a small business surtax because it hits small business particularly hard. Here is how the House's small business surtax works. In 2011 and 2012, singles making between $280,000 and $400,000 will pay an extra 1 percent, those singles making between $400,000 and $800,000 will pay an extra 1.5 percent, and those singles making more than $800,000 will pay an extra 5.4 percent. Then in 2013 and after, these rates go to 2 percent, 3 percent, and 5.4 percent, respectively. The only way the rates do not go up to these levels is if one of the President's advisers, the Director of OMB, says in 2012 that there will be more than $675 billion in health care savings by the year 2019 in the bill the House has recently written. That is right, in addition to the tax questions, we have the House leaving up to a partisan Presidential adviser--not the President himself or a nonpartisan organization such as CBO--that taxes stay up or can go down. Another troubling aspect of this charade is that this does not deal only with actual savings achieved but instead calls for a partisan's 2012 estimate of savings to be achieved through the year 2019. The Joint Committee on Taxation, a nonpartisan professional group here on the Hill that advises Congress, correctly ignores this charade in its estimate of the House small business surtax and correctly assumes that the rates are actually going to go up after 2013. In 2011 and 2012, then, for married couples, the small business surtax kicks in at 1 percent for those making $350,000 to $500,000, it rises to 1.5 percent for married couples making between $500,000 and $1 million, and it goes up to 5.4 percent for those making over $1 million. Then in 2013 and later, the rates go up to 2 percent, 3 percent, 5.4 percent, respectively. As discussed above, the only way these rates do not go up in 2013 is if the OMB Director decides they should not go up. Let's look at this tax increase from the venue of small business. I know people listening, as well as my colleagues, think: You talk about people making $1 million or half a million dollars, why can't they pay another 2, 3, or even 5 percent? It is a situation where small business in America creates 70 percent of the jobs. It is a case of where most small business operates on cash flow, not investment from the outside as normal corporations would. So we are talking about the health of our economy, and we are talking about getting the economy out of this recession we are in. By the way, the President and I agree that 70 percent of the new private sector jobs are, in fact, created by the small businesses I have just described. However, where the President and I differ is that I believe small businesses' taxes should be lowered, not raised during this time of getting the economy back on track--particularly when you look at the stimulus bill that was passed back in February. It doesn't appear to anybody as if it is doing any good yet, like creating the jobs it was supposed to do, like keeping unemployment under 8 percent, which is now 9.5 percent, and only one-half of 1 percent of that $787 billion stimulus package was to help small business. We ought to be doing something, if we want to revitalize the economy, that helps small business, and increasing taxes on small business will not do that. In 2001 and 2003, Congress enacted bipartisan tax relief designed to trigger economic growth and to create jobs by reducing the tax burden on individuals as well as small businesses. This included the across- the-board income tax reduction which reduced marginal tax rates for income earners at all levels. I know people do not believe this, but if you look at the allocation of the tax by the highest 1 percent of the people, even after the 2001 tax cut, you saw that highest 1 percent still paying a larger proportion into the Federal Treasury, of income tax, than they were doing prior to that. So even with tax reduction, you end up with a more progressive Tax Code--which nobody is willing to admit, but we can back that up by figures. It also, in 2001, included a reduction of the top dividends and capital gains tax rate to 15 percent and a gradual phaseout of the estate tax. Unfortunately, the way you have to write tax bills under the reconciliation process around here, those tax bills enacted in 2001 and 2003 will expire December 31, 2010, and automatically we are going to get the biggest tax increase in the history of the country without even a vote of Congress because of sunset. Some have referred to this bipartisan tax relief as ``the Bush tax cuts for the wealthy.'' However, it seems to be easily forgotten around here, but this tax relief was bipartisan tax relief and provided tax relief for all taxpayers. They have also suggested that the tax relief provided for higher income earners, including many small businesses, should be allowed to expire. The President has proposed increasing the top marginal tax rates from 33 to 36 percent and the other one from 35 to 39.6 percent. We have a chart here you can refer to, so all these numbers I am giving, you have a reference point for them. The President has also proposed increasing the tax rates on capital gains and dividends to 20 percent and providing for an estate tax rate as high as 45 percent and an exemption of only $3.5 million. Also, the President and allies on the Hill have called for fully reinstating the personal exemption phaseouts--we call them PEP, for short--personal exemption phaseouts for those making over $200,000. Then there is another phaseout called the Pease phaseout, named after a former Congressman from Ohio, for those making more than $200,000. So, under the 2001 tax law, when these phaseouts come back in after 2010, you actually end up with higher marginal tax rates of almost 2 percent. It is not 39.6 as the high marginal tax rate; it is something much higher--41 or 42 percent. You know what you do, you get the smokescreen of saying you don't quite have a 40-percent marginal tax rate, but in fact you do have higher than 40 percent. There seems to be something magical about not exceeding that 40 percent for the benefit of public relations, but it will be exceeded greatly with this 5.4 percent the House is putting in, in their health care bill. However, like other provisions in the law, PEP and Pease are scheduled to come back in full force, as I just said, in 2011--again, without a vote of Congress. With PEP and Pease fully reinstated, individuals in the top two rates could see their marginal effective tax rates increase by 24 percent or more. Once again, I refer my colleagues to the chart. For example, a family of four who is in the 33-percent tax bracket in 2010 could pay a marginal effective tax rate of 41 percent after 2010 because of PEP and Pease. This rate would go higher if that family had more children, and this is before the small business surtax is even factored in. Some of my colleagues, particularly on the other side of the aisle, have defended this proposal by claiming that they will only raise taxes on wealthy taxpayers who make more than $200,000 a year. For the vast majority of people who earn less than $200,000, raising taxes on higher earners might not sound so bad. However, there are consequences for what we do around here. That means many small businesses will be hit with a higher tax bill. These small businesses create 70 percent of all new private sector jobs. These small businesses that are sole proprietors, S corporations, partnerships, and limited law corporations would get hit with the President's proposal to raise the top two marginal tax rates, if their owners make more than $200,000. In addition, there is just under 2 million small C corporations that are subject to double taxation. To the extent that these C corporation owners make over $200,000 and pay themselves a salary, they would get hit with a tax increase on the top two marginal tax rates proposed by the President. Also, owners of small C corporations who receive dividends or realize capital gains and make over $200,000 would pay a 20-percent rate on these dividends and capital gains after 2010, under these tax-hike proposals. Currently, these pay a rate of 15 percent. All of this wasn't bad enough for small business. Why emphasize small business? It is the job creation machine of the economy. Why emphasize small business? They operate cash flow, generally. They don't have outside investors. And why emphasize small business? Because it takes entrepreneurs to create jobs. I had the opportunity for 10 years, from 1961 to 1971, to be a union assembly line worker at a little company called Waterloo Register in Cedar Falls, IA. We made furnace registers. I use that company--locally owned, people who got together to create jobs--as an example. They gave me an opportunity to earn a small livelihood for 10 years of my life. It takes people who have means to create jobs. I have never worked for anybody who was low income or in poverty. You have to have the incentive of people in this country to put resources together to create income for themselves and, in the process of expanding, increase jobs for everybody else. So you understand where I am coming from, from the standpoint of small business. The House of Representatives has proposed a graduated surtax of up to 5.4 percent on those making over $280,000. To people listening, $280,000 is a lot of money, probably the top 3 or 4 percent of the people. But if they are a small business and they are operating with cash flow, cutting into that cash flow is a job killer. With this small business surtax, a family of four in the top two brackets will pay a marginal tax rate in the range of 43 and 46.4 percent in 2013. I am not prepared to say this right now, but maybe when I end I will say something about the State income tax on top of that, to show how high are the taxes these ideas are taking us to. When you go to 43 and 46.4 by 2013, this would result in an increase of the marginal tax rates by a minimum of 23 percent and a maximum of 33 percent. Candidate Obama pledged that ``Everyone in America--everyone--will pay lower taxes than they would under the rates Bill Clinton had in the 1990s.'' I am going to show you, if this goes into effect, it is probably the highest rates, going back to the time Carter was President. The small business surtax proposed by House Democrats would violate President Obama's pledge. Therefore, I stand with President Obama in opposing the small business surtax proposed by House Democrats. According to National Federation of Independent Businesses survey data, 50 percent of the owners of small businesses that employ 20 workers to 249 workers would fall into the top two brackets, backing up what I have continuously said during my dialog with the people. According to the Small Business Administration, about two-thirds of the Nation's small business workers are employed by small businesses with 20 to 500 employees. Do we want to raise taxes on these small businesses that create new jobs and employ two-thirds of all small business workers? The National Federation of Independent Businesses recently came out with its June report that showed that small businesses continue to have net job losses as well as reduced compensation for those who are still on the payroll; in other words, not part of the 9.5 percent unemployment we have since the stimulus bill passed. With these small businesses already suffering from the credit crunch, do we think it is wise to hit them with the double whammy of up to a 33-percent increase in marginal tax rates. Newly developed data from the Joint Committee on Taxation demonstrates that 55 percent of the tax from the higher rates will be borne by small business owners with incomes over $250,000. This is a conservative number because it doesn't include flow through business owners making between $200,000 and $250,000 that will also be hit by the Democratic budget's proposed tax hikes. If the proponents of the marginal rate increase on small business owners agree that a 23-percent to 33-percent tax increase for half the small businesses that employ two-thirds of all small business workers is not wise, then they should either oppose these tax increases or present data that show a different result. I wish to fight for lower State tax rates and higher estate tax exemption amounts to protect successful small businesses so people who work a lifetime can pass on without liquidation at the time of death. In a time when many businesses are struggling to stay afloat, it does not make sense to impose additional burdens on them by raising taxes. Odds are they do nothing then but cut spending. And when their cash flow goes down, probably layoffs happen. They will cancel orders for new equipment as well, cut insurance for their employees, and stop hiring. Instead of seeking to raise taxes on those who create jobs in our economy, our policies need to focus on reducing excessive tax and regulatory barriers that stand in the way of small businesses and the private sector making investments, expanding production, and creating sustainable jobs. We should continue to fight to prevent a dramatic tax increase on our Nation's job machine, the small businesses of America. This includes working to protect small businesses from higher marginal tax rates, an increase in capital gains and dividend tax rates and an increase in the unfair estate tax rate that will penalize the success of small businesses. In fact, I have recently introduced S. 1381, the Small Business Tax Relief Act of 2009, to lower taxes on these job-creating small businesses. My bill contains a number of provisions that will leave more money in the hands of these small businesses so these businesses can hire more workers, continue to pay the salary of their current employees, and make additional investments in these businesses. The National Federation of Business has written a letter supporting my bill. Quoting from the letter: To get the small business economy moving again, small business needs the tools and incentives to expand and grow their business. S. 1381 provides the kind of tools and incentives that small businesses need. We all want to see the job numbers from the Department of Labor moving in positive directions. We all want to see the unemployment rate plummet. I firmly believe the best way for us to do that is to prime the job-creating engine of our economy by focusing on small businesses. My small business bill, if enacted, will lead to new jobs. This is in the right direction. The House health care reform bill, with the 5.4- percent tax increase, is taking us in the wrong direction. These will be real, countable, verifiable jobs that will be created. In contrast, President Obama has proposed tax increases that will cause small business jobs to be lost. The newest tax hike proposed is the small business surtax. As with other tax hikes on small business, I oppose the small business surtax. I urge my colleagues on both aisles to do the same. I ask unanimous consent to print in the Record the NFIB letter from which I quoted.

Mr. GRASSLEY. I yield the floor.

Mr. GRASSLEY

Mr. GRASSLEY. Mr. President, today I wish to honor the life of Major General Roger W. Gilbert who passed away on June 13, 2009 in Lenexa, KS. I would like to express my condolences to Major General Gilbert's family, in particular his wife of 58 years, Ruthie, his two daughters Carol and Marilee, his three granddaughters Brooke, Britni, and Allison, and his sister Beverly. They are in my thoughts and prayers. Major General Gilbert led an honorable and extensive career which began upon his enlistment in the Army Air Corps in 1943 while he was a student at Drake University. After his pilot training, he courageously took two combat tours in Europe during World War II. He flew 50 missions in B-17s and Mosquitoes and upon his accomplishment he was awarded with the Distinguished Flying Cross, the Air Medal with five clusters and five battle stars. In 1946, he joined the Air National Guard and flew another 50 combat missions in B-26 bombers during the Korean war. He then became squadron and later on wing commander of the Air Guard units and accumulated 7,200 hours of pilot time, 4,000 of which were served as a jet pilot. Major General Gilbert amassed a large amount of medals throughout his service career, including the Legion of Merit with one oak leaf cluster and another 38 awards. Major General Gilbert retired from his career of 42 years of service in the Air Force and Air Guard. He previously was the adjutant general of the Iowa National Guard, as well as the former commander of the 132nd Fighter Wing of the Iowa National Guard, which was given three national recognitions as being an outstanding unit of the Air Force. After retirement, he spent his time hunting, skeet shooting, and taking his golden retriever, Major, out to the field. The career of Major General Gilbert was a distinguished one and his 42-year commitment to serving the people of the United States and the State of Iowa is worthy of much admiration and honor. I am grateful for his service and pay tribute to his patriotism.

Mr. GRASSLEY

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

Mr. GRASSLEY. Mr. President, I ask unanimous consent to set aside the pending amendment so I may offer an amendment.

Mr. GRASSLEY. Mr. President, I call up amendment No. 1415.

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

Mr. GRASSLEY. Mr. President, the amendment I offer to the Homeland Security appropriations bill deals with the E-Verify Program. This morning, we voted to make the program a permanent part of our immigration laws. This was a vote in favor of the program because it is a very valuable tool for businesses across the country that want to abide by the law. My amendment makes the program an even better tool for businesses. It says that if an employer chooses to verify the status of all their workers, not just new hires, then they should be allowed to do so. Employers want to abide by the law and hire people who are legally in the country. Right now, E-Verify only allows the employer to check prospective employees, but we should be allowing them access to this free, online database system to check all of their workers. I hope my colleagues will agree with this approach. I believe it would fit in closely with initiatives by our new President to change the emphasis upon enforcing the laws against employment of people who come here illegally, because the President is emphasizing going after employers who are not abiding by the law. And there are lots of investigations that are going on in that direction. So we are now giving employers, through my amendment, the opportunity to check all their employees because that is very important. If a person is a businessperson, and there is a prospect that Federal people are going to come into the process and look at all their employment records, I would think an employer would want this tool to be able to use to see that everybody who has been hired--not just people recently hired--is legally able to be here. I urge my colleagues to agree to this amendment and allow their businesses back home to take steps to be in compliance with their immigration laws. Mr. President, I yield the floor and suggest the absence of a quorum.