Jon Kyl

Mr. KYL

Mr. KYL. The following Senator is necessarily absent: the Senator from Missouri (Mr. Bond).

Mr. KYL. The following Senators are necessarily absent: the Senator from Missouri (Mr. Bond), the Senator from Florida (Mr. Martinez), and the Senator from Oklahoma (Mr. Inhofe).

Mr. KYL. The following Senators are necessarily absent: the Senator from Missouri (Mr. Bond), the Senator from Oklahoma (Mr. Inhofe), and the Senator from Florida (Mr. Martinez).

Mr. KYL. The following Senators are necessarily absent: the Senator from Missouri (Mr. Bond), the Senator from Oklahoma (Mr. Inhofe), and the Senator from Florida (Mr. Martinez).

Mr. KYL. The following Seantors are necessarily absent: the Senator from Missouri (Mr. Bond), the Senator from Oklahoma (Mr. Inhofe), and the Senator from Florida (Mr. Martinez).

Mr. KYL. The following Senators are necessarily absent: the Senator from Missouri (Mr. Bond), the Senator from Oklahoma (Mr. Inhofe), and the Senator from Florida (Mr. Martinez).

Mr. KYL

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 President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. KYL. Mr. President, I believe there is an amendment pending. If I am correct in that, I ask unanimous consent to lay that aside for the purpose of getting an amendment pending.

Mr. KYL. Mr. President, I send to the desk an amendment with an original cosponsor, Senator McCain.

Mr. KYL. Mr. President, since this amendment deals with an earmark in the State of Montana, I will make my comments with respect to it at a time when Senator Tester can be here. I know he wants to oppose the amendment. We can debate that at a time that is mutually convenient for the two of us. I yield the floor.

Mr. KYL. Mr. President, taking the chairman up on her offer, let me speak on an amendment I got pending earlier today. It is amendment No. 1432. This is an amendment to strike an earmark in the bill. It is a $900,000 earmark for the city of Whitefish emergency operations center in Montana. That is all the amendment does. The amendment does the same thing the administration did in that it terminates a program that the Obama administration terminated in its budget. It is one of several projects that was terminated in the budget submission. I do not strike the program because I agree or disagree with it. I think you could make an argument that it is a reasonable thing to do. I suspect my colleague from Montana will make that argument. That is not the point. As the administration pointed out, the point is there is a way to do these projects and then there is a way not to do them. The way not to do them is through earmarks. The Whitefish emergency operations center has not been subject to a congressional hearing, nor has it been authorized by Congress. Moreover, not only did the administration not request funding for the project, they specifically zeroed out the funding. On the floor the day before yesterday--or maybe it was yesterday; I have forgotten now--my colleague Senator McCain described several projects, including this project, and noted why it and other earmarks in the bill should not proceed. He said: The earmarks are in the bill for one reason and one reason only, because of the selective prerogatives of a few Members of the Senate. Sadly, these Members chose to serve their own interests over those of the American taxpayers. His point also was not that the project is either good or bad, but as the administration noted, there is a way to do it and a way not to do it that is fair to all of the States and to all of the Members, and that way is to have those subject to authorization and then appropriated. Senator Feingold also on the floor yesterday noted: While we all may not agree on the appropriateness of earmarking in general, I certainly hope we can agree that certain things should not be earmarked, including FEMA grant programs such as those that protect Americans from terrorist attack. I think he is absolutely right, which is why I voted for his amendment earlier this afternoon. These are important projects. These are FEMA projects to protect the American people. Why should they be subject to the earmarking process rather than regular order? Again, that is exactly what the administration had earlier concluded. I think it is wrong when we are funding projects with very scarce Federal dollars in the name of homeland security and the decision on what to fund is based on the influence of a Senator or a House Member rather than the security risk to Americans. Especially at a time when unemployment has reached nearly 10 percent and many Americans are obviously hurting a great deal, is it appropriate for Congress to make funding decisions in this manner? Is this the message we want to be sending to our constituents: If you have political power, you can get money earmarked. If you do not, then your community is going to suffer. We are already spending $44.3 billion on this bill. That is $96 million above the President's request and 7 percent above last year's level. Those amounts are significant. And that increase does not include nearly $2.8 billion in stimulus funding. Current budget projections indicate that we will add, on average, nearly $1 trillion a year to the public debt level from the $7 trillion to date, to $17 trillion in 2019. We have all heard the statistic before that the President's budget doubles the debt in 5 years, triples it in 10 years. The President's administration said there are some things we should not fund in the way they are funded in this bill. All I am doing is agreeing with the administration not to add more debt on top of what has already been accumulated. The path forward is not sustainable. I think the head of the OMB has made that point. So I think we need to start making tough decisions around here and we need to respect the congressional budget process. It seems to me the easiest way to make a tough budget decision is when, on a matter of process, we can all agree it is not the right way to proceed. That is why I think this particular project, though the amount of money is relatively small, is still a good candidate to show we can make those tough decisions as a way of demonstrating to the American public that at least we are willing to start somewhere. Finally, I will reiterate, I am not here to argue the merits of this project. I am sure my colleague from Montana will describe its merits in glowing terms. To me, that is not the point. The point is that the administration has said this emergency operations grant program should be terminated, it should not exist, we should not spend money on it because this is the wrong way to spend money. In the document entitled ``Terminations, Reductions and Savings,'' in that volume of the President's fiscal year 2010 budget, the administration states: The Administration is proposing to eliminate the Emergency Operations Center (EOC) Grant Program in the 2010 Budget because the program's award allocations are not based on a risk assessment. Also, other Department of Homeland Security grant programs can provide funding for the same purpose more effectively. I think that rationale demonstrates why we need to support my amendment to eliminate this part. This is only one part of that grant program. But it is a part that I think would at least illustrate to the American people that we want to begin the process and spend this money in the right way. I ask unanimous consent that the part of the budget designated ``Termination: Emergency Operations Center Grant Program,'' which describes what the administration has said, be printed at the conclusion of my remarks.

Mr. KYL. I understand that a little bit later we will be able to reach an agreement on voting on several of the amendments. This amendment presumably will be voted on sometime tomorrow. I would hope the proponents and opponents would have a minute each prior to the vote to reiterate their arguments and would hope my colleagues would support amendment No. 1432. Exhibit 1 Termination: Emergency Operations Center Grant Program Department of Homeland Security The Administration is proposing to eliminate the Emergency Operations Center (EOC) Grant Program in the 2010 Budget because the program's award allocations are not based on risk assessment. Also, other Department of Homeland Security grant programs can provide funding for the same purpose more effectively.

Mr. KYL

Mr. KYL. Mr. President, a July 7, 2009, Wall Street Journal editorial ``Of NICE and Men'' describes the denial and delay of health care in Britain as a result of decisions by the British government's health care cost-containment board, the National Institute for Health and Clinical Excellence, NICE. The article quotes the Guardian, which in 1998 reported, ``Health ministers are setting up [NICE], designed to ensure that every treatment, operation, or medicine used is the proven best. It will root out under-performing doctors and useless treatments, spreading best practices everywhere.'' Yet NICE routinely denies patients the very treatments and medications they need. For example, according to the editorial, ``NICE ruled against the use of two drugs, Lapatinib and Sutent, that prolong the life of those with certain forms of breast and stomach cancer.'' Explaining the ruling against the use of a drug that would help terminally ill kidney-cancer patients, Peter Littlejohns, NICE's clinical public health director, said there is ``a limited pot of money.'' The editorial provides numerous other examples of drugs and treatments that are either denied or restricted in order to reduce costs. And it explains how NICE has even assigned a mathematical formula for determining the maximum amount the government will spend to extend a life for 6 months. President Obama has praised countries that spend less than the U.S. on health care, while saying we can spend less here too, even while adding tens of millions to a government-run health care program and improving the quality of care. This editorial clearly and concisely outlines why this cannot be achieved and why, if President Obama's health care plan passes, the administration's new Council for Comparative Effectiveness Research could eventually gain the same authority to deny or delay treatments and care as Britain's NICE. I ask unanimous consent that this article be printed in the Record, and urge my colleagues to consider the facts and arguments contained in this editorial.

Mr. KYL

Mr. KYL. Mr. President, I wish to compliment my colleague from Florida for a very thorough explanation of what has been, to many Americans, a very confusing situation and also his support for the most recent call for a mediation and discussion among the various parties so that this whole matter can be brought to a successful conclusion without armed force or other inappropriate action. I, too, hope that can produce the right kind of result. But I think the point--if I could, while the Senator is still here, make this point strongly, as he did--you have to stand up for what is right. And we all know an election does not a democracy make. You can elect a government which then begins to govern undemocratically. Unfortunately, some of the governments in the southern part of our hemisphere have started all right with the elections and then ended in a very bad way. We certainly did not want that to happen to our friends in Honduras. And, in fact, the people of Honduras did not want that either. They are people who stood by us when we were trying to support the forces of freedom who were fighting in Nicaragua, and there were some sacrifices on the part of the Hondurans to do that. It is a country that has had very friendly relations with the United States over the years, and it is important for us to stand up for our friends. For that, I compliment my colleague from Florida, and I again add my voice to his saying we hope these discussions the Secretary of State has now called for can produce an appropriate resolution to this issue without any kind of bloodshed.

Mr. KYL. Mr. President, that is precisely the way I see it as well. I hope that helps to clarify for the American people what is really going on there and that we can support our friends in Honduras and that relationship which has existed all these years can continue to be the productive one it has been.

Mr. KYL

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

Mr. KYL

Mr. KYL. Mr. President, we have heard some debate recently centered on whether it is appropriate for judges to consider foreign law and public attitudes when interpreting our U.S. Constitution and laws. In our constitutional system, the American people, through their elected representatives, make the laws by which we are governed. As James Madison said in Federalist 49: The people are the only legitimate fountain of power, and it is from them that the Constitutional charter, under which the several branches of government hold their power, is derived. Judges have the responsibility to faithfully interpret the Constitution and the laws that have been adopted through our democratic processes. Again, judges do not make the law, they interpret it. Within our constitutional structure, the growing idea of using foreign law to interpret our own laws and Constitution is troubling and problematic for two main reasons: First, as Chief Justice John Roberts pointed out during his confirmation hearings, the consideration of foreign law by American judges is contrary to the principles of democracy. Foreign judges and legislators are not accountable to the American electorate. Using foreign law, even as a thumb on the scale, to help decide key constitutional issues devalues Americans' expressions through the democratic process. An analogy would be to allow noncitizens to vote in our elections, thus devaluing the votes of every American. Second, even if the use of foreign law were not inconsistent with our constitutional system, its use would free judges to enact their personal preferences under the cloak of legitimacy. If an American judge wants to find a foreign judicial decision or legislative enactment consistent with his or her preferred outcome in a case, he or she could find it in the laws of at least 1 of the 192 United Nations member states. That would be judicial activism compounded by the error of using inappropriate precedent. As we soon begin the consideration of Judge Sonya Sotomayor's nomination to the Nation's highest Court, both the American people and the Senate deserve to know where she stands on the issue of the use of foreign law to interpret the U.S. Constitution. Although we do have some materials that suggest her views, we are still waiting on a number of important documents that will help us better understand her views. For example, in response to the Senate Judiciary Committee's questionnaire, Judge Sotomayor identified 200 public speeches or remarks she has given. Of those, we have not received a draft, video, or a sufficient topic description for more than 100 of them. These include four occasions in which she publicly spoke on the issue of foreign law. On one of these occasions, Judge Sotomayor apparently participated in a panel discussion with foreign judges at St. John's Law School in November of 2006. According to her Judiciary Committee questionnaire, she said she ``spoke on the permissible uses of international law by American courts.'' And in October 2008, Judge Sotomayor participated in a roundtable discussion at New York University's law school on the ``Dynamic Relations Between International and National Tribunals.'' With hearings scheduled to begin in a couple of weeks, getting this information is critical to our understanding of her judicial philosophy. The most notable of the materials we do have is a 22-minute speech Judge Sotomayor gave to the ACLU of Puerto Rico on April 28, 2009, entitled ``How Federal Judges Look to International and Foreign Law Under Article VI of the U.S. Constitution.'' From that speech, we begin to see how foreign law could shape Judge Sotomayor's jurisprudence in the future. Her views were not casual observations but directed to this specific topic. In this speech, she says: [I]nternational law and foreign law will be very important in the discussion of how we think about the unsettled issues in our own legal system. It is my hope that judges everywhere will continue to do so because . . . within the American legal system we're commanded to interpret our law in the best way we can, and that means looking to what other, anyone, has said to see if it has persuasive value. What on Earth does this have to do with judging, asking what ``anyone has said to see if it has persuasive value''? How about using the traditional rules of judicial construction, precedents, and our judicial tests based on our common law heritage. Judge Sotomayor also reveals that she believes foreign law is a source for ``good ideas'' that can ``set our creative juices flowing.'' Deciding an antitrust case or a commerce clause dispute or an Indian law issue or an establishment of religion case does not require ``creative juices.'' Indeed, it could interfere with specific rules of construction or application of precedent. But Judge Sotomayor says that not considering foreign law would be ``asking American judges to close their minds to good ideas.'' What is ``closedminded,'' I would ask, about requiring that American judges interpret our laws and our Constitution? That is what they take their oath of office to do. Let's also remember that Judge Sotomayor has previously stated that appellate courts are ``where policy is made.'' When you combine the notion that judges may usurp the legislative power of policymaking with the view that foreign law is an incubator of creative ideas for a judge to employ as he or she sees fit, you open the door to the worst form of judicial activism, one completely untethered from American legal principles. Judges do not have the responsibility of finding new good ideas that would make good policy. That is the role for our elected representatives. The ideas expressed by Judge Sotomayor threaten to undermine a system that has served us well for over two centuries. Judge Sotomayor went on in the same ACLU speech to criticize two sitting justices and align her views with those of Justice Ginsburg, who recently endorsed the use of foreign law at a symposium at the Moritz College of Law at Ohio State University. Specifically, Judge Sotomayor stated that ``[t]he nature of the criticism comes from . . . a misunderstanding of the American use of that concept of using foreign law and that misunderstanding is unfortunately endorsed by some of our own Supreme Court justices. Both Justice Scalia and Justice Thomas have written extensively criticizing the use of foreign and international law in Supreme Court decisions. . . .'' She continues: ``I share more the ideas of Justice Ginsburg in thinking . . . that unless American courts are more open to discussing the ideas raised by foreign cases, and by international cases, that we are going to lose influence in the world. Justice Ginsburg has explained very recently . . . that foreign opinions . . . can add to the story of knowledge relevant to the solution of a question, and she's right.'' Judge Sotomayor's rationale for judges looking to foreign law--so that the United States does not ``lose influence in the world''--is absolutely irrelevant to the role of judges in America. It is the province of the President and the legislative bodies--not activist judges--to make policy and manage foreign affairs. In defending the Supreme Court's use of foreign law, Judge Sotomayor made an astonishing argument: Courts, she said, ``were just using that law to help us understand what the concepts meant to other countries, and to help us understand whether our understanding of our own constitutional rights fell into the mainstream of human thinking.'' But the words of our Constitution were not intended to reflect the ``mainstream of human thinking.'' Think about mainstream public opinion in Europe, Asia, Africa, and South America at the end of the 18th century. Even today, it is doubtful the United States would be satisfied being governed by the thinking of most of the governments in the world, such as China, much of the Muslim world, and the dozens of kleptocracies around the world. As I noted in my remarks that related my concerns about Harold Koh's views on foreign law, if the Founding Fathers had been given to transnationalism, America would not be the leading light of freedom in the world that it is today. Nor would it be a leader in convincing other nations to protect free speech, assembly and other political freedoms, such as are being asserted in Iran right now. Do we really want judges to look to the laws of foreign countries when deciding our most treasured, constitutional provisions, such as, for instance, the Second Amendment? I do not, and the American people share my view. Judicial activism is not a popular concept. While I do not intend to judge her qualifications to decide cases on the U.S. Supreme Court based on this one speech, I believe it is fair to ask what else she has said on the subject. There are apparently other speeches that we do not have. The nominee should either find these speeches or ask whather there are other records--for example, transcripts, tape or video recordings, press accounts, and so on--that would indicate whether her April 28 speech is indicative of her approach to judging. As we begin to consider the nomination of Judge Sotomayor, we will need this information to properly evaluate her qualifications, especially as it relates to her view that using foreign or international law is an appropriate way for U.S. Supreme Court Justices to interpret the U.S. Constitution.

Mr. KYL

Mr. KYL. The following Senators are necessarily absent: the Senator from Kansas (Mr. Brownback), the Senator from Georgia (Mr. Isakson), and the Senator from Mississippi (Mr. Wicker).

Mr. KYL. The following Senators are necessarily absent: the Senator from Kansas (Mr. Brownback) and the Senator from Georgia (Mr. Isakson).

Mr. KYL. The following Senators are necessariy absent: the Senator from Kansas (Mr. Brownback) and the Senator from Georgia (Mr. Isakson).

Mr. KYL

Mr. KYL. Madam President, today the Senate confirmed Harold Koh to the position of Legal Adviser to the State Department by a vote of 62 to 35. I voted against his confirmation for reasons I explained on the floor yesterday. Chiefly, I am concerned about his support for a transnational legal process. The National Review recently published an article that explores the inherent conflict between transnational legal structures built on ``global norms'' and the constitutionally defined role of the American judiciary. I ask unanimous consent that it be printed in the Record.

Mr. KYL

Mr. KYL. The following Senator is necessarily absent: the Senator from Oklahoma (Mr. Inhofe).

Mr. KYL

Mr. KYL. The following Senator is necessarily absent: the Senator from Mississippi (Mr. Cochran).

Mr. KYL

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

Mr. KYL. Mr. President, the nomination of Harold Koh concerns me for a number of reasons. Primarily, his view that international law should guide U.S. law and his criticism of our first amendment right to freedom of speech and his opposition to the Solomon amendment, which conditions Federal funding to educational institutions on allowing military recruiting on campus. The State Department Legal Adviser helps formulate and implement U.S. foreign policy, advises the Justice Department on cases with international implications, influences U.S. positions on issues considered by international bodies, and represents the United States at treaty negotiations and international conferences. In short, this position requires the utmost deference to the Constitution of the United States. Mr. Koh is a proponent of transnationalism, the belief that Americans should use foreign law and the views of international organizations to interpret our Constitution and to determine our policies. Mr. Koh has gone so far as to refer to the United States as part of an ``axis of disobedience'' in reference to America's alleged violations of international law. During his 2003 speech at the University of California at Berkeley, Mr. Koh said: When I came to government, the first conclusion I reached was that the rule of law should be on the U.S. side. That's a system of law-- He is speaking now of international law-- that we helped to create. So that's why we support various systems of international adjudication. That's why we support the UN system. We need these institutions, even if they cut our own sovereignty a little bit. Mr. Koh's views on the first amendment again portray a desire to make American law subservient to international law. In his Stanford Law Review article--the title of which was ``On American Exceptionalism''-- Koh stated that our first amendment gives ``protections for speech and religion . . . far greater emphasis and judicial protection in America than in Europe or Asia,'' and he opined that America's ``exceptional free speech tradition can cause problems abroad.'' Furthermore, he stated that the way for the ``Supreme Court [to] moderate these conflicts'' is ``by applying more consistently the transnationalist approach to judicial interpretation.'' This is breathtaking. Is it even consistent with an oath to protect and defend the Constitution? Should we now begin to dismantle a founding principle of our democracy in order to appease the so-called international community, as Mr. Koh advocates? If the Founding Fathers had followed this advice, this country would not be the leading example of freedom in the world it is today and a leader in getting others to protect free speech and assembly and other freedoms--such as are being asserted in Iran today. Conforming our views to the norm, which Mr. Koh acknowledges provides less protection than our Constitution would, therefore, would adversely affect the very international community which Mr. Koh seeks to emulate. Let me put it another way. People in Iran today are taking to the streets to try to exercise some degree of free speech and assembly and petition their government. Mr. Koh acknowledges that in our Constitution we provide much more protection for those rights than anywhere else, or, I think as he put it, than the mainstream of international law provides. That is true. I think that is something we should not only adhere to for our own benefit but for the benefit that it provides to others around the world as an example of what they should seek to achieve and because of the moral status it gives the United States to be able to say to the leaders of a country such as Iran: You need to provide free speech and assembly and the right to petition their government, and the fact that you are not doing it is wrong because if we believe we are all created equal, by our Creator, that means we have moral equality as individuals. Everybody in Iran, we believe, would have the same right as anyone else to exercise these God-given rights. And if that is true, it makes no sense to diminish those rights as they have been interpreted by our courts in the United States, interpreting our U.S. Constitution, in order for us to conform to an international norm. Rather, it makes sense for us to continue to adhere to those high standards and to try to bring other countries along with us. In fact, I would postulate that because of our high standard of rights and the example that our Constitution provides, many countries of the world have actually advanced the cause of free speech and assembly and petitioning their government more than they otherwise would have because they have the example of the United States to look at. If I think of countries, the revolutions, the Orange Revolution, and the changes in governments in places such as Poland, back when it broke from the Soviet Union, and Ukraine and Georgia and all of the other places in the world where people finally broke free from the shackles of a government that would not permit free speech, what were they seeking to do? To exercise free speech in order to petition their government for individual freedom. So the United States should jealously guard those rights in our Constitution rather than, as Mr. Koh says, have the United States interpret its Constitution more in line with the mainstream of thinking in the rest of the world. If you sort of try to apply a mathematical formula, and you average what the rest of the world thinks about free speech, the right of religion, the right to assemble, the right to petition the government, the average is far below what we provide. We are pretty much at the top of the pile in terms of what we protect. But if we were to follow Mr. Koh's advice, in order to be more accepted in the world, we would draw our standards of protection of individual rights down to the leveled area of the mainstream around the world. If you look around the world today, there are so many dictatorships, totalitarian systems, autocracies--even a country such as China--which provide very little in the way of freedom for their people. If you just took the average based on the population of the world, I know what the mainstream would be. It would not be very much in the way of individual rights. So we should jealously protect what we have in the United States, which is a constitution that at least thus far has been interpreted to protect those rights jealously, not just for our benefit--though that should be, I submit, the sole purpose of a Supreme Court Judge, for example, deciding Supreme Court cases; what does the Constitution say for the people of America?--but if one is going to consider the international implications, I think it would be exactly the opposite of what Mr. Koh is saying; namely, that we should be concerned that any diminishment of the interpretation of our rights would negatively affect other people around the world. I do not care if the average is a lower standard. I wish those countries would bring their standards up to ours. But I certainly do not want to conform to some idea of international acceptance or international popularity by bringing ourselves down to their level. This is not what ``American Exceptionalism'' is all about--the title of the piece Mr. Koh wrote. He has argued in other contexts as well that unique American constitutional provisions should conform to the international view of things. I have been speaking of free speech and assembly, the right to petition your government, to practice religion. We think those are absolutely basic. But there are some other rights in our Constitution. One of them is the second amendment. It is controversial. Other countries do not have a protection such as the second amendment to the U.S. Constitution. If we want to amend the Constitution, we can do that. But as it stands right now, the second amendment has been upheld by the Supreme Court to apply to every individual in the United States, free from Federal undue interference with respect to the ownership of guns. But if we adopt Mr. Koh's argument about conforming to international norms, including stricter gun control, it may bring us more in line with some other countries, but it certainly would not be in keeping with the interpretation of the U.S. Supreme Court with respect to that second amendment. In an April 2002 speech at the Fordham University School of Law, Mr. Koh advocated a U.N.-governed regime to force the United States ``to submit information about their small arms production.'' He believes the United States should ``establish a national firearms control system and a register of manufacturers, traders, importers and exporters'' of guns to comply with international obligations. This would allow U.N. members such as Cuba and Venezuela and North Korea and Iran to have a say in what type of gun regulations are imposed on American citizens. As the dean of Yale Law School, Mr. Koh was a leader in another effort I think is troublesome. It was an effort to deprive students of the freedom to listen to military recruiters who wanted to explain on campus the benefits of a career in our military services. We all--every one of us in this body--frequently express our gratitude to the people in the U.S. military services who protect us, who put themselves in danger in order to protect the very freedoms we are talking about. Yet as dean of the law school, he would not allow the recruiters for these military institutions to come on campus. Yet he would protect students' freedom to listen to antiwar speakers on campus. But Yale closed its doors to military recruiters primarily because it disagreed with the military's policies on gays, which, by the way, is a policy of the President and the Congress, not just the military. In court, Mr. Koh and others in Yale's administration challenged the constitutionality of the Solomon amendment. The Solomon amendment is a statute that denies Federal funds to educational institutions that block military recruiters. The Supreme Court unanimously ruled against Mr. Koh's position. Mr. Koh also led a lawsuit against Department of Justice lawyer John Yoo for doing what any government lawyer is expected to do: provide his legal opinions to the people he worked for, the policymakers of the U.S. Government. The Supreme Court has said, in no uncertain terms, that government lawyers need immunity from suit in order to avoid ``the deterrence of able citizens from acceptance of public office'' and the ``danger that fear of being sued will dampen the ardor of . . . public officials in the unflinching discharge of their duties.'' In other words, by encouraging this lawsuit, Mr. Koh was effectively deterring his students from doing precisely what Yale otherwise recommends that they do: enter public service. Elections have consequences. I understand and generally support the prerogative of the President to nominate individuals for his administration he deems appropriate as long as they are within the spectrum of responsible views. However, because of the importance of his position in representing the United States in the international community with respect to treaties and other agreements, his own words and actions demonstrate to me he is far outside the mainstream in such a way that his appointment as State Department Legal Adviser could damage U.S. sovereignty. So I oppose his nomination. I urge my colleagues--all of us who take an oath to support and defend the Constitution and who appreciate there are always challenges to America's sovereignty--to closely examine Mr. Koh's record and determine whether he would be a representative not only whom they could be proud of but whom they could rely upon in representing the American public interest. At the end of the day, our sovereignty depends upon the American people. We govern with the consent of the governed. Our government does not start with rights. We had a group of people in America who gave their government certain limited rights in order for their common good. So the American people are our bosses. They pay our salary. We need to listen to them. When I talk to my constituents--at least in recent months--I notice a theme that is recurring, and it is troublesome to me first of all because it is the kind of thing that sometimes is influenced by people who have less character than those of us in this body and others who may disagree with each other but seriously approach these issues. It is the idea that little by little the people are losing sovereignty, and that the country of America is giving up its sovereignty to others. Who are the others? I am not a conspiratorial person. That is why I say some of the people who promote this idea do not do so for the right reasons, and I do not like to see them paid attention to by our constituents. But every time we adhere to a U.N. resolution or sign a treaty with another country or agree to abide by the terms of a trade agreement, or something of that sort, to some extent we are giving up a little bit of our sovereignty. As long as we do all of those things with the consent of the governed and as long as we do it through the representative process where we pass a law or we confirm a treaty, ratify a treaty, it is done in the right way. We may make a mistake, we may go too far sometimes, but that is the decision we make. We have the right to make mistakes too. But when we go outside the legal framework of the country to cede a little bit of our sovereignty, as Mr. Koh says is OK, then we have abused the confidence the American people have placed in us and we have gone beyond our legal ability as representatives of the people to give up this little degree of sovereignty. What I am concerned about, because of his position, which is the direct link between the United States and all of these international organizations and countries which our country necessarily deals with, is that he cares less about the protection of American sovereignty than the vast majority of the American citizens. In fact, he has a point of view which regards that as less important than conforming to international norms and even being in line with popular opinion internationally. As I said before, it is nice to be liked, but at the end of the day, the United States should not be about popular opinion. We could probably be more popular with 100 countries in the United Nations if we stopped harping on things such as clean elections and free speech and the right to assembly and so on because my guess is there are probably 50 to 100 countries in the United Nations that don't respect their citizens' rights nearly as much as we do. In fact, the number is probably larger than that. They are uncomfortable with the example of a country such as the United States which sets on such a high pedestal our American citizens' rights, that we not only protect those rights for our citizens, but we hold them out to the rest of the world as something that would be beneficial for their citizens as well. This makes them uncomfortable, and rightly so, because sometimes, as we are seeing in Iran today, people decide that it is a good thing to decide to exercise those rights and they feel the denial of that ability by their governments is wrong. They are even willing to risk their lives, as our forefathers did, to assert those rights. That is how important they are. How odd it is, therefore, to come across such an intelligent--and he certainly is intelligent--man such as Mr. Koh who has a very different point of view about these important American rights, who believes it is more important for us to be in the mainstream of international thinking even though that mainstream represents a view of rights far less than the United States views our rights; it is far more important for us to be well viewed in the international community than it is to strictly adhere to those rights that are embodied in our Constitution. That is extraordinarily troubling to me. Some of his views are breathtaking as they have been asserted. I know he has met with some of our colleagues, that he is apparently, in addition to being very intelligent, very charming, and that his essential position is: Well, that is what I said in a speech, but I will recognize my obligations as a member of the administration. I think we are all informed by our views, and if we care enough about them to speak out in a way that he has, as frequently and as forcefully as Mr. Koh has, it is difficult to believe that all of a sudden, in a moment of his confirmation, he will forget about everything he said and what he believes and conform his representation of the American people to what is a far more mainstream point of view; namely, that we should defend our Constitution to the absolute maximum extent we can, irrespective of the views of other countries around the world. That is why, at the end of the day, as I said, I hope my colleagues will review his record very carefully and will judge and eventually base their vote on his confirmation on what he has said--because he is an intelligent man who knows very well what he has said--and what, therefore, could flow from his words as actions as our representative in the State Department as its Legal Adviser. Mr. President, I note the absence of a quorum.