Orrin Hatch

Mr. HATCH

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 President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. HATCH. Mr. President, today I rise to express my concerns about the PATRIOT Act Sunset Extension Act. This bill, which is currently before the Senate Judiciary Committee, could have dire consequences on intelligence collection and investigations. While I have several concerns about the provisions in this bill and how they will adversely affect the intelligence community, particular attention should be given to what our intelligence professionals have said about this bill. Stakeholders in the intelligence community and the FBI have expressed concern that this bill will have serious consequences on the tools those agencies rely on to carry out intelligence investigations, identify operatives, and prevent future attacks. These tools are critical for detecting and disrupting terrorist plots in the United States before they become imminent threats to our safety. As we have seen in the past few weeks, investigations in Texas, Illinois, Colorado, and New York confirm what we already know: there are people in this country who want to and intend to harm us. The only way to stop these terrorist operatives is to give our counterterrorism specialists the tools they depend on to detect these plots, thwart attacks, and, if possible, arrest the persons planning these operations. I am troubled by the fact that we are rushing this bill through committee without taking the time to consider the concerns of those charged with detecting terrorist plots. I urge my colleagues who are ready to stand up and say this bill will not adversely affect current and future investigations to stop for a moment and listen to the professionals who use and need these tools on a daily basis. Do not just hear their concerns, really listen to them. Many of these professionals were around before September 11, and they remember how difficult it was to act quickly to collect basic information about terrorists. Three provisions of the PATRIOT Act are set to expire on December 31, 2009. These are roving wiretaps; business records access, also referred to as section 215 business records; and the lone wolf provision. At this time, the lone wolf provision has yet to be used. It was created in response to the Moussaoui case. The provision amended FISA's definition of an ``agent of a foreign power'' to include any person, other than a U.S. person, who ``engages in international terrorism or activities in preparation therefore.'' The expanded definition allows the government to obtain a FISA, Foreign Intelligence Surveillance Act, court order to surveil a non- U.S. person who has no known ties to a group or entity. Congress passed this lone wolf provision because it was concerned that previous FISA definitions did not cover unaffiliated individuals--or those for whom no affiliation can be established--who, nonetheless, engage or are preparing to engage in international terrorism. FBI Director Mueller has asked specifically that this authority be extended so if the FBI comes across another ``Moussaoui,'' there will be no doubt that the FBI can intercept that target's communications. This seems reasonable to me. We would not tell a police officer he had to give up his gun simply because he has not used it yet, would we? The other two provisions set to expire are roving wiretaps and business records searches. These tools are extremely important in the FBI's investigative work, and the FBI has a solid track record of using them too. From 2004 through 2008, the FBI has obtained 236 orders from the FISA court to produce business records. The business records authority has been exceptionally useful in many types of national security investigations. It routinely gives the intelligence community important information that can be used to build the case for FISA searches or surveillances of terror suspects. Roving wiretap authority has similarly increased the FBI's efficiency in critical investigations. The FBI has obtained roving wiretap authority an average of 22 times per year. During the Senate Judiciary Committee's oversight hearing of the FBI, I asked Director Mueller if he supported the reauthorization of these tools. He told me these tools are extremely important to investigations, and he hoped the tools would be extended. Director Mueller has repeatedly expressed his support of these tools to other Senators and committees. In September, Director Mueller appeared before the Senate Homeland Security and Governmental Affairs Committee. Chairman Lieberman asked the Director if there was one thing that the Bureau needed that would assist in its counterterrorism mission. Director Mueller responded by saying: I'll leap into the fray and say yes, the PATRIOT Act is going to be debated. I know these provisions are essential to us, particularly the first two which relate to business records and secondly the roving wiretaps. And third, while it has not been used, the lone wolf will be and is important if we get a similar situation that we had with Moussaoui in 2001. So I would urge the reenactment of those provisions. In his response to Chairman Lieberman, Director Mueller also endorsed National Security Letters as a vital tool in gathering information. He further stated that NSLs contribute to the success of investigations through ``information we can gather, not of substantive conversations but of tag data or the telephone toll data that we can obtain by reason of National Security Letters. So it is retaining these capabilities that is important. National Security Letters have come under fire from some on the left, and the substitute takes aim at them as well. Currently, NSLs cannot be used to wiretap citizens, scan e-mails, or conduct any kind of intrusive surveillance. NSLs simply allow the government to retrieve the sort of transactional records that are extremely useful in uncovering terrorist activities. NSLs are the most effective method of obtaining this routine data that is critical to detecting, monitoring, and undermining terrorist activities. They are also regularly used to rule out individuals as terror suspects. Intelligence investigations are a mosaic. Each bit of information is laid out and compared to other data. When these records are compared to other facts or information, they become the tiles that compose the picture and provide investigators with the identities of confederates and operatives. The Supreme Court has clearly stated the fourth amendment is not implicated when these types of records, held by third parties, are shared with the government. The High Court has reasoned that citizens hold no expectation of privacy when such records are created through business transactions or otherwise. The same records and data are just as easily obtained by investigators in criminal cases when they seek this information through an administrative or grand jury subpoena. This information is routinely obtained with little oversight in criminal investigations. NSLs are narrow in scope and already have multiple layers of oversight and built in protections for privacy. Some on the left have maligned NSLs as a sinister and baleful device from George Orwell's ``1984.'' The source of this accusation is clear: these critics have misread the findings outlined in the DOJ inspector general reviews of the FBI's use of National Security Letters. In March 2007, the inspector general released its first report in which it criticized aspects of the FBI's use and record keeping of NSLs. I have reviewed the full report and it is clear to me that the errors identified by the IG with respect to NSLs are largely administrative in nature. Some critics have been quick to point to the IG's criticism of the FBI's use of what are called ``exigent letters'' as a reason to clamp down on the use of NSLs. But this is simply not supported by the evidence. Exigent letters are not--I repeat not-- national security letters and the IG's findings should have no impact on whether current NSL authorities remain intact. In March 2008, the IG issued a second report that reviewed the corrective measures as a result of the first report. The IG found that the FBI and DOJ were committed to correcting and improving the earlier identified administrative problems with NSLs. The report also stated that the FBI has made significant progress in addressing compliance issues and implementing recommendations. Under the leadership of Director Mueller, the FBI has made great strides in correcting previous errors associated with NSLs. For example, they have revised and clarified policies and increased training on the proper issuance and handling of NSLs. They created the Office of Integrity and Compliance to ensure that the FBI continues to comply with applicable statutes, guidelines, and policies. Most significantly, the FBI mandated the use of a Web-based, automated NSL creation system that prompts the drafter to enter all information necessary to create an NSL. This system supplies the appropriate statutory language and ensures that the NSL and the supporting memorandum are internally consistent. An NSL can be issued from this system only after all the required officials have approved it within the system. This system will go a long way toward curing the administrative errors identified by the IG. Although both reports show that the FBI has sometimes struggled to measure up to its own internal standards in using NSLs, they also reveal that incidents of misuse were infrequent and unintentional. In short, there were no abuses of NSLs as we have so often been led to believe. It is my opinion--and many in the FBI and Congress share this opinion--that the administrative errors identified by the IG could be solved easily if the FBI had a national security administrative subpoena--one type of subpoena for all national security records--just as the FBI, DEA, postal inspector, and a host of other agencies have in other types of criminal and administrative matters. Those on the left who would prefer that the FBI not have NSL authority ignore the many investigative successes attributed to this basic tool outlined in the IG reports. For example, NSLs have provided information identifying terrorist financiers, revealed key information regarding pre-attack behavior, and detected an attempted espionage plot by a government contractor. The reports are unequivocal: NSLs are indispensable tools to national security investigations. Unfortunately, certain provisions in the S. 1692 substitute will undoubtedly have a negative effect on their operational efficaciousness. But NSLs aren't the only tool that will suffer under this substitute. New and, frankly, unprecedented minimization requirements would wreak havoc on ordinary pen registers; unreasonable and confusing standards of proof will delay, and even prevent, usage of basic tools; new reporting requirements could compromise sources and methods; and sneak- and-peek search warrants have been rendered useless. My greatest fear is that this bill will reduce our terrorist detention capability to the standard we possessed in the days preceding the horrific attacks of September 11, 2001. I have a profound respect for the fine men and women who serve our country in our law enforcement and intelligence communities. Their focus, vigilance, and attention to detail are critical in intelligence collection, analysis, and detection of terrorist plots. Only occasionally, as in the past few weeks, does the American public hear about the successes that their tireless efforts and these basic tools bring about. But here in Congress, we know the truth and we should do all in our power to help these professionals do their jobs. I am reminded of the quote attributed to British Prime Minister Winston Churchill, who said: We sleep sound in our beds because rough men stand ready in the night to visit violence on those who would do us harm. We should never lose sight of the fact that we are at war. One of our greatest assets in this war is the ability to detect, investigate, and disrupt terrorist plots, the purpose of which is to harm our citizens on our own soil. Neither this substitute nor its original bill is an improvement to the PATRIOT Act. I believe firmly that this bill could reduce our intelligence collection capability to the level that existed before the attacks of 9/11. I urge my colleagues to take careful notice of the operational disadvantages in this substitute. The best path forward is clear. Congress should simply vote to extend the sunsets on the three expiring PATRIOT Act provisions and reject any measure that would tie the hands of those charged with safekeeping and safeguarding our great Nation. Mr. President, I yield the floor.

Mr. HATCH

Mr. HATCH. Mr. President, today I rise in strong support of Senator Lieberman's and Senator Sessions' amendment No. 2616 which will provide $151 million for the research and development of the two-stage ground- based interceptor missile. I have always believed in having a plan B. Throughout my life I have learned the colloquial wisdom found in the saying ``do not put all your eggs in one basket'' has great merit. In fact, in its most simplistic form, our Nation's strategic deterrent has been based upon the principle that you always need a backup plan. Specifically, for over 45 years our Nation's ultimate security guarantee for ourselves and our allies has been our Nation's nuclear triad composed of intercontinental ballistic missiles, bombers and submarine-launched intercontinental ballistic missiles. The idea was simple: If one leg of our defense system was knocked out or somehow rendered inoperable, the two other legs would maintain a more then credible deterrent. Times have changed. But the continuing need for the triad was recently reaffirmed by Dr. James Schlesinger who was one of the principal members of the recently published final report of the Congressional Commission on the Strategic Posture of the United States. However, the events of September 11 only underscored a new threat phenomena that is referred to in military circles as the asymmetric threat. Simply put, an asymmetric threat is the tactics which are used by our new adversaries, such as terrorists and rogue regimes, to counterbalance our Nation's traditional strengths in conventional warfare. The example which is seared in the mind of each American was the hijacking and crashing of civilian airliners on September 11. Asymmetric threats are not just limited to terrorist activity and those nations which support it. It is also found in those nations which are developing ever more sophisticated ballistic missiles and even the ultimate weapon, the nuclear bomb. But the asymmetric threat that I wish to discuss today is Iran's ballistic missile program. Though the President argues the Iranians are a decade away from deploying an intercontinental ballistic missile, this was not what our military experts were telling us just a few months ago. Specifically, the Air Force's National Air and Space Intelligence Center published an unclassified version of its Ballistic and Cruise Missile Threat report in April 2009--just 5 months ago--that ``Iran has an ambitious ballistic missile and space launch development programs and, with sufficient foreign assistance, Iran could develop and test an Intercontinental Ballistic Missile capable of reaching the United States by 2015.'' The report goes on to say ``in late 2008 and early 2009 it launched the Safir, a multi-stage space launch vehicle, that can serve as a test bed for long-range ballistic missile technologies. The [Iranian] 2009 test successfully placed a satellite in orbit.'' These conclusions are supported by the testimony of General Craddock, who while still Commander of U.S. European Command stated this March that ``Iran already possesses ballistic missiles that can reach parts of Europe and is developing missiles that can reach most of Europe . . . By 2015 Iran may also deploy an Intercontinental Ballistic Missile capable of reaching all of Europe and parts of the U.S.'' These are serious assessments and no doubt the President has good reason to believe the threat has changed and therefore made the decision to drop plans to deploy our ground-based midcourse interceptor, called GBI, to Europe. However, I am also mindful of the point the distinguished Senator from Connecticut made when he introduced his amendment. He astutely reminded the Senate that in 1998 the North Koreans tested their long range Taepodong missile just 7 days after our intelligence community concluded that North Korea was 3 years away from having that capability. Which brings us back to the question: should we have a plan B? We did until 2 weeks ago. That plan B was to deploy a European-based GBI system to intercept intercontinental ballistic missiles fired from the Middle East at the United States and our European allies. According to the Bush administration this system was scheduled to be completed by 2013--2 years before our intelligence estimates, until recently, believed Iran would have an intercontinental ballistic missile. However, under the new strategy, which relies on the continued development of the SM-3 missile, we and our allies must wait until 2018 to have a similar capability as planned by the previous administration and offered by the GBI in 2013. We also must remember the 2018 SM-3 deployment date can only be reached if everything goes according to plan--an all too rare occurrence in modern weapons development. Not much of a plan B when one remembers that Iran has received extensive outside assistance in developing their ballistic missiles. For example, the National Intelligence Center concluded the Iranian Shahab-3, which has a range of 1,200 miles is based on the North Korean No Dong missile. In addition, Anthony Cordesman and Martin Kleiber in their 2007 book titled ``Iran's Military Forces and Warfighting Capabilities'' wrote that as early as October 1997 ``Russia began training Iranian engineers on missile production for the Shahab-3.'' The authors also pointed out that allegations have been made that various Chinese companies had assisted in Shahab-3s final development. This, of course, begs the question what other outside assistance could the Iranians receive which could speed their development of an intercontinental ballistic missile? That is why Senator Lieberman and Senator Sessions' amendment is so important. It provides us with a plan B. It continues the deployment of a two-stage GBI. This is not a pie-in-the-sky plan. Our Nation has already deployed a three-stage GBI in Alaska and California and until 10 months ago the Department of Defense believed the two-stage system could be deployed by 2013. Therefore, I urge my colleagues to support the Lieberman-Sessions amendment to provide funding for a plan B which could provide us with capabilities to intercept Middle East ICBMs launched against our interests and allies years before the President's plan.

Mr. HATCH

Mr. HATCH. Well, thank you so much to the two leaders. This is embarrassing, but it is very moving to have all my friends and colleagues here. This means so much to me. I didn't realize it was such a big deal, to cast 12,000 votes, but I am grateful the people of Utah have given me this privilege and this opportunity to serve in the greatest legislative body on Earth today, with the most wonderful people I know on both sides of the floor. I appreciate each and every one of you, and as long as I am here, I am going to try to do the very best job I can. I am very grateful to Bob Bennett as well. He is a wonderful colleague and a wonderful companion here in the Senate. He has been a wonderful guide, and he has helped me as well. This body means a great deal to me. We all saw what it meant to Ted Kennedy and the great accolades he received throughout his lifetime. It was a real privilege to be close to him, as I am to almost all of you and will be to all of you. This is a tremendous body. I just wish we could get rid of some of the partisanship as well as work together a little bit better than we have. To the extent that I can, I will certainly try to do that. I wish to thank my friends on the Democratic side for their patience and their tolerance and kindness and my friends on the Republican side for putting up with me all these years. I am very grateful to you. By the way, I have three great-grandchildren as well, so I have 26 grandchildren, and I think probably more on the way by now. When I was a missionary in Ohio, Indiana, and Michigan, they once called me to start the congregation in Sandusky, OH. We had four members there who hadn't been to church in less than 10 years. Within a month we had 30, all women, of course, and children. I became the first branch president, pastor of that congregation. We have the longest serving woman's organization in the world in the Mormon church, and it is called the Relief Society, which is presided over by women. I don't want you to misconstrue this, but I was also a part of and the president of the Relief Society as well in that small branch of the church. From those humble beginnings, I have to say I received some of the greatest experiences of my life. That mission was important to me. This is important to me. I love each and every one of you. I think I have expressed that to you in various ways, even at times when I am sure you wondered about it. I am sorry I took so long, but I am moved by this nice care that you have all shown to me. Thank you so much. (Applause, Senators rising.) Amendment No. 2575

Mr. HATCH

Mr. HATCH. Mr. President, I rise today to discuss an amendment I filed to the Interior appropriations bill, and in doing so, I hope to remind my colleagues about their responsibility as federally elected representatives of the citizens of the United States. The U.S. Constitution, the document written by the people to empower and limit government, specifically gives the Congress the power to make the laws that direct this government. The first section of the first article of the Constitution states ``All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.'' The people also established an executive power and a judicial power, but put the lawmaking power specifically into the hands of Congress I would invite my colleagues to consider for a moment, and to remind themselves, why the people put the control of the Nation's laws into the hands of Congress, and not to the other branches of government. It is because Congress is directly answerable to the people. For members of Congress, there is no escape from the people. Our founding document ensures that we routinely have elections whereby lawmakers face the citizens who sent them here. By limiting legislative powers to Congress, the people have secured this power to themselves. So we see that the people are willing to live under laws, but only to the extent that those laws are their own. This is a principle upon which our Nation was founded. This is a principle upon which we have achieved our status as a great nation. It is a principle that has made our government an inspiration to generations of free minds throughout the world. And I believe it is a principle that is being weakened on our watch during the 111th Congress. In April of 2007, the Supreme Court ruled in Massachusetts v. EPA, by a 5 to 4 margin, that the Environmental Protection Agency could act to regulate carbon dioxide emissions as a pollutant from vehicles under the Clean Air Act without further authorization from Congress. And it is widely believed that this decision allows the EPA to also regulate carbon dioxide emissions from all other sources, as well, without further action from Congress. I disagree with the Supreme Court's decision in Massachusetts v. EPA and even consider it ill-informed in some respects. However, I don't question the role of the Court to make such a decision. After all, the people did, in fact, give the Supreme Court the jurisdiction to interpret the laws of Congress. Furthermore, I disagree with the EPA's finding that carbon dioxide poses an endangerment to humans and that it is a pollutant. Unlike conventional pollutants, CO2 does not normally cause direct harm to our environment or to our bodies. It is considered an endangerment only because it has the potential as a greenhouse gas to warm the planet. What seems to be completely lost by the EPA, is that most scientists will tell you that a warming climate is a net benefit, while a cooling climate is a net detriment to life on Earth. If greenhouse gases and warming are detrimental to life, then why doesn't the EPA propose to regulate water vapor? Water vapor makes up 95 percent of all greenhouse gases, and a cubic foot of water vapor has a much stronger warming factor than a cubit foot of carbon dioxide? Those are just a couple questions that haven't been answered sufficiently, in my view. And so I disagree with the EPA's finding that carbon dioxide is an endangerment. In spite of that, I do recognize that the Supreme Court has the ability to interpret the Clean Air Act in a way that allows the EPA to make this finding. However, I doubt that any of my colleagues can honestly say that when Congress voted for the Clean Air Act in 1970, that we intended that carbon dioxide should be regulated as a pollutant. But now we are witnessing the EPA initiating a process to that end which will lead to the most sweeping, and probably most expensive set of regulations in our nation's history, with no specific authorization from Congress to do so. Is it the proper role of Congress to sit by and allow an independent agency, with nary an elected official within its walls to take over every single energy producing activity in the Nation? Could there be a more dramatic and sweeping centralization of government power than the move to control all carbon dioxide emissions? And are we, as the elected body representing the people going to hide behind a decision by a Supreme Court and just watch it happen? While technically, the Supreme Court and the EPA are acting within their jurisdictions and authority. Certainly, though, with such far reaching regulations, Congress has a responsibility to put these actions back under the direct authority of Congress, and thus back into the hands of the people. My amendment would do just that. It would bar the EPA from moving forward with these far reaching regulations until Congress has expressly authorized such an action. I urge my colleagues to restore Congress and the people to their proper role over laws that relate to the regulation of carbon dioxide, and support my amendment.

Mr. HATCH

Mr. HATCH. Mr. President, I rise on this Constitution Day to urge support for S. 1319, the Enumerated Powers Act. My friend and Judiciary Committee colleague from Oklahoma, Senator Coburn, introduced the bill in June, and I am proud to be a cosponsor. It would create a mechanism by which we can highlight and, if necessary, debate whether we actually have the power to do what we do. Today, the prevailing view seems to be that Congress can do anything we want to do, any time, and in any way. There are always problems to solve, good ideas to implement, money to spend, activities to regulate, agendas to pursue, or constituencies to please. But those are merely the ends and, in our system of government at least, the ends cannot not justify the means. Not if we truly value our liberty. Our liberty requires that government be limited, that government's actions have legal authority, ultimately rooted in the Constitution itself. The Constitution, for example, does not grant Congress all legislative authority. Article I gives Congress only ``legislative powers herein granted.'' Those powers are listed, or enumerated, in article I, section 8. The 10th amendment affirms that the Federal Government has only powers that are affirmatively delegated to it. James Madison explained in The Federalist No. 45 that these powers delegated to the Federal Government are ``few and defined.'' Why all this emphasis on definition and limitation, especially of the Federal Government? Because individual liberty requires limited government. In The Federalist No. 51, Madison wrote that ``if men were angels, no government would be necessary.'' In other words, some government is necessary to have any liberty at all. But Madison went right on to write that ``if angels were to govern men, neither external nor internal controls on government would be necessary.'' In other words, unlimited government makes liberty impossible. The truth is that men are not angels and angels do not govern men. Acknowledging that truth, America's Founders in their genius created a system of limited government to maximize ordered liberty. I realize that such notions as definition and limitation are not in fashion today. Many today think these ideas passe, antiquated, or--and this is my personal favorite--archaic. Limited government is fine when we have no major problems to solve, when there are no big crises looming large. But today we face the worst economic crisis since the Great Depression and many Americans want government to be robust and full-throttled. We want government to come to the rescue, to set things right, to make everything OK. I realize that today saying no is not popular, whether for individuals or for the government. So we have to make the same basic, fundamental choice that America's Founders did. How much do we prize liberty? The laws of human nature and, therefore, of government have not changed. Men have not become angels and angels do not govern men. That condition will never exist. Ordered liberty will always require limited government, and so we must repeatedly ask whether, and how much, we prize liberty. This bill embodies these principles by requiring that each of Congress state its constitutional authority. In other words, each act of Congress must state the very condition that indicates it is consistent with limited government. Congress has no authority to act, Congress has no authority to exist at all, unless that authority is derived from the Constitution. It is no less important than that. So this bill would require that each act of Congress state the one condition that is necessary for that act of Congress to be legitimate-- authority derived from the Constitution. That statement alone would be important but purely symbolic. Virtually everyone could ignore it. So this bill would create a mechanism for challenging and even debating whether an act of Congress is indeed authorized by the Constitution. It does not require such a debate for every act of Congress but provides for a point of order that can result in such a debate. That debate would focus everyone's attention on the absolutely necessary connection between Congress' actions and the Constitution and, ultimately, on the Constitution itself. In the landmark case of Marbury v. Madison, Chief Justice John Marshall wrote that ``[t]he powers of the legislature are defined, and limited; and that those limits may not be mistaken, or forgotten, the constitution is written.'' A written Constitution that delegates enumerated powers to Congress is central to limited government and, therefore, central to our liberty. If we prize liberty, we must prize limitations on government. Chief Justice Marshall later wrote in McCulloch v. Maryland that ``this government is acknowledged by all to be one of enumerated powers. The principle that it can exercise only the powers granted to it . . . is now universally admitted.'' That was then. How about today? Do we still believe that ordered liberty requires limited government? Do we still believe that Congress may only do what the Constitution authorizes us to do? Or do we believe that Congress needs no more than a good idea powered by a good intention? Are the principles embraced by Madison, by Marshall, still universally admitted today? If so, then this bill is an important way to prove it. On this Constitution Day, I urge my colleagues once again to embrace those principles of limited government and to demonstrate it by supporting this bill. Policy ideas and political positions shape our legislative activity, the Constitution should do so as well. I applaud my colleague from Oklahoma, Senator Coburn, for introducing this bill and offering this opportunity to raise these principles closer to the position of importance they deserve.

Mr. HATCH

Mr. HATCH. Mr. President, I rise today to introduce with my colleague from Vermont, Senator Leahy, the Satellite Television Modernization Act. I also note the efforts of Senators Sessions, Kohl, and Kyl in crafting this bipartisan bill. It is hard to believe that 5 years have transpired since we passed the Satellite Home Viewer Extension Act, SHVERA, of 2004. Much has occurred since that time, including the transition from analog to digital signals, which occurred in June. That is why the proposed legislation will not only reauthorize the statutory license used by satellite television providers, but will bring all of the statutory licenses into the digital age so that consumers can receive a good quality digital signal. Additionally, S. 1670 expands access to low power stations by broadening the license for low power stations to cover the entire local market; permits satellite providers to carry a noncommercial educational broadcast station if a station is part of a state-wide network; improves the ability of both DirecTV and DISH Network to provide local signals to local markets; and addresses the ``phantom signal'' issue, where currently cable providers may be required to pay royalty fees under section 111 based on subscribers who do not receive the content for which the royalty is being paid. I hasten to point out, however, that much more needs to be done to move away from government regulation and toward a marketplace where satellite providers and cable providers can compete based on market forces. This is not a new issue for this body. In fact, during the 2004 reauthorization of SHVERA, Congress required that the U.S. Copyright Office prepare a report to make recommendations on the operations of, and revisions to, sections 111, 119, and 122 of the Copyright Act. The Copyright Office provided this report to Congress on June 30, 2008. While I will not provide a line by line summary of the Report, I will underscore some key findings that the Copyright Office, under the leadership of Register of Copyrights Marybeth Peters, suggests that Congress consider when legislating in this area of the law. Specifically, the Copyright Office found that ``below-market rates may have been justifiable when cable and satellite were nascent industries and needed a mechanism to allow them to serve their subscriber base with valuable distant signals.'' The Report continues by stating that ``the current multichannel video distribution marketplace is robust and has, for a long time, overshadowed the broadcast industry.'' Moreover, the Copyright Office further argues that ``it is now time to phase out section 111 and section 119 so that copyright owners can negotiate market rates for the carriage of programming.'' I agree with the Copyright Office that something needs to be done to ``phase out'' these compulsory licenses. There is no longer any reason that the cable and satellite industries need a government-sponsored subsidy--paid for by program providers--for the right to retransmit broadcast signals. I believe we can devise a way that would phase out these compulsory licenses without disrupting the market. In fact, it is already being done today, as cable and satellite services license programming for more than 550 non-broadcast networks directly in the marketplace without a need for a compulsory license. Some have suggested a market trigger mechanism that would create an opportunity for, but not require, copyright owners to license their copyrighted programming on broadcast television in the same manner as they do currently for cable channels like TBS, ESPN, Nickelodeon, Disney Channel, FX, and Bravo. Copyright owners would have a choice between continuing to operate under the compulsory license, or if they prefer, licensing cable and satellite retransmission of their works directly through the free market as is done every day for the hundreds of non-broadcast cable channels. I hope that industry stakeholders will participate in creating a practical and reasonable approach to rectifying this important issue. At a minimum, it is time to let program creators and distributors have the option to determine the terms and conditions for their intellectual property rights. I am pleased that Senate Judiciary Committee Chairman Pat Leahy is committed to exploring viable options for a marketplace model, and I look forward to working with him and our colleagues on this and other issues before final passage of this bill.

Mr. HATCH

Mr. HATCH. Mr. President, I rise today to introduce with my colleague from Vermont, Senator Leahy, the Satellite Television Modernization Act. I also note the efforts of Senators Sessions, Kohl, and Kyl in crafting this bipartisan bill. It is hard to believe that 5 years have transpired since we passed the Satellite Home Viewer Extension Act, SHVERA, of 2004. Much has occurred since that time, including the transition from analog to digital signals, which occurred in June. That is why the proposed legislation will not only reauthorize the statutory license used by satellite television providers, but will bring all of the statutory licenses into the digital age so that consumers can receive a good quality digital signal. Additionally, S. 1670 expands access to low power stations by broadening the license for low power stations to cover the entire local market; permits satellite providers to carry a noncommercial educational broadcast station if a station is part of a state-wide network; improves the ability of both DirecTV and DISH Network to provide local signals to local markets; and addresses the ``phantom signal'' issue, where currently cable providers may be required to pay royalty fees under section 111 based on subscribers who do not receive the content for which the royalty is being paid. I hasten to point out, however, that much more needs to be done to move away from government regulation and toward a marketplace where satellite providers and cable providers can compete based on market forces. This is not a new issue for this body. In fact, during the 2004 reauthorization of SHVERA, Congress required that the U.S. Copyright Office prepare a report to make recommendations on the operations of, and revisions to, sections 111, 119, and 122 of the Copyright Act. The Copyright Office provided this report to Congress on June 30, 2008. While I will not provide a line by line summary of the Report, I will underscore some key findings that the Copyright Office, under the leadership of Register of Copyrights Marybeth Peters, suggests that Congress consider when legislating in this area of the law. Specifically, the Copyright Office found that ``below-market rates may have been justifiable when cable and satellite were nascent industries and needed a mechanism to allow them to serve their subscriber base with valuable distant signals.'' The Report continues by stating that ``the current multichannel video distribution marketplace is robust and has, for a long time, overshadowed the broadcast industry.'' Moreover, the Copyright Office further argues that ``it is now time to phase out section 111 and section 119 so that copyright owners can negotiate market rates for the carriage of programming.'' I agree with the Copyright Office that something needs to be done to ``phase out'' these compulsory licenses. There is no longer any reason that the cable and satellite industries need a government-sponsored subsidy--paid for by program providers--for the right to retransmit broadcast signals. I believe we can devise a way that would phase out these compulsory licenses without disrupting the market. In fact, it is already being done today, as cable and satellite services license programming for more than 550 non-broadcast networks directly in the marketplace without a need for a compulsory license. Some have suggested a market trigger mechanism that would create an opportunity for, but not require, copyright owners to license their copyrighted programming on broadcast television in the same manner as they do currently for cable channels like TBS, ESPN, Nickelodeon, Disney Channel, FX, and Bravo. Copyright owners would have a choice between continuing to operate under the compulsory license, or if they prefer, licensing cable and satellite retransmission of their works directly through the free market as is done every day for the hundreds of non-broadcast cable channels. I hope that industry stakeholders will participate in creating a practical and reasonable approach to rectifying this important issue. At a minimum, it is time to let program creators and distributors have the option to determine the terms and conditions for their intellectual property rights. I am pleased that Senate Judiciary Committee Chairman Pat Leahy is committed to exploring viable options for a marketplace model, and I look forward to working with him and our colleagues on this and other issues before final passage of this bill.

Mr. HATCH

Mr. HATCH. Madam President, I rise to speak in support of an amendment by my good friend, Senator Mike Johanns, that would prevent our taxpayer dollars from being directed to the Association of Community Organizations for Reform Now, more commonly known as ACORN. I also want to commend the Census Bureau's recent decision to cut all ties with ACORN. Simply put I am very pleased with this decision, which was announced late last week through a letter from Census Bureau Director Robert Groves to ACORN's National Headquarters. As I met with Dr. Groves in my office just last week, I raised this very issue and expressed my disappointment, along with the disappointment of many of the Utahns I represent, that ACORN would have any association with such an important and historic event such as the 2010 Census. Anyone who knows me, knows that I am always supportive of reasonable efforts to ensure that taxpayer funds are not used for unlawful activities, particularly when those activities may be construed to be partisan in nature. That is why I have followed this particular issue so closely throughout the year and raised the issue directly with Director Groves. In fact, as next year's census quickly approaches, I continue to work with Census officials at the Commerce Department on all levels. As all Utahns are keenly aware, the Decennial Census requires precision and uniformity--both of which I am closely monitoring as the Census moves forward. To that end, I am hopeful that the Census Bureau will ensure that all Americans are counted fairly and accurately, with the privacy of the individual always in mind. I applaud Director Groves and his decision for the Census Bureau to cut all ties with ACORN. I am pleased that he listened not only to my concerns, but also to the concerns of thousands of Utahns and Americans from across country who have expressed severe disappointment with ACORN's involvement in the 2010 Census. Personally, I feel ACORN should not have been involved in the 2010 Census in the first place. However, I recognize Director Groves' decision as an important step toward an accurate and fair count and look forward to assisting in additional efforts toward that same end in the near future. While I am encouraged by the recent actions by the Census Bureau, I believe it is critical to adopt Senator Johanns' amendment so we can know with certainty that partisan political organizations like ACORN will not be underwritten with taxpayer dollars.

Mr. HATCH

Mr. HATCH. Madam President, I wish to speak about a matter of great prominence to the people of my State. This past Friday, in Springfield, MA, Jerry Sloan and John Stockton were inducted into the Naismith Memorial Basketball Hall of Fame. This is a well-deserved honor, and I wanted to take a few moments to congratulate them both. As any fan of professional basketball can tell you, the Energy Solutions Arena in Salt Lake City is widely considered one of the most difficult places for visiting teams to play. Some have tried to blame this on the city's high elevation, but, if you have ever been to a game there, you know very well that it is because of the Jazz fans. You see, due to its relatively small population, Utah has only one major sports franchise--the Jazz. And there were times when people thought that this small market would not be able to sustain even a single NBA team. But for more than two decades the Jazz have enjoyed one of the most loyal and supportive fan bases of any team in professional sports. This is due in no small part to the careers of both John Stockton and Jerry Sloan. John Stockton grew up in Spokane, WA, and played basketball at both Gonzaga Prep and Gonzaga University in his hometown. He was a relative unknown when he moved into the professional ranks, picked by the Jazz in the middle of the first round of the 1984 draft and initially relegated to a reserve role on the team. But after three seasons he became the full-time starter at the point guard position and went on to have one of the most prolific careers in basketball history. Over the course of his career, he accumulated numerous honors. He was selected to play in the NBA All Star game 10 times. He played on the 1992 and 1996 Olympic teams--the first two Olympic squads to include professional players winning Gold Medals in both years. He was selected to the All-NBA First Team twice, the All-NBA Second Team six times, the All-NBA Third Team three times, and the NBA All-Defensive Second Team five times. In 1996, the NBA celebrated its 50th anniversary by selecting the 50 Greatest Players in NBA History. Of course, John Stockton was honored on this list as well. Though the accomplishment of winning an NBA championship eluded him, Stockton did lead the Jazz to two consecutive NBA Finals appearances in 1997 and 1998. John Stockton was immortalized in the first of those seasons when, in Game 6 of the Western Conference finals, he scored the last 9 points for the Jazz, including a last-second 3 pointer to send the Jazz to the Finals for the first time. This was probably the most memorable moment of Stockton's career and the history of the Jazz franchise and it is still replayed in montages of great sports moments. It is impossible to talk about John Stockton without mentioning Karl Malone. Together, these two formed one of the game's legendary one-two punches. Together, they became the league's models of consistency, commitment, and success. The two played 18 seasons and an NBA record 1,412 regular-season games together as teammates. Due to their collaborative efforts, Malone finished his career as the second highest scorer in NBA history and Stockton holds the all time career assist record. Let's talk about that assist record for a moment. In the 63-year history of the NBA, only 4 players have career assist totals of over 10,000. Stockton finished his career with 15,806 assists. Mark Jackson, No. 2 on the list, collected 10,334 assists--5,483 fewer than Stockton. But, the raw numbers don't do this record justice. To put it in perspective, only 37 players have dished out 5,483 or more assists in their entire careers. Indeed, just getting that many assists over a whole career would put you in pretty elite company--and that is the difference between John Stockton's total and that of the guy who is next in line. This record is among the truly unbreakable records in all of sports-- and it isn't the only one held by John Stockton. He also holds the career record in steals, also by a considerable margin. He holds the NBA record for the most seasons and consecutive games played with one team and is third in total games played. John Stockton's success on the floor was matched only by his consistency. He missed only 22 games during his career, 18 of them came in 1 season. In 17 of his 19 seasons in the NBA, he played in every single game. Overall, he played in 1,504 of 1,526 possible games. These are Lou Gehrig or Cal Ripken-type numbers. Stockton will always be remembered for his no-nonsense approach to the game, his hard-nosed defense, his matchless work ethic, and his quiet, unassuming personality. His unflashy, fundamentally sound style of play earned him the respect of John Wooden, the legendary UCLA basketball coach, who once said that John Stockton was the only NBA player he would pay money to see. Stockton retired in 2003 and returned home to Spokane. While other NBA greats have sought careers in broadcasting and coaching after their careers were over, so far, John has been content to stay at home with his family. This comes as no surprise to those who know him. Guiding John through most of his NBA career, was coach Jerry Sloan, who, once again, is also being inducted into the Hall of Fame. Sloan's careers as both a player and a coach have been characterized by his unyielding toughness and an unmatched drive to compete. Jerry was born and raised in McLeansboro, IL, and played his college career at the University of Evansville. He played one season in the NBA for the Baltimore Bullets before being selected by the Chicago Bulls in the expansion draft. In fact, he was the team's first player, earning him the nickname ``The Original Bull.'' Sloan quickly became known for his tenacity on defense, and he led the expansion team to the playoffs in its first season. He had an exceptional career as a player. He played in two All-Star Games, was named to the NBA All-Defensive First Team four times and the All-Defensive Second Team twice. He also led the Bulls to the playoffs on various occasions and helped them to win the franchise's only division title prior to the Michael Jordan era. After his playing career was cut short by knee injuries, the Bulls retired Sloan's No. 4 jersey, the first jersey retirement in the team's history. Immediately after his retirement, he became part of the Bull's coaching staff, starting out as a scout, eventually working his way up to head coach, a position he held for three seasons. A few years later, he joined the Jazz coaching staff as an assistant to another Utah sports icon, Frank Layden. In 1988, when Layden's health forced him to retire, Jerry was named head coach of the Jazz, a position he has held ever since. Coach Sloan just finished his 20th season as coach of the Jazz, a milestone that, in today's sports world, is almost unthinkable. Over the course of his Jazz tenure, literally hundreds of coaching changes have taken place throughout the NBA. In a league that has had a number of great coaches in its history, none have coached for the same team as long as Jerry Sloan. This extends to other sports as well. Currently, Sloan is the longest-tenured coach in any major professional sport. There are a number of reasons to explain his longevity. The most obvious is that he has been successful. He is currently fourth on the list for alltime coaching wins--though he holds the record for most wins with one team. In 17 out of the 20 seasons he's been in Utah, the Jazz have been in the playoffs, the only absences coming in transitional years after the departures of John Stockton and Karl Malone. Another reason Sloan has been able to stick around is his consistent, no-nonsense approach to the game. Over time, teams have changed strategies to become flashier in order to cater to younger fans and the new era of players, many of whom have been self-centered prima donnas. Throughout that time, Coach Sloan has been a model of consistency, placing premiums on discipline and hard work among his players. The result has been a franchise that, for over two decades, has competed at a high level. In many ways, Stockton and Sloan were alike, and their strengths complemented each other. Neither one will claim to have been able to be successful without the other. Currently, there is a huge statue of John Stockton in front of the Energy Solutions arena alongside a statue of Karl Malone. Chances are, in 20 or 30 years when Jerry Sloan finally decides to hang it up, they will want to build a monument to him as well. Neither of these gentlemen would actively seek such limelight, but few are as deserving. Once again, I would like to extend my congratulations to both John Stockton and Jerry Sloan for this great honor and to thank them for their contributions to the Utah community.

Mr. HATCH

Mr. HATCH. Madam President, I thank all of our colleagues who have taken the time to come to the floor to speak for and on behalf of our great friend and colleague, Senator Ted Kennedy. I particularly enjoyed the remarks of the distinguished Senator from Vermont who served with him for 35 years. I only served 33 years with Ted. I thank them for the remarks and the reverence most everybody has had for our departed colleague. I rise today to offer my remarks on the passing of my dear friend and colleague, Senator Ted Kennedy. Over this past recess, America lost one of its greatest leaders and this Chamber lost one of its most dynamic and important Members. I mourn the loss not only of a respected colleague but of a dear personal friend. I think I speak for all my colleagues when I say that Senator Kennedy will be missed and that the Senate is a lesser place without him here. People have often remarked about the working relationship I had with Senator Kennedy, oftentimes calling us the ``odd couple.'' We used to laugh about that. But the truth be told, he and I really didn't agree on a lot of things. Over the years, Senator Kennedy and I were on opposite sides of some of the fiercest battles in this Chamber's history. While we have long been good friends, we did not pull any punches on one another. If we were opposing one another in a debate, Senator Kennedy would come to the floor and, in his classic style, he would lay into me with his voice raised--and he had a terrific voice-- and his arms flailing. Of course, I would let him have it right back. Then, after he finished, he would finally come over and put his arm around me and say: How was that? I would always laugh about it, as we did. We laughed at each other all the time. That is what set Senator Kennedy apart from many in Washington. For him, politics rarely got personal. He was never afraid to voice his disagreement with the views of a fellow Senator. But, in the end, I believe he always maintained a warm and cordial relationship with almost every one of his colleagues. That is difficult to do sometimes, particularly when partisan tempers flare up, but it always seemed to come easy for Senator Kennedy. Despite our tendency to disagree on almost everything, Senator Kennedy and I were able to reach common ground on many important occasions and on some important issues. As I mentioned at the recent memorial service, one of my defining moments as a Senator came when I met with two families from Provo, UT. The parents in these families were humble and hard working, and they were able to provide food and clothing and shelter for their children. But the one necessity they could not afford was health insurance. Their children were children of the working poor. The struggles of this family touched me and inspired me to work with Senator Kennedy to create SCHIP, which continues to provide health care coverage to millions of children of the working poor and others throughout the country and which passed with broad bipartisan support. Over the years, Senator Kennedy and I worked successfully to get both Republicans and Democrats on board for a number of causes. We drafted a number of pieces of legislation to provide assistance to AIDS victims, including the Ryan White AIDS Act. I named that bill right here on the floor with Mrs. White sitting in the audience. We worked together, along with Senator Harkin, to craft and pass the Americans with Disabilities Act. There was also the Orphan Drug Act, as well as the FDA Modernization Act, and a whole raft of other bills that would take too much time to speak about, all of which bear the Hatch-Kennedy, Kennedy-Hatch name. Our final collaboration came just this year in the form of the Edward M. Kennedy Serve America Act, which I was pleased to name after Senator Kennedy right here on the floor. He came up afterward, and we hugged each other. Then we went back to the President's Room, and he had pictures, even though he was not feeling well. He had so many pictures with so many people who were involved. All of our bills passed because of the willingness of Senator Kennedy and myself to put consensus ahead of partisanship--something we see far too infrequently in Washington. It is axiomatic in politics that timing is crucial. No one understood or practiced that principle better than Senator Kennedy. He had a sixth sense and an open mind to notice when the time was ripe for the key compromise. He knew when to let events sift and when it was time to close the deal. More importantly, he knew when he should stick to his guns and when he needed to reach across the aisle to get the help of his Republican colleagues. He was always able to recognize and work with those who shared his goals, even if they had different ideas on how to achieve them. I will never forget, after I had made the deciding vote on civil rights for institutionalized persons--it was a Birch Bayh-Hatch bill, and Birch had led the fight on the floor, and so did I. Later came the Voting Rights Act. I felt very strongly about not putting the effects test in section 2. I had no problem with it in section 5, but I did not want it in section 2 so that it applied to all the other States. I lost in committee. I voted for the bill out of committee because I considered the Voting Rights Act the most important civil rights bill in history. The day they were going to have the bill signed at the White House, he caught me right inside the Russell Building where we both had offices, and he said: You are coming with us, aren't you? I said: Well, I was against the change in section 2. He said: You voted for it and were very helpful in getting that bill passed, and I know how deeply you feel about it. I did go down with him. I would not have gone without Senator Kennedy recognizing I did feel deeply about the Voting Rights Act. And even though I lost on what I thought was a pivotal constitutional right, the fact is I voted for the bill. At the risk of riling my more liberal colleagues in the Senate, I would like to point out that Senator Kennedy shared an utterly optimistic view of the American experiment with President Ronald Reagan. They both deeply believed that whatever the current trials or challenges we must face as a nation, America's best days were ahead of her. That is something many people do not appreciate well enough about Senator Kennedy. Because of his optimism and hope for our Nation's future, Senator Kennedy was, throughout his career in the Senate, a great practitioner of the Latin motto ``carpe diem,'' ``seize the day.'' Few worked harder day-in and day-out than Senator Kennedy. As a result, every Senator had to work a little bit harder, either to follow his lead if you were on the same side of the issue or to stand in his way if you were the opposition. I have been in both positions. I am not saying it was inherently difficult to work with Senator Kennedy. But as anyone who has negotiated a tough piece of legislation can tell you, it can be sheer drudgery, even when you agree on most issues. But Senator Kennedy brought a sense of joy even to the most contentious negotiating sessions. And when you were working with Senator Kennedy, you knew he would keep his word. If after these long sessions an agreement was reached, he would stick by it no matter how much heat he would have to take. All this was no doubt the result of his love for this great institution and his commitment to the American people. Political differences notwithstanding, there can never be any doubt about Senator Kennedy's patriotism. Few had a presence in the Senate as large as Senator Kennedy's. More often than not, you could hear him coming down the hall--a mini- hurricane with a bevy of aides in tow, a batch of amendments in one hand and a stack of talking points in the other. He was almost always effective but seldom very quiet. I also want to share a few thoughts about his staff. While at the end of the day the full responsibility of the Senate falls squarely on the shoulders of each Senator, it is also true that during the day and often long into the night and on many weekends much of the work of the Senate is conducted by a group of the most committed team of staff members of any institution anywhere. Throughout his career, it was known that the Kennedy staff was comprised of one of the most formidable and dedicated collections of individuals of the Senate. Many of them have gone on to have distinguished careers, including now- Justice Stephen Breyer; Dr. Larry Horowitz, who managed his health care right up to the end and loved Ted Kennedy deeply; Nick Littlefield, who ran the Labor Committee for Senator Kennedy and was an adviser right up to the time Senator Kennedy passed away; and, of course, Michael Myers--just to name four, with no intention of leaving out the others. Senator Kennedy would be the first to recognize how their efforts contributed to his success. I salute them for their hard work over the years. I cannot exactly say I have always been totally pleased with all of the Kennedy staff all of the time, but, as was true of their boss, while we might have been frequent adversaries, we were never enemies. I am saddened by the loss of my dear friend Senator Kennedy. I will miss him personally. I will miss the fights in public. I will miss his sense of humor in private and public. And perhaps more significantly, I believe this Chamber will miss his talents as a legislator and, most of all, his leadership. While I cannot say I hope more of my colleagues will adopt his views on policy, I hope more of us can adopt his approach to the legislative process. I was in California giving a speech at a fundraiser when they came in with a cell phone and said: Senator Kennedy is on the line, and he sounds very agitated. So I went out on the plaza and I said: Ted, what is the matter? He said: Oh, I have great news for you. I said: What is that? He said: I am going to get married again. I said: Do I know her? He said: No, but you would love her. She is a wonderful, wonderful person, and she has two wonderful children. I am going to adopt them and treat them as my own. And I am so happy. I said: Ted, why would you call me in California? He said: Well, her daughter was bragging to her elementary school teacher at that time that her mother was going to marry Ted Kennedy. The elementary school teacher was married to a Washington Post reporter. So he said: I wanted you to become one of the first to know. I am very happy. I am going to marry Vicki Reggie. I have come to know Vicki very well. She has made such a difference in his life and in his family's life. She is a tremendous human being, as are his children. They are terrific. I was happy to be in the Catholic church where Teddy went to pray for his daughter every day he could when she was suffering from cancer. I know how deeply he feels about Patrick and Teddy, Jr. I thought they did a terrific job at the mass at his funeral. He has to be very proud of them. I am very proud of them. I think Vicki Kennedy deserves an awful lot of credit for all of the later happy years of my friend Ted Kennedy. I want her to know that I love her dearly for what she did and as an individual herself. I love Ted Kennedy's entire family. A number of them have come to me at times where I was able to help them because he could not as a member of the family. I have to say that I was close to a great number of the members of his family, and I really appreciate them as well and the influence they had on him and he had on them. He had a great influence on me as well. I want to personally thank him for it and say to my dear friend and colleague, as I look at his desk over there with the flowers and the drape, rest in peace, dear Ted, and just know that a lot of us will try to carry on, and hopefully, with some of the things you taught us and helped us to understand, we can do it better than we have in the past. I yield the floor.

Mr. HATCH

Mr. HATCH. Mr. President, I rise today to give tribute to my colleague and friend, Senator Mel Martinez. During his time in the Senate, Mel has served the State of Florida and our country well. Overcoming great odds, Mel and his life's journey is an inspiration to all. At age 15, he fled his native Cuba as part of a Catholic humanitarian effort. Alone, and speaking virtually no English, Mel was placed in temporary youth facilities. Later, he lived with two foster families, for whom he has great appreciation and affection. In 1966, he was happily reunited with his own family members in Florida. These experiences strengthened Mel and shaped his views. He went on to earn graduate and law degrees from Florida State University and practice law for 25 years before serving as Secretary of Housing and Urban Development and then joining us here in the United States Senate. During his tenure, I appreciated Mel's leadership, particularly working on the U.S. Senate Republican Conference Task Force on Hispanic Affairs--a task force I formed in 1987. I have long felt that we should not try to put this vital and growing segment of our population in a box because they care about the same things we all do--having a safe nation, strong families, a good education for all our children, and good jobs that provide well. At the same time, I recognized that Hispanics and Latinos bring unique and important perspectives to the issues we face in Congress. Mel worked to advance the mission of the task force to promote greater participation in the democratic process, to create more job opportunities, ensure better access to health care, and educate our children. While there is much talk on both sides of the aisle of strategy and outreach to try to ``woo'' Hispanics and Latinos, we should actively listen to their concerns and encourage their participation. That is true of all segments of our population. That is what I have tried to do and that is what Mel has done, too. I understand we have Mel's firm commitment to continue this important work. Our colleague from Florida has taken strong positions on a number of issues that have come before this body. Mel has supported prodemocracy movements in Cuba while urging that its dictatorship of abuse and misery is not legitimized by our government. As a member of the Armed Services Committee, Mel has been a strong supporter of our war on terror, especially as our brave troops combat terrorism overseas for the safety of our Nation. Mel has supported a reasonable and rational approach to ensuring our Nation's energy security. He has helped to highlight our Nation's lack of action to increase our production of nuclear energy--our Nation's largest sources of green, clean electricity. He recognizes that our domestic electricity supply must be based upon a major source of green baseload power, and that nuclear power holds the most potential to ensure that the American economy is fueled by an abundant, cheap, and clean source of energy. Mel has worked with us on health care reform. This is not a Republican or Democrat issue--it is an American issue which needs to be addressed in a bipartisan and fiscally responsible manner. Our colleague has worked to defeat card check because it reduces employees' right to a free and private election to choose if they want to unionize. Mel has sought workable reforms to our system of immigration. He spoke out against the negative rhetoric that divided and polarized. He will be missed in this body as the immigration debate moves forward. I know my friend is looking forward to writing the new chapter in the book of his life. I thank him for his service to our country and wish him well.

Mr. HATCH

Mr. HATCH. Mr. President, I rise today to support the nomination of the Honorable Jon Huntsman, Jr., to be the U.S. Ambassador to China. I think it goes without saying that Governor Huntsman is a man of integrity whose service to the State of Utah has been of great worth. Indeed, what Utah stands to lose from this nomination is exactly what the United States and China stand to gain: a seasoned diplomat, an excellent manager, a qualified politician, and a man who wants the very best for the country he loves and has served for more than 20 years. It takes great courage for a Republican Governor of one of the reddest, most conservative States in the Nation to accept an invitation to serve under a Democratic President; yet this is the same courage Governor Huntsman has displayed throughout his career. From his time as a staff assistant in the Reagan administration to his work in the trenches at the Commerce Department, Jon Huntsman, Jr., has proved to be an innovative leader, a progressive thinker, and someone who comes to this position at a time when the United States needs an Ambassador to China who will strive to forge the kind of relationships we need to move forward in the globally connected world of the 21st century. As the Ambassador to China, the challenges before Governor Huntsman will neither be easy nor few. Our relations with other nations are the foundation of peace and stability on the planet. And when Richard Nixon reached out and brought China back into the international system in 1972, a huge structural imbalance in the global system was redressed. The United States and China are very different countries with vastly different experiences and, based on our very different government structures, very different values. Yet, as we know, our countries have developed complex and mutually beneficial relations. We also know that our nations have great potential for beneficial relations, but, as anyone who studies history and geopolitics knows, we have the potential to clash as China grows and expands its influence. That is why it is important for us today to continue what Richard Nixon started: a world where our countries can exist in peace. In my years in the Senate, I have seen a huge change in our country's relationship with China. When I came here, President Carter was just finalizing the Nixon initiative, and I led the move to pass the Taiwan Relations Act, which allowed for the United States to continue a supportive relationship with Taiwan even though we had withdrawn our diplomatic recognition. I have seen China evolve from a Maoist totalitarian system to a communist police state that has allowed many personal freedoms and a historic transformation of the economy using capitalist principles. This is a relationship that must be handled by experienced China hands and professionals. That is why I find it gratifying that President Obama has chosen to go with someone of great experience and ability--Governor Huntsman. I also find it noteworthy that the Governor has been here twice before-- first when he was unanimously confirmed by the Senate as a U.S. Ambassador to the Chinese nation of Singapore under President George H.W. Bush, and then as a Deputy U.S. Trade Representative under President George W. Bush. Now, in his third appearance before the Senate as a nominee, he has answered the President's call to serve as Ambassador to China and leaves his post in Utah where, I might add, he was reelected to a second term as Governor with more than 70 percent of the vote. This speaks volumes about Governor Huntsman's ability to cross bridges, conquer divides, and put aside partisan politics when doing what he believes to be best for his family, our State, and our country. It is no secret that under Governor Huntsman's stewardship, Utah has been named the best-managed State by the Pew Research Center. Building on the excellent work of our State legislature, the Governor has helped lead our State in economic development initiatives and incentive programs that have shaped Utah into one of the most dynamic States in the Nation. In short, I cannot think of a more qualified nominee for Ambassador to China than Governor Huntsman. He is fluent in Mandarin Chinese, a skill that is vitally important in this day and age. Indeed, the Governor has been to China on numerous occasions and even learned Chinese while serving a mission in Taiwan for The Church of Jesus Christ of Latter-day Saints. It is in that light that I have no doubt the Chinese will have to respect his affection for Taiwan as much as they respect his linguistic ability. Moreover, while the Governor will not be making policy, he will be known to the Chinese as a Republican. They will see him as an independent thinker, while always being loyal to the administration he serves. Finally, China is a country that admires the businessman and the trader, and they are a country that knows that business and trade with the United States is the key for their sustained success. These are values and experience the Governor knows, understands and has practiced during his varied and impressive career in public service and private business. His years in international business have exposed him to the universe of China experts--people such as my good friend John Kamm, the preeminent advocate of human rights in China. It is my hope that he will keep the Embassy door open to these experts from around the world, and I am sure that he will. Again, I commend President Obama for selecting Governor Huntsman for this important post, even though Utah will lose a great leader as a result. However, Governor Huntsman has left the State in good hands and we all look forward to working with Lt. Gov. Gary Herbert in his new role as Governor of the great State of Utah. In closing, I believe I speak for all Utahns when I say Governor Huntsman will be missed, but we all know he is the appropriate person for this job. Moreover, his selection could not come at a more appropriate time. Indeed, this is a time when a man like Governor Huntsman is needed on the world stage. I congratulate Governor Huntsman on his nomination. I applaud his beautiful wife Mary Kaye and her decision to continue to share his time and talents with the world. And I know his wonderful family will be blessed by his contribution to our country in this position.

Mr. HATCH

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

Mr. HATCH. Madam President, on Tuesday I explained some of the reasons I cannot support the nomination of Judge Sonia Sotomayor to replace Justice David Souter, and I will mention a few others here today. These are important points. Her record simply creates too many conflicts with principles about the judiciary in which I deeply believe. I wish President Obama had chosen a Hispanic nominee whom all Senators could support. During the debate this week, many of my Democratic friends have spent time reading Judge Sotomayor's resume rather than reviewing her record. Nearly every speaker on the other side has repeated the talking point that she has more Federal judicial experience than any Supreme Court nominee in a century. I believe she does, and I respect her for it. But Justice Samuel Alito had only 1 less year of Federal judicial experience and actually had 5 more years on the U.S. court of appeals when he was nominated. He, too, had been a prosecutor and he, too, had received a unanimous ``well qualified'' rating from the ABA. Yet 19 current Democratic Senators voted to filibuster his nomination, including the current President, and 35 voted against confirmation. Other Senators emphasize the importance of appointing someone with Judge Sotomayor's inspiring life story and ethnic heritage. Once again, I do not disagree. She has an inspiring life story and a great ethnic heritage. Yet she is being treated with far more dignity and respect than was Miguel Estrada, a highly qualified Hispanic nominee with an inspiring life story, who everybody knows is one of the best attorneys in the country. The Senate, for example, will actually vote on Judge Sotomayor's nomination today. In 2003, for the first time in American history, this body was prevented from voting at all on the Estrada nomination, even though he had majority support. Senators and grassroots groups, including Hispanic organizations that today say a good resume, rich life story, and ethnic heritage make a compelling confirmation case for Judge Sotomayor, opposed even holding an up-or- down vote for Mr. Estrada. The treatment of Miguel Estrada was unfair and disgraceful toward the nominee and damaging to the traditions and practice of this body. My Democratic colleagues want people to believe the concerns about the Sotomayor nomination are limited to one speech and one case. Some of them have said as much. At the same time, they say our review should be limited to only certain parts of the nominee's record. As I have done with past nominees, however, I examined Judge Sotomayor's entire record for insight into her judicial philosophy. In addition to the controversial speeches I discussed on Tuesday, Judge Sotomayor gave a speech at Suffolk University Law School which was later published in that school's law review. She embraced the idea that the law is indefinite, impermanent, and experimental. She rejected what she called ``the public myth that law can be certain and stable.'' She said that judges may, in their decisions, develop novel approaches and legal frameworks that push the law in new directions. Judge Sotomayor's speeches and articles, then, present something of a perfect judicial storm in which her views of judging meet her views of the law. Combine partiality and subjectivity in judging with uncertainty and instability in the law, and the result is an activist judicial philosophy that I cannot support and that the American people reject. My Democratic colleagues will no doubt quickly say Judge Sotomayor's cases do not reflect that judicial philosophy. But remember that appeals court judges are bound by Supreme Court precedent. On the Supreme Court, Justice Sotomayor will help fashion the precedents that today bind Judge Sotomayor. That makes the rest of her views-- expressed, I might add, while she has been a sitting judge--much more relevant to her future on the Supreme Court than to her current position on the appeals court. Nonetheless, Judge Sotomayor has made plenty of troubling decisions on the appeals court. On Tuesday, for example, I discussed the case of Didden v. Village of Port Chester, in which Judge Sotomayor refused to give a man his day in court whose property was taken and given to a developer. She came to the bizarre conclusion that Mr. Didden should have sued before his property was even taken. In Kelo v. City of New London, the Supreme Court held that general economic development can constitute the public use that the fifth amendment says justifies the taking of private property. We hear a lot these days that judges should appreciate how their decisions should affect people. When the Court in Kelo greatly expanded the government's power to take private property, the San Francisco Chronicle no less said that the decision might turn the American dream of home ownership on its head. And one Washington Post headline after the decision read: ``Court Ruling Leaves Poor at Greatest Risk.'' This decision was devastating not only for the right to private property in general but for individual homeowners in particular. The decision in Kelo was issued after the briefing and argument in Didden but before Judge Sotomayor had issued her decision. Even though Kelo was a hallmark--or should I say landmark--decision that dramatically changed the law of takings, she did not ask for a rebriefing or a reargument. Instead, it took her more than a year to issue a cursory, four-paragraph opinion that not only made it easier for the government to take property but also severely limited the ability of property owners to challenge the taking of their property in court. Other Senators and I have already discussed Judge Sotomayor's troubling decisions regarding the second amendment right to keep and bear arms. She has applied the wrong legal standard to conclude that the second amendment does not keep State and local government from restricting the right to bear arms, and she has gratuitously held that the right to bear arms is so insignificant that virtually any reason is sufficient to justify a weapons restriction. No Federal judge in America has expressed a more narrow, cramped, and limited view of the right to bear arms. My friends on the other side of the aisle have made some creative attempts to downplay these troubling decisions. Perhaps the most curious is the claim that the second amendment right to keep and bear arms was created by the Supreme Court. On the other hand, I am baffled why this should bother those who believe in a flexible and shape- shifting Constitution. The Supreme Court, after all, makes up rights all the time--the right to abortion comes immediately to mind--without a peep from most of my Democratic friends on the other side of the aisle. But the Senator who offered this strange theory should simply read the Constitution. The right to keep and bear arms is right there, right in the Constitution, in black and white. Perhaps he is instead referring to the Supreme Court's recognition last year that the right to bear arms is an individual rather than a collective right. Perhaps that is why he believes the Supreme Court created these rights. But the second amendment said that the right to bear arms is the right of ``the people.'' The fourth amendment says the same thing about the right against unreasonable searches and seizures. It, too, is a right ``of the people.'' Does any Senator doubt that the fourth amendment protects an individual right? Does a Senator who believes that the Supreme Court made up the individual right to bear arms believe that the Supreme Court made up the individual right to be free from unreasonable government searches? When I chaired the Judiciary Subcommittee on the Constitution in 1982, we published a report on the second amendment right to keep and bear arms. It thoroughly examined the long and rich history of this right, which predates the Constitution itself. Thus, anybody can see why I am very concerned about this. We went to the bother of really writing about it back in 1982. As the Supreme Court has recognized, it was a fundamental individual right of Englishmen at the time of America's founding, which the second amendment merely codified. Justice Joseph Story, in his classic ``Commentaries on the Constitution,'' called this right ``the palladium of the liberties of the republic.'' Our report showed definitively that the right to bear arms is indeed both fundamental and individual. The Supreme Court may have taken a long time to recognize this constitutional fact, but it made up nothing in doing so. Madam President, I commend to my colleagues the subcommittee report to which I have referred. Madam President, finally, let me describe one other matter which arose during the hearing which I found very troubling. And before I say that, 8 of the 10 cases of Judge Sotomayor, heard by the Supreme Court, were reversed. On the ninth one, she was seriously criticized for her approach to the law, and that was a 5-to-4 decision. These are matters that bother a lot of people. I have mentioned a whole raft of other cases and a whole raft of other issues in my prior remarks here, so I will refer back to those remarks. Prior to her judicial service, Judge Sotomayor was closely associated with the Puerto Rican Legal Defense and Education Fund, a respected civil rights organization. From 1980 to 1992, Judge Sotomayor held at least 11 different leadership positions with the fund, including serving as a member of both its board of directors and executive committee and as both a member and chairman of its litigation committee. In a 1992 profile, the New York Times described Judge Sotomayor as a top policymaker with the fund. Other articles and profiles in the Times and Associated Press say that she met frequently with the legal staff, reviewed the status of pending cases and briefed the board about those cases, and was an involved and ardent supporter of the fund's legal efforts. These descriptions relied upon and quoted lawyers with whom she worked at the fund. Minutes from the fund's litigation committee specifically describe Judge Sotomayor reviewing the fund's litigation strategy and cases. At the hearing, I asked Judge Sotomayor whether she had been aware of the friend-of-the-court briefs--the amicus curiae briefs--that the fund filed in several high-profile Supreme Court abortion cases. I just wanted to know what the truth was. I asked her about that because those briefs made arguments that can only be described as extreme, even by some who are in the pro-abortion movement. The fund, for example, compared the previous refusal to pay for abortions with taxpayer Medicaid funds to oppression of Blacks symbolized by the Supreme Court's infamous Dred Scott decision. The fund opposed any and all abortion restrictions, including laws requiring that parents be informed before their young daughters have an abortion. The fund even argued that the first amendment right to freely exercise religion somehow undermines parental notification laws. When I asked Judge Sotomayor about these briefs and arguments, I made absolutely clear in my prefaced remarks that I was asking only about whether she knew about and agreed with them at the time the briefs were filed. I was not asking her even about her current views, let alone any position or approach she might take in the future. Judge Sotomayor told me that at the time she did not know the fund was filing those briefs or making those arguments. At times, she used what appeared to be the prepared talking point that she had not ``reviewed the briefs.'' But in answering my question, she went much further than that and said: Obviously, [the Fund] was involved in litigation, so I knew generally they were filing briefs. But I wouldn't know until after the fact that the brief was actually filed. To be clear, Judge Sotomayor said she never knew until after a brief had already been filed what arguments were made in the brief or even that it had been filed at all. I was shocked at this response and frankly found this claim very difficult to believe. How can a leader at a legal defense fund, who is actively working with the legal staff, supervising the staff, directing some of the years, briefing a board about pending cases, and an involved supporter of the fund's legal efforts, be completely out of the loop about the briefs it has filed and the arguments the fund is making? Did her discussions with the legal team about the pending cases skip these high-profile Supreme Court cases? I have to tell you, I doubt it. Did she brief the board about everything but these abortion briefs? I doubt it. The six abortion cases in which the Fund filed briefs were among the most visible cases on the Supreme Court docket. The 1989 case of Webster v. Reproductive Health Services, for example, attracted a record 78 different friend-of-the-court briefs, evidence that it was one of the most anticipated cases in decades. Virtually everyone in the public interest legal world, especially at civil rights groups, had it at the top of their watch list. And yet Judge Sotomayor would have us believe that, despite her leadership positions and active involvement with the Fund's cases and legal strategy, she was completely unaware that the Fund filed a brief in Webster until after the fact. In other words, she knew no more than an outsider reading the newspaper about the Fund's briefs and arguments in high-profile Supreme Court cases about hot-button social issues. I find that simply implausible. When I met with Hispanic leaders and groups during the confirmation process, their common message was that Senators should treat Judge Sotomayor seriously and respectfully. I believe we have done that. But they also insisted that our confirmation decision should be based on the merits, not on race. It was disturbing to hear, therefore, that some of these same groups appeared yesterday with the chairman of the Democratic Senatorial Campaign Committee warning about political repercussions of voting against a Hispanic nominee. I ask unanimous consent that a column published yesterday in Politico by former Florida House Speaker Marco Rubio addressing this issue be printed in the Record following my remarks.

Mr. HATCH. I suggest the absence of a quorum.

Mr. HATCH

Mr. HATCH. Mr. President, I am pleased to submit, along with my colleague, Senator Herb Kohl, a resolution to designate the week of September 13-19, 2009 as National Polycystic Kidney Disease Awareness Week. Polycystic kidney disease, or PKD, is a life-threatening, genetic disease of which most Americans are probably unaware. According to the PKD Foundation, PKD affects 600,000 Americans and 12.5 million children and adults worldwide. There is no treatment or cure, but it is our hope that, with this resolution, a National PKD Awareness Week will promote public awareness and education of this devastating disease. PKD is one of the four leading causes of kidney failure, which also called end-stage renal disease, ESRD, PKD is characterized by the growth of numerous fluid-filled cysts in the kidney, which slowly reduce the kidney function and can eventually lead to kidney failure. Some cysts in individuals with PKD have reportedly grown to the size of a football. When PKD causes kidneys to fail, the patient requires dialysis or kidney transplantation. About one-half of people with the major type of PKD progress to kidney failure. PKD is of particular interest to me because so many Utahns suffer from this disease. The PKD Foundation claims that approximately 5,000 individuals in Utah live with PKD, and that the incidence of end-stage renal disease in Utah is three times that of the national average. To cure PKD could result in billions of dollars in savings to the military, Medicare, Medicaid and the Veterans Administration for dialysis, transplantation and related treatments. To promote greater understanding of this destructive genetic disease, Senator Kohl and I have introduced this resolution to designate a National Polycystic Kidney Disease Awareness Week, and I urge our colleagues to support it.

Mr. HATCH

Mr. HATCH. Mr. President, I enjoyed my colleague's remarks. I don't agree with him, but he is certainly a great colleague and we appreciate him. Mr. President, I rise today to explain why I cannot support the nomination of Judge Sonia Sotomayor to be an Associate Justice of the Supreme Court. I do so with regret because the prospect of a woman of Puerto Rican heritage serving on the Supreme Court says a lot about America. Judge Sotomayor has achieved academic and professional success, and I applaud her public service. But in the end, her record creates too many conflicts with fundamental principles about the judiciary in which I deeply believe. It did not have to be this way. President Obama could have taken a very positive step for our country by choosing a Hispanic nominee whom all Senators could support. President Obama could have done so and I regret that he did not. I commend the distinguished chairman and ranking member of the Judiciary Committee, Senators Leahy and Sessions, for conducting a fair and thorough confirmation hearing. Judge Sotomayor herself said that the hearing was as gracious and fair as she could have asked for. I evaluate judicial nominees by focusing on qualifications, which include not only legal experience but, more importantly, judicial philosophy. Judge Sotomayor's approach to judging is more important to me than her resume. I ask unanimous consent to have printed in the Record following my remarks an article that I published earlier this year in the Harvard Journal of Law & Public Policy. It is titled ``The Constitution as the Playbook for Judicial Selection'' and explains more fully the principles I will mention here.

Mr. HATCH. President Obama has described the kind of judge he intends to appoint. As a Senator, he said that judges decide cases based on their ``deepest values . . . core concerns . . . broader perspectives . . . and the depth and breadth of [their] empathy.'' As a presidential candidate, he pledged to appoint judges who indeed have empathy for certain groups. And as President, he has said that a judge's personal empathy is an essential ingredient in judicial decisions. This standard is seriously out of sync with mainstream America. By more than 3 to 1 Americans believe that judges should decide cases based on the law as written, rather than on their own sense of fairness or justice. The American people reject President Obama's standard for the kind of judge we need on the Federal bench. At the Judiciary Committee hearing, Judge Sotomayor said that her judicial philosophy is simply fidelity to the law. While some of my Democratic committee colleagues said that they wanted to avoid slogans, codewords, and euphemistic phrases, they apparently accepted this one at face value. Unfortunately, it begs rather than answers the important questions. Some Senators on the other side of the aisle try to confine concerns about Judge Sotomayor's record to a single case and a single phrase. That political spin, I will admit, makes for a quotable sound-bite. But even a casual observer of this process knows that this political spin is simply not true. Ironically, those who would narrowly characterize the case against confirmation want us to confine our examination of Judge Sotomayor's record only to her cases while ignoring her speeches and articles. A partial review, however, cannot provide a complete picture. Appeals court decisions that are bound by Supreme Court precedent are not the same as Supreme Court decisions freed from such constraints. Taking Judge Sotomayor's entire record seriously not only gives us more of the information we need, but also gives her the respect she deserves. Debates over judicial nominations are debates over judicial power, and America's founders gave us solid guidance about the proper role of judges in our system of government. Judges interpret and apply written law to decide cases. While judges cannot change the words of our laws, they can still control statutes and the Constitution by controlling the meaning of those words. That would result in the rule of judges, not the rule of law. To borrow Judge Sotomayor's phrase, judges would not have fidelity to the law, but fidelity to themselves. In September 2001, Judge Sotomayor introduced Justice Antonin Scalia when he spoke at Hofstra Law School. She repeated a legend about Justice Oliver Wendell Holmes and Judge Learned Hand. Like Judge Sotomayor, Judge Hand served on both the Southern District of New York and the Second Circuit. As they departed after having lunch, Judge Hand called out: Do justice, sir, do justice. Justice Holmes replied: That is not my job, my job is to apply the law. Is it a judge's role to do justice or to apply the law? President Obama says that a judge's personal empathy is an essential ingredient for doing justice. At the hearing on Judge Sotomayor's nomination, one of my Democratic colleagues invoked what he called ``America's common law inheritance'' to describe Federal judges with broad discretion to decide cases based on their personal notions of justice or fairness. That may be the judiciary some of my colleagues would prefer, but it is not the judiciary America's Founders gave us. Federal judges are not common-law judges. They may not decide cases based on subjective feelings they find inside themselves, but only on objective law they find outside themselves. Thankfully, the American people overwhelmingly say today what America's Founders said, that judges must follow the law rather than their personal empathy to decide cases. The question is which kind of Supreme Court Justice Sonia Sotomayor will be. In one speech that she gave several times over nearly a decade while she was on the bench, she spoke directly about how judges should approach deciding cases. In this speech, she said that factors such as race and gender affect how judges decide cases and, as she put it, ``the facts I choose to see.'' She embraced the notion that there is no objectivity or neutrality in judging, and that impartiality is merely an aspiration which judges probably cannot achieve, and perhaps should not even attempt. She said that judges must decide when their personal sympathies and prejudices are appropriate in deciding cases. Judge Sotomayor and her advocates have tried unsuccessfully to blunt this speech's more controversial edges. Their claim that she used the speech solely to inspire young lawyers or law students, even if true, is irrelevant because the speech is controversial for its content, not its audience. My concern only grew after discussing this speech with Judge Sotomayor during the hearing. Rather than adequately defend or disavow these views, she presented a different, and contradictory, picture. I am not the only one who noticed. The Washington Post editorialized that Judge Sotomayor's attempts to explain away or distance herself from past statements ``were unconvincing and at times uncomfortably close to disingenuous, especially when she argued that her reason for raising questions about gender or race was to warn against injecting personal biases into the judicial process. Her repeated and lengthy speeches on the matter do not support that interpretation.'' In another speech just a few months ago, Judge Sotomayor addressed whether judges may use foreign law to interpret and apply American law in deciding cases. The distinguished ranking member of the committee mentioned this as well. She said that foreign law ``will be very important in the discussion of how we think about the unsettled issues in our own legal system.'' She endorsed the idea that judges may, as they interpret American law, consider anything, from any source, that they find persuasive. Once again, Senators discussed this issue with Judge Sotomayor at her hearing. And once again, she neither defended nor disavowed these controversial statements but presented a different, contradictory picture. In her speech, she hoped that judges would continue to consult what others have said, including foreign law, to ``interpret our law in the best way we can.'' But in the hearing, she said that ``I will not use foreign law, to interpret the Constitution or American statutes.'' In her speech, she said that judges may use ideas from any source that they find persuasive. But in the hearing, she said that foreign law cannot be used to influence a legal decision. These different versions are clearly at odds with each other. Judge Sotomayor took a different tack in answering post-hearing questions. She said that decisions of foreign courts may not serve as ``binding or controlling precedent'' in deciding cases. The issue, however, is not whether a decision by the Supreme Court of France literally binds the Supreme Court of the United States. Of course it does not. The issue is whether that foreign decision may influence our Supreme Court in determining what our statutes and the Constitution mean. And in her answers to post-hearing questions, Judge Sotomayor once again said that decisions of foreign courts can indeed be ``a source of ideas informing our understanding of our own constitutional rights.'' In these speeches, Judge Sotomayor described how such things as race, gender, life experience, personal sympathies, or prejudices affect judges and their decisions. That is certainly possible. But I waited for her to say that judges have an obligation to eliminate the influence of these factors. I wanted her to say that because these things undermine a judge's impartiality, judges must be vigilant to prevent their influence. That would have given me more solace about what Judge Sotomayor's phrase, fidelity to the law, really means. But she never said it. Instead, she endorsed the notion that judges may look either inside themselves to their empathy, or outside to foreign law, for ideas and notions to guide their decisions. Turning to her cases, the Supreme Court has disagreed with Judge Sotomayor in nine of the ten cases it has reviewed, three of them in the most recent Supreme Court term alone. That is nine of her ten cases they reviewed. And these were not close decisions, either. The total vote in the cases reversing Judge Sotomayor was a lopsided 52-19. In one case, Judge Sotomayor had held that the Environmental Protection Agency could not consider cost-benefit analysis when adopting a regulation. The Supreme Court reversed her, citing its own precedents extending back more than 30 years and holding that the EPA's use of cost-benefit analysis was well within the bounds of its statutory authority. In another case, Judge Sotomayor had reopened part of a bankruptcy proceeding that had closed more than 20 years ago to resurrect a tort suit. Justice Souter, whom Judge Sotomayor would replace, wrote the opinion for the Supreme Court's 7-2 decision reversing her. In another case, Judge Sotomayor declared unconstitutional a State law providing for political party election of judges because she felt the law did not give people what she called a ``fair shot.'' The Supreme Court unanimously reversed her, saying that traditional electoral practice ``gives no hint of even the existence, much less the content,'' of the fair-shot standard Judge Sotomayor had invented. In one case, the Supreme Court affirmed Judge Sotomayor's result but rejected her reasoning because her reading of the relevant statute ``flies in the face of the statutory language.'' And in the one case where the Supreme Court affirmed both Judge Sotomayor's result and reasoning, it did so by the slimmest 5-4 margin. This is a very shaky record on appeal. The Ricci v. DeStefano case, which has been mentioned quite a lot around here, is one of the cases in which the Supreme Court reversed Judge Sotomayor. The Court reversed her result by a 5-4 vote but unanimously rejected her reasoning. In this case, Judge Sotomayor affirmed the city of New Haven's decision to throw out the results of a fairly designed and administered firefighter promotion exam because too few racial minorities passed it. This case presents troubling questions of both process and substance. Judge Sotomayor initially used a summary order that did not have to be circulated to the full Second Circuit. That bothered me a great deal, because judges know when they issue a summary order, the rest of the judges are not going to see it. She then converted it to a per curiam opinion that is permissible only when the law is entirely settled. The summary order and the per curiam opinion were each a mere single paragraph and neither appears to be an appropriate vehicle for deciding this challenging case. On the merits, Title VII of the 1964 Civil Rights Act prohibits two kinds of discrimination. It prohibits disparate treatment, which is intentional, and disparate impact, which may be unintentional. Disparate treatment focuses on the motivation of an employment decision, while disparate impact focuses on its effect. While discrimination cases typically involve one or the other, the Ricci case involved both. In this case, the city claimed it had to engage in disparate treatment of those who passed the promotion exam because it feared a disparate impact lawsuit by those who failed the exam. I point out that this case involved both disparate treatment and disparate impact because Judge Sotomayor and her advocates claim that her decision was based squarely on settled and longstanding Second Circuit and Supreme Court precedent. We have heard some of that here on the floor tonight. Contrary to her statement to me at the hearing, however, her one-paragraph opinion cited no precedent at all. The only case she cited was the district court opinion in that very case. But the district court actually acknowledged that this case was the opposite of the norm. Rather than those failing an employment test challenging the use of the results, in this case those who passed the test challenged the refusal to use the results. None of the precedents cited by the district court involved this kind of case. For this reason, six of Judge Sotomayor's Second Circuit colleagues believed that the full circuit should have reviewed her decision, arguing that the case raised important questions of first impression in the Second Circuit and the entire Nation. When it reversed Judge Sotomayor, the Supreme Court similarly observed that there were few, if any, precedents in any court even discussing the issue in this case. In a column published today in National Journal, the respected legal analyst Stuart Taylor carefully analyzed whether Judge Sotomayor's decision in Ricci was indeed compelled by precedent. We have all read Stuart Taylor over the years. He is one of the most prescient commentators and journalists with regard to the law. He concludes: ``The bottom line is that Circuit precedents did not make Sotomayor rule as she did. Supreme Court precedent favored the firefighters. Sotomayor's ruling was her own.'' I ask unanimous consent that Mr. Taylor's column appear in the Record following my remarks.

Mr. HATCH. In addition to claiming that her decision in Ricci was grounded in either Second Circuit or Supreme Court precedent, Judge Sotomayor offered at the hearing that the Sixth Circuit had addressed a similar issue in the same way. I can only assume she did so to imply that if the Sixth Circuit independently came to the same conclusion in a parallel case, then it would be difficult to say that Judge Sotomayor's decision in Ricci is controversial. I would first note that in Oakley v. City of Memphis, the Sixth Circuit actually analyzed the case, applied the law to the facts, and issued a real opinion. I wish Judge Sotomayor had done that in her case. But more importantly, Judge Sotomayor failed to mention that the Sixth Circuit case was issued 3 months after hers and, in fact, relied upon her decision as persuasive authority. That is no evidence that her decision was procedurally or substantively sound. Neither are her decisions on the Second Amendment right to keep and bear arms. Last year, in District of Columbia v. Heller, the Supreme Court clearly identified the proper analysis for deciding whether the Second Amendment binds States as well as the Federal Government. Several months later, Judge Sotomayor ignored that directive and clung to her previous insistence, following a different analysis the Supreme Court had discarded, that the right to bear arms does not apply to the States. She also held that the right to bear arms is so insignificant that virtually any conceivable reason is sufficient to justify a weapons restriction. When I asked her about these decisions at the hearing, she refused to acknowledge that the Supreme Court's so-called rational basis test is its most permissive legal standard. Yet this is practically a self- evident truth in the law, one that Judge Sotomayor herself cited and applied just last fall to uphold a weapons restriction in Maloney v. Cuomo. She likewise gave short shrift to the fundamental right to private property. In Didden v. Village of Port Chester, Judge Sotomayor affirmed dismissal of a property owner's lawsuit after the village condemned his property and gave it to a developer. The Supreme Court, incorrectly in my view, had previously held in Kelo v. City of New London that economic development can constitute the public use for which the Fifth Amendment allows the taking of private property. In Didden, however, the village had only announced a general plan for economic development. No taking of anyone's property had occurred. Mr. Didden sued only after the village actually took his property. In yet another cursory opinion that for some reason took more than a year to produce, Judge Sotomayor denied Mr. Didden even a chance to argue his case. She said that the 3-year period for filing suit began not when the village actually took his property, but when the village earlier had merely announced its general development plan. In other words, Mr. Didden should have sued over the taking of his property before his property had been taken. But had he done so then, he would certainly have been denied his day in court because his legal rights had not yet been violated. This catch-22 amounts to a case of dismissed if he did, and dismissed if he did not. Once again, Judge Sotomayor gave inadequate protection to a fundamental constitutional right. In another effort to blunt the impact of such controversial decisions, Judge Sotomayor's supporters attempt to portray her as moderate by observing that on the Second Circuit, she agreed with Republican-appointed colleagues 95 percent of the time. On the one hand, this is one of several misguided attempts to defend her by suggesting that a calculator is all it takes properly to evaluate a judicial record. On the other hand, however, this claim comes from the same Democratic Senators who voted against Justice Samuel Alito just a few years ago. On the Third Circuit, he had agreed with his Democratic-appointed colleagues 99 percent of the time over a much longer tenure. It shows how specious some of the arguments are. Let me return to where I began. I believe that Judge Sotomayor is a good person. I respect her achievements and applaud her service to her community, the judiciary, and the country. While appointment of the first Puerto Rican Justice says a lot about America, however, I believe that appointing a Justice with her judicial philosophy says the wrong thing about the power and role of judges in our system of government. A nominee's approach to judging is more important than her resume, especially on the Supreme Court where Justices operate with the fewest constraints. Judge Sotomayor has expressed particular admiration for Justice Benjamin Cardozo. His book on the judicial process contains a chapter titled ``The Judge as a Legislator'' in which he compares judges to legislators who decide difficult cases on the basis of personal reflections and life considerations. That sounds very much like President Obama's appointment standard and Judge Sotomayor's expressed judicial philosophy. I believe it is inconsistent with the limited role that America's founders prescribed for judges in our system of government. My colleagues know that I take a generous approach to the confirmation process and I believe some deference to the President of the United States and his choice is appropriate. I have rarely voted against any judicial nominee and took very seriously the question of whether to do so now. To that end, I studied her speeches, articles, and cases. I spoke with experts and advocates from different perspectives. I participated in all three question rounds during the Judiciary Committee hearing. But in the end, neither general deference to the President nor a specific desire to support a Hispanic nominee could overcome the serious conflicts between Judge Sotomayor's record and the principles about the judiciary and liberty in which I deeply believe. I was the one who started the Republican Senatorial Hispanic Task Force and ran it for many years, bringing Democrats, Independents, and Republicans together in the best interest of the Hispanic community to try to give them more of a voice. I feel pretty deeply about Hispanic people, as I do all people. I just want everybody to know that this took a lot of consideration on my part to come to the conclusion I have. I wish President Obama had taken a different course, but this is the decision I have to make in this case. As I say, I like Judge Sotomayor. I particularly like her life story and her wonderful family. I did not want to vote against her but I think I have explained here some of the serious concerns I have. Exhibit 1 The Constitution as the Playbook for Judicial Selection Orrin G. Hatch* The Federalist Society plays an indispensable role in educating our fellow citizens about the principles of liberty, a task that is both critical and challenging. It is critical because, as James Madison put it, ``a well- instructed people alone can be permanently a free people.'' \1\ The ordered liberty we enjoy is neither self-generating nor self-sustaining, but is based on certain principles that require certain conditions. Knowledge and defense of those principles and conditions will be the difference between keeping and losing our liberty. This educational challenge, however, has perhaps never been more daunting. We live in a culture in which words mean anything to anyone, celebrities substitute for statesmen, and people are no longer well instructed. Forty-two percent of Americans do not know the number of branches in the federal government, and more than sixty percent cannot name all three \2\ Four times as many Americans say that a detailed knowledge of the Constitution is absolutely necessary as say they actually have such knowledge.\3\ Twenty-one percent of Americans believe the First Amendment protects the right to own a pet.\4\ A few factors contribute to this state of affairs. Most people get their information about the legal system only from television. Unless people sue each other or commit crimes-- habits we really should not encourage--they will likely have no firsthand knowledge or experience to draw from. Furthermore, people hold lawyers in low esteem. If you plug the term ``lawyer joke'' into Yahoo, it returns a whopping 25.7 million hits, a number on the rise almost as fast as the national debt. The problem with lawyer jokes is that most lawyers do not think they are funny and most other people do not think they are jokes. This low view of lawyers means people have little motivation to learn more about what lawyers and judges really do. The media do not help this state of affairs. The Harvard Journal of Law & Public Policy recently published an excellent article by Michigan Supreme Court Justice Stephen Markman,\5\ who served as my chief counsel when I chaired the Senate Judiciary Subcommittee on the Constitution in the early 1980s. He describes how the media's penchant for focusing on winners and losers significantly shapes and distorts how people understand what judges actually do, often for the worse.\6\ Nonetheless, the timing of this Essay is auspicious in several respects. First, I write in the wake of two very relevant Federalist Society student symposia, last year's about the people and the courts \7\ and this year's about the separation of powers.\8\ Second, President Obama has been particularly clear from the time he was a candidate about his intention to appoint judges who will exercise a strikingly political version of judicial power.\9\ Third, he has already started acting on that intention by making his first judicial nominations.\10\ New Presidents typically make their first judicial nominations in July or even August, yet the Senate Judiciary Committee has already held a hearing on the President's first nominee to the U.S. Court of Appeals, and the President sent two more nominees to the Senate just a few days ago. Mark Twain popularized the notion that there are three kinds of lies: lies, damned lies, and statistics.\11\ I prefer Senator Daniel Patrick Moynihan's comment that you may be entitled to your own opinion, but not your own set of facts.\12\ Either way, I will statistically describe two macro and two micro factors of the judicial confirmation process to show its recent transformation before turning to how it should be conducted going forward. The two macro factors are hearings and confirmations. The Judiciary Committee held hearings for fewer judicial nominees during the 110th Congress than any Congress since before I entered the Senate. This lack of hearings is not the result of the Judiciary Committee's inability to multitask. Instead, it is the result of a political choice, one that has been reversed since the last election. The Judiciary Committee has already held a hearing on President Obama's first appeals court nominee, just two weeks after that nominee arrived in the Senate.\13\ Under a Republican President, Judiciary Committee Chairman Patrick Leahy waited an average of 197 days to give an appeals court nominee a hearing.\14\ The last election amounted to the political equivalent of Drano, as the confirmation pipes are now wonderfully unobstructed and flowing freely once again. Some might assume that Republicans demonstrate such strong partisan preference, but they would be wrong. Since I was first elected, Democrats running the Senate have granted hearings to forty-one percent more Democratic than Republican judicial nominees. When Republicans run the Senate, the partisan differential is less than five percent. Moving from the Judiciary Committee to the Senate floor, the second macro factor is confirmations. In the last eight years, President Bush had the slowest pace of judicial confirmations of any President since Gerald Ford. Last year, the Senate confirmed fewer judicial nominees than in any President's final year since 1968, the end of the Johnson Administration. By comparison, when I chaired the Judiciary Committee during President Clinton's last year in office, the Senate confirmed twice as many appeals court nominees as it did last year. As with hearings, the picture is not the same when Republicans are in charge. When Democrats run the Senate, they confirm forty-five percent more Democratic than Republican judicial nominees. When Republicans run the Senate, the differential is only nine percent. At the ground level, the two micro factors in the confirmation process are votes and filibusters. The Senate has traditionally confirmed most unopposed lower court nominees by unanimous consent rather than by time-consuming roll call votes. From 1950 to 2000 the Senate confirmed only 3.2 percent of all district and appeals court nominees by roll call vote. During the Bush presidency, that figure jumped to nearly sixty percent. The percentage of roll calls without a single negative vote nearly tripled. And under President Bush, for the first time in American history, the filibuster was used to defeat majority-supported judicial nominees.\15\ With all due respect to Mark Twain, I think these numbers accurately give you at least a taste for the partisan division and conflict that now characterize the judicial confirmation process. It has become, to edit Thomas Hobbes just a bit, quite nasty and brutish. Turning from what has been to what should be, I believe we can get on a better path by, as Madison emphasized in The Federalist No. 39, ``recurring to principles.'' \16\ The judicial selection process has changed because ideas about judicial power have changed. My basic thesis is this: Our written Constitution and its separation of powers define both judicial power and judicial selection. They define the judicial philosophy that is a necessary qualification for judicial service, and they counsel that the Senate defer to the President when he nominates qualified individuals. Consider a judicial nomination as a hiring process based on a job description. The job description of a judge is to interpret and apply law to decide cases. This job description does not mean whatever a President, political party, or Senate majority wants it to mean. Our written Constitution and its separation of powers set the judicial job description. Interpreting written law must be different than making written law. Because law written in statutes or the Constitution is not simply words, but really the meaning of the words, only those with authority to make law may determine what the words of our laws say and what those words mean. Judges do not have authority to make law, so they do not have authority to choose what the words of our laws say or what they mean. In other words, judges apply the law to decide cases, but they may not make the law they apply. Judges and the law they use to decide cases are two different things. Judging, therefore, is about a process that legitimates results, a process by which the law made by the people and those they elect determines winners and losers. The Constitution and its separation of powers compel this judicial job description. This kind of judge is consistent with limited government and the ordered liberty it makes possible. Justice Markman's article describes what he calls a ``traditional jurisprudence--one that views the responsibility of the courts to say what the law `is' rather than what it `ought' to be.'' \17\ Such a philosophy of judicial restraint--an understanding of the limited power and role of judges--is a qualification for judicial service. This is the kind of judge a President should nominate. Our written Constitution and its separation of powers also define how the confirmation stage of the judicial selection process should operate. The Constitution gives the power to nominate and appoint judges to the President, not to the Senate. The best way to understand the Senate's role is that the Senate advises the President whether to appoint his nominees by giving or withholding its consent. I explored this role in more detail in the Utah Law Review a few years ago in the context of showing that the use of the filibuster to defeat majority-supported judicial nominees is inconsistent with the separation of powers.\18\ One basis on which the Senate may legitimately withhold its consent to a judicial nominee, however, is that the nominee is not qualified for judicial service. Qualifications include more than information on a nominee's resume. And with all due respect to the American Bar Association, their rating does not a qualification determine. Instead, qualifications for judicial service include whether a nominee's judicial philosophy--his understanding of a judge's power and role--is in sync with our written Constitution and its separation of powers. Judges, after all, take an oath to support and defend the Constitution of the United States. To be qualified for judicial service, a nominee must believe there is such a thing, that the supreme law of the land is not simply in the eye of the judicial beholder, and that judges need something more than a legal education, a personal opinion, and an imagination to interpret it. I propose looking to the basic principles of our written Constitution and its separation of powers to guide the judicial selection process. For the President, those principles require nominees with a restrained judicial philosophy. For the Senate, they require deference to a President's qualified nominees. Senators, of course, must decide how to balance qualifications and deference. Our written Constitution and its separation of powers, however, provide normative guidance for the judicial selection process. Presidents and Senators will have to decide, and be accountable for, how they use or reject that guidance. No matter how philosophically sound this proposal may be-- and I believe it is philosophically rock solid--it may nevertheless be politically controversial. We have traveled a long way from Alexander Hamilton describing the judiciary as the weakest and least dangerous branch.\19\ We have traveled a long way from the Supreme Court saying in 1795 that the Constitution is ``certain and fixed; it contains the permanent will of the people, and is the supreme law of the land; it is paramount to the power of the Legislature, and can be revoked or altered only by the authority that made it.'' \20\ We have traveled a long way from the Senate Judiciary Committee saying in 1872 that giving the Constitution a meaning different from what the people provided when adopting it would be unconstitutional.\21\ For a long time now, we have instead labored under Chief Justice Charles Evans Hughes's notion that the Constitution is whatever judges say it is.\22\ It has become fashionable to suppose that the only law judges may not make is law we do not like. Legal commentator Stuart Taylor correctly observes that ``[l]ike a great, ever-spreading blob, judicial power has insinuated itself into every nook and cranny.'' \23\ One of my predecessors as Senator from Utah who later served on the Supreme Court, George Sutherland, described the transformation in 1937 as it was literally under way. He warned that abandoning the separation of powers by ignoring the distinction between interpreting and amending the Constitution would convert ``what was intended as inescapable and enduring mandates into mere moral reflections.'' \24\ Less than two decades later, Justice Robert Jackson described what he saw as a widely held belief that the Supreme Court decides cases based on personal impressions rather than impersonal rules of law.\25\ Judicial power and judicial selection are inextricably linked. Sometimes the Senate can appear to produce a lot of activity but take very little action. To some, that means the Senate is the world's greatest deliberative body. To others, it means that it produces a lot of sound and fury signifying nothing. But I hope that the debate over President Obama's judicial nominees will really be a debate over the kind of judge our liberty requires. The debate should be about whether judges should decide cases by using enduring mandates and impersonal rules of law or by using their own moral reflections and personal impressions. President Obama has already taken sides in this debate. When he was a Senator, he voted against the nomination of John Roberts to be Chief Justice, stating that judges decide cases based on their deepest values, their core concerns, and the content of their hearts.\26\ On the campaign trail, he pledged that he would select judges according to their empathy for certain groups such as the poor, African Americans, gays, the disabled, or the elderly.\27\ The real debate is about whether judges may decide cases based on empathy at all, not the groups for which they have empathy. It is about whether judges may make law at all, not about what law judges should make. Conservatives as well as liberals often evaluate judges and judicial decisions by their political results rather than by their judicial process. But a principle is just politics unless it applies across the board. Professor Steven Calabresi, one of the Federalist Society's founders, wrote last fall that ``[n]othing less than the very idea of liberty and the rule of law are at stake in this election.'' \28\ He was right, and they remain at stake in the ongoing selection of federal judges. Judges have no authority to change the law, regardless of whether they change it in a way I like. I am distinguishing here between judicial philosophy, which relates to process, and political ideology, which relates to results. Senators often reveal their view of judicial power when participating in judicial selection, proving once again that the two are inextricably linked. During the debate over Chief Justice Roberts's nomination, for example, one of my Democratic colleagues wanted to know whether the nominee would stand with families or with special interests. She said the American people were entitled to know how he would decide legal questions even before he had considered them.\29\ Another Democratic Senator similarly said that the real question was whose side the nominee would be on when he decided important issues.\30\ Would he be on the side of corporate or consumer interests, the side of polluters or Congress when it seeks to regulate them, or the side of labor or management? In this activist view of judicial power, the desired ends defined by a judge's empathy justify whatever means he uses to decide cases. This activist view of judicial power is at odds with our written Constitution and its separation of powers and, therefore, with ordered liberty itself. The people are not free if they do not govern themselves. The people do not govern themselves if their Constitution does not limit government. The Constitution cannot limit government if judges define the Constitution. Terry Eastland aptly described the result of judicial activism in a 2006 essay titled The Good Judge: ``The people's text, whether made by majorities or, in the case of the Constitution, supermajorities, would be displaced by the judges' text. The justices became lawmakers.'' \31\ This quotation highlights one of the many differences between God and federal judges. God, at least, does not think He is a federal judge. And it brings up the question of how many federal judges it takes to screw in a light bulb. Only one, because the judge simply holds the bulb as the entire world revolves around him. There is perhaps some reason for optimism. One poll found last year that, no matter for whom they voted, nearly three- quarters of Americans said they wanted judges ``who will interpret and apply the law as it is written and not take into account their own viewpoints and experiences.'' \32\ This debate is indeed the one we should be having, whether judges have the power to make law. When judges apply law they have properly interpreted rather than improperly made, their rulings may have the effect of helping or hurting a particular cause, of advancing or inhibiting a particular agenda. They may, at least by the political science bean counters, be considered liberal or conservative. The point, therefore, is not which side wins in a particular case, but whether the winner is decided by the law or by the judge. When judges interpret law, the law produces the results. Thus, the people can choose to change the law. When judges make law, judges produce the results and the people are left with no recourse at all. That state of affairs is the antithesis of self-government. Let me close by saying that the effort to defend liberty never ends. Andrew Jackson reminded us as he left office in 1837 that ``eternal vigilance by the people is the price of liberty; and that you must pay the price if you wish to secure the blessing.'' \33\ The approach I outline actually joins an effort that began long ago and reminds me of a resolution passed by the Senate Republican Conference in 1997: Be it resolved, that the Republican Conference opposes judicial activism, whereby life-tenured, unaccountable judges exceed their constitutional role of interpreting already enacted, written law, and instead legislate from the bench by imposing their personal preference or views of what is right or just. Such activism threatens the basic democratic values on which our Constitution is founded.\34\ There you have it. Our written Constitution and its separation of powers define both judicial power and judicial selection. They require judicial restraint as a qualification for judicial service and require Senate deference to a President's qualified nominees. The weeks and months ahead will provide opportunities to debate these principles and their application. Nothing less than ordered liberty is at stake. I know the Federalist Society will be right in the thick of that debate. endnotes * United States Senator (R-Utah); J.D., University of Pittsburgh School of Law, 1962; B.A., Brigham Young University, 1959. This Essay was delivered as a speech to the Harvard Law School Federalist Society and Harvard Journal of Law & Public Policy at the Union Club in Boston, Massachusetts, on April 4, 2009. 1. James Madison, Second Annual Message, in 8 The Writings of James Madison 123, 127 (Gaillard Hunt ed., 1908). 2. Press Release, Nat'l Constitution Ctr., Startling Lack of Constitutional Knowledge Revealed in First-Ever National Poll (1997). 3. Steve Farkas et al., Knowing it by Heart: Americans Consider the Constitution and its Meaning 16 (2002), available at http://www.publicagenda.;org/files/pdf/ knowing_by_heart.pdf. 4. Christopher Lee, Noted with Interest, Wash. Post, Mar. 3, 2006, at A15; see also McCormick Tribune Freedom Museum, Americans' Awareness of First Amendment Freedoms, Forum for Education and Democracy, Mar. 1, 2006, http:// www.forumforeducation.org/node/147. 5. Stephen J. Markman, An Interpretivist Judge and the Media, 32 Harv. J.L. & Pub. Pol'Y 149 (2009). 6. Id. at 151-52. 7. Symposium, The People & The Courts, 32 Harv. J.L. & Pub. Pol'y 1 (2009). 8. Symposium, Separation of Powers in American Constitutionalism, 33 Harv. J.L. & Pub. Pol'y (forthcoming 2010). 9. See infra notes 26-27. 10. President Obama has nominated David Hamilton to the U.S. Court of Appeals for the Seventh Circuit, Gerard Lynch to the Second Circuit, and Andre Davis to the Fourth Circuit. Michael A. Fletcher, Obama Names Judge to Appeals Court, Wash. Post, Mar. 18, 2009, at A4; Jerry Markon, Obama Taps 2 for Key Appellate Courts, Wash. Post, Apr. 3, 2009, at A6. Each is currently a U.S. District Judge. 11. Mark Twain, Chapters from My Autobiography-XX, 186 N. Am. Rev. 465, 471 (1907) (quoting Benjamin Disraeli). 12. Timothy J. Penny, Facts Are Facts, Nat'l Rev. Online, Sept. 4, 2003, http://www.nationalreview.com/nrof_comment/ comment-penny090403.asp. 13. President Obama nominated David Hamilton to the Seventh Circuit on March 17, 2009. Fletcher, supra note 10. His hearing was on April 1, 2009. U.S. Senate Judiciary Comm., Official Hearing Notice (Apr. 1, 2009), http:// judiciary.senate.gov/hearings/hearing.cfm?id=3757. 14. This statistic, like those that follow, was compiled by Senator Hatch's staff from sources including the Congressional Record; Federal Judicial Center, Biographical Directory of Federal Judges, http://www.fjc.gov/public/ home.nsf/hisj; The Library of Congress, Legislative Information Service Databases, http://thomas.loc.gov/; and the records of the Senate Judiciary Committee and Senator Hatch's staff. The statistics are on file with Senator Hatch's staff. 15. See Orrin G. Hatch, Judicial Nomination Filibuster Cause and Cure, 2005 Utah L. Rev. 803, 819--23. 16. The Federalist No. 39, at 240 (James Madison) (Clinton Rossiter ed., 1961). 17. Markman, supra note 5, at 149. 18. See Hatch, supra note 15, at 82631. 19. The Federalist No. 78 (Alexander Hamilton). 20. Vanhorne's Lessee v. Dorrance, 2 U.S. 304, 308 (1795). 21. See Raoul Berger, Original Intention in Historical Perspective, 54 Geo. Wash. L. Rev. 296, 297--98 (1986) (citing S. Rep. No. 21, 42d Cong., 2d Sess. 2 (1872)). 22. Charles Evans Hughes, Speech before the Elmira Chamber of Commerce, May 3, 1907, in Addresses and Papers of Charles Evans Hughes 133, 139 (Robert H. Fuller & Gardner Richardson eds., 1908). 23. Stuart Taylor Jr., Imperial Judges Could Pick the President--Again, 36 Nat'l J. 2877, 2877 (2004). 24. West Coast Hotel Co. v. Parrish, 300 U.S. 379, 404 (1937) (Sutherland, J., dissenting). 25. Brown v. Allen, 344 U.S. 443, 535 (1953) (Jackson, J., concurring in the result). 26. 151 Cong. Rec. S10366 (daily ed. Sept. 22, 2005) (statement of Sen. Obama). 27. Posting of Mark Murray to First Read, http:// firstread.msnbc.msn.com/archive/2007/07/17/274143.aspx (July 17, 2007, 16:21 EDT) (report by Carrie Dann). 28. Steven G. Calabresi, Obama's ``Redistribution'' Constitution, Wall St. J., Oct. 28, 2008, at A17. 29. 109 Cong. Rec. S10641 (daily ed. Sept. 29, 2005) (statement of Sen. Stabenow). 30. Interview by Matt Lauer with Senator Edward Kennedy, available at http://www.tedkennedy.com/journal/165/senator- kennedy-nbctoday-show-interview. 31. Terry Eastland, The ''Good Judge'': Antonin Scalia's two decades on the Supreme Court, Wkly. Standard, Nov. 13, 2006. 32. Press Release, The Federalist Society, Key Findings from a National Survey of 800 Actual Voters (Nov. 5, 2008), available at http://www.fed-soc.org/publications/pubid.1183/ pub_detail.asp. 33. Andrew Jackson, Farewell Address, in 2 The Statesman's Manual: The Addresses and Messages of the Presidents of the United States 947, 957 (Edwin Williams ed., New York, Edward Walker 1846). 34. On file with Author. Exhibit 2 [From the National Journal, Aug. 4, 2009] (By Stuart Taylor Jr.) Did Precedent Make Sotomayor Rule Against Ricci? Judge Sonia Sotomayor has not defended her most widely criticized decision--the one rejecting a discrimination lawsuit by 17 white firefighters, and one Hispanic, against the city of New Haven, Conn.--as a just or fair result. That would have been an uphill battle: Polls in June showed that huge majorities of the public wanted the Supreme Court to reverse Sotomayor's decision. And as I've explained elsewhere, although the Supreme Court split 5-4 in ruling for the firefighters in Ricci v. DeStefano, all nine justices rejected the specific legal rule applied by Sotomayor's three judge panel. That rule would allow employers to deny promotions after the fact to those who did best on any measure of qualifications--no matter how job-related and racially neutral--on which blacks or Hispanics did badly. Instead of defending her panel's quota-friendly rule and its harsh impact on the high-scoring firefighters, Sotomayor and her supporters have argued that she essentially had no choice. The rule that her panel applied had been dictated, they say, by three precedents of her own court, the U.S. Court of Appeals for the 2nd Circuit. Some critics have expressed skepticism about this claim, but the media have shed little light on its plausibility. I seek to shed some below. Because some of this gets technical, I'll begin with critics' simplest rebuttal to Sotomayor's precedent-made-me- do-it claim: Even assuming for the sake of argument that the Sotomayor panel's decision was dictated by the three 2nd Circuit precedents, it is undisputed that the full 2nd Circuit could have modified or overruled them if Sotomayor had voted to rehear the case en banc, meaning with all active 2nd Circuit judges participating. Instead, Sotomayor cast a deciding vote in the 7-6 decision not to rehear the case, suggesting she was satisfied with the ruling. There is also ample reason to doubt that any of the three 2nd Circuit precedents actually required the Sotomayor panel to rule as it did, as some politicized professors have pretended. Sotomayor fleshed out her vague testimony about the issue in answers to senators' written questions. She quoted her 2nd Circuit colleague Barrington Parker's concurrence, which she and three other judges had joined, in the 7-6 vote not to rehear Ricci. Judge Parker wrote: There was controlling authority in our decisions--among them, Hayden v. County of Nassau [in 1999] and Bushey v. N.Y. State Civil Serv. Comm'n [in 1984]. These cases clearly establish for the circuit that a public employer, faced with a prima facie case of disparate-impact liability under Title VII, does not violate Title VII or the Equal Protection Clause by taking facially neutral, albeit race-conscious, actions to avoid such liability. To unpack the legal language: Title VII is the employment discrimination portion of the 1964 Civil Rights Act. Title VII disparate-impact lawsuits are typically brought by blacks or Hispanics who challenge as discriminatory employers' use of objective tests on which those minorities do poorly. New Haven's ostensible reason for denying promotions to the white and Hispanic firefighters who had done well on qualifying exams was fear of being hit with a disparate impact lawsuit by blacks who had done poorly. And any black plaintiffs would indeed have had a prima facie disparate-impact case, which is legalese for proof that blacks had done much worse on the tests than whites. But Judge Parker gave short shrift to the fact that even when plaintiffs have a prima facie case, an employer such as the city ``could be held liable for disparate-impact discrimination only if the examinations were not job related and consistent with business necessity, or if there existed an equally valid, less-discriminatory alternative,'' as the Supreme Court stressed in Ricci. In addition, Parker's reading of both Hayden and Bushey is conspicuously overbroad. Their facts (especially Hayden's) were quite different from those of Ricci. And Bushey has been undermined by subsequent Supreme Court precedents and legislation. That's why Judge Jose Cabranes, in the main dissent from the 2nd Circuit's 7-6 denial of rehearing en banc, began: ``This appeal raises important questions of first impression''--meaning questions not controlled by precedent-- ``in our circuit and, indeed, in the nation, regarding the application of the Fourteenth Amendment's Equal Protection Clause and Title VII's prohibition on discriminatory employment practices.'' The question at the core of the case, Cabranes said, was: ``May a municipal employer disregard the results of a qualifying examination, which was carefully constructed to ensure race neutrality, on the ground that the results of the examination yielded too many qualified applicants of one race and not enough of another?'' This and other questions raised by the case, Cabranes continued, were ``indisputably complex and far from well- settled'' and ``not addressed by any precedent of the Supreme Court or our Circuit,'' including Hayden and Bushey. Ricci differed from Hayden in three critical respects. First, as Cabranes explained, Hayden had approved Nassau County's ``race-conscious design of an employment examination,'' which was achieved mainly by eliminating tests of cognitive skills. Ricci, on the other hand, involved ``race-based treatment of examination results'' (emphasis added) to override local civil service laws under which promotions are virtually automatic for the firefighters with the best scores on job-related oral and written tests. Second, Hayden stressed that the white plaintiffs ``cannot establish that they were injured or disadvantaged'' by the Nassau County test's race-conscious design. The Ricci plaintiffs were very clearly injured: They were denied promotions that they had done everything possible to earn under New Haven's civil service laws, and thus were ``deprived of the pursuit of happiness on account of race,'' in the words of Washington Post columnist Richard Cohen. Third, Hayden upheld the Nassau County exam's black- friendly design in part ``to rectify prior discrimination'' by the county against blacks seeking police jobs. Ricci involved no claim of prior discrimination by New Haven against blacks. Bushey was a lawsuit by whites challenging New York State's race-norming of scores--by substantially raising each minority applicant's score--on a qualifying exam to become a correction captain. The 2nd Circuit's mixed ruling in the case was entitled to little or no weight as a precedent in Ricci for at least four reasons: While Bushey held that the state could use unspecified ``race-conscious remedies'' to avert a lawsuit by minorities who had done badly on a test, the 2nd Circuit ordered further proceedings to determine whether the race-norming remedy chosen by the state went too far, and violated Title VII by ``trammel[ing] the interests of nonminority candidates.'' In Ricci, the Sotomayor panel gave no weight at all to the interests of non-minority candidates. In a key provision of the 1991 Civil Rights Act, Congress banned the sort of race-norming that the state had used in Bushey. This provision stated broadly that employers may not ``adjust the scores of, use different cutoff scores for, or otherwise alter the results of employment-related tests on the basis of race.'' Indeed, by throwing out (``altering''?) the results of its test, New Haven arguably violated the 1991 provision, as well as others, in Ricci itself. Bushey noted that the white plaintiffs' initial claims that their constitutional rights had been violated ``are not before us,'' because on appeal they had relied solely on their Title VII claims. In Ricci, ``significant constitutional claims . . . of first impression [were] at the core of this case,'' as Cabranes wrote. The Sotomayor panel completely ignored them. The high-scoring firefighters' constitutional claims in Ricci were especially strong because landmark Supreme Court decisions in 1989 and 1995 had washed away the foundations of Bushey and another 2nd Circuit decision cited by Sotomayor defenders, Kirkland v. New York State Department of Correctional Services (1980). The 1989 and 1995 decisions held for the first time that (respectively) state and federal favoritism toward blacks is just as suspect under the Constitution as favoritism toward whites. ``Any preference based on racial or ethnic criteria must necessarily receive a most searching examination'' and be struck down unless ``narrowly tailored'' to serve a ``compelling'' governmental interest, according to the 1995 decision, Adarand Constructors v. Pena. The justices' constitutional rulings seem quite contrary to the 2nd Circuit's approach not only in Bushey but also in Ricci, in which--Cabranes suggested--Sotomayor and her allies ``took the city's justifications at face value,'' ignoring strong evidence that its decision to dump the test scores was driven by racial politics, not legal principle. The result, Cabranes said, was that ``municipal employers could reject the results of an employment examination whenever those results failed to yield a desired racial outcome--i.e. failed to satisfy a racial quota.'' Later, in the Supreme Court's June 29 majority opinion in Ricci, Justice Anthony Kennedy said it was unnecessary to address the firefighters' constitutional claims because their Title VII claims alone were sufficient to win the case. But Kennedy stressed that there were ``few, if any, precedents in the courts of appeals discussing the issue.'' The bottom line is that 2nd Circuit precedents did not make Sotomayor rule as she did. Supreme Court precedent favored the firefighters. Sotomayor's ruling was her own.

Mr. HATCH

Mr. HATCH. Mr. President, I wish to pay tribute to Mr. Brett Nilsson as he nears the completion of his service as the chairman of the Independent Insurance Agents & Brokers of America, IIABA. If I may, let me just start by saying I am proud to count Brett as both a constituent and a friend. Indeed, it goes without saying that for close to 20 years Brett has been a very busy man and is someone who has been dedicated to both our Nation and to Utah through the service he has provided. On the national level, Brett has served on IIABA's Communications and Finance Committees, the later of which, I might add, he chaired from 1999 to 2003. After his chairmanship of the association's Finance Committee, Brett was then elected to IIABA's Executive Committee in 2003 and then nominated as the association's chairman last September in 2008. In Utah, Brett spent a year serving as president of the Independent Insurance Agents of Utah from 1992 to 1993 and as the national board director from Utah for 9 years. All of this, of course, is in addition to his own personal career where he is the senior vice president for the Buckner Company in Ogden, UT. Founded in 1896, IIABA is the Nation's oldest association of independent insurance agents and brokers. At last count the association represents an astounding network of more than 300,000 agents, brokers, and their employees. Throughout his tenure as chairman of the association, Brett has been the lead on a number of issues including health insurance reform and insurance regulatory reform. Additionally, Brett has worked assiduously to build the Trusted Choice brand and advance the association's InVEST Program, which is a school-to-work insurance program that partners with community college and high school educators to offer a practical and innovative program of study for students. Above all, and perhaps most-importantly, Brett has been committed to his family, his business, and our community in Utah. He was a vice president of the Ogden Jaycees, he participated on several chamber of commerce committees, and he is a past president of the Ogden Golf and Country Club. He has served on a number of different insurance company agent advisory councils. He was awarded Utah's Agent of the Year, and Young Agent of the Year and, as if those recognitions were not enough, in 2001 he also received an IIABA Presidential Citation. All of this, however, has only served as icing on the cake when, in 2003, Brett received our State association's highest individual honor, the Burgener Award--a unique distinction awarded only five other times in the history of the association in Utah. Today, Mr. President, I join with many Utahns and people from across the Nation in thanking Brett for his work with IIABA over the years and for his dedication to his professional career, our community, and our State. His efforts are greatly appreciated and have not gone unrecognized. For that, I wish him, his beautiful wife Nancy, and their four children and eight grandchildren the very best in their future endeavors, adventures, and service to others. I am certain they are looking forward to having a little more free time with grandpa, and I know we are all looking forward to next chapter of Brett's career.

Mr. HATCH

Mr. HATCH. Mr. President, I rise today to express my alarm about the possibility that this Congress will raise tax rates on higher income Americans in order to partially finance the cost of health care reform. Even though some of our colleagues on the other side of the aisle may not currently see the serious damage to our economy and our society that such a proposal could create, I want to spend a few minutes explaining why such a course of action would be a grave mistake. We began hearing talk of raising taxes on the so-called wealthy last year during the presidential campaign. Then-candidate Obama made a number of promises regarding taxes. Perhaps most prominent among these were the following three pledges: He would cut taxes for small businesses and companies that create jobs in America; he would cut taxes for middle-class families, and no family making less than $250,000 per year will see their taxes increase; and families making more than $250,000 will pay either the same or lower tax rates than they paid in the 1990s. I have been around this town for a long time, and I have seen a lot of presidential candidates make lots of promises. It is easy to greet such pledges with a degree of skepticism. However, I have seldom, if ever, seen promises regarding tax cuts and tax increases made more prominently, more clearly, or more often than those made by the President when he was on the campaign trail last year. And yet, it was only a matter of a few weeks before the promise to keep tax rates below the 1990s level for higher income families was broken. In his budget outline for fiscal year 2010, which was released on February 26, 2009, the President included a proposal to partially pay for health care reform. This proposal would lower the value of itemized deductions for families with incomes over $250,000. When this proposal is combined with the President's promise to allow the 2001 tax cuts to expire for families making over $250,000, we are looking at effective tax rates well above those paid by higher income families in the 1990s. Thus, the President broke his pledge within weeks of Inauguration Day. While it is true that none of the health care reform proposals introduced so far in Congress includes the limitation on itemized deductions, this presidentially preferred offset proposal has been discussed in the Senate as a possible way to finance health care reform. More importantly, the health care reform package that has been reported by two House committees and is working its way through a third includes an offset that is even more blatantly in violation of the President's pledge. This is a surtax on the adjusted gross income of single taxpayers earning more than $280,000 and of families earning more than $350,000. This surtax starts at a rate of 1 percent at the lowest thresholds, but it is set at 5.4 percent for income in excess of $1 million. This new surtax has been projected by the Joint Committee on Taxation to raise $544 billion over 10 years. I know we are getting far too accustomed to seeing scores in the hundreds of billions of dollars, but let me say that number again: $544 billion. That is over half a trillion, with a T. For those who might be watching or listening at home, that is 544 followed by nine zeroes. Whether at the 1 percent level, at the 5.4 percent level, or somewhere in between, this surtax also starkly violates the President's pledge to not increase tax rates above their 1990s levels. In fact, when combined with the phase-out of itemized deductions, which the President has also proposed bringing back from the grave, this surtax could increase the top marginal income tax rate to more than 46 percent. When State taxes are added, the top rate in many States would likely exceed 50 percent. Some may say that this surtax is not the President's idea, and that it therefore should not be blamed on him. Well, it may have not been his idea, but I have not seen the White House repudiate it in any way. All indications from 1600 Pennsylvania Avenue are that the President supports this huge new tax increase. Do I bring this matter to the attention of my colleagues today merely because I am irritated to see the President violating one of his campaign promises? No. As I mentioned earlier, I have seen a lot of campaign promises made and a lot of campaign promises broken. Perhaps it is because I am worried about the estimated 12,900 Utah tax filers or the just over 2 million Americans who would be affected by this surtax. After all, some are saying, this is just over 1 percent of taxpayers, and after all, they are rich, and they can afford it, right? Well, yes, I am concerned about them. A tax on adjusted gross income is unfair, and it is discriminatory. If we wish to raise tax rates we should do it in a straightforward and transparent way. A tax based on gross income provides for few or no deductions, and it jolts our long- established differential between ordinary income and income from capital. It is a raw revenue grab justified on the socialistic idea that these people earn more than the rest of us so they should be forced to share it with those less fortunate than they are. But this also is not my primary reason for bringing up this matter today. I bring this to the attention of the Senate for two reasons. First, high tax rates on upper-income earners, particularly when combined with the ever-increasing progressiveness of our tax system, are destructive to the economy and to our society. Second, a good share of these higher income taxes will be paid by small businesses which will harm job creation. Today I want to talk about the problems of too much tax progressivity. In a subsequent floor speech, I will address the issue of how this tax will hurt small businesses and job creation. We often hear from those on the left that our tax system is not progressive enough. Essentially, proponents of a more progressive tax system believe that the Internal Revenue Code taxes lower income taxpayers too much and higher income taxpayers too lightly. In essence, they believe the so-called wealthy among us are not paying their fair share of taxes. However, the facts simply do not support this viewpoint. According to data released by the IRS for 2006, which is the latest year available, the highest-earning one percent of income earners received 22 percent of all the income in America. This sounds like a great deal of income concentrated into the hands of a few, and it is. One would think and hope that an equitable tax system would require this top one percent of income earners, who are earning 22 percent of all income, to pay at least 22 percent of all the income taxes. If they paid exactly this amount, ours would be considered a proportional tax system. If they paid less, we would call it a regressive tax system. If the top earners paid more than the proportion that they earned, the tax system would be considered progressive. I do not know anyone who truly believes that a completely regressive tax system is fair. No one should be asked to bear a higher portion of the tax burden than what he or she receives in income. However, I know that certain taxes are regressive, even if our overall system is not. In contrast, many Americans think the only fair tax system is a progressive one. The more you make, the more you ought to pay. I can understand this and I do not necessarily disagree with it, within reason. On the other hand, I believe that a strong case can be made that a proportional tax system is the fairest tax system. Many of my fellow Utahns agree with this idea. I have received thousands of letters over the years asking why we should not have a flat tax that requires citizens to pay a fixed proportion of their income in taxes. Conceptually, I think they are correct. Even though many Americans like a progressive tax system, I think they might be shocked to see just how progressive ours has become. I mentioned before that the top one percent of income earners received 22 percent of all income in 2006. However, this group paid 40 percent of all income taxes paid in America. Almost twice the proportion paid as earned. This is not just progressivity. This is progressivity on steroids. And it is harmful and unfair. And, we are not just looking at the top one percent to see this problem. The top 10 percent of income earners received 47 percent of all income, but they paid 71 percent of all tax. Again, this is way beyond what I believe fair-minded people would call a reasonable amount of progressivity. However, this is not the worst of it. In fact, this is only half of what I will call the equitable taxation equation. This is because so far, we have only talked about the half of the equation that raises money from taxpayers. What about the other half of the equation, where the money is spent? In a 2007 study, economists at the Tax Foundation looked at both the tax side of the equation and the spending side. Their findings are very interesting. Using total Federal taxes rather than just income taxes, the study found that the top 20 percent of income earning households paid on average $57,512 in Federal taxes. However, the average Federal Government spending received by these households was just $18,573. The lowest 20 percent of income-earning households, on the other hand, paid an average of just $1,684 in Federal taxes, but received an a amazing $24,860 average per household in Federal Government spending. Another way of saying this is that the top earning 20 percent of households received 32 cents in Federal Government spending for every dollar in Federal taxes paid, while the lowest earning 20 percent of households received $14.76 in Federal Government spending for every dollar they paid in Federal taxes. Plain an simple, this means the top-earning fifth of Americans get back only a third of what they pay in taxes while the bottom-earning fifth are receiving a bounty of nearly 15 times what they pay. This is redistributionism gone wild. And this study takes into account all Federal taxes, not just income taxes. If the study included only the Federal income tax, the amounts would be skewed even farther because the income tax is much more progressive than are other Federal taxes. Moreover, this study used tax-and-spending numbers from 2004. Our tax system has become more progressive since then. It is very apparent to me that our tax system is very progressive already. And when it is viewed in this larger context, along with the Federal spending, it is nothing short of ultra progressive. So the question I have for my friends and colleagues on the other side of the aisle is this: just how progressive is progressive enough? I realize that some will not be satisfied until we reach a total redistribution where there is no more rich or poor among us. And while that idea might sound really fine, it would create total havoc to our government and our society, and I think we all know it. How far can we take this idea of progressivity before the system collapses of its own weight? Our tax system, and indeed our entire system of government, depends on the voluntary cooperation of its citizens. An underlying if unstated foundation of the American government is the idea that the great majority of us will work hard, take care of our families, willingly if grudgingly pay our taxes, cooperate with the law, and do our best to make it all work. What happens to our society if those who are in the top 25 percent, who are now paying 86 percent of the general cost of government, see that their burden is about to grow ever bigger, and that they soon may be part of only 10 or 15 percent who are carrying all the rest of us? Where does incentive go as we approach this situation? Is there a tipping point where hard-working and successful Americans will say: Enough is enough. I am no longer willing to be a chump and carry the load for everyone else. Why don't I also stop pulling and get in the wagon and get the free ride? We have already seen a strong movement toward removing more and more lower-earning Americans from the income tax rolls. The Making Work Pay credit and other refundable tax credits give cash back where no taxes have been paid. They serve as a negative income tax. According to the Tax Policy Center, for calendar year 2009, the number of Americans who are not subject to the Federal income tax exceeds 43 percent. This number will likely grow significantly as a result of the enactment of the Making Work Pay credit earlier this year. If the President and his followers in the Congress have their way, there will be millions more who will be allowed to stop pulling and get on the wagon to be carried by the few who work. This means that the number of American households that contribute nothing to our general cost of government, to our defense, and to the thousands of programs that are funded by the income tax is approaching 50 percent. Asking fewer and fewer to carry more and more of the load is dangerous in a free society. We are approaching that point where the majority can simply vote for higher taxes to fund higher spending with no personal cost to them. When that happens, our representative Republic is in grave danger. There are lots of good economic reasons why we have to be careful about raising taxes too high on those who are bearing the burden of the cost of government. I will talk about those at another time. The one I am talking about today is a simple one, but it is the scariest to me. The simple fact is that there is a limit on how much we can ask successful people to contribute to the cost of general government, just as there is a limit to how few people will be willing to pull a wagon that gets heavier each time we let someone leave the ropes and climb on board for the free ride. Ideally, we should all have to carry our own weight. While this may not be possible or practical, we surely cannot expect a willing but diminishing minority to continue to pull a heavier and heavier wagon up a steeper and steeper hill without a breakdown. I urge my colleagues to think carefully before going along with an idea that loads more of a tax burden on the few who seem to be able to afford it. If we go too far down this path, we are all going to end up in a ditch. Madam President, I suggest the absence of a quorum.

Mr. HATCH

Mr. HATCH. Madam President, during his July 16 address, the Secretary of Defense, Robert Gates, said the military needed maximum versatility to bring to bear in a wide range of armed conflicts. Last January, he argued that ``our military must be prepared for a full spectrum of operations, including the [insurgent] type of combat we are facing in Iraq and Afghanistan as well as large-scale threats that we face from places like North Korea and Iran.'' I could not agree more with Secretary Gates. However, just as our Nation unwisely disregarded the hard-learned lessons of how to fight counterinsurgency operations after Vietnam, the Defense Department seems poised to make similar errors by limiting our capability to defeat the air threat of today and tomorrow: the integrated air defense system. This advanced system is composed of extended-range Russian surface- to-air missiles such as the S-300 and advanced fighters such as the Su- 30, which have already been sold in large numbers to China and India. Together, these systems make penetrating hostile airspace extremely difficult, if not deadly, for aircraft lacking the F-22's advanced stealth technology and capability for sustained supersonic speeds. It is these capabilities that enable the Raptor to have the unique capability to conduct stealth operations at any time of day or night. Secretary Gates argues for ceasing production of the F-22 after only 187 are built because we will not face what the Pentagon refers to as a ``near-peer adversary'' for the foreseeable future. For the sake of our Nation, I hope he is right. However, I believe this statement misses a critical point: advanced integrated air defense systems are comparably inexpensive and readily affordable by nations such as Iran, with its insistence on developing nuclear weapons. History provides ample examples of the effective use of integrated air defense systems by nations that lack the resources to be considered a near-peer adversary of the U.S. As retired LTG Michael Dunn recently noted, North Vietnam defended its territory during the Vietnam war with what, at the time, was an advanced air defense system. This system, comprised of surface-to-air missiles and fewer than 200 fighters, was able to shoot down 2,448 American aircraft. The 1973 War between Israel and Egypt is another example. The Egyptians learning from their recent defeats built an integrated air defense umbrella under which its forces were able to initially make significant territorial gains, while the Israeli Air Force faced serious losses. Only when the Egyptians advanced beyond the range of their surface-to-air missiles' umbrella was the Israeli Air Force able to inflict a significant blow. A more contemporary example is the loss in the 1990s of an F-117 Nighthawk to the Serbians, who were not equipped with the latest air defense system. Despite such examples, some argue additional F-22s are not necessary since stealthy jet-powered unmanned aerial vehicles or UAVs, which are still under development, will play an increasingly vital role in destroying critical ground targets. This is true for threats on the ground, but I am unaware of any plans to operationally deploy a UAV that can dogfight existing or next-generation Russian and Chinese jet fighters, which will be hunting these UAVs. Our forces could be confronted with the next generation Russian and Chinese fighters soon. There have been numerous media reports the Russian Government is developing a new stealthy aircraft, presumably to counter the F-22. This aircraft called PAK-FA, is being developed jointly with the Indian Government. Additional media sources cite China's development of a similar twin engine, stealth aircraft known as the J-12. Some argue that the F-35 Joint Strike Fighter can tackle those threats and defeat this new generation of advanced aircraft. While the F-35 is a very capable stealth aircraft, it was designed to complement the F-22, not replace it. The fact is the F-35 is neither as capable a fighter nor as stealthy as the F-22. For example, the F-35 does not have, nor can be upgraded to use, the supercruise engines increasingly needed in today's stealth operations. Remember the F-22 is the NASCAR racer of this air-dominance team. Fast and unseen, the Raptor will punch a hole in an enemy's defenses, quickly dispatching any challenger in the air and striking at the most important ground targets. The Joint Strike Fighter is the rugged SUV of the team. Impressive, but not as maneuverable or capable of sustained supersonic speeds, the F-35 will exploit the hole opened by the F-22 and attack additional targets and directly support our ground forces. This is not to say the F-35 is not a highly capable stealthy aircraft. But the F-35's role is to supplement the F-22, not substitute for it. Only by utilizing the strengths of both aircraft do we ensure air dominance for the next 40 years. Furthermore, if the F-22 is such a boondoggle, why do our allies such as Japan and Australia want to spend billions to purchase the aircraft? Why does Australia, for instance, plan to purchase up to 100 F-35s and large numbers of UAVs, and yet remains interested in the F-22? Perhaps it is because Australia understands the Russians and the Chinese are developing even more sophisticated surface-to-air missile systems and stealth fighters, threats the F-22 is uniquely designed and equipped to destroy. Others point out the F-22 has not been deployed in support of our operations in Iraq and Afghanistan. This is true. However, there were recent plans to deploy the F-22 to the Persian Gulf. But according to the July 9, 2008, edition of the widely respected Defense News, the Pentagon overruled those plans, citing concerns about ``strategic dislocation.'' This means the F-22 is hardly a dinosaur. It is a weapon that can change the balance of power in a region and deter our adversaries. In conclusion, I am reminded of a point author Michael Korda made in his book about the Battle of Britain. He observed that even though the two British prime ministers before Winston Churchill pursued a policy of appeasement, they also committed their government to develop and procure the three pieces of equipment: the Spitfire fighter, Hurricane fighter and radar, which were to ensure that nation's survival during the Battle of Britain. I hope the Senate will profit from these lessons of history and vote against the McCain-Levin amendment. I yield the floor and reserve the remainder of my time.

Mr. HATCH

Mr. HATCH. Mr. President, I rise to express my concerns about the administration's failure to make the deadline of issuing a report on the Guantanamo detainee policy. Today's deadline, similar to the January 2010 closure deadline, was self-imposed. It concerns me that the administration maintains that closure will occur even though the execution of this process has been less than stellar. In January, on his very first full day in office, President Obama signed the order to close the Guantanamo Bay detention facility in 12 months. The President created separate task forces to examine closure and detainee issues. These task forces were developed and staffed by the Obama administration to achieve successful closure in 1 year. The product of this review is to include a report on a broader detainee policy. Today marks the first deadline in this process. It was set to be the date of release and publication of the task force report on a broader detainee policy going forward. The administration's failure to meet the deadline appears to me to be the ``canary in the coal mine'' that a January closure of Guantanamo without a detailed plan is an exercise in futility. Yet the White House downplays the missed deadline and publicly states that the January closure is still on track. Is it? Despite not having a plan and missing a deadline for a key integral part of the closure process, the administration claims it can still meet the overall deadline of closure by January 1. I find that notion suspect at best and completely absurd at worst. In May, a Gallup Poll indicated that 65 percent--65 percent--of Americans oppose the closure of the Guantanamo Bay detention facility. Even so, the administration intends to follow its timeline and close Guantanamo by January 2010. The task force examining the cases of the remaining 229 detainees has only reviewed half the necessary caseload thus far. The Justice Department hopes to complete its review by an October reporting deadline, but that benchmark is quickly slipping away too. This review process has taken twice the amount of time the administration thought it would take. Yet keeping Guantanamo open beyond January is inexplicably still not an option in the administration's view. Recently, media reports are circulating that the administration's Guantanamo closure plan has been fraught with political miscalculation and internal dissension. Moreover, the complex nature of this issue will undoubtedly force the transfer of detainees inside the United States. Since the announcement of the President's intention to close Guantanamo, I have joined other Senators in pointing out the lack of planning and clear miscalculation of this decision. That pool has grown and a groundswell of bipartisan support is signaling the White House to ``pump the brakes.'' In May, the Senate voted 90 to 6 to strip out funding in the fiscal year 2010 war spending request that would authorize $80 million for the transfer of detainees to the interior of the United States of America. Now that the failure to meet this deadline has been reported by outlets such as the Wall Street Journal, Washington Post, and New York Times, the administration still does not get it. Senior administration officials are letting hubris get in the way. This is neither the proper manner nor the time to close Guantanamo. There should have been more study of this issue prior to setting us on a course for closure. It is easy to say that Guantanamo can be closed when you are a candidate for President. It is even easier to sign an order on your very first full day in office as President that says in 12 months Guantanamo will close. What is hard is taking a deliberative, methodical approach and then formulating the proper plan to balance the safety of this country with the needs of lawful detention. Had the administration conducted a careful and thorough review of this issue, the conclusion would have been that Guantanamo fulfills both requirements. Instead, the administration has painted itself into a corner. Clearly, the administration miscalculated and underestimated the depth and breadth of this issue. From the onset, the administration has tried to reverse-engineer the process for closing Guantanamo--starting from the end and working backward. If changes are not made immediately, administration officials will force this issue on American cities and towns in just 185 days. They will limp across the finish line. We have 185 days until Guantanamo is closed. The days until the plan is released ARE a big question mark. They are going to limp across the finish line on January 22, 2010, and herald their accomplishments a victory despite its ill-conceived planning and three stooges-like manner of execution. Guantanamo is still an asset to this country. It complies with international treaties and exceeds the standards of domestic corrections facilities. I don't see how anyone who is honest about this matter can characterize it in any other way, especially when there is not a sufficient replacement located domestically to meet the Justice Department's needs. It is my fervent hope that the President and Attorney General will reconsider their ill-considered plan to close Guantanamo and recognize the obvious, that a $200 million facility that is already operational and in compliance with international treaties should not be shuttered. This is an important issue. I don't think the American people are going to stand to have these very dangerous people brought on shore to our country when we have a $200 million facility that meets international treaty obligations sitting there doing the job. I think the administration needs to get this work done and needs to get it done the right way. With that, Mr. President, I yield the floor.

Mr. HATCH

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