Patrick Leahy

Mr. LEAHY

Mr. LEAHY. Mr. President, I would like to take a moment to pay tribute to Steve Arms, a technology inventor, innovator, and successful entrepreneur from Vermont. Steve founded and developed a high tech firm, MicroStrain, which creates sophisticated micro sensors that were originally designed for arthroscopic implantation on human knee ligaments. Their sensors have since evolved and are now used by NASA, on car engines, for advanced manufacturing, on civil structures, and by the U.S. military. When Philadelphia's Liberty Bell needed to be moved in 2003, the National Park Service used MicroStrain to detect whether the 250-year- old bell's famous crack was worsening, even by a hundredth of a hair's width. Fortunately, and thanks to MicroStrain's sensors, the Liberty Bell was moved without damage. A product of Vermont's public education system and flagship state university, Steve grew a one-man business based out of his Burlington apartment into a more than $12 million a year company. Based in Williston, VT, and now employing 55 people, MicroStrain's constant innovation and product improvement has earned the company numerous top awards in the industry. I am proud to see to see Vermonters working on cutting-edge technology that will benefit both Vermont's and the country's economy. I thank Steve and all of the employees at MicroStrain for their hard work. I ask unanimous consent that a copy of the recent Burlington Free Press article entitled Vt. Tech innovator: Be in the moment, be printed in the Record.

Mr. LEAHY

Mr. LEAHY. Mr. President, I thank the majority leader for pressing forward to secure a vote on another of the 25 judicial nominees ready for Senate consideration. I am disappointed that the Senate Republican leadership would only agree to vote on 1 of the 25 judicial nominees ready and waiting for final Senate action. All 25 of the nominees are qualified and have the support of their home state Senators, Republican and Democratic. Twenty-one of these judicial nominations were unanimously approved by the Judiciary Committee. Senate Democrats are prepared to have votes on all these important nominations. I know of no good reason why the Republican leadership is refusing to proceed on 24 of the 25 nominations stalled before the Senate. At a time when the vacancy rate on Federal courts throughout the country remains near 10 percent, the delay in taking up and confirming these consensus judicial nominees is inexcusable. I know that Senator Reid is especially pleased that the Senate has the opportunity for a final vote on the nomination of Judge Evan Wallach to fill a vacancy on the Federal Circuit. Judge Wallach is an experienced jurist with a distinguished record who has been serving on the U.S. Court of International Trade. He received the highest possible rating from the American Bar Association's Standing Committee on the Federal Judiciary, unanimously ``well qualified.'' I am delighted that Judge Wallach's nomination has not been delayed as long as others. This nomination was reported by the Judiciary Committee on October 6. There is no good reason why all judicial nominations are not considered within a month of being reported, especially the consensus nominees reported unanimously by the Judiciary Committee. It is my hope that this timeline can be an example and set the standard for action on other nominations, as well. When the Senate approved the nomination of Judge Zipps of Arizona less than 1 month after it was reported by the committee, we showed that there is no need for additional delay. These needless delays perpetuate vacancies and deny the American people the judges needed in our courts to provide justice. What is disappointing is that the Senate Republican leadership has yet to agree to votes on the long-pending nominations of Judge Chris Droney of Connecticut to fill a judicial emergency vacancy on the Second Circuit, Morgan Christen to fill one of several judicial emergency vacancies on the Ninth Circuit, or Judge Adalberto Jordan to fill a judicial emergency vacancy on the Eleventh Circuit. The Droney nomination has been stalled for 3\1/2\ months despite there being no opposition. The Christen nomination has been pending a month longer than Judge Wallach's and was also reported unanimously. Judge Jordan's nomination is approaching 1 month on the Senate Executive Calendar despite his being a consensus nominee supported by both his Democratic and Republican home State Senators. Also pending is the nomination of Stephanie Thacker to fill a vacancy on the Fourth Circuit. All of these consensus circuit court nominations should be considered and approved without further delay. In addition, the Senate should give consideration to Caitlin Halligan's nomination. Her nomination to the DC Circuit was approved by the committee in March. Judge Wallach is only the seventh of President Obama's circuit court nominations the Senate has considered this year, compared to 12 at this point in President Bush's third year. We are not doing nearly as well despite five additional circuit court nominations on the Senate Calendar awaiting a vote. By this point in the third year of President Bush's administration, the Senate had confirmed 29 of his circuit court nominees. By comparison, the Senate has confirmed only 22 of President Obama's circuit court nominees. By this point in the Bush administration, vacancies had been reduced to 42. By comparison, today they stand at 83. By this point in President Bush's first 3 years, the Senate had confirmed 167 of his Federal circuit and district court nominees. So far in the 3 years of the Obama administration, that total is only 115. During President Bush's first 4 years, the Senate confirmed a total of 205 Federal circuit and district court judges. As of today, we would need another 90 confirmations over the next 12 months to match that total. That means a faster confirmation rate for the next 12 months than in any 12 months of the Obama administration to date. That would require Senate Republicans to abandon their delaying tactics. I hope they will. This is an area where the Senate must come together to address the serious judicial vacancies crisis on Federal courts around the country that has persisted for well over 2 years. We can and must do better for the millions of Americans being made to suffer by these unnecessary Senate delays. More than half of all Americans--over 162 million--live in districts or circuits that have a judicial vacancy that could be filled today if Senate Republicans just agreed to vote on the nominations now pending on the Senate calendar. As many as 24 States are served by Federal courts with vacancies that would be filled by these nominations. Millions of Americans across the country are harmed by delays in overburdened courts. The Republican leadership should explain why they will not consent to vote on the qualified, consensus candidates nominated to fill these extended judicial vacancies. Senator Grassley and I have worked together to ensure that each of the 25 nominations on the Senate Calendar was fully considered by the Judiciary Committee after a thorough but fair process, including completing our extensive questionnaire and questioning at a hearing. This White House has worked with the home state Senators, Republicans and Democrats, and each of the judicial nominees being delayed from a Senate vote is supported by both home State Senators. The FBI has conducted a thorough background review of each nominee. The ABA's Standing Committee on the Federal Judiciary has conducted a peer review of their professional qualifications. When the nominations are then reported unanimously by the Judiciary Committee, there is no reason for months and months of further delay before they can start serving the American people. No resort to percentages of nominees ``processed'' or ``positive action'' by the committee can excuse the lack of real progress by the Senate. In the past, we were able to confirm consensus nominees more promptly, often within days of being reported to the full Senate. They were not forced to languish for months. The American people should not have to wait weeks and months for the Senate to fulfill its constitutional duty and ensure the ability of our Federal courts to provide justice to Americans around the country. The American people need functioning Federal courts with judges, not vacancies. Though it is within the Senate's power to take significant steps to address this problem, refusal by Senate Republicans to consent to vote on consensus judicial nominations has kept judicial vacancies high for years. The number of judicial vacancies has been near or above 90 for over 2\1/2\ years. A recent report by the nonpartisan Congressional Research Service found that these delays have resulted in the longest period of historically high vacancy rates on Federal district courts in the last 35 years. These needless delays do nothing to help solve this serious problem and are damaging to the Federal courts and the American people who depend on them.

Mr. LEAHY

Mr. LEAHY. Madam President, I thank the majority leader for securing votes on 2 of the 22 judicial nominees on the Senate's Executive Calendar ready for Senate consideration. I am glad that we will finally vote on the nominations of Scott Skavdahl to the District of Wyoming and Richard Andrews to the District of Delaware, both qualified, consensus nominees reported unanimously by the Judiciary Committee nearly 2 months ago. I wish that we were able to vote today on the other 20 judicial nominees who have been ready and waiting for final Senate action. This morning the Judiciary Committee reported another 5 judicial nominations, bringing the total to 27 who have been thoroughly vetted, considered and reported by the Judiciary Committee. All 27 of these nominees are qualified and have the support of their home State Senators, Republican and Democratic. Twenty-three of the 27 nominees, like the 2 we will consider today, were unanimously approved by the Judiciary Committee with all members. Senate Democrats are prepared to have votes on all these important nominations. I know of no good reason why the Republican leadership is refusing to proceed on the 20 nominees who have been stalled before the Senate for weeks and months. At a time when vacancies on Federal courts throughout the country remain near 10 percent, the delay in taking up and confirming these consensus judicial nominees is inexcusable. The American people need functioning Federal courts with judges, not vacancies. Though it is within the Senate's power to take significant steps to address this problem, refusal by Senate Republicans to consent to voting on consensus judicial nominations has kept vacancies high for years. The number of judicial vacancies has been near or above 90 for over 2\1/2\ years. A recent report by the nonpartisan Congressional Research Service found that we are in the longest period of historically high vacancy rates in the last 35 years. These needless delays do nothing to help solve this serious problem and are damaging to the Federal courts and the American people who depend on them. More than half of all Americans--over 163 million--live in districts or circuits that have a judicial vacancy that could be filled today if Senate Republicans just agreed to vote on the nominations reported by the Judiciary Committee with bipartisan support. As many as 26 States are served by Federal courts with vacancies that would be filled by these nominations. Millions of Americans across the country are harmed by delays in overburdened courts. The Republican leadership should explain why they will not consent to vote on the qualified, consensus candidates nominated to fill these extended judicial vacancies. Senator Grassley and I have worked together to ensure that each of the 27 nominations reported by the Judiciary Committee was fully considered after a thorough but fair process, including completing our extensive questionnaire and questioning at a hearing. This White House has worked with the home State Senators, Republicans and Democrats, and each of the judicial nominees being delayed from a Senate vote is supported by both home State Senators. The FBI has conducted a thorough background review of each nominee. The American Bar Association's Standing Committee on the Federal Judiciary has conducted a peer review of their professional qualifications. When the nominations are then reported unanimously by the Judiciary Committee, there is no reason for months and months of further delay before they begin serving the American people. Despite the damagingly high number of vacancies that has persisted throughout President Obama's term, some Republican Senators have tried to excuse their delay in taking up nominations by suggesting that the Senate is doing better than we did during the first 3 years of President Bush's administration. That is simply not true. It is wrong to suggest that the Senate has achieved better results than we did in 2001 through 2003. As I have pointed out, in the 17 months I chaired the Judiciary Committee in 2001 and 2002, the Senate confirmed 100 of President Bush's Federal circuit and district court nominees. By contrast, after the first 2 years of President Obama's administration, the Senate was allowed to proceed to confirm only 60 of his Federal circuit and district court nominees. Indeed, as 2010 was drawing to a close, Senate Republicans refused to proceed on 19 judicial nominees who had been considered and reported by the Judiciary Committee and forced them to be returned to the President. It has taken the Senate nearly twice as long to confirm the 100th Federal circuit and district court judge nominated by President Obama as we had when President Bush was in the White House. During the third year of President Bush's administration, the Senate confirmed 68 of his Federal circuit and district court nominees. By early November, 66 judges had been confirmed. In contrast this year, even including many nominees confirmed this year who should have been confirmed last year, the Senate has only confirmed 53 of President Obama's judicial nominees. Fifty-three is not better than 66. By this point in President Bush's first 3 years, the Senate had confirmed 166 of his Federal circuit and district court nominees. So far in the 3 years of the Obama administration, that total is only 113. One hundred and thirteen is not better than 166. Notably, the Senate this year is lagging far behind the pace we set for circuit court nominations in the third year of President Bush's administration. The Senate this year has confirmed just 6 circuit court nominations, compared to 12 at this point in President Bush's third year. The six confirmations this year are only half as many as were confirmed at this point in President Bush's third year. There are five circuit court nominations pending on the Senate's Executive Calendar today and a sixth circuit court nomination reported by the committee this morning. By this point in the third year of President Bush's administration, the Senate had confirmed a total of 29 of his circuit court nominees. By comparison, the Senate has confirmed only 22 of President Obama's circuit court nominees. Twenty-two is not better than 29. By this point in the Bush administration, vacancies had been reduced to 42. Today they stand at 85. Eighty-five vacancies is not better than 42. This is not the way to make real progress. No resort to percentages of nominees ``processed'' or ``positive action'' by the committee can excuse the lack of real progress by the Senate. In the past, we were able to confirm consensus nominees more promptly, often within days of being reported to the full Senate. They were not forced to languish for months. The American people should not have to wait weeks and months for the Senate to fulfill its constitutional duty and ensure the ability of our Federal courts to provide justice to Americans around the country. I think confirmations and vacancies numbers better reflect the reality in our Federal courts and for the American people. It is hard to see how the Senate is supposed to be doing better when it remains so far behind the pace we set in those years. During President Bush's first 4 years, the Senate confirmed a total of 205 Federal circuit and district court judges. As of today, we would need another 92 confirmations over the next 12 months to match that total. That means a faster confirmation rate for the next 12 months than in any 12 months of the Obama administration to date. That would require Senate Republicans to abandon their delaying tactics. I hope they will. The two nominations we consider today are each superbly qualified consensus nominees whom I expect will be confirmed with significant bipartisan support. The nomination of Judge Scott Skavdahl to fill a vacancy on the District of Wyoming was reported unanimously by the Judiciary Committee on September 8, nearly 2 months ago. Judge Skavdahl, who is currently a magistrate judge on the District of Wyoming, having previously served as a law clerk for Chief Judge William Downes, the judge he is nominated to replace, has the strong support of his Republican home State senators, Senators Enzi and Barrasso. Judge Skavdahl spent 8 years as a State court judge for the Seventh Judicial District of Wyoming before that working in private practice in Wyoming. The ABA's Standing Committee on the Federal Judiciary unanimously rated Mr. Skavdahl ``well qualified'' to serve, its highest rating. The Judiciary Committee also unanimously reported the nomination of Richard Andrews to fill a vacancy on the District of Delaware nearly 2 months ago. Mr. Andrews currently serves as Delaware's State prosecutor, having previously spent 24 years as a Federal prosecutor in Delaware, where he rose through the ranks to become chief of the Criminal Division. Mr. Andrews was appointed to serve as the acting U.S. attorney for Delaware on three occasions, including by John Ashcroft, the Attorney General under President Bush. He also clerked for Chief Judge Collins Seitz of the U.S. Court of Appeals for the Third Circuit. Mr. Andrews has the strong support of both his home State Senators, Senator Carper and Senator Coons, who worked with Mr. Andrews in Delaware. I thank Senator Coons for chairing the committee's hearing on Mr. Andrews' nominations and for working hard to move it through the committee and Senate process. The Senate must come together to address the serious judicial vacancies crisis on Federal courts around the country that has persisted for well over 2 years. We can and must do better for the more than 163 million Americans being made to suffer by these unnecessary Senate delays.

Mr. LEAHY

Mr. LEAHY. Madam President, I ask unanimous consent that the Senate be in a period of morning business, with Senators permitted to speak therein for up to 10 minutes each.

Mr. LEAHY

Mr. LEAHY. Madam President, I am taking this opportunity to share with the Senate the extraordinary accomplishment of a young Vermonter. At the age of 17 years, 4 months, and 13 days, Kristen Kelliher became the youngest female to climb the highest peaks in all 48 States in the continental United States. Her journey began in 2002 as she and her family started climbing during family vacations. Soon she progressed to scaling the tops of America's most challenging peaks, including Mount Hood and Mount Rainer. Along the way, she endured injuries and logistical setbacks, but she never let those stop her from reaching her goal. She saved the best for last. Surrounded by 30 family members on a sunny September day, she summited Vermont's Mount Mansfield, in Stowe. She is a dynamic role model to all Vermonters, young and old. Along with excelling on the hiking trails, Kristen is also an honor student and a three-sport athlete. She plans to graduate early and climb the last two peaks--Hawaii's Mauna Kea, and Alaska's Mount McKinley--next year. Kristen is modest when praised about her achievement and says she only hopes to inspire others to reach goals they once thought unattainable. Vermonters are proud to recognize Kristen Kelliher's strength, skill and stamina, and we congratulate her on this great accomplishment. I ask unanimous consent to have printed in the Record an article about her achievement, from The Boston Globe.

Mr. LEAHY

Mr. LEAHY. Mr. President, some of the worst damage caused by disasters around the country has been to the houses, mobile homes and apartments where families have built their lives and made their homes. In Vermont, entire mobile home developments were washed away in Hurricane Irene's fury. Where homes once stood, now lies a path of damage, destruction and heartbreak. Our small State's ability to build new homes depends greatly on support from Federal safety net programs, like the $400 million in emergency community development block grant funding that we have worked to include in this bill. While this emergency funding is a first step in addressing the urgent housing needs of States like Vermont that have been struck by natural disasters, we know that much more will be needed to help our decimated towns and communities, and their citizens, get back on their feet. I look forward to working with the chairman and ranking member of the subcommittee to ensure that homeowners, businesses and towns have the assistance they need to begin the long rebuilding process. I have not seen damage and destruction of this magnitude in Vermont in my lifetime. Vermont and other states that were hit by Irene are stretched to the limit right now, and just as the victims of past disasters throughout the country were able to rely on their fellow Americans' help in their time of need, so should Vermonters be able to count on a helping hand when they need it most.

Mr. LEAHY

Mr. LEAHY. Mr. President, I thank the distinguished Presiding Officer, and I also compliment both Senators who just spoke, Senator Kohl and Senator Blunt, for their excellent work. Like everybody here, I have followed these votes and the negotiations and did vote, and I am encouraged by the progress made on the Transportation-HUD appropriations bill which the Senate has now approved. It funds our Nation's ongoing transportation investments. It also includes crucial emergency disaster funding for Vermont and the other States struggling to recover from Hurricane/Tropical Storm Irene and other natural disasters. This bill is part of the response needed from Congress by thousands of Vermonters and millions of other Americans. It is vital not only for the economy of Vermont and other States whose roads and bridges were decimated by the storm, but for the Nation's economy. I commend the chair, Senator Murray, and the ranking member, Senator Collins, for their hard work and dedication toward ensuring appropriate funding for disaster relief, particularly in Irene's aftermath. I have said many times on the Senate floor that Hurricane Irene was devastating to our small State of Vermont. I was born in Vermont, as were my parents, and I have never seen destruction of this magnitude. The only thing that even compares are stories of floods in Vermont that my grandparents used to tell me about when they were younger. The flash floods caused by the storm destroyed homes and farms, businesses, bridges, and roads. Roads and structures that have stood for over a century were wiped out in a matter of minutes. I helicoptered over Vermont with Governor Shumlin and General Dubie, the head of our Vermont National Guard, the day after our storm, and none of us could believe the things we were seeing. With the repair costs estimated to be over $100 million, our little State has been stretched to the limit. As the rain stopped, Vermont moved immediately and we had crews working to repair the damage. We didn't wait for anybody else; we just started moving--neighbors helping neighbors, our State and local governments, our National Guard, Red Cross, working together. However, we do need the traditional helping hand of Federal disaster recovery loans and grants to help those whose lives were upturned by Irene. Federal disaster recovery aid has always been available to other States after disasters such as this. We need it now in Vermont. This bill is an essential part of the work that Congress should be doing in response to major events such as Irene, pulling together as a Nation to heal these wounds. The Senate, as the Presiding Officer will recall, reconvened after Labor Day. Those of us on the Appropriations Committee worked on this bill and other disaster relief legislation, which have been top priorities for Vermont and for many other States. Many other committees were involved in this important work. The Vermont delegation worked together on this bill and other Senators came together to help make progress week by week. One by one, we have overcome a series of legislative obstacles and have been able to turn the lights from red to green. Our legislative process this year has been unduly cumbersome and unresponsive; different than I have ever seen in the years I have spent here in the Senate. However, the progress we have achieved here in the Senate is a testament to the determination of many in this body who have been willing to set aside ideological imperatives and partisan differences to work together as Republicans and Democrats to accomplish the work that the American people and our constituents expect from their government. Now, in Vermont and the other New England States, winter is not just on the horizon, it is on our doorstep. In our State last weekend, we had more than 1 foot of snow in some parts. I mention this because if you are going to repair roads and bridges, time is a significant factor, and time is slipping away. We all know that roads and bridges are the circulatory system for commerce in the daily lives of living, breathing communities and their citizens--where people have to go to work, school or be together with their families. With many of the Federal aid disaster programs underfunded, I am especially pleased that this bill contains the $1.9 billion that I and others worked to include to replenish the Federal Highway Disaster Relief Fund. This fund will help rebuild Vermont's vital roadways. These roadways are critical to rebuild our economy, distribute aid, and bring people to hospitals and to schools. It is of the utmost importance that this Federal aid reaches Vermont sooner rather than later, as our winters can be extremely harsh. I look at Washington, DC, which will close down with 3 inches of snow. We call that a dusting in our State. Many times we have a foot of snow overnight. Schools will still be open, commerce still goes on, but we can't rebuild roads with a foot of snow on them. We have to be working to rebuild now and we have to be prepared to work immediately when the snow stops. I have talked with Senator Sanders, Congressman Welch, and Governor Shumlin, who has spent every single day working on this. My wife Marcelle and I have driven around the State. We have talked to community leaders, to those who have worked on disaster relief, and others. It is very clear, given the mammoth, unprecedented destruction of this storm, certain waivers are needed to allow States to access funds for repair work they need without going through all kinds of burdens for repairs. I mention these waivers because if we are going to ensure that Vermont and other States can promptly design and begin emergency and permanent repairs, we have to do it now. We put the waivers into this bill, and I hope the other body will understand we need them preserved. This bill, an investment in America's crumbling and damaged roads and bridges, is a crucial step. It will help restore the economic vitality of our country. I am also pleased the legislation includes emergency community development block grant funding. Right now, HUD has no funding available. They cannot address the housing needs of Vermonters affected both by Hurricane Irene and the flooding of this past spring. These disaster recovery programs are woefully underfunded. I cannot think of the number of hours that I and other members of the Appropriations Committee have worked on this, the evenings, the phone calls, the weekends, touching base, but it is all worth it. If this bill will now be accepted by the other body, we can go forward and we can start doing the rebuilding we need. Vermont is a very special place, not just because it is my home but because of the spirit of its people. This is a State that has always supported help for other States and Americans all over the country facing similar disasters. We need that help now, and this bill is a major step forward for that help. I thank everybody involved with it. Now all we have to do is get it through the other body, get it on the President's desk, and continue the recovery work we are doing both in Vermont and other States damaged by Irene. As we talk about the money, I will not resist the temptation to repeat what a Vermonter told me. I have said it before on the Senate floor. We spend unlimited sums to rebuild buildings and roads and bridges in Iraq and Afghanistan and somebody else comes along and blows them up. We build them in America for Americans by Americans and we Americans will keep them safe. I yield the floor.

Mr. LEAHY

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

Mr. LEAHY

Mr. LEAHY. Mr. President, I yield back all time.

Mr. LEAHY. I ask for the yeas and nays.

Mr. LEAHY. Mr. President, I rise in my capacity as chair of the Judiciary Committee to say I oppose amendment No. 860. It is a one- size-fits-all approach. It would have catastrophic consequences to the Justice Department and on the important work the Justice Department does in supporting local law enforcement, crime victims, and justice across the country. I have worked with my good friend from Iowa, Senator Grassley, on many issues. We have been able to, in a bipartisan way, develop accountability measures to ensure that particular grants administered by the Department of Justice operate efficiently and effectively. That is particularly important at a time of budget austerity. We have done it in specific contexts when those measures make a lot of sense. For example, in the course of our negotiations of a bipartisan version of the Trafficking Victims Protection Reauthorization Act, we worked out specific proposals. Nonetheless, six of the eight Republicans on the Judiciary Committee opposed this bill. But one size does not fit all. Measures that make sense in one program cannot willy-nilly be applied to others without careful consideration of the consequences to the programs and, to the intended beneficiaries in local law enforcement, and crime victims. A one-size-fits-all measure actually might harm rather than help important functions at the Department of Justice. For example, this amendment would prevent grants to the Boys and Girls Clubs of America. I know some have criticized some aspects of the Boys and Girls Clubs, and I would be happy to work with any Senator to work out these issues. But the Boys and Girls Clubs of America do great work. I remember one police chief in my State, when asked if I could help him get a couple more police officers to help out because of crime problems, said: No. Get me a Boys and Girls Club. Get me a place for young people to go. I know in Vermont they do a great deal, as they do in most States. If there are reforms that should be made, let's do them, but not just cut out the funding in a one-size-fits-all way at a time when we are doing everything possible to give young people a different goal than going out into a life where they might do things none of us would agree with. This amendment would greatly restrict the Department of Justice's ability to spend funds for salaries of its own people. Is that going to lead to huge cuts in prosecutors and agents? Are we going to be imposing a salary cap on top of the one the President has already imposed? Are we going to be losing some of our best people? Are we going to be unable to develop experienced law enforcement officers or prosecutors? I know, in law enforcement and prosecution, we value experience. We do not want to go for the lowest common denominator. We want people who are experienced. Again, a willy-nilly amendment does not help. The amendment includes a grant-matching requirement. But in some programs, grant matching is not a good idea. Let me tell you about one, legislation that former Senator Ben Nighthorse Campbell and I put together. It has worked very well. It is the Leahy Bulletproof Vest Partnership Grant Program for local jurisdictions. We have, in some local jurisdictions, the ability to waive matching provisions. We have seen a rise in the number of assaults and murders of police officers across this country. Many officers' lives have been saved because they have had bulletproof vests under the Leahy program. They would have died otherwise. But they are in small departments, in small departments in States that could not afford the $500 or $600 per bulletproof vest. Yet we expect these police officers to be out at 3 o'clock in the morning, usually with no backup. But if they are in a small, rural park in West Virginia or Vermont or all these other States, they do not have any backup. They are out there alone. We ought to give them the kind of protection they need. I want our police officers in rural communities who do not have the budgeting of a big city department to have this kind of protection. So if we put a matching requirement by fiat--again, one-size-fits-all--we have a lot of rural police departments that are going to be badly hurt. What about crime victims? Crime victims have already suffered great loss. Are we going to say: We can help you out, but pony up some money. Pony up a matching requirement, and then we will come in and help you. We are going to spend a fortune on the guy we lock up who committed a crime. We will spend $30,000, $35,000 a year on that person. We are not going to ask for any matching money from the criminal. But we are going to say to the victim: We can help you, but, sorry--I know you lost all this money; I know you have been beaten, you have been bruised, you have been injured--you have to come up with some money before we can help you. The guy who did it, we will take care of him. We will pay for that. But we cannot help you. No, no, no, no, no, no, no. I was a prosecutor for 8 years. I know how these victims suffer. They are usually the forgotten person in the criminal justice system. The headlines are: So and so was arrested. They are marched off. We are going to prosecute them. That is good. They should be. I prosecuted a lot of those people. But the victim is the one forgotten. Victims and others most in need of assistance are those least likely to be able to provide matching funds. Rural communities, small nonprofit providers, tribes, and States that are facing their own problems should not have another funding mandate put on them from Washington. The new matching requirement and other requirements in this amendment would impose new burdens on all money going to State and local law enforcement through the COPS Program and many of the Byrne-JAG programs. It would prevent many police departments from hiring and keeping the officers they need. That is why the National District Attorneys Association and the National Association of Police Organizations have expressed their opposition to this amendment. At one time, I had the honor of serving as vice president of the National District Attorneys Association. They care. They care about law enforcement. They care about prosecutors. They care about victims. We ought to listen to them. It also would burden grants awarded through the Debbie Smith Act to reduce backlogs in testing rape kits. There are rapists who go free because we do not have the money to test the rape kits. Tell that to a victim. Tell that to the victim: We do not have the money to go get the person who did this. I am not going to vote in a way that I am going to be telling that victim: We cannot help you. We cannot test that rape kit. The Debbie Smith grant program has received bipartisan support. It helps to ensure that rape victims will not have to continue to live in fear because somebody said: It is going to take a few months to test this because we do not have the money. By the way, lock your door. He might come back. I am not going to vote for that. The matching requirement would be devastating to the National Center for Missing and Exploited Children, which works hard every day to keep our children safe from those who would do them harm. It is hard to think of any work more important than protecting our children from the evils of abuse and exploitation, but this amendment would make that work much harder because the National Center receives Justice Department grants, but it does not have matching funds. Time is running out. I could tell some stories. I could tell some stories about what happens to these children who are exploited and abused, and it would have everybody in tears. It did me when I saw them as a prosecutor, and it does every day when I read these reports as chairman of the Senate Judiciary Committee. My God, if we can go and try to protect people around the world, let's protect our children here at home. I agree with Senator Grassley that we need rigorous accountability measures. Of course, we should. We do this in our hearings every week in the Judiciary Committee. GAO does it. The inspector general does it. But do not do a one-size-fits-all that is going to say to our victims, that is going to say to rape victims, that is going to say to exploited children or that is going to say to our police officers, who are told to go out there without a bulletproof vest but to defend you and me in the middle of the night: Sorry, sorry, sorry. The wealthiest Nation on Earth cannot help you. No; I oppose this amendment. I yield the floor. Amendment No. 879, as Modified

Mr. LEAHY. Mr. President, I have worked with my good friend from Iowa on accountability measures and will continue to do so but not for this amendment. This is a one-size-fits-all. There is a reason the National District Attorneys Association and a reason the National Association of Police Organizations oppose it. This would make it impossible for small, rural communities to get bulletproof vests under the Leahy-Campbell bulletproof vest program. This would make it impossible for some of the small departments to have the money to pay for rape kits, so they would have to tell the rape victim: Sorry, we can't go after the person who raped you, even though they might come back, because we don't have the money. We don't have the money to test this rape kit. This is a one-size-fits-all that is going to hurt law enforcement. It is going to hurt victims. We will pay the price of the person we lock up, but we won't do anything to help the victim? I oppose it.

Mr. LEAHY. I stand with the prosecutors and the police who oppose it.

Mr. LEAHY

Mr. LEAHY. Madam President, I am disappointed that with so many Americans struggling in difficult economic times, we are considering amendments that will greatly reduce the ability of the neediest among us to put food on the table for their families. The amendment numbered 810 filed by Senator Sessions would eliminate the ability of States to align the Supplemental Nutrition Assistance Program, SNAP, eligibility rules with the temporary assistance to needy families to reduce administrative costs and simply enrollment. Since 2008, Vermont has used categorical eligibility to reach more households and more needy individuals by simplifying enrollment. Reducing administrative costs and simplifying paperwork should be a goal we all share for Federal programs. But by adopting this amendment, about 1 million low-income Americans would lose their benefits and many more families that are newly eligible during these difficult economic times would have their benefits delayed because of the increased complexity of the additional processing time for applications. Low-income working families with children are the majority of those who would be affected by the elimination of categorical eligibility. Additionally, roughly 200,000 children in these families would lose access to free school meals. Improving the error rate even further in the SNAP program is an issue that the Agriculture Committee is committed to addressing in the upcoming farm bill negotiations, and one that we have already heard to chairwoman of the Senate Agriculture Committee speak about this week. Eliminating State flexibility through categorical eligibility programs does not address error rates in any meaningful way. Supporters of this amendment cite limited examples as proof that categorical eligibility is at the root of erroneous enrollments in SNAP. But allowing millions to go hungry because of a few anecdotal stories is shortsighted at best. The Senate Agriculture Committee, which I am proud to be a senior member of, will be looking for additional ways to improve SNAP in the coming months, but eliminating categorical eligibility as this amendment does is not the answer. I urge all Senators to oppose this amendment.

Mr. LEAHY

Mr. LEAHY. Mr. President, recently in my State, as throughout the world, Yom Kippur was celebrated. This beginning of the Jewish year comes as Vermonters and residents of other States are struggling to regain their footing and to renew their lives and livelihoods after the devastation wrought by Hurricane and Tropical Storm Irene. Vermonters of all faiths can take heart and inspiration from the thoughts about the meaning of the Yom Kippur observance, in the context of the aftermath of this natural disaster, which were presented in a recent essay published in the Rutland Herald and the Huffington Post. It was written by my good friend, Rabbi Michael Cohen. Vermonters' resilience in the face of this devastation and its lingering challenges truly has been remarkable. I commend Rabbi Cohen's message to the Senate's attention, and I ask unanimous consent that his essay be printed in the Record.

Mr. LEAHY

Mr. LEAHY. On October 21 we will celebrate the 25th anniversary of the enactment of the Electronic Communications Privacy Act, ECPA, one of the Nation's premiere privacy laws for the digital age. Since the ECPA was first enacted in 1986, this law has provided privacy protections for e-mail and other electronic communications for millions of Americans who communicate and transact business in cyberspace. Today, the many rapid advances in technology that we have witnessed make this key privacy law more important than ever if we are to ensure the right to privacy. Just in the past few months, we have witnessed significant data breaches involving Sony and Epsilon that impact the privacy of millions of American consumers. We are also learning that smartphones and other new mobile technologies may be using and storing our location and other sensitive information, posing new risks to privacy. When I led the effort to write the ECPA 25 years ago, no one could have contemplated these and other emerging threats to our digital privacy. But today, this law is significantly outdated and outpaced by rapid changes in technology and the changing mission of our law enforcement agencies after September 11. At a time in our history when American consumers and businesses face threats to privacy like no time before, we must renew the commitment to the privacy principles that gave birth to the ECPA a quarter century ago. That is why I am working to update this law to reflect the realities of our time. Before the end of the calendar year, the Judiciary Committee will consider legislation that I have drafted to update the ECPA and to bring this law fully into the digital age. My bill makes several commonsense changes to the law regarding the privacy protections afforded to consumers' electronic communications. Among other things, my bill gets rid of the so-called ``180-day rule'' and replaces this confusing mosaic with one clear legal standard for protection of the content of e-mails and other electronic communications. This bill also provides enhanced privacy protections for American consumers by expressly prohibiting service providers from disclosing customer content and requiring that the Government obtain a search warrant based on probable cause to compel the disclosure of the content of an individual's electronic communications. The ECPA Amendments Act also gives important new privacy protections for location information that is collected, used, or stored by service providers, smartphones, or other mobile technologies. To address the role of new technologies in the changing mission of law enforcement, my bill also provides important new tools to law enforcement to fight crime and protect cybersecurity including--clarifying the authority for the government to temporarily delay notice to protect the integrity of a law enforcement investigation and allowing a service provider to disclose content that is pertinent to addressing a cyberattack to the government to enhance cybersecurity. I drafted this bill with one key principle in mind--updates to the Electronic Communication Privacy Act must carefully balance the interests and needs of consumers, law enforcement, and our Nation's thriving technology sector. I also drafted this bill after careful consultation with many government and private sector stakeholders, including the Departments of Justice, Commerce and State, local law enforcement, and members of the technology and privacy communities. As the ECPA approaches its silver anniversary, I join the many privacy advocates, technology leaders, legal scholars, and other stakeholders who support reform of the ECPA in celebrating all that this law has come to symbolize about the importance of protecting Americans' privacy rights in cyberspace. I hope that all Members will join me in commemorating this important milestone anniversary and in supporting the effort in Congress to update this law to reflect the realities of the digital age.

Mr. LEAHY

Mr. LEAHY. Mr. President, Vermont benefits both by the people who were born there and those who come to Vermont and make us even better. One of those people who has chosen Vermont is Barrie Dunsmore, who before his change in careers had been one of the foremost reporters and commentators on the national news scene. When he and his wife, Whitney Taylor, and his daughter, Campbell, came to Vermont, we Vermonters have benefitted by his columns in The Rutland Herald and his commentary on Vermont Public Radio. Recently Barrie took a number of his columns and collected them in a book, ``There and Back.'' I could not begin to do his writings justice, but my wife Marcelle and I were privileged to be at a reception for Barrie and Whitney in Burlington and we heard him speak. I asked him if I could have a copy of his notes from that evening, and he shared them with me. The notes offer only a hint of what awaits in the book, which I read with pleasure at our home in Vermont. I ask unanimous consent that Mr. Barrie Dunsmore's remarks be printed in the Record.

Mr. LEAHY

Mr. LEAHY. Mr. President, I am pleased to be joined by Senators Collins, Schumer, Sanders and Gillibrand as we introduce this legislation to hold accountable those criminals who fraudulently sell what they call ``maple'' syrup. Vermont iconic maple syrup--painstakingly produced, and prized across the Nation and beyond--is one of our state's fine, high-quality, natural products. I have been alarmed by the growing number of individuals and businesses claiming to sell genuine Vermont maple syrup when they are in fact selling an inferior product that is not maple syrup at all. This is fraud, plain and simple, and it undermines a key part of Vermont's economy and reputation for quality that has been hard-earned through Vermonters' hard work. I know that diligent syrup producers in Maine, New York, and other States have been similarly hurt by this crime. Our bill, the Maple Agriculture Protection and Law Enforcement, or ``MAPLE''Act, will deter this criminal conduct. The MAPLE Act creates a felony offense with a 5-year maximum penalty for fraudulently selling a product purported to be maple syrup that is not, in fact, maple syrup. Under current law, doing so is only a misdemeanor offense with a one year penalty. The sale of fraudulent maple syrup is a real problem facing consumers and producers. Recently, Vermont U.S. Attorney Tris Coffin sought an indictment after a Food and Drug Administration investigation revealed that a Rhode Island man had been selling cane sugar-based syrup as ``maple'' syrup and representing to consumers that the syrup was authentic. The legislation we introduce today will more effectively protect consumers and the maple industry by punishing and deterring this deceptive conduct. Vermonters, and consumers across the country, should be confident that when they buy food, they know exactly what they are getting. The fines that may result from criminal violations under current law are often not enough to protect the public from harmful or fraudulent products. Too often, those who are willing to endanger our livelihoods in pursuit of their profits see fines as just a cost of doing business. We need to make sure that those who intentionally deceive consumers get a trip to jail, not a slap on the wrist. Schemers should not easily be able to sully the seal of quality that is associated with genuine Vermont maple syrup. I have a longstanding commitment to comprehensive food safety and food integrity reforms, and our work is not done. Earlier this year, the Senate unanimously passed my Food Safety Accountability Act, which would hold those criminals who intentionally poison our food supply accountable for their crimes. I urge the House to pass that noncontroversial bill, and I hope that all Senators will join us in supporting the MAPLE Act. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. LEAHY

Mr. LEAHY. Mr. President, I am pleased to be joined by Senators Collins, Schumer, Sanders and Gillibrand as we introduce this legislation to hold accountable those criminals who fraudulently sell what they call ``maple'' syrup. Vermont iconic maple syrup--painstakingly produced, and prized across the Nation and beyond--is one of our state's fine, high-quality, natural products. I have been alarmed by the growing number of individuals and businesses claiming to sell genuine Vermont maple syrup when they are in fact selling an inferior product that is not maple syrup at all. This is fraud, plain and simple, and it undermines a key part of Vermont's economy and reputation for quality that has been hard-earned through Vermonters' hard work. I know that diligent syrup producers in Maine, New York, and other States have been similarly hurt by this crime. Our bill, the Maple Agriculture Protection and Law Enforcement, or ``MAPLE''Act, will deter this criminal conduct. The MAPLE Act creates a felony offense with a 5-year maximum penalty for fraudulently selling a product purported to be maple syrup that is not, in fact, maple syrup. Under current law, doing so is only a misdemeanor offense with a one year penalty. The sale of fraudulent maple syrup is a real problem facing consumers and producers. Recently, Vermont U.S. Attorney Tris Coffin sought an indictment after a Food and Drug Administration investigation revealed that a Rhode Island man had been selling cane sugar-based syrup as ``maple'' syrup and representing to consumers that the syrup was authentic. The legislation we introduce today will more effectively protect consumers and the maple industry by punishing and deterring this deceptive conduct. Vermonters, and consumers across the country, should be confident that when they buy food, they know exactly what they are getting. The fines that may result from criminal violations under current law are often not enough to protect the public from harmful or fraudulent products. Too often, those who are willing to endanger our livelihoods in pursuit of their profits see fines as just a cost of doing business. We need to make sure that those who intentionally deceive consumers get a trip to jail, not a slap on the wrist. Schemers should not easily be able to sully the seal of quality that is associated with genuine Vermont maple syrup. I have a longstanding commitment to comprehensive food safety and food integrity reforms, and our work is not done. Earlier this year, the Senate unanimously passed my Food Safety Accountability Act, which would hold those criminals who intentionally poison our food supply accountable for their crimes. I urge the House to pass that noncontroversial bill, and I hope that all Senators will join us in supporting the MAPLE Act. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. LEAHY

Mr. LEAHY. Mr. President, the Senate will vote today on 3 of the 26 judicial nominations reported favorably by the Judiciary Committee and still awaiting a Senate vote. All three of these nominations, two to Federal district courts in Pennsylvania and one to the Southern District of Florida, were reported unanimously by the Judiciary Committee before the August recess. All three have the support of both Democratic and Republican home State Senators. Two of them are to fill judicial emergency vacancies. Senate Democrats were prepared to have votes on all three nominations 3 months ago when they were first reported to the Senate. I have heard no reason or explanation for why the Republican leadership refused until now to consent to votes on these nominations. There is also no good reason or explanation for the Republican leadership's continued refusal to vote on the more than two dozen nominations stalled before the Senate. With Republican agreement, we could vote on all of them. Like the three nominations the Senate considers today, 21 of the other judicial nominations pending on the calendar and still being delayed were reported unanimously by the Judiciary Committee. At a time when vacancies on Federal courts throughout the country remain near 90, with over 10 percent Federal judgeships vacant, the delays in considering and confirming these consensus judicial nominees is inexcusable. The American people need functioning Federal courts with judges, not vacancies. In his recent letters to the Senate majority leader and Republican leader, Bill Robinson, the president of the American Bar Association, highlighted the serious problems created by these excessive vacancies, writing: Across the nation, federal courts with high caseloads and longstanding or multiple vacancies have no choice but to delay or temporarily suspend their civil dockets due to Speedy Trial Act requirements. This deprives our federal courts of the capacity to deliver timely justice in civil matters and has real consequences for the financial well- being of businesses and for individual litigants whose lives are put on hold pending resolution of their disputes. Mr. Robinson is not alone. We recently heard from Justice Scalia, who testified before the Senate Judiciary Committee that the extensive delays in the confirmation process are already having a chilling effect on the ability to attract talented nominees to the Federal bench. Chief Justice Roberts has also described the ``persistent problem of judicial vacancies in critically overworked districts.'' Justice Kennedy has spoken about the threat to the quality of American justice. This is not a partisan issue, but an issue affecting hardworking Americans who are denied justice when their cases are delayed by overburdened courts. Though it is within the Senate's power to take significant steps to address this problem, refusal by Senate Republicans to consent to voting even on consensus judicial nominations has kept judicial vacancies high for years. The number of judicial vacancies has been near or above 90 for well over 2 years. A recent report by the nonpartisan Congressional Research Service found that we are in the longest period of historically high vacancy rates in the last 35 years. These needless delays do nothing to help solve this serious problem and are damaging to the Federal courts and the American people who depend on them. More than half of all Americans--almost 170 million--live in districts or circuits that have a judicial vacancy that could be filled today if the Senate Republicans just agreed to vote on the nominations now pending on the Senate calendar. As many as 25 States are served by Federal courts with vacancies that would be filled by these nominations. Millions of Americans across the country are harmed by delays in overburdened courts. The Republican leadership should explain why they will not consent to vote on the qualified consensus candidates nominated to fill these extended judicial vacancies. Senator Grassley and I have worked together to ensure that each of the 26 nominations on the Senate calendar was fully considered by the Judiciary Committee after a thorough but fair process, including completing our extensive questionnaire and questioning at a hearing. In fact, all the nominations reported by the committee have not only gone through vetting by the committee, but were vetted by the administration. The White House has worked with the home State Senators, Republicans and Democrats, and each of the judicial nominees being delayed from a Senate vote is supported by both home State Senators. The FBI has conducted a thorough background review of each nominee. The ABA's Standing Committee on the Federal Judiciary has conducted a peer review of their professional qualifications. When the nominations are then reported unanimously by the Judiciary Committee, there is no reason for months and months of further delay before they can start serving the American people. Despite the damaging high vacancies that have persisted throughout President Obama's term, some Republican Senators have tried to excuse their delay in taking up nominations by suggesting that the Senate is doing better than we did during the first 3 years of President Bush's administration. It is true that President Obama is doing better in that he has worked more closely with home State Senators of both parties. As I have noted, all of the judicial nominees pending and being stalled on the Senate Executive Calendar have the support of both home State Senators in every case. That was not true of President Bush and led to many problems. I have continued the practices I followed as chairman when President Bush was in office. In fact, when the Kansas Senators reversed themselves and opposed a judicial nominee that they had once approved, I honored their change of position and did not proceed to a vote in committee on that nominee. But it is wrong to suggest that the Senate has achieved better results than we did in 2001 through 2003. As I have pointed out, in the 17 months I chaired the Judiciary Committee in 2001 and 2002, the Senate confirmed 100 of President Bush's Federal circuit and district court nominees. By contrast, after the first 2 years of President Obama's administration, the Senate was only allowed to proceed to confirm 60 of his Federal circuit and district court nominees. Indeed, as 2010 was drawing to a close, Senate Republicans refused to proceed on 19 judicial nominees that had been considered and reported by the Judiciary Committee and forced them to be returned to the President. It has taken the Senate nearly twice as long to confirm the 100th Federal circuit and district court judge nominated by President Obama as we had when President Bush was in the White House. During the third year of President Bush's administration, the Senate confirmed 68 of his Federal circuit and district court nominees. Indeed, by mid-October 2003, 63 judges had been confirmed. In contrast, this year the Senate has yet to confirm 50 of President Obama's judicial nominees--despite the fact that 26 have been ready for final consideration and approval and remain stalled from confirmation by the Senate. For those who contend percentages are significant, I note that the Washington Post reported this week that a lower percentage of President Obama's nominees have been confirmed than President Bush's, with only 68 percent of President Obama's Federal circuit and district court nominees confirmed compared to 81 percent of President Bush's. I think confirmations and vacancy numbers better reflect the reality in our Federal courts and for the American people. It is hard to see how the Senate is supposed to be doing better when it remains so far behind the pace we set in those years. During President Bush's first 4 years, the Senate confirmed a total of 205 Federal circuit and district court judges. As of today, we have almost 100 confirmations of President Obama's circuit and district court nominations to go in order to match that total during the next 12 months. At this juncture in President Bush's administration the Senate had confirmed 163 Federal circuit and district court judges, and the vacancy rate was down to 5 percent, with 46 vacancies. By contrast confirmations of President Obama's Federal circuit and district court nominees total only 109, and judicial vacancies are now nearly twice as high with a vacancy rate of over 10 percent. This is not the way to make real progress. No resort to percentages of nominees ``processed'' or ``positive action'' by the committee can excuse the lack of real progress by the Senate. In the past, we were able to confirm consensus nominees more promptly, often within days of being reported to the full Senate. They were not forced to languish for months. The American people should not have to wait weeks and months for the Senate to fulfill its constitutional duty and ensure the ability of our Federal courts to provide justice to Americans around the country. All three of the nominations the Senate will vote on today were reported unanimously by the committee in July. President Obama first nominated Robert Mariani in December 2010 to fill a judicial emergency vacancy in the Middle District of Pennsylvania. Mr. Mariani has been a litigator in private practice for 35 years. For almost 20 years, he has managed his own law firm as a solo practitioner. Mr. Mariani has the bipartisan support of his home State Senators, a Democrat and a Republican. The ABA's Standing Committee on the Federal Judiciary unanimously rated him ``well qualified'' to serve, its highest possible rating. Mark Hornak is nominated to fill a vacancy in the U.S. District Court for the Western District of Pennsylvania. As with Mr. Mariani, both of Pennsylvania's Senators support Mr. Hornak's nomination, which received the highest possible rating from the ABA's Standing Committee on the Federal Judiciary, unanimously ``well qualified.'' Mr. Hornak has worked in private practice for 30 years in the Pittsburgh office of Buchanan, Ingersoll & Rooney, where he is a member of the firm's executive committee. He has served as a court-approved mediator and special master in the Western District of Pennsylvania, the district to which he is nominated. Following his law school graduation, he served as a law clerk to Judge James Sprouse of the U.S. Court of Appeals for the Fourth Circuit. We will also vote on the nomination of Judge Robert Scola to fill a judicial emergency vacancy in the Southern District of Florida. For the past 16 years, Judge Scola has served as a State judge in the Eleventh Judicial Circuit of Florida. He has been reelected to that position three times. Judge Scola previously spent 9 years in private practice as a criminal defense attorney, and 6 years as a State prosecutor in Miami-Dade County. The ABA's Standing Committee on the Federal Judiciary unanimously rated Judge Scola ``well qualified'' to serve, its highest rating. Judge Scola has the bipartisan support of his home State Senators, a Democrat and a Republican. The Chief Judge for the Southern District of Florida, Judge Federico Moreno, a President George H.W. Bush appointee, wrote months ago to the Senate to urge the speedy confirmation of Judge Scola to address his court's overburdened schedule. I am glad we are finally able to consider his nomination today. I hope that in the weeks ahead we can build on today's progress by considering more of the nearly two dozen well-qualified nominees still awaiting a Senate vote. This is an area where the Senate must come together to address the serious judicial vacancies crisis on Federal courts around the country that has persisted for well over 2 years. We can and must do better for the nearly 170 million Americans being made to suffer by these unnecessary Senate delays.

Mr. LEAHY

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

Mr. LEAHY. Mr. President, I wish to speak to amendment No. 753 to H.R. 2112 by the distinguished Senator from New Hampshire, Senator Ayotte. This amendment would tie the hands of our national security and law enforcement officers in their efforts to secure our national security. I am surprised that this amendment is being offered at this time. Just a week ago, we learned of the foiled assassination attempt in the United States of the Saudi Ambassador to the United States. This case involved the Department of Justice, the FBI, and the DEA in a coordinated effort to prevent an act of terrorism on U.S. soil. I commend the agencies involved in the investigation. I was also pleased to see that, in this instance, members of Congress did not re-engage in armchair quarterbacking over whether the suspect should be transferred to military custody or sent to Guantanamo. Nearly two years ago, when a terrorist attempted to blow up an airplane on Christmas Day, some politicians used the occasion to criticize the Attorney General after the suspect was arrested. They made all kinds of claims about the risks of trying him in a Federal court, none of which came true. In fact, after obtaining useful intelligence from the suspect, that case proceeded without incident in Federal court where, last Wednesday, the defendant pleaded guilty. He now faces a potential life sentence. That successful prosecution adds to the more than 440 terrorism-related convictions since September 11, 2001. Over the last two and one half years, the President and his national security team have done a tremendous job protecting America and taking the fight to our enemies. Earlier this year, the President ordered a successful strike against Osama bin Laden and has stayed focused on destroying al Qaeda from his first days in office. Last month, the administration was also able to locate Anwar al Awlaki, a terrorist operative in Yemen who was recruiting Americans to attack within the United States. During the past two and one half years, the President and his national security team have developed a counterterrorism framework that has protected the American people while taking on al Qaeda and its affiliates. As the President's assistant for Homeland Security and Counterterrorism John Brennan noted last month: ``[T]he results . . . under this approach are undeniable.'' Al Qaeda has been ``severely crippled'' and the death of Osama bin Laden was a ``strategic milestone'' in that effort. We must remain vigilant, but no one can deny the progress that has been made. As Mr. Brennan emphasized, the approach is ``a practical, flexible, result-driven approach to counter terrorism that is consistent with our laws, and in line with the very values upon which this nation was founded.'' He noted: ``Where terrorists offer injustice, disorder, and destruction, the United States and its allies stand for freedom, fairness, equality, and hope.'' The Judiciary Committee has held several hearings on the issue of how to best handle terrorism suspects. Experts and judges from across the political spectrum have agreed that our courts and our criminal justice system can play a role in this challenge, and indeed has been effectively involved many times already. As a former prosecutor, I have absolute faith in the abilities of our Federal courts, prosecutors, and law enforcement to bring terrorists to justice. The Executive Branch must have all options available in handling terrorism cases, including the ability to prosecute terrorists in Federal criminal courts. I find it deeply troubling that the Senate would prohibit the administration from trying terrorists in our Federal courts. While there may be a place for military commissions in our overall approach to dealing with terrorism suspects, they remain mostly an unproven tool. The federal courts have dramatically more experience with handling these types of cases and have a proven track record of success. There have been only six convictions in military commissions since September 11. Of the six convictions, five resulted from plea bargains. On average, the sentences given to those six defendants convicted in military commissions have been far shorter than the sentences handed down in Federal criminal courts. There have been more than 443 terrorism-related convictions in Federal courts since September 11, 2001, including at least 78 convictions during the Obama administration. This amendment would deprive Federal law enforcement of a critical tool in bringing terrorists to justice. It usurps the Attorney General's constitutional responsibilities. This body does not hold the responsibility of prosecuting any one. We are not the ones who go to court. We are not the ones who bring cases before a jury. The executive branch should make those choices, and it has done a very good job in winning convictions. It would not be responsible for us to try to second-guess the system and tell a prosecutor what they should do in future cases. We would never do this to a State prosecutor. Why would we do this to our Federal prosecutors who are so well equipped to handle these cases? We have spent over 200 years developing our criminal justice system, and we have spent over 200 years developing our courts and our Federal prosecution processes. No one should try to pass an amendment that will overturn that. This is not the path forward. I urge all Senators to oppose this amendment. I suggest the absence of a quorum.

Mr. LEAHY

Mr. LEAHY. Mr. President, it is not a good idea to legislate law enforcement tactics on an appropriations bill. To the extent the amendment by the Senator from Texas that has been modified with the help of the subcommittee chair restates Department of Justice policy, it is unneeded. To the extent it seeks to create a well-intentioned implementation of that policy, it does so in a way that may adversely affect FBI operations and other law enforcement efforts, including joint task forces among Federal, State, and local law enforcement, without really adding to what the Attorney General has already said and done to ensure that certain tactics from Operation Fast and Furious not be used again. The Department of Justice's Inspector General's Office has not yet completed its independent investigation of Operation Fast and Furious, which was a Bureau of Alcohol, Tobacco, Firearms and Explosives operation in Phoenix that apparently followed on the practices used in Tucson during the Bush administration in Operation Wide Receiver. I expect to examine the inspector general's report through briefings, and possibly a hearing, when that investigation is concluded. It is important to remember that there are ongoing and highly sensitive criminal investigations involved here, and I do not think anyone wants to unduly hamper the efforts of law enforcement agents to stem the fight against violent drug cartels in Mexico. I appreciate that the Senator from Texas, like all of us, is deeply concerned. When he wrote to me asking for a hearing about the southern border, I asked Senator Durbin, who then chaired the Crime Subcommittee, to work with him and accommodate his request. I certainly hope that congressional attention did not add to the pressure felt by law enforcement officers and agents to utilize aggressive and risky methods with inadequate resources. Of course, we all mourn the loss of all of the agents who have died in the line of duty, including members of our Customs and Border Patrol and Immigration and Customs Enforcement. I have spoken previously about the loss of Jaime Zapata. This year we also mourn Hector Clark and Eduardo Rojas. Last year we lost five Department of Homeland Security, DHS, agents: Vincent Gallagher, John Zykas, Mark Van Doren, Floyd Collins, and, of course, Brian Terry. The year before that we lost another four agents: Nathaniel Afolayan, Cruz McGuire, Robert Rosas, Jr., and Trena McLaughlin. Senator Cornyn has offered an amendment he describes as prohibiting funding for intentional ``gun walking'' programs. The Department of Justice already has a longstanding policy against the knowing transfer of firearms to criminals without proper monitoring or controls. I appreciate that the Senator from Texas, like all of us, is deeply concerned about law enforcement operations that could allow firearms to fall into the hands of violent criminals in Mexico. I was concerned that the original text of his amendment would actually make it more difficult to investigate and prosecute gun traffickers. I am glad to see that Senator Cornyn has worked with Senator Mikulski to address some of my operational concerns with his amendment concerns that were also voiced by the Department of Justice. I am not sure that in the short time available to us that we have been able to rectify all of the unintended, collateral consequences this language might occasion, however. For example, I know the FBI has voiced serious operational concerns about the impact this amendment could have on their system of background checks through the National Instant Criminal Background Check System, NICS. I hope Senator Cornyn and others will continue to work with the Department of Justice, the FBI, and other law enforcement agencies to ensure that whatever final language may be included in law does not unduly hamper the ability of law enforcement, including efforts against violent drug cartels in Mexico. The Attorney General recently reiterated that longstanding Department of Justice policy already prohibits the transfer of firearms to known criminals without the proper monitoring or controls by law enforcement. Indeed, when Attorney General Holder testified about Operation Fast and Furious before the Senate Appropriations Subcommittee for Commerce, Justice, and Science in March, he stated that he had made it clear to the Department of Justice, including the U.S. Attorney's Offices and ATF agents nationwide, that ``letting guns walk is not something that is acceptable.'' I also understand that earlier this year, this policy was expressly reiterated to prosecutors and agents in the field through guidance issued by the Deputy Attorney General. Accordingly, this amendment attempts to legislate a policy that is already in effect. I am also concerned that Senator Cornyn has offered this amendment without the benefit of all of the facts. As I have noted, there is an independent investigation by the Department of Justice inspector general that is ongoing. Moreover, there is an ongoing criminal investigation and prosecution related to the tragic murder of Agent Brian Terry. I am sure Senator Cornyn would agree that we should all ensure that the FBI and the prosecutors assigned to the case can continue that criminal investigation without any interference or impediment. Contrary to Senator Cornyn's statement, there has been no conclusive evidence indicating that either of these guns connected to Operation Fast and Furious were ``used'' to murder Agent Terry. Although the revised text of Senator Cornyn's amendment has addressed some of my operational concerns, I remain concerned with language that purports to require U.S. law enforcement personnel to continuously monitor and control any firearms that may be transferred during an operation. I cannot believe that is what is really intended. Many law enforcement operations are joint operations through joint task forces with State and local law enforcement. I do not believe the Senator from Texas means to construct a rigid protocol of tactics for such operations. Given the potential for operational problems that might arise from a overly literal application of the language, I am left to wonder whether this language is intended to apply to joint operations at all, since it would not make sense on the ground. Again, I appreciate the intent of Senator Cornyn's amendment, and as I have demonstrated, I share his concern with the violence, drugs, and illegal gun trafficking along our borders. The strategy and tactics being used to fight these problems need to be both smart and effective. At the same time, I am confident the Senator from Texas would agree with me that we must also continue to support and honor the efforts of the thousands of Federal, State, and local law enforcement officers who are working tirelessly to keep our border safe.

Mr. LEAHY

Mr. LEAHY. If the Senator will yield on that point, he is absolutely right. They were reported unanimously from the Senate Judiciary Committee on July 21. They were cleared that day on the Democratic side. We were perfectly willing to bring them up and voice vote them that day or the next day or the day after. We were perfectly willing to have a vote in August before we went out. We were perfectly willing to have them voted on in September. We were perfectly willing to have them voted on early, in early October because of the Senator's support and Senator Casey's support. For some reason, that was not cleared on the Senator's side of the aisle. I will be happy to work with my friend from Pennsylvania--after all, we each have the same first name--and we will try to clear them. What the Senator said about them is absolutely true. These are the kind of judges--whether we have a Republican or Democratic President, they would be proud to have them on the bench, and I pledge to work with both Senators from Pennsylvania to get them through.

Mr. LEAHY

Mr. LEAHY. Mr. President, I ask for the yeas and nays.