Patrick Leahy

Mr. LEAHY

Mr. LEAHY. Mr. President, today the Senate has taken a lengthy stride toward improving the health of America's children and addressing two of the greatest threats to their wellbeing and security: hunger and obesity. By passing the bipartisan Healthy, Hunger-Free Kids Act to reauthorize Federal child nutrition programs, we will be making a historic investment in our children's future and in the Nation's future. With others in this body, I have pressed for action on this bill before the Senate completed its business this week. I am pleased that the Senate and our leaders made this bill the priority that our children deserve it to be. I have heard from countless Vermont parents, teachers, school administrators, food service workers, community leaders, farmers and others about the importance of making sure every child in America has access to nutritious meals at school. They all want what's best for our children, and they all know how crucial it is that we have passed this legislation today. In March of this year, more than 4 months ago, the Senate Agriculture, Nutrition, and Forestry Committee unanimously approved this bipartisan bill, upon which our Chairman and Ranking Member have worked so hard. Today's action has come just in time, as the September 30 deadline to reauthorize these programs is quickly approaching. Without action today, I have been concerned that we would have been forced into another long-term extension of these vital programs, sidelining the tremendous improvements that the Agriculture Committee has been working on for months. I am grateful for Chairman Lincoln and Ranking Member Chambliss for all that they have done to ensure that we could pass this bipartisan bill. Our First Lady also deserves credit for the impetus that has helped propel our efforts forward. She has vigorously and ably taken up the cause of solving the problem of childhood obesity within a generation, so that kids born today can reach adulthood at healthy weights. The groundbreaking legislation that the Senate has passed today will bring fundamental changes to our schools and will improve the food options available to our children. When the first national school lunch program was created in 1946, children in this country were plagued with malnutrition from not having enough of the proper nutrients for health, growth and development. At the time it was considered a matter of national security to safeguard the health and well being of our nation's children. That was a far different era in the health of our Nation, but the importance of these programs and the children they help has not diminished. Unfortunately, the health statistics for children in this country today are troubling; in fact one in five children in this country is considered obese. Thankfully this bill will help to put those children on the road to healthier, more productive and longer lives. The Healthy, Hunger-Free Kids Act establishes for the first time, ever, national school nutrition standards to ensure our children have healthier options available throughout the entire school day. With this legislation, parents across the country will know that the snacks and foods offered to their children at school, even the vending machine and a la carte lunch line options, are based on national standards established by USDA to ensure healthier diets. I believe that our school cafeterias should be treated as an extension of the classroom and as an opportunity for students to learn about nutrition, well-balanced meals, and where their food comes from. I thank the Chairman for including funding for the Farm to School program, which is a proven, common-sense, community-driven approach to improve the health and wellbeing of children while supporting our local farmers and economy. My goal in authoring the Farm to School program was the powerful logic of this ``two-fer'' an opportunity to get money into the hands of American farmers for their locally grown products, while supporting local economies and teaching kids about nutritious foods and where they come from. Vermont is leading the country in this effort, and I hope other States will be able to learn from our experiences as they incorporate more local and healthy foods into their cafeterias. It is a sad reality that hunger is a regular part of life for far too many children in America today, and for many children, the meals they get at school are sometimes the only things they will eat all day. In Vermont one in ten people live in food insecurity, and many of these are our most vulnerable, our children. In addition to increasing reimbursement rates and streamlining the nutrition programs to make them easier for families to utilize, this legislation also improves summer and afterschool meal programs. I again thank the chairman and ranking member of the Senate Agriculture Committee for doing a remarkable job with this legislation. Their hard work and dedication, and that of their staff, have resulted in bill that makes a historic investment in the future of this country.

Mr. LEAHY

Mr. LEAHY. Mr. President, I want to call attention to language in Senate Report 111-237 accompanying the fiscal year 2011 Department of State, Foreign Operations, and Related Programs appropriations bill, which passed out of the Appropriations Committee on July 29, 2010. That language notes the committee's concern with recent events in Nepal, where Tibetan refugees have been forcibly turned over to Chinese border police. This contradicts Nepal's long and generous history of providing safe passage for Tibetans on route to India, and it is inconsistent with international law. In the past, Nepal has provided safe haven, and the United States, the United Nations, and other donors have provided the funds necessary to care for these people in transit. This is a matter of grave concern to the Congress and to people everywhere who know of the danger of arrest and imprisonment and the physical hardships Tibetans face, fleeing their homeland by crossing the Himalayas with little more than the clothes on their backs. I hope the Nepali Government will take note of the committee's concern and take immediate steps to reaffirm its policy of permitting Tibetan refugees to travel safely to India. I ask unanimous consent that this language in Report 111-237 be printed in the Record.

Mr. LEAHY

Mr. LEAHY. Mr. President, today, I am pleased to introduce an important bipartisan bill to ensure that the Freedom of Information Act, FOIA, remains an effective tool to provide public access to critical information about the stability of our financial markets. My bill would amend the Securities and Exchange Act, the Investment Company Act and the Investment Advisers Act to eliminate several broad FOIA exemptions for Security and Exchange Commission records that were recently enacted as part of the Dodd-Frank Wall Street Reform and Consumer Protection Act. I thank Senators Cornyn, Kaufman and Grassley for cosponsoring this important open government bill. I am a proud supporter of the historic Wall Street reform bill that has now become law, because this legislation makes significant strides toward enhancing transparency and accountability in our financial system. But, I am concerned that the FOIA exemptions in Section 929I of that bill, which was originally drafted in the House of Representatives and included in the final law, could be interpreted and implemented by the SEC in a way that undermines this very important goal. The Freedom of Information Act has long been the people's window into their Government, showing where the Government is doing things right, but also where Government can do better. The FOIA has also long recognized the need to balance the Government's legitimate interest in protecting confidential business records, trade secrets and other sensitive information from public disclosure and the public's right to know. To accomplish this, care must always be taken to ensure that exemptions to FOIA's disclosure requirements are narrowly and properly applied. When Congress enacted these exemptions, we were seeking to ensure that the SEC had access to the information that the Commission needs to carry-out its new enforcement powers and to protect American investors--not shielding information from the public. I have been troubled by the Commission's attempts in recent weeks to retroactively apply these exemptions to pending FOIA matters. I am also troubled by the sweeping interpretation that the Commission has expressed, to date, that these exemptions would shield all information provided to the Commission in connection with its broad examination and surveillance activities. This week, I called on the Commission to promptly issue guidelines that interpret the FOIA exemptions in Section 929I in a manner that is both consistent with congressional intent and with the President's January 21, 2009, Executive Memorandum on the Freedom of Information Act. I look forward to the public release of those guidelines. Given the overwhelming public interest in restoring stability and accountability to our financial system, Congress must also take steps to address concerns about the exemptions in Section 929I. I thank the many open government organizations, including OpenThe Government.org, the Project on Government Oversight, the American Library Association and the Sunlight Foundation for their support of this bill. I have said many times that open government is neither a Democratic issue, nor a Republican issue--it is truly an American value and virtue that we all must uphold. It is in this bipartisan spirit that Senators from both sides of the aisle have joined me in supporting this bill. I look forward to working with them and others in Congress to ensure that the American public has access to important information about the SEC's oversight of our financial markets. Mr. President, I ask unanimous consent that the text of the bill and a letter of support be printed in the Record.

Mr. LEAHY

Mr. LEAHY. Mr. President, today, I am pleased to introduce an important bipartisan bill to ensure that the Freedom of Information Act, FOIA, remains an effective tool to provide public access to critical information about the stability of our financial markets. My bill would amend the Securities and Exchange Act, the Investment Company Act and the Investment Advisers Act to eliminate several broad FOIA exemptions for Security and Exchange Commission records that were recently enacted as part of the Dodd-Frank Wall Street Reform and Consumer Protection Act. I thank Senators Cornyn, Kaufman and Grassley for cosponsoring this important open government bill. I am a proud supporter of the historic Wall Street reform bill that has now become law, because this legislation makes significant strides toward enhancing transparency and accountability in our financial system. But, I am concerned that the FOIA exemptions in Section 929I of that bill, which was originally drafted in the House of Representatives and included in the final law, could be interpreted and implemented by the SEC in a way that undermines this very important goal. The Freedom of Information Act has long been the people's window into their Government, showing where the Government is doing things right, but also where Government can do better. The FOIA has also long recognized the need to balance the Government's legitimate interest in protecting confidential business records, trade secrets and other sensitive information from public disclosure and the public's right to know. To accomplish this, care must always be taken to ensure that exemptions to FOIA's disclosure requirements are narrowly and properly applied. When Congress enacted these exemptions, we were seeking to ensure that the SEC had access to the information that the Commission needs to carry-out its new enforcement powers and to protect American investors--not shielding information from the public. I have been troubled by the Commission's attempts in recent weeks to retroactively apply these exemptions to pending FOIA matters. I am also troubled by the sweeping interpretation that the Commission has expressed, to date, that these exemptions would shield all information provided to the Commission in connection with its broad examination and surveillance activities. This week, I called on the Commission to promptly issue guidelines that interpret the FOIA exemptions in Section 929I in a manner that is both consistent with congressional intent and with the President's January 21, 2009, Executive Memorandum on the Freedom of Information Act. I look forward to the public release of those guidelines. Given the overwhelming public interest in restoring stability and accountability to our financial system, Congress must also take steps to address concerns about the exemptions in Section 929I. I thank the many open government organizations, including OpenThe Government.org, the Project on Government Oversight, the American Library Association and the Sunlight Foundation for their support of this bill. I have said many times that open government is neither a Democratic issue, nor a Republican issue--it is truly an American value and virtue that we all must uphold. It is in this bipartisan spirit that Senators from both sides of the aisle have joined me in supporting this bill. I look forward to working with them and others in Congress to ensure that the American public has access to important information about the SEC's oversight of our financial markets. Mr. President, I ask unanimous consent that the text of the bill and a letter of support be printed in the Record.

Mr. LEAHY

Mr. LEAHY. Mr. President, I suggest the absence of a quorum.

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

Mr. LEAHY. Mr. President, on July 1 of this year, the Judiciary Committee received a letter from LT Zachary W. Prager. He serves in the U.S. Navy Judge Advocate General's Corps. He writes: I was a student at Harvard Law School under Ms. Kagan and commissioned into the Navy. . . . I am grateful to Dean Kagan for her leadership on military recruiting, as well as the myriad of other positive impacts that she had on my law school experience. I would not be serving today-- Referring to the military-- without it. She has earned my most heartfelt support for her nomination. This is a member of the military who felt Dean Kagan helped greatly with him joining the military. As the dean of Harvard Law School, Elena Kagan worked hard to find ways to both enforce the school's nondiscrimination policy and allow the military to recruit Harvard students. Mr. President, I ask unanimous consent that Lieutenant Prager's letter be printed in the Record.

Mr. LEAHY. Mr. President, on that subject, I would like to note a letter of support the Judiciary Committee received from 1LT David Tressler. He was at Harvard Law School when Solicitor General Kagan served there as dean. He is currently serving in harm's way in Afghanistan, and he strongly supports Solicitor General Kagan for this nomination. Here is what the lieutenant writes: I believe that, while dean of Harvard Law School, [Elena Kagan] adequately proved her support for those who had served, were currently serving, and all those who felt called to serve, including those like me who joined upon graduation as well as those patriots who were not permitted to do so under the policy of ``Don't Ask, Don't Tell.'' Mr. President, I ask unanimous consent that Lieutenant Tressler's letter of support be printed in the Record.

Mr. LEAHY. I might say what a red herring this question is of where a recruiter's office is. If you have people who want to serve in the military, they can usually find them. Our youngest son joined the U.S. Marine Corps directly out of high school--a brilliant young man who wanted to serve his country. So I asked him again the other day, just to be sure. I said: Mark, now, was that recruiter at the high school or on campus? He said: Oh, no, Dad. We didn't have anything like that. I said: How did you find it? He said: Well, I got out the telephone book. I looked up the address: downtown Burlington. He told me exactly where it was. I know the area. I walked down there and joined the U.S. Marine Corps. Frankly, and obviously, my wife and I are very proud of him. He served honorably. I cannot help but think for just about everybody I know who joined the military, if you asked them: How did you do this, they would say: Oh, I checked where the recruiter was and went and joined or I was at an event somewhere where somebody was speaking, and I heard about it and joined. So this is probably the biggest red herring. I have been here for debates and votes on every single member currently serving on the Supreme Court and some who have since retired from the Supreme Court. I have heard a few red herrings over the years, never one like this. Mr. President, during the 3 months that this nomination has been pending, Senators have made many statements about Solicitor General Elena Kagan. I wish to commend the statements made yesterday and today by the majority leader, Senator Cardin, Senator Feinstein, Senator Kohl, Senator Franken, Senator Durbin, Senator Lieberman, Senator Dorgan, Senator Gillibrand, Senator Shaheen, Senator Klobuchar, Senator Hagan, Senator Mikulski, Senator Bingaman, Senator Carper, Senator Levin, Senator Whitehouse, Senator Graham, Senator Burris, Senator Specter, Senator Collins, and Senator Boxer. They were outstanding in describing the qualifications of a nominee who should be confirmed with a strong bipartisan majority. If I might, seeing the distinguished Presiding Officer, I wish to acknowledge the extraordinary contributions of his colleague, Senator Klobuchar. She spoke eloquently. She organized a group of Senators, and she persevered, despite the personal loss she suffered this week. When President Obama set out to find a well-qualified nominee to replace retiring Justice John Paul Stevens, he said he would ``seek someone who understands that justice isn't about some abstract legal theory or footnote in a casebook. It's also about how laws affect the daily realities of people's lives--whether they can make a living and care for their families, whether they feel safe in their homes and welcome in our nation.'' In introducing Solicitor General Kagan as his Supreme Court nominee, President Obama, whose 49th birthday is today, praised her ``understanding of the law, not as an intellectual exercise or words on a page, but as it affects the lives of ordinary people.'' President Obama is not alone in recognizing the value of judges and Justices who are aware that their duties require them to understand how the law works and the effects it has in the real world. Within the last few months, two Republican appointees to the Supreme Court have made the same point. Justice Anthony Kennedy told a joint meeting of the Palm Beach and Palm Beach County Bar Associations that, as a Justice, ``You certainly can't formulate principles without being aware of where those principles will take you, what their consequences will be. Law is a human exercise and if it ceases to be that it does not deserve the name law.'' In addition, Justice David Souter, who retired last year and was succeeded by Justice Sotomayor, delivered a thoughtful commencement address at Harvard University. He spoke about judging, and explained why thoughtful judging requires grappling with the complexity of constitutional questions in a way that takes the entire Constitution into account. He spoke about the need to ``keep the constitutional promises our nation has made.'' Justice Souter concluded: If we cannot share every intellectual assumption that formed the minds of those who framed that charter, we can still address the constitutional uncertainties the way they must have envisioned, by relying on reason, by respecting all the words the Framers wrote, by facing facts, and by seeking to understand their meaning for living people. Justice Souter understood the real world impact of the Supreme Court's decisions, as I believe does his successor, Justice Sotomayor. Across a range of fields including bankruptcy, the fourth amendment, statutory construction, and campaign finance, Justice Sotomayor has written and joined opinions that have paid close attention to the significance of the facts in the record, to the considered and longstanding judgments of the Congress, to the arguments on each side, and to Supreme Court precedent. In doing this she has shown an adherence to the rule of law and an appreciation for the real world ramifications of the Supreme Court's decisions. Given America's social and technological development since we were a young nation, interpreting the Constitution's broad language requires judges and Justices to exercise judgment. In the real world, there are complex cases with no easy answers. In some instances, as Justice Souter pointed out in his recent commencement address, different aspects of the Constitution point in different directions, toward different results, and they need to be reconciled. Acknowledging these inherent tensions is not only mainstream, it is as old as the Constitution, and it has been evident throughout American history, from Chief Justice John Marshall in the landmark case of McCulloch v. Maryland to Justice Breyer this past June in United States v. Comstock. Chief Justice John Marshall wrote for a unanimous Supreme Court in the landmark case of McCulloch v. Maryland in 1819, writing that for the Constitution to contain detailed delineation of its meaning ``would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind.'' He understood, as someone who served with Washington, Jefferson, Adams and Madison, that its terms provide ``only its great outlines'' and that its application in various circumstances would need to be deduced. The necessary and proper clause of the Constitution entrusts to Congress the legislative power ``to make all laws which shall be necessary and proper for carrying into execution'' the enumerated legislative powers of article I, section 8, of our Constitution as well as ``all other powers vested by this Constitution in the Government of the United States.'' In construing it, Chief Justice Marshall explained that the expansion clause ``is in a constitution, intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs.'' He went on to declare how, in accordance with a proper understanding of the necessary and proper clause and the Constitution, Congress should not by judicial fiat be deprived ``of the capacity to avail itself of experience, to exercise its reason, and to accommodate its legislation to human affairs'' by judicial fiat. Chief Justice Marshall understood the Constitution, knew its text and knew the Framers. He rejected stagnant construction of the Constitution. McCulloch v. Maryland was the Supreme Court's first interpretation of the necessary and proper clause. The most recent was this past June, in United States v. Comstock. That case upheld the power of Congress to enact the Adam Walsh Child Protection and Safety Act, which included provisions authorizing civil commitment of sexually dangerous Federal prisoners who had engaged in sexually violent conduct or child molestation and were mentally ill. Quoting Chief Justice Marshall's language from McCulloch, Justice Breyer wrote in an opinion joined by a majority of the Supreme Court, including Chief Justice Roberts, about the ``foresight'' of the Framers who drafted a Constitution capable of resilience and adaptable to new developments and conditions. Justice Breyer's judicial philosophy is well known. A few years ago, he authored Active Liberty in which he discussed how the Constitution and constitutional decisionmaking protects our freedoms and, in particular, the role of the American people in our democratic government. When he writes about how our constitutional values apply to new subjects ``with which the framers were not familiar,'' he looks to be faithful to the purposes of the Constitution and aware of the consequences of various decisions. During the Civil War, in its 1863 Prize Cases decision, the Supreme Court upheld the constitutionality of President Lincoln's decision to blockade southern ports before a formal congressional declaration of war against the Confederacy. Justice Grier explained that it was no less a war because it was a rebellion against the lawful authority of the United States. Noting that Great Britain and other European nations had declared their neutrality in the conflict, he wrote that the Court should not be asked ``to affect a technical ignorance of the existence of a war, which all the world acknowledges to be the greatest civil war known in the history of the human race.'' That, too, was judging in the real world. In the same way, the Supreme Court decided more recently in Rasul v. Bush, that there was jurisdiction to decide claims under the Great Writ securing our freedom, the writ of habeas corpus, from those in U.S. custody being held in Guantanamo. Justice Stevens, a veteran of World War II recognized that the United States exercised full and exclusive authority at Guantanamo if not ultimate, territorial sovereignty. The ploy by which the Bush administration had attempted to circumvent all judicial review of its actions was rejected, recognizing that ours is a government of checks and balances. Examples of real world judging abound in the Supreme Court's decisions upholding our individual freedoms. Real world judging is precisely what the Supreme Court did in its most famous and admired modern decision in Brown v. Board of Education--a landmark decision that ended the scourge and the shame of segregation in this country. I recently saw the marvelous production of the George Stevens, Jr., one-man play, ``Thurgood,'' starring Laurence Fishburne. It was an extraordinary evening that focused on one of the great legal giants of America. In fact, at one point, Justice Marshall--the actor playing Justice Marshall--reads a few lines from the unanimous decision of the Supreme Court in 1954 that declared racial discrimination in education unconstitutional. Chief Justice Warren had written: In approaching this problem, we cannot turn the clock back to 1868, when the [Fourteenth] Amendment was adopted or even to 1896 when Plessy v. Ferguson was written. We must consider public education in the light of its full development and its present place in American life throughout the Nation. Only in this way can it be determined if segregation in public schools deprives these plaintiffs of the equal protection of the laws. Understanding the facts in context, the entire Court helped to end a discriminatory chapter in our history, and they did it unanimously, the Court, made up of people such as a former Senator from Alabama who had been a member of the Ku Klux Klan, to Earl Warren, a former Attorney General and Governor, and just about every other possible permeation in between. The Supreme Court did not limit itself to the Constitution as it was written in 1787. At that point in our early history, ``We the People'' did not include Native Americans or African-American slaves, and our laws failed to accord half the population equality or the right to vote because they were women. Do any one of us want to go back to 1787 and say this should be the rules of the game? Real world judging takes into account that the world and our Constitution have changed from 1788, beginning with the Bill of Rights. It takes into account not only the Civil War but the Civil War amendments to the Constitution, adopted between 1865 and 1870, and every amendment adopted since then. Would anyone today, even Justice Scalia, read the eighth amendment's limitation against cruel and unusual punishment to allow the cutting off of ears, a practice employed in colonial times? Of course not, because the standard of what is cruel and unusual punishment was not frozen for all time in 1788. Does anyone dispute that most of the Bill of Rights is correctly applied today to the States through the due process clause of the 14th amendment? Our Bill of Rights freedoms were expressed only as limitations on the authority of Congress. Does anyone think the equal protection clause of the 14th amendment cannot be read to prohibit gender discrimination? Remember, when it was written, the drafters obviously did not have women in mind. But does anybody think this does not make it very clear that our laws should apply equally to men and women today? The Constitution mentions our Armed Forces, but there was no Air Force when the Constitution was written. Does anyone doubt that our Air Force is encompassed by the Constitution, even though no Framer had them in mind when the Constitution was being ratified? Of course not. Likewise, in its interpretation of the commerce clause and the intellectual property provisions providing copyright and patent protection for writings and discoveries, the Supreme Court has sensibly applied our constitutional principles to the inventions, creations, and conditions of the 21st century. Thomas Jefferson and James Madison may have mastered the quill pen, but they did not envision modern computers or phones or smart phones or satellites. The first amendment expressly protects freedom of speech and the press, but the Supreme Court has applied it, without controversy, to things that did not exist when the first amendment was written, such as television, radio, and the Internet. Our Constitution was written before Americans had ventured into cyberspace or outer space. It was written before automobiles or airplanes or even steamboats. Yet the language and principles of the Constitution remain the same as it is applied to new developments. Our privacy protection from the fourth amendment has been tested, but it has survived because the Supreme Court did not limit our freedom to tangible things and physical intrusions but decided to ensure privacy consistent with the principles embodied in the Constitution. There are unfortunately occasions in which the current conservative activist majority on the Supreme Court departs from the clear meaning or purpose of the law and even its own precedents. One such case, the Ledbetter case, would have perpetuated unequal pay for women, by using a rigid, cramped reading of a statute which defied congressional intent. We corrected that decision by statute. Now there is the Gross case that would make age discrimination virtually impossible to prove. That erroneous decision, which disregarded the court's own precedent, should also be corrected. And, of course, the Citizens United case wrongly reversed 100 years of legal developments to unleash corporate influence in elections. A number of us are trying to correct some of the excesses of that decision with the DISCLOSE Act, but Republicans have filibustered that effort, and will not allow the Senate to consider corrective legislation to add transparency to corporate electioneering. Frankly, I am left to wonder whether some of the current members of the conservative activist majority on the Supreme Court would have supported the decision in Brown v. Board of Education had they been members of the Supreme Court in 1954. They turned that decision upside down with their decision just a few years ago in the Seattle school desegregation case. Theirs was an ideological decision not based on that magnificent precedent, but undermining it. It took a Supreme Court that, in 1954, understood the real world to see that the seemingly fair-sounding doctrine of ``separate but equal'' was in reality a straightjacket of inequality and offensive to the Constitution. All Americans have come to respect the Supreme Court's unanimous rejection of racial discrimination and inequality in Brown v. Board of Education. That was a case about the real world impact of a legal doctrine. But just 3 years ago, in the Seattle school desegregation case, we saw a narrowly divided Supreme Court undercut the heart of the landmark Brown v. Board decision. The Seattle school district valued racial diversity, and was voluntarily trying to maintain diversity in its schools. By a 5-4 vote of conservative activists on the Supreme Court, this voluntary program was prohibited. That decision broke with more than a half century of equal protection jurisprudence and set back the long struggle for equality. Justice Stevens wrote in dissent that the Chief Justice's opinion twisted Brown v. Board in a ``cruelly ironic'' way. Most Americans recognize that there is a crucial difference between a community that does its best to ensure that its schools include children of all races, and one that prevents children of some races from attending certain schools. Experience in the real world tells us that. Justice Breyer's dissent criticized the Chief Justice's opinion as applying an ``overly theoretical approach to case law, an approach that emphasizes rigid distinctions . . . in a way that serves to mask the radical nature of today's decision. Law is not an exercise in mathematical logic.'' Chief Justice Warren, a Justice who came to the Supreme Court with real world experience as a State attorney general and Governor, recognized the power of a unanimous decision in Brown v. Board. The Roberts Court, in its narrow desegregation decision 2 years ago, ignored the real world experience of millions of Americans, and showed that it would depart from even the most hallowed precedents of the Supreme Court. Considering how the law matters to people is a lesson that Elena Kagan learned early in her legal career when she clerked for Justice Thurgood Marshall. In her 1993 remarks upon the death of Justice Marshall, she observed: ``Above all, he had the great lawyer's talent . . . for pinpointing a case's critical fact or core issue. That trait, I think, resulted from his understanding of the pragmatic--of the way in which the law acted on people's lives.'' If confirmed, Elena Kagan will be the third member of the current Supreme Court to have had experience working in all three branches of the government prior to being nominated. Some criticize her work during the Clinton administration as political. I suggest that a fair reading of her papers indicates that she has the ability to take many factors into account in analyzing legal problems and that her skills include practicality, principle, and pragmatism. These were all used in their service to the American people by Justice O'Connor, Justice Souter, and Justice Stevens--each one nominated by a Republican President, each one being Justices I voted for. There is more to serving the country as a Supreme Court Justice. I reject the ideological litmus test that Senate Republicans would apply to Supreme Court nominees. Unlike those on the right who drove President Bush to withdraw his nomination of Harriet Miers and those who opposed Justice Sotomayor, I do not require every Supreme Court nominee to swear fealty to the judicial approach and outcomes ordained by adhering to the narrow views of Justice Scalia and Justice Thomas. I expect judges and Justices to faithfully interpret the Constitution and apply the law, and also to look to the legislative intent of our laws and to consider the consequences of their decisions. I hope that judges and Justices will respect the will of the people, as reflected in the actions of their democratically elected representatives in Congress, and serve as a check on an overreaching Executive. It seems some want the assurance that a nominee to the Supreme Court will rule the way they want, so they will get the end results they want in cases before the Supreme Court. Lack of such assurances was why they vetoed President Bush's nomination of Harriet Miers, only the third woman to be nominated to the Supreme Court, and the only one not to be confirmed. They forced Ms. Miers to withdraw even while Democrats were preparing to proceed with her hearing. They do not want an independent judiciary. They demand Justices who will guarantee the results they want. That is their ideological litmus test. As critics level complaints against Elena Kagan, I suspect the real basis of that discontent is that the nominee will not guarantee a desired litigation outcome. That is not what I want. I want an independent judiciary. I do not want a judiciary that will tell me way in advance exactly how they will rule. I want them independent. Of course, that is not judging. That is not even umpiring. That is fixing the game, and that is wrong. It is conservative activism plain and simple. It is only recently that some Republican Senators conceded that judicial philosophy matters. I hope this means that they will abandon the false premise that all a Justice does is mechanically apply obvious legal dictates to reach preordained outcomes. Solicitor General Kagan was right to reject that as ``robotic.'' It is the kind of conservative activism we saw when the Supreme Court in the Ledbetter case disregarded the plain language and purpose of title VII. It is the kind of activism we saw when, this past January, a conservative activist majority turned its back on the Supreme Court's own precedents, the considered judgment of Congress, the interests of the American people and our long history of limiting corporate influence in elections in their Citizens United decision. We can do better than that. In fact, we always have done better than that. In reality, we can expect Justices who are committed to doing the hard work of judging required of the Supreme Court. In practice, this means we want Justices who pay close attention to the facts in every case that comes before them, to the arguments on both sides, to the particular language and purposes of the statutes they are charged with interpreting, to their own precedents, and to the traditions and longstanding historical practices of this Nation. Applying these factors would reflect an appreciation for the real world ramifications of their decisions. Judging is not just textual and it is not just automatic. If it were, we could have a computer do the judging. If it were, important decisions would not be made 5 to 4. A Supreme Court Justice is required to exercise judgment but should appreciate the proper role of the courts in our democracy. The resilience of the Constitution is that its great concepts, these wonderful phrases in the Constitution, are not self-executing. There are constitutional values that need to be applied. Cases often involve competing constitutional values. So when the hard cases come before the Court in the real world, we want--and we actually need--Justices who have the good sense to appreciate the significance of the facts of the case in front of them as well as the ramifications of their decisions in human and institutional terms. I expect in close cases that hard-working and honest Justices will sometimes disagree about results. I don't expect to agree with every decision of every Justice. I understand that. I support judicial independence. I noted I voted for Justice Stevens and Justice O'Connor and Justice Souter, who were all nominees of Republican Presidents. I knew I would not agree with all of their decisions but I respected their approach to the law and their independence. A few days before Independence Day, the Senate Judiciary Committee was able to complete its hearing on the nomination of Elena Kagan to be an Associate Justice of the Supreme Court of the United States. After opening statements on Monday afternoon, June 28, we were able to complete the questioning of the nominee on Tuesday, June 29, and Wednesday, June 30. We proceeded for 10 hours on Tuesday, and were able to complete most of the first round. We returned on Wednesday to complete the remainder of the first round, a second round, and a third round for those who requested additional time to question Solicitor General Kagan. We also held the traditional closed session and held the hearing record open for members of the committee to submit additional questions to Solicitor General Kagan. Out of respect for the Senate observances honoring Senator Byrd, we reconvened at 4 p.m. on Thursday, July 1. We heard testimony from representatives of the American Bar Association, and 14 members of the public invited by the Republican minority and 10 invited by the majority. I especially thank Senators Cardin, Kaufman, and Schumer for sharing the duty of chairing our proceedings on Thursday, which extended past 8 p.m., long after the last Senate vote of the week. In my opening statement at the hearing, I urged the nominee to engage with the Senators and she was, in fact, engaging. I also urged Solicitor General Kagan to answer our questions about her judicial philosophy. I think that she was more responsive than other recent nominees, and that she provided more information than was shared at other Supreme Court hearings in which I have participated. Of course, some of the questions attempted to solicit indications as to how she would rule in cases likely to come before the Supreme Court. Solicitor General Kagan appropriately avoided such attempts but displayed a keen understanding of the complex set of legal issues that come before our highest Court. I was disappointed that one line of attack against Elena Kagan was to disparage Thurgood Marshall. I appreciated the statements of Senators Cardin and Durbin in defense of this towering figure of American law. I commend the columns written by Stephanie Jones, the daughter of Judge Nathan Jones; Frank Rich; Dana Millbank; Margaret Carlson; Carol Steiker; and, of course, Thurgood Marshall, Jr. In addition, editorial pages, blogs and reports rejected this ill-advised efforts. It is a strength and a blessing that Elena Kagan clerked for Justice Thurgood Marshall. I remember Justice Marshall. The caricature of him by some at the Kagan confirmation hearing was wrong. Knowing him, I suspect that when he told his clerks that his philosophy was to do the right thing and let the law catch up, he was most likely referring to his precedent- setting career as the leading advocate of the time and not strictly defining a judicial philosophy or approach. To the contrary, in Elena Kagan's tribute to Justice Marshall in 1993 in the Texas Law Review, she recalled his commitment to the rule of law. She described, as did Carol Steiker in her column in The National Law Journal, how Justice Marshall's law clerks had tried to get him to rely on notions of fairness rather than the strict reading of the law to allow an appeal to proceed on a discrimination claim. She wrote that the 80-year-old Justice referred to his years trying civil rights cases and said: ``All you could hope for was that a court would not rule against you for illegitimate reasons. You could not expect that a court would bend the rules in your favor. That is the rule of law.'' Just as Sir Thomas More reminded his son-in-law in that famous passage from ``A Man for All Seasons'' that the law is our protection, Justice Marshall reminded his clerks that the existence of rules and the rule of law is the best protection for all, including the least powerful. Justice Thurgood Marshall was a man of the law in the highest sense. He understood the Constitution's promise of equality to his core. He relied on the law and the American justice system to overcome racial discrimination. So I was deeply disappointed to see the manner in which his legacy was treated by some during the recent confirmation hearing and to read that there are Republican Senators currently serving who recently said that they would vote against Thurgood Marshall's confirmation to the Supreme Court. He was disparaged at his confirmation hearing to the Supreme Court. His confirmation to the United States Court of Appeals to the Second Circuit, to be Solicitor General, and to the U.S. Supreme Court were delayed and made difficult at the time, but I had hoped and thought those dark days were behind us. The attacks on Justice Marshall during Elena Kagan's confirmation hearing were particularly striking. On the first day of the hearings Republican members of the Judiciary Committee mentioned Justice Marshall 35 times. They did not do so to praise him or his contributions to America's historic effort to overcome racial discrimination. Rather, they pilloried him as if someone who functioned outside the mainstream of American constitutional law. In fact, he did as much as any American in the last century to make sure America lived up to its promise. He moved America forward, toward a more perfect union. On that day, however, they were trying to penalize Elena Kagan because as a young lawyer she clerked for him on the U.S. Supreme Court. Two current Justices also clerked for Supreme Court Justices--Chief Justice John Roberts and Justice Stephen Breyer. That Chief Justice Roberts clerked for then-Justice Rehnquist was viewed by Republicans as a credential and a positive just a few years ago. Judge Douglas Ginsburg of the DC Circuit and Judge Ralph Winter of the Second Circuit each clerked for Justice Marshall as young lawyers. They were not criticized during their confirmation hearings for having done so; far from it. Thurgood Marshall was perhaps the most influential lawyer of the 20th century. He dedicated his life to the rule of law. He, and the dedicated and talented team of lawyers with whom he worked at the NAACP, did not engage in violent protests but sought to ensure the full equality of all Americans by appeal to American justice and our Constitution. They brilliantly and courageously argued their claims on behalf of their clients. They bettered America's soul. Beginning in the late 1930s, their cases eventually led to the overturning of the misguided 1896 decision in Plessy v. Ferguson and the dismantling of State-mandated segregation of the races in public facilities. When the Supreme Court unanimously agreed with Thurgood Marshall's argument in the landmark case of Brown v. Board of Education that State-mandated segregation of the races in public school violated the Constitution, it was vindication of the rule of law. Brown was one of the 29 cases that Thurgood Marshall won out of the 32 cases that he argued as a Supreme Court advocate. Justice Marshall's record of advocacy before the Supreme is unsurpassed and not likely to ever be matched. Thurgood Marshall's life was lived in the law, not outside it. As a Justice, he was the embodiment of what the rule of law can achieve. He was a giant in the law. For good and enduring reason, Thurgood Marshall is a hero not just to Solicitor General Kagan, but to countless American lawyers, judges, Presidents, and hardworking Americans. He should be a hero to us all. I am concerned that the younger Americans who waited in line to attend our confirmation hearings or who tuned in to watch them may not understand what the mischaracterization of Justice Marshall by some at our hearing how important it was four decades ago for President Lyndon Johnson to nominate then-Solicitor General Marshall, to the Supreme Court. As President Johnson said at the time, ``He is the best qualified by training and by valuable service to the country. I believe it is the right thing to do, the right time to do it, the right place.'' Justices Sandra Day O'Connor, Antonin Scalia, and Clarence Thomas, all Republican appointees, have acknowledged Justice Marshall's greatness as a lawyer and judge. Shortly after Justice Marshall's passing, Justice O'Connor, who had served on the Court with him, wrote: His was the eye of a lawyer who had seen the deepest wounds in the social fabric and used law to help heal them. His was the ear of the counselor who understood the vulnerabilities of the accused and established safeguards for their protection. His was the mouth of a man who knew the anguish of the silenced and gave them voice. Justice Scalia remarked that Justice Marshall ``could be . . . a persuasive force just sitting there. . . . He was always in the conference a visible representation of a past that we wanted to get away from and you knew that, as a private lawyer, he had done so much to undo racism or at least its manifestation in and through government.'' During his own confirmation proceedings, Justice Thomas praised Justice Marshall, as ``one of the greatest architects of the legal battles to open doors that seemed so hopelessly and permanently sealed and to knock down barriers that seemed so insurmountable to those of us in Pin Point, Georgia.'' These Justices recognize and respect Justice Thurgood Marshall and his enduring impact on American law. He made this a stronger and more inclusive Nation. At least two Republican members of the Senate Judiciary Committee recently said that they are not sure whether, if given the chance, they would vote to confirm Thurgood Marshall as a Justice on the Supreme Court. Though he had to face humiliating questioning during his own confirmation hearings for the Court, he was confirmed by a vote of 69 to 11 in 1967. I would have hoped that as a nation we would have progressed to acknowledge Thurgood Marshall's fitness to serve on the Supreme Court but I am sad to acknowledge that is not so. If there are Republicans who would now vote against the nomination of Thurgood Marshall to the Supreme Court, it is a sign of just how far the former party of Lincoln has changed and just how much some would like to undo the progress made over the last century. We 100 men and women in this body are the ones who are charged with giving our advice and consent on Supreme Court nominations. We 100 stand in the shoes of 300 million Americans, and we should consider whether those nominees have the skills and the temperament and the good sense to independently assess in every case the significance of the facts and how the law applies to those facts. I believe Elena Kagan does meet that test. The more judges appreciate the real world impact their decisions have on hard-working Americans, I believe the more confidence the American people have in their courts, and I think it is important for the American people in a democracy to have confidence in their courts. I have been in the Senate now with seven Presidents. I have urged Presidents, both Democratic and Republican, to nominate people from outside the judicial monastery because I think real world experience is helpful to the process. The American people live not in an abstract ivory tower world but a real world with great challenges. We have a guiding charter that provides all Americans great promise. The Supreme Court functions in the real world that affects all Americans. Judicial nominees need to appreciate that simple, undeniable fact, and they must promise to uphold the law that Americans rely on every day for their continued safety and prosperity. Mr. President, I see the distinguished Senator from Rhode Island, Mr. Reed, on the Senate floor, and I yield the floor.

Mr. LEAHY

Mr. LEAHY. Mr. President, more than 12 weeks ago, President Obama nominated Elena Kagan to succeed Justice John Paul Stevens as an Associate Justice of the Supreme Court of the United States. When the President announced his choice on May 10, he talked about her legal mind, her intellect, her record of achievement, her temperament and her fair-mindedness. Having heard from Solicitor General Kagan at her confirmation hearing 5 weeks ago, I believe the American people have a sense of her impressive knowledge of the law, her good humor, and her judicial philosophy. In her testimony, she made clear that she will base her approach to deciding cases on the law and the Constitution, not on politics, not on an ideological agenda. She indicated that she will not be the kind of Justice who will substitute her personal preferences, and overrule the efforts of Congress to protect hardworking Americans pursuant to our constitutional role. Solicitor General Kagan made one pledge to those of us who were at that hearing: that she will do her ``best to consider every case impartially, modestly, with commitment to principle, and in accordance with law.'' Incidentally, I might say, at the outset, I compliment Republicans and Democrats alike for the amount of time Senators spent at the hearing. I certainly compliment the ranking member, Senator Sessions. We may have disagreed on the outcome and on the vote, but I think Senators worked very hard to get questions asked, to make sure that the American people knew who Elena Kagan was. I note that Senator Sessions and I set the times for witnesses and all. We were constrained somewhat by the distinguished Presiding Officer's predecessor, who died that week, and we were trying to arrange time for many of us to go to the funeral. I wanted to publicly thank Senator Sessions for his help in working out that schedule. No one can question the intelligence or achievements of this woman. No one should question her character either. Elena Kagan was the first woman to be the Dean of the prestigious Harvard Law School and the first woman in our Nation's history to serve as Solicitor General, a position often referred to as the ``Tenth Justice.'' As a student, she excelled at Princeton, Oxford and Harvard Law School. She worked in private practice and briefly for then-Senator Joe Biden on the Judiciary Committee. She taught law at two of the Nation's most respected law schools, and counseled President Clinton on a wide variety of issues. She clerked for two leading judicial figures, Judge Abner Mikva on the Court of Appeals for the District of Columbia Circuit, and then for Supreme Court Justice Thurgood Marshall, on one of the most extraordinary lawyers in American history. I have been here since the time of President Gerald Ford, and I have long urged Presidents from both political parties to look outside what they call the ``judicial monastery,'' and not feel restricted to considering only Federal appellate judges to fill vacancies on the Supreme Court. This, of course, is what Presidents used to do. With his second nomination to the Court, President Obama has done just this; he has gone outside the judicial monastery. When confirmed, Elena Kagan will be the first non-sitting judge to be confirmed to the Supreme Court in almost 40 years, since the appointments of Lewis Powell and William Rehnquist. I know there was criticism by some Republicans that this nominee lacks judicial experience. Of course, that ignores one key fact. President Clinton nominated her to the DC Circuit Court in 1999. The Senate was controlled by Republicans at the time and it was Senate Republicans who refused to consider her nomination. She was pocket filibustered. Had the Republicans not done so, Elena Kagan would have been confirmed and would have had more than 10 years judicial experience. To give you some idea of her abilities, instead, when she was not allowed to have a vote for the DC Circuit Court, she went on to become an outstanding law professor, the first woman Dean of Harvard Law School--one of the most prestigious law schools in the country, actually the world--and the first woman to serve as the Solicitor General of the United States. Her nomination to the Supreme Court received the highest possible rating from the American Bar Association's Standing Committee on the Federal Judiciary. Her credentials and legal abilities have been extolled by many across the political spectrum. Two of these individuals were Justice Sandra Day O'Connor and Justice Antonin Scalia. In addition, Michael McConnell, Kenneth Starr and Miguel Estrada have given praise to this nomination. Like Justices Hugo Black, Robert Jackson, Earl Warren, William Rehnquist and so many others, Solicitor General Kagan's experience outside the judicial monastery will be valuable to her when she is confirmed. No one can question the intelligence or achievements of this woman. I hope nobody would question her character either. From the moment her nomination was announced, Solicitor General Kagan has spoken about the importance of upholding the rule of law and enabling all Americans to have a fair hearing. She said that ``law matters; because it keeps us safe, because it protects our most fundamental . . . freedoms; and because it is the foundation of our democracy.'' Like her, I believe the law does matter in people's lives. That is why I went to law school. That is why I practiced law and then became a prosecutor. That is why I ran for the Senate. I believe that the law matters in people's lives, because the Constitution is this amazing fabric of our Nation; it is our protection. She understands this, as did her mentor, Justice Thurgood Marshall. In her contribution to the 1993 tribute to Justice Marshall by the Texas Law Review, Elena Kagan recalled how Justice Marshall's law clerks had tried to get him to rely on general notions of fairness, rather than a strict reading of the law, so they could allow an appeal to proceed on a discrimination claim. She wrote that the then 80-year- old Justice referred to his years trying civil rights cases and said: All you could hope for was that a court would not rule against you for illegitimate reasons. You could not expect that a court would bend the rules in your favor. That is the rule of law. Just as Sir Thomas More reminded his son-in-law in that famous passage from ``A Man for All Seasons,'' that the law is our protection, Justice Marshal reminded his law clerks that the existence of rules and the rule of law is the best protection for all, including the least powerful. Elena Kagan concluded, as I do, that Justice Marshall ``believed devoutly . . . in the rule of law.'' He was a man of the law in the highest sense. He understood the Constitution's promise of equality. I was disappointed to see the manner in which his legacy was treated by some during the recent confirmation hearing, and to read that there are Republican Senators, currently serving, who recently said they would vote against Thurgood Marshall's confirmation to the Supreme Court if he were up now. He was a giant, and I would hope that if he were here again, those Senators would reconsider whether they would vote for him. With this nomination, Elena Kagan follows in the footsteps of Justice Marshall, who was also nominated to the Supreme Court from the position of Solicitor General. She broke a glass ceiling when she was appointed as the first woman to serve as Solicitor General of the United States and when she served as the first woman dean of the Harvard Law School. When the Supreme Court next convenes, for the first time in our history, I predict there will be three women serving together among the nine Justices. The stakes at the Nation's highest court could not be higher. One need look no further than the Lilly Ledbetter case to understand the impact that each Supreme Court appointment has on the lives and freedoms of countless Americans. In the Ledbetter case, five Justices of the Supreme Court struck a severe blow to the rights of working families across our country. Congress acted to protect women and others against discrimination in the workplace more than 40 years ago, but we still struggle to ensure that all Americans--women and men--receive equal pay for equal work. It took a new Congress, joined by our new President, to reverse the activist conservative majority in the Supreme Court by passing the Lilly Ledbetter Act, striking down the immunity the Supreme Court had given to employers who discriminate against their employees and successfully hid their wrongdoing. The Ledbetter case said, in a decision I still find shocking, that they could pay men a higher rate than women for the same work. As long as they kept it hidden, it was OK. Recently in the Citizens United case, just one vote on the Supreme Court determined that corporate money can drown out the voice of Americans in elections that decide the direction of our democracy. They said that if British Petroleum wanted to spend hundreds of millions of dollars to defeat people who want to tighten the controls on our offshore drilling, or want to tighten the kind of inspections required for offshore drilling, British Petroleum, according to the Supreme Court, could spend hundreds of millions of dollars to defeat these people. I had hoped that Senate Republicans would join our effort to respond to the conservative activist majority of the Supreme Court, who wrongly decided to override its own precedent and 100 years of legal development in Citizens United. Unfortunately, last week they filibustered the DISCLOSE Act and gave their endorsement to unfettered corporate influence in American elections. For all the talk about ``judicial modesty'' and ``judicial restraint,'' from the nominees of a Republican President at their confirmation hearings, we have seen a Supreme Court in the last 5 years that has been anything but modest and restrained. What we have seen all too often in these last years is the activist conservative members of the Supreme Court substituting their own judgment for that of the American people's elected representatives. I have always championed judicial independence. I think it is important that judicial nominees understand that, as judges, they are not members of an administration--any administration, Democratic or Republican, but they are judicial officers. They should not be political partisans, but judges who uphold the Constitution and the rule of law for all Americans. That is what Justice Stevens did in Hamdan, which held the Bush administration's military tribunals unconstitutional, and what he tried to do in Citizens United. That is why intervention by an activist conservative majority in the 2000 Presidential election in Bush v. Gore was so jarring and wrong. Mr. Gore had gotten the majority of votes throughout the country, but there was just one vote on the Supreme Court that he didn't get--the one vote that decided the election. That one vote was given to President Bush. During her confirmation hearings, Solicitor General Kagan reflected an understanding of the judicial role and the traditional view of deference to Congress and judicial precedent. This is the mainstream view and one once embraced by conservatives. She indicated she would not be the kind of Justice who would substitute her personal preferences and overrule congressional efforts designed to protect hard-working Americans pursuant to our constitutional role. In fact, it is precisely because of Solicitor General Kagan's independence that many Republicans have announced their opposition to her nomination. They oppose her not because she would be a judicial activist as they claim, but rather because she would not overrule Congress as much as they would like. They seem not to like the fact that she is genuinely committed to judicial restraint rather than furthering a conservative ideological agenda. Some who oppose this nomination do so because they seek to make this nomination a continuation of the fight over health care. They seek to transform this policy dispute they lost in Congress into a constitutional one that goes against 100 years of law and Supreme Court precedents. They would turn back the clock by resurrecting long- discredited legal doctrines wisely rejected nearly a century ago. They oppose Solicitor General Kagan because she will not commit to a narrow and outmoded legal view that would undermine the constitutionality of health insurance reform. Congress has enacted and the President has signed into law the landmark Patient Protection and Affordable Care Act. I believe Congress was right to do so in order to address our health care crisis and ensure that Americans who work hard their entire lives are not robbed of their family's security because health care is too expensive. We were right to make sure that hard-working Americans do not risk bankruptcy with every illness. Many Republican Senators disagreed, as is their right, and voted against the law. But many of those who opposed this law now seek to do in the courts what they could not do by obstruction in Congress. They are so adamant in seeking this result, that they would turn back the clock by resurrecting long-discredited legal doctrines wisely rejected a nearly a century ago. In framing their opposition to health insurance reform as a constitutional attack, these critics would also undermine the constitutional basis of laws against child labor and those setting a minimum wage or the Social Security Act, Medicare, the Clean Water Act, the Clean Air Act, and the landmark Civil Rights Acts. All are constitutional because of Congress's authority to legislate pursuant to the core powers vested in Congress by article I, section 8 of the Constitution, including the general welfare clause, the commerce clause, and the necessary and proper clause. The radical consequences of a narrow-minded agenda would be to erode the Supreme Court's time- honored interpretation of these enumerated powers that give Congress the ability to promote the general welfare of the American people. These critics wish to return to the conservative judicial activism of the early 1900s, a period known by reference to one of its most notorious cases, the 1905 Lochner decision in which the Supreme Court struck down a New York State law protecting the health of bakers by regulating the number of hours they could work. During this period of unbridled conservative judicial activism, the Supreme Court substituted their own views of property for those of the elected branches in order to strike down nearly 200 laws, including laws outlawing child labor--something we take for granted today--and laws protecting Americans from sick chickens--something that created a huge health hazard. They envisioned their principal role as the defender of business's profits--profits they made with child labor--and the protector of unrestrained ability to perform contracts, however onerous or one-sided. The American people suffered. Their rights went unprotected. Congress was unable to provide assistance. That is not a time anyone should want to return to because it was based on artificial legal restraints that shackled the people's elected representatives in Congress. Millions of Americans rely on Social Security, Medicare, unemployment benefits, minimum wage laws, and other programs to protect Americans in tough economic times. This radical conservative agenda is a threat to Federal disaster relief and environmental regulations and even laws responding to the reckless and fraudulent behavior that wrecked our economy. Progressive opponents of these artificial legal restraints ultimately succeeded, with the support of the American people, in establishing Social Security, minimum wage laws, and antidiscrimination laws to protect the American people. The programs of the New Deal that helped Americans through the Great Depression would be unconstitutional if radical conservative critics had their way. Radical conservatives who seek to again impose artificial legal restraints on Congress and the American people would abandon the New Deal programs of the 1930s such as social security and the Great Society programs of the 1960s such as Medicare to the detriment of the American people. These are the programs that for the last 75 years have helped the United States become a world leader, with the economic security of our citizens leading our economy to grow to lead the world. Millions of Americans rely on Social Security, Medicare, unemployment benefits, minimum wage laws and other programs that protect American families in tough economic times such as these. This is no academic discussion. This radical conservative agenda is a threat to Federal disaster relief, environmental regulations, and even laws responding to the reckless and fraudulent behavior that wrecked the economy. America's great safety net for those in need would be left in tatters if this outmoded legal doctrine were to take root. Ask our fellow Americans in the gulf, those who have lost their jobs in the recession and those who have lost their homes, whether the Court should adopt this radical view of the limits of Congress's power to help them. Ask them if they want to roll back the clock and overturn laws passed by Congress to protect hard-working Americans. The conservative agenda to restore the Lochner era would leave hard-working Americans without the protection their lifetimes of hard work have earned them. The fact that Elena Kagan will not state that she shares the views of those who opposed helping hard-working Americans obtain access to affordable health care does not mean she is outside the mainstream--far from it. The fact that some Republican critics opposed health care reform does not make it unconstitutional. The Constitution in fact provides a clear basis for Congress' authority to enact health care insurance reform. Our Constitution begins with a preamble that sets forth the purposes for which ``We the People of the United States'' ordained and established it. Among the purposes set forth by the Founders was that the Constitution was established to ``promote the general Welfare.'' It is hard to imagine an issue more fundamental to the general welfare of all Americans than their health. The authority and responsibility for taking actions to further this purpose is vested in Congress by article I of the Constitution. As I stated earlier, article I, section 8, sets forth several of the core powers of Congress, including the general welfare clause, the commerce clause and the necessary and proper clause. These clauses form the basis for Congress's power. Any serious questions about congressional power to take comprehensive action to build and secure the social safety net have been settled over the past century. As noted by Tom Schaller, enforcing the individual mandate requirement by a tax penalty is far from unprecedented, despite the claims of critics. Individuals pay for Social Security and Medicare, for example, by payroll taxes collected under the Federal Insurance Contributions Act, FICA. These FICA payments are typically collected as deductions and noted on Americans' paychecks every month. Professor Schaller wrote: These are the two biggest government-sponsored insurance programs administered by the [Federal Government], and two of the largest line items in the federal budget. These paycheck deductions are not optional, and for all but the self- employed they are taken out immediately. The individual mandate requirement in the Patient Protection and Affordable Care Act is hardly revolutionary when viewed against the background of Social Security and Medicare that have long required individual payments. Congress has woven America's social safety net over the last threescore and 13 years, beginning before I was born. Congress's authority to use its judgment to promote the general welfare cannot now be in doubt. America and all Americans are the better for it. Growing old no longer means growing poor. Being older or poor no longer means being without medical care. These developments are all due in part to congressional action. The Supreme Court settled the debate on the constitutionality of Social Security more than 70 years ago in three 1937 decisions. In one of those decisions, Helvering v. Davis, Justice Cardozo wrote that the discretion to determine whether a matter impacts the general welfare falls ``within the wide range of discretion permitted to the Congress.'' Turning then to the ``nation-wide calamity that began in 1929'' of unemployment spreading from state to state throughout the Nation, Justice Cardozo wrote of the Social Security Act: ``The hope behind this statute is to save men and women from the rigors of the poor house as well as from the haunting fear that such a lot awaits them when journey's end is near.'' In the Supreme Court's decision upholding the constitutionality of Social Security, Justice Benjamin Cardozo, one of our greatest jurists, explained that it is the people's elected representatives in Congress that consider the general welfare of the country and laws to secure it. He recognized that it was the people's wisdom as enacted through their representatives that was to be respected, not the personal preference of a small elite group of judges. The Supreme Court reached its decisions upholding Social Security after the first Justice Roberts--Justice Owen Roberts--in the exercise of good judgment and judicial restraint began voting to uphold key New Deal legislation. He was not alone. It was Chief Justice Hughes who wrote the Supreme Court's opinion in West Coast Hotel v. Parrish upholding minimum wage requirements as reasonable regulation. The Supreme Court also upheld a Federal farm bankruptcy law, railroad labor legislation, and the Wagner Act on labor relations. In so doing, the Supreme Court abandoned its judicially created veto over congressional action with which it disagreed on policy grounds and rightfully deferred to Congress's constitutional authority. The opponents of health care insurance reform are now opposing the nomination of Elena Kagan and now going to the extreme to attempt to call into question the constitutionality of America's established social safety net. They would turn back the clock to the hardships of the Great Depression, and thrust modern America back into the conditions of a Charles Dickens novel. That path should be rejected again now, just as it was when Americans confronted great economic challenges more than 70 years ago. To attempt to strike down principles that have been settled for nearly three-quarters of a century is wrong, damaging to the Nation, and would stand the Constitution on its head. Due to Republican obstruction, it took an extraordinary majority of 60 Senators, not a simple majority of 51, for the Senate's will to be done. The fact that Senate Republicans disagree with the effort to help hardworking Americans obtain access to affordable health care does not make it unconstitutional. As Justice Cardozo wrote for the Supreme Court 73 years ago in upholding Social Security: [W]hether wisdom or unwisdom resides in the scheme of benefits set forth . . . it is not for us to say. The answer to such inquiries must come from Congress, not the courts. Justice Cardozo understood the separation of powers enshrined in the Constitution and the powers entrusted by our Constitution to Congress. This is true judicial modesty reflecting the understanding of the respective roles of Congress and the courts. Surely when Congress acts to provide for the general welfare of all Americans it does so pursuant to its constitutional authority. I believe that Congress was right when it decided that the lack of affordable health care and health insurance and the rising health care costs that burden the American people are problems, ``plainly national in area and dimensions.'' Those were the words Justice Cardozo used to describe the widespread crisis of unemployment and insecurity during the Great Depression. I believe that it was right for Congress to determine that it is in the general welfare of the Nation to ensure that all Americans have access to affordable quality health care. Whether other Senators agree or disagree, I would hope that none would contend that we should turn back the clock to the Great Depression when conservative activist judges prevented Congress from exercising its powers, making its legislative determinations and helping the American people through tough economic times. Sadly, some are making precisely that argument and contend that this settled meaning of the Constitution should be upended. The dark days of unbridled conservative judicial activism in which Congress's hands were tied from outlawing child labor and enacting a minimum wage and social security are long gone and better left behind. The Constitution, Supreme Court precedent, our history and the interests of the American people all stand on the side of Congress's authority to enact health care insurance reform legislation. Under article I, section 8, Congress has the power ``to regulate Commerce . . . among the several States.'' Since at least the time of the Great Depression and the New Deal, Congress has been understood and acknowledged by the Supreme Court to have power pursuant to the commerce clause to regulate matters with a substantial effect on interstate commerce. That is consistent with Elena Kagan's testimony. In Solicitor General Kagan's responses to questions about the commerce clause I heard an echo of Justice Cardozo's explanation for why Social Security is constitutional and of Justice Oliver Wendell Holmes's famous dissent in Lochner. In particular, I recall Solicitor General Kagan's response to a question from Senator Coburn that he later admitted was intended to get her to signal how she would decide a constitutional challenge to health care insurance reform. He asked Solicitor General Kagan what she thought of a hypothetical law requiring Americans to eat three vegetables a day. She went on to explain: I think the question of whether it's a dumb law is different from . . . the question of whether it's constitutional, and . . . I think that courts would be wrong to strike down laws that they think . . . are senseless just because they're senseless. The Supreme Court long ago upheld laws like the Fair Labor Standards Act against legal challenges, overruling its decision barring Congress from outlawing child labor and establishing basic working conditions such as a minimum wage. The days when women and children could not be protected are gone. The time when the public could not be protected from sick chickens infecting them are gone. The years when farmers could not be protected from market failures or natural disasters are gone. The era of conservative activist judges voiding regulation that did not guarantee profits to corporations should be gone. The reach of Congress's commerce clause authority has been long established and well-settled. Solicitor General Kagan's answer to Senator Coburn's question reflects not only this well-settled understanding, but also the understanding of the proper roles of each of the branches that was restored when the Supreme Court rejected the misguided conservative activism of the Lochner era. Since the great Chief Justice Marshall's interpretation of the commerce clause in 1824, Congress has been understood and acknowledged by the Supreme Court to have the power ``to prescribe rules'' to govern commerce that ``concerns more than one State.'' It was this same understanding that Justice Cardozo followed in upholding the Social Security Act and that Justice Felix Frankfurter later praised as Chief Justice Marshall's extraordinary achievement of capturing, for all time, the essential meaning of the commerce clause. Pursuant to this understanding of its power under the commerce clause, Congress enacted not only Federal disaster relief from the 18th century but also the 1964 Civil Rights Act prohibiting racial discrimination by public accommodations and the landmark Clean Air and Clean Water Acts, both of which President Nixon signed into law. Would conservative activists now argue that these acts, the Civil Rights Act, the Clean Air Act and the Clean Water Act, should suddenly be declared unconstitutional as beyond Congress's power? Even recent decisions by a Supreme Court dominated by Republican- appointed justices have affirmed this rule of law. In 2005, the Supreme Court ruled in Gonzales v. Raich that Congress had the power under the commerce clause to prohibit the use of medical marijuana. This was upheld even though the marijuana was grown and consumed at home. It was upheld on the same rationale as Wickard v. Filburn in 1942, because of its impact on the national market for marijuana. Yet Republican Senators and conservative ideologues contend that Wickard should be discarded. Would they also demand that Federal laws against drugs be declared unconstitutional? Justice Anthony Kennedy and Justice Sandra O'Connor, both conservative Justices appointed by Republican Presidents, astutely noted in their 1995 concurrence in United States v. Lopez: [T]the Court as an institution and the legal system as a whole have an immense stake in the stability of our Commerce Clause jurisprudence as it has evolved to this point. [That] fundamental restraint on our power forecloses us from reverting to an understanding of commerce that would serve only an 18th-century economy . . . and mandates against returning to the time when congressional authority to regulate undoubted commercial activities was limited by a judicial determination that those matters had an insufficient connection to an interstate system. They are right as a matter of law and right when it comes to the interests of the American people. The Constitution also provides in article I, section 8, that Congress has the power ``to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers and all other Powers vested by his Constitution in the United States.'' The Supreme Court settled the meaning of the necessary and proper clause almost 200 years ago in Justice Marshall's landmark decision for the Supreme Court in McCullough v. Maryland, during the dispute over the National Bank. Justice Marshall wrote that ``the clause is placed among the powers of Congress, not among the limitations on those powers.'' He continued: Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adopted to that end, which are not prohibited, but consistent with the letter and spirit of the Constitution, are constitutional. He concluded by declaring, in accordance with a proper understanding of the necessary and proper clause, that Congress should not be deprived ``of the capacity to avail itself of experience, to exercise its reason, and to accommodate its legislation to human affairs'' by judicial fiat. Chief Justice Marshall understood the Constitution, knew its text and knew the Framers. He rejected the constraints on Congress that conservative activists now propose in order to empower conservative judicial activism. The necessary and proper clause goes hand in hand with the commerce clause to ensure congressional authority to regulate activity with economic impact. Just this year the Supreme Court upheld provisions of the Adam Walsh Child Protection and Safety Act, a law we passed to allow for the civil commitment of sexually dangerous Federal prisoners, which was based on the commerce clause and the necessary and proper clause of the Constitution. As Justice Breyer wrote for seven Justices, including Chief Justice Roberts: [T]he Necessary and Proper Clause makes clear that the Constitution's grants of specific federal legislative authority are accompanied by broad power to enact laws that are ``convenient, or useful'' or ``conducive'' to the authority's ``beneficial exercise.'' Congress passes laws like the Adam Walsh Act every year to protect the American people. Would those who want to redraft and limit the Constitution really want to declare the Adam Walsh Act and its provisions against pedophiles unconstitutional? Solicitor General Kagan's testimony shows that she both understands and recognizes, in accordance with the longstanding judgments of both Congress and the Supreme Court, that Congress's power to legislate under the commerce clause power and the necessary and proper clause is broad but not unlimited. Indeed, she agreed with the Senator from Texas that the Supreme Court's decisions in Lopez and Morrison limit Congress's power to legislate ``when the activity that's being regulated is not itself economic in nature and is activity that's traditionally been regulated by the States.'' But, she noted that ``to the extent that Congress regulates the channels of commerce, the instrumentalities of commerce, and . . . things that substantially affect interstate commerce, there the Court has given Congress broad discretion.'' She is right as a matter of law. The American people are able to act through their elected representatives in Congress to secure the blessings of liberty because of this meaning of our Constitution. Through Social Security, Medicare, and Medicaid, Congress established some of the cornerstones of American economic security. And comprehensive health insurance reform has now joined them. Congress has acted within its constitutional authority to legislate for the general welfare of all Americans, whether they are from Vermont or West Virginia or Alabama or anywhere else. No conservative activist court should overstep the judiciary's role by seeking to turn back the clock and deny a century of progress. Those who would corrupt the Constitution by trying to revive the Lochner era are intent on a results-oriented litmus test. This litmus test would lead them now not just to vote against this nomination and the confirmation of Justice Thurgood Marshall as they have said, but also against Senate confirmation of Justice Sandra Day O'Connor, Justice David Souter, Justice John Paul Stevens, and Justice Anthony Kennedy--four Justices appointed by conservative Republican Presidents, all nominations I voted to confirm. It is interesting. I was here when John Paul Stevens' nomination came up. He was seen as a conservative from Illinois. He was nominated by a conservative President, Gerald Ford. He nominated him, and 2\1/2\ weeks later, the Senate, which was overwhelmingly Democratic, voted unanimously to confirm Justice John Paul Stevens. I have not always agreed with every decision of his, but, boy, I have agreed with my vote for his confirmation. With this litmus test I mentioned, it is not just Chief Justice Earl Warren, and Justice William Brennan and Justice Thurgood Marshall whose jurisprudence they are rejecting. Using these results-oriented litmus tests would require us to reject the vast majority of Justices who have served honorably on the U.S. Supreme Court, including Justice Benjamin Cardozo, Justice Oliver Wendell Holmes, Jr., Justice Harlan Fiske Stone, and Justice Charles Evans Hughes. I assume they would, as well, reject the greatest judge not to have been appointed to the Supreme Court, the Second Circuit's Judge Learned Hand, because he had been an outspoken critic of the so-called economic due process doctrine that allowed activist conservatives to substitute their views for those of Congress. Indeed, if they were to be consistent, they would have to rethink their support for the current Chief Justice, John Roberts, who testified at his confirmation hearing that during the Lochner era, when the Supreme Court was striking down economic regulations in the late 1800s to the early 1930s, to quote John Roberts, ``it's quite clear that they [were] not interpreting the law, they [were] making the law.'' I agree with him. I will say parenthetically that I wish he had stayed consistent to that principle since he became Chief Justice. The demand by critics that Solicitor General Kagan adhere to legal views that would put her at odds with so many great Justices as the price of their vote is a strong reminder of how far many are seeking to stray from basic constitutional principles and traditions. We do not need judges or Justices to pass a litmus test from either the right or the left. In fact, I have urged Senators--they have heard me say this many times--do not listen to the single issue or special issue groups on either the right or the left when it comes to the Supreme Court. We have 300 million Americans in this great country. Most of the Justices we vote on will be here long after any one of us leaves this Chamber. There are only 100 Americans who actually get to vote on them. There are actually 101 people who are involved in this choice--first, the President, who nominates the person, but he cannot appoint the person unless we advise and consent. So we have 101 people with this awesome duty to pick somebody and to vote on somebody who is going to be there to protect the justice and the rights of all 300 million Americans. It is an awesome responsibility. I tell groups of either the right or the left--and I have heard from many of them over the years on all these nominees on whom I voted--I am going to make up my own mind. I am going to bring my own Vermont principles, my own sense of Vermont fairness, my own experience, my own judgment to bear, and then I will make up my mind. I urge all Senators to do that. Ignore the special interest groups on the right or the left. Make up your own mind. As I said, we do not need judges or Justices who would pass a litmus test from the right or the left. We need judges and Justices who will respect the laws as passed by Congress and appreciate that adherence to precedence is a foundation of public confidence in our courts. (Mrs. SHAHEEN assumed the chair.)

Mr. LEAHY. Mr. President, I understand that H.R. 5901 is at the desk and due for a second reading.

Mr. LEAHY. I object to any further proceedings on this measure at this time.

Mr. LEAHY. Mr. President, what is the order?

Mr. LEAHY. It is important that we restore public confidence in our courts. They do protect our rights. They do protect the Constitution. But we have to make sure we respect what they do. We need judges and Justices who will fairly apply the law and use common sense, Justices and judges who appreciate the proper role of the courts in our democracy and make decisions in light of the fundamental purposes of the law. This is the standard I applied when reviewing this nomination. It is the same standard I applied to every Supreme Court nomination, including six Justices nominated by Republican Presidents for whom I have voted. It is a standard I believe Solicitor General Kagan has met. Solicitor General Kagan not only has the necessary qualifications to be a Supreme Court Justice but has also demonstrated her respect for the rule of law, her appreciation for the separation of powers, and understands the meaning of our Constitution. Some may not want our country to move forward, to make progress, to move toward a more perfect union. But the issue squarely before this body is whether Solicitor General Kagan has the necessary qualifications, respect for the rule of law, and judicial independence to be confirmed by the Senate to serve on our Nation's highest court. I believe she does. This Vermonter will vote for Elena Kagan to be a Supreme Court Justice, and I will do it proudly. Madam President--the Chair having changed during this speech, first presided over by the distinguished Senator from West Virginia, and now my distinguished neighbor, the State of New Hampshire--the distinguished Senator from New Hampshire presides. With that, I will close. I suggest the absence of a quorum.

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

Mr. LEAHY. Madam President, I see the distinguished Senator from Alabama on the floor. I yield back the remainder of my time.

Mr. LEAHY

Mr. LEAHY. Mr. President, I take this opportunity to call the Senate's attention to the imminent opening of the new President Calvin Coolidge Museum and Education Center, a wonderful year-round tribute to President Coolidge, located in the graceful and historic setting of the President's home town of Plymouth Notch, VT. The center's formal opening and dedication ceremony will take place next weekend, on August 7. Calvin Coolidge, our 30th President, remains the only President born, sworn into office and buried in the State of Vermont. President Coolidge was originally elected to the Vice Presidency in 1920, winning that election alongside Warren G. Harding. Three years into President Harding's first term, then-Vice President Coolidge received an unexpected messenger one evening while he was vacationing at his family's home in Plymouth Notch. The messenger informed him of President Harding's sudden and untimely death. It was at 2:47 the next morning that Calvin Coolidge was sworn in as President, in the parlor of his family home, alongside his wife Grace Coolidge, a capable and respected First Lady and a leading Vermonter in her own right. The oath of office was administered by President Coolidge's father, a State notary public official, by the light of a kerosene lamp. The new President left for Washington the next morning to assume the burdens of his new office. President Coolidge was always known as a man of few words--the inspiration for his famous nickname, Silent Cal. Stoic in the New England tradition, President Coolidge also was an eloquent speaker who felt an obligation to communicate often with the American people to explain his policies. Today, the Calvin Coolidge Memorial Foundation is dedicated to preserving the Nation's memory of Calvin Coolidge. Founded in 1960, the foundation is now celebrating its 50th year. By working closely with the Vermont Division for Historic Preservation, the Coolidge Foundation collects and preserves artifacts and resources related to the President. Many of the buildings within the village have become State- owned historical properties, and Plymouth Notch has been named the best-preserved Presidential site in the Nation. The development of the new museum and education center--solid and useful in the Yankee tradition--will expand the accessibility of these archives to the public, while providing a venue for students to learn about their country's history. We Vermonters take pride in our history and heritage, and we feel the obligations of stewardship in these things. The Calvin Coolidge Memorial Foundation is faithfully tending to the preservation and dissemination of this part of Vermont's legacy and our country's history. It is my pleasure to congratulate the Calvin Coolidge Memorial Foundation, in partnership with the State of Vermont, on the occasion of the commemoration and dedication of the President Calvin Coolidge Museum and Education Center.

Mr. LEAHY

Mr. LEAHY. Mr. President, today, the Senate considers bipartisan legislation to make a number of improvements in the way the Copyright Office functions. This bill will also clarify certain areas of copyright law to provide certainty, and make technical corrections to the Code. The Copyright Office has done a terrific job, as it always does, assisting Congress in finding inefficiencies in the law and recommending appropriate changes. I appreciate the Senate acting swiftly to pass this bill. This bill is another bipartisan effort to improve the copyright laws. Similar to the Trademark Technical and Conforming Amendments Act, today's legislation makes commonsense improvements to the copyright system that will make it more efficient. Congress should work in a bipartisan fashion to find inefficiencies and correct them. We are doing that today. The provisions of the bill fall into three categories: those designed to make the Office's operations more efficient; those designed to clarify issues of copyright law made unclear either by recent court decisions or by ambiguities in the statute; and those that are technical. In the first category, the Copyright Office has requested two statutory changes that will facilitate their transition to digital files and record keeping. These changes will also make it easier for filers to submit documents electronically. In the second category, the bill clarifies, for instance, that the exclusive licensee of a work may further license the work in the absence of an agreement to the contrary. There are inefficiencies that arise from a lack of clarity in the statute, particularly as circuit splits arise. The bill makes other clarifications, such as that the distribution of a phonorecord prior to 1978 shall not constitute a publication of a dramatic and literary work included in it. Congress made this clarification with respect to musical works in 1997, and we do so with respect to other works today. In the third category, the bill includes numerous technical corrections. Finally, this legislation fulfills a commitment I made to the chairman and ranking member of the House of Representatives Committee on the Judiciary just before the House passed the Trademark Technical and Conforming Amendments Act. The chairman and ranking member suggested that we strike the words ``by corporations'' from section 4 of that law. I agreed, and offered to include such an amendment in subsequent legislation. That change is included in this bill. I am pleased to be joined by the Judiciary Committee ranking member, Senator Sessions, in sponsoring this legislation. This is a bipartisan effort. Just as we acted quickly to pass the Trademark Technical and Confirming Amendments Act earlier this year, I hope Congress will come together to promptly send this legislation to the President to be signed into law.

Mr. LEAHY

Mr. LEAHY. Mr. President, I commend the majority leader for introducing the Clean Energy Jobs and Oil Company Accountability Act. This bill, which I am proud to support, is a timely and targeted response to the continuing devastation in the Gulf of Mexico, a catastrophe which began 100 days ago. The Senate must move quickly to address one of the most immediate and pressing problems facing our Nation and to find meaningful ways to prevent similar disasters in the future. The American people rightly expect that the lessons learned from this disaster will be heeded. This legislation addresses several issues brought to light in the spill's aftermath. It will ensure the fair treatment of victims like the families of the 11 Americans who were killed in the explosion on the Deepwater Horizon oil rig. It will encourage responsible corporate behavior and provide meaningful criminal penalties for environmental crimes. It will ensure that British Petroleum and those responsible for this disaster and any responsible party associated with an oilspill at an offshore facility in the future are held fully accountable and liable for all of the damages the oilspill causes and that the American taxpayer is not left with the bill. It is a response that will help the people of the gulf begin the long process of restoring what they have lost. And for those who cannot recover what they have lost, it will help them as they move forward. These matters, and others, have been the subject of several recent hearings in the Senate Judiciary Committee. Senators from several committees, including the Judiciary Committee, have made important contributions to this bill. I am pleased that the majority leader asked for and listened to the calls of members of the Judiciary Committee to make sure that a significant part of this legislative response was focused squarely on the needs of the victims of this disaster and that the Federal laws designed to provide justice for wrongdoing are fair. I thank the majority leader for including two pieces of legislation I have introduced--the Survivor's Equality Act, and the Environmental Crimes Enforcement Act. I am confident that, when enacted, both of these provisions will help victims and promote responsibility and safety within the energy industry. The Survivor's Equality Act would remedy profound unfairness in our maritime tort laws. The enactment of this provision will end the unequal treatment under the law for those who are killed at sea. The Death on the High Seas Act, which is one of the few remedies for these families to seek justice, provides compensation only for pecuniary losses associated with a wrongful death. This involves a cold calculation of a victim's monetary worth to his or her family and nothing more. And if an individual who is killed has no dependents, he or she is entitled to very little, yet the loss to a parent or a sibling is no less tragic. The current Federal maritime law does not recognize the profound losses associated with the death of a loved one--the suffering of a widow who has lost her husband; a parent who has lost a child; or a child who will no longer have a parent to guide them through life. In modern America, it is simply unfair to have a different standard of justice for those killed at sea than those killed on land. Another important provision in the pending bill is the Environmental Crimes Enforcement Act which would bolster the enforcement of environmental crimes. Often in the case of serious environmental catastrophes the companies that caused the disaster may be guilty of committing environmental crimes. These wrongdoers must be held accountable for their criminal acts, and they, rather than American taxpayers, should pay for the damage. The Environmental Crimes Enforcement Act is crafted to deter environmental crime, protect and compensate its victims, and encourage accountability among corporate actors. This would deter schemes by big oil corporations and by others that hurt hard-working Americans and their local economies and that damage the environment by increasing sentences for environmental crimes. All too often, corporations treat fines and monetary penalties as merely a cost of doing business, to be factored against profits. To deter criminal behavior by corporations, it is important to have laws resulting in prison time, and this bill would appropriately raise sentences for environmental crimes so they are comparable with sentences for other serious crimes. Nothing gets the attention of corporate decisionmakers like the prospect of serving time behind bars. This provision would also help victims of environmental crime--the people who lose their livelihoods, their communities, and even their loved ones--reclaim their natural and economic resources by making restitution mandatory for criminal Clean Water Act violations. Other members of the Judiciary Committee have made important contributions to the majority leader's bill. Senator Whitehouse's legislation to reverse the Supreme Court's decision in Exxon v. Baker is included in this package. When this provision is enacted, the Supreme Court's arbitrary cap on punitive damages in maritime cases will be erased. Instead, with the appropriate measure of liability returned to a jury to decide, corporations engaged in dangerous and environmentally risky work will think twice about endangering the safety of their workers and the ecosystem. Senator Schumer's legislation to repeal the antiquated Limitation of Shipowners' Liability Act has also been included. This statute limits a vessel owner's total liability to the value of the vessel after an accident has occurred. Updating this arcane law will foreclose the type of conduct we witnessed in this case when Transocean, the owner of the Deepwater Horizon, claimed its liability should be limited to the value of the Deepwater Horizon as it sat on the bottom of the gulf. That defies common sense and propriety. Congress cannot control a corporation's desire to evade its responsibilities, but the American people, through their Congress, need not allow a law that invites such behavior to stand. Another important provision in this legislative package is the amendment to the Land and Water Conservation Fund, LWCF, Act of 1965 to provide for full funding of the Land and Water Conservation Fund. This comes at a time when the purposes of this program are keenly important to communities across the country that are facing escalating development pressures, while striving to maintain their focus on improving the quality of life in their communities. In my own home State of Vermont, LWCF has led to the conservation of many valued areas--from the Green Mountain National Forest, which stretches over nearly two-thirds of the length of Vermont across a diverse landscape, to our Missisquoi National Wildlife Refuge near the Canadian border, to the Appalachian Trail that winds through the State, and to the stunning Marsh-Billings-Rockefeller National Historical Park in Woodstock, VT. In recent years, LWCF has also helped to fund the Forest Legacy Program, which has permanently conserved more than 60,000 acres of forestland in Vermont and nearly 2 million acres nationwide. I am concerned, though, with how this new LWCF language has been drafted and worry that it could restrict our ability to allocate funds for the federal purposes, such as the Forest Legacy Program and other land acquisition programs that assist in preserving, developing, and assuring accessibility to quality outdoor recreation resources and important natural resources. I hope that I can work with the majority leader and other supporters of these land conservation programs moving forward to ensure that LWCF meets the outdoor conservation and recreation needs of the American people. These investments not only protect crucial and delicate ecosystems and landscapes that are relied upon by countless communities and by indigenous wildlife; they also offer important recreation opportunities for Vermonters and visitors from other States to enjoy these beautiful places for our campgrounds, hiking trails, skiing, snow shoeing, snowmobiling, and fishing. It made good economic and environmental sense in 1965 and it remains good sense today to reinvest a small fraction of Federal leasing revenues in permanent natural resource protection. A healthier environment and more recreational opportunities will not only promote health and quality of life but also have a positive impact on our economy. More than 500 million people visit national parks and monuments, wildlife refuges, and recreational sites each year, contributing to family paychecks and to local economies. LWCF is a visionary and bipartisan program. Since its creation in 1964, it has conserved more than 5 million acres of land and water across the country. These are iconic American landscapes like the redwood forests, the Grand Canyon National Park, the Appalachian National Scenic Trail, the Great Smoky Mountains, the Denali National Park and Preserve, the Everglades, and our own Green Mountain National Forest in Vermont. This is a program that touches every American. Even those who have not been able to visit a national park or forest likely have enjoyed one of the many urban parks, picnic areas, playgrounds, open trails, or open spaces that LWCF has been the key to providing and protecting--places prized by everyday Americans across the land as places for recreation and so many other uses. I am proud to have led the bipartisan efforts in the Senate to build support for the fund, whose budget is overseen by the Interior Appropriations Subcommittee. I have sought, with bipartisan support, increased funding for both the Federal and State sides of the program and the Forest Legacy Program, another successful and popular conservation initiative that I was gratified to be able to launch when I chaired the Committee on Agriculture, Nutrition, and Forestry. Regrettably, securing adequate resources for LWCF has always been difficult, and LWCF has only been fully funded once in its history. I must also voice some additional concerns and reservations that I have about the LWCF language in this bill regarding the role of the Appropriations Committee. I hope that we can ensure that Congress, through the direction of the Appropriations Committee, will still have control in establishing how the Land and Water Conservation Fund is allocated among the State and Federal purposes and the various agencies within. I ask that the majority leader commit to working with the Interior Appropriations Subcommittee chairman to develop language that guarantees the role of the Congress in appropriating and directing these funds rather than leaving all control in the administration. I trust that we can find a way to fully fund LWCF and maintain the congressional involvement through the appropriations process. I applaud the majority leader for including this provision in the bill and appreciate both his support and that of the chairman of the Energy and Natural Resources Committee, Senator Bingaman, for leading this effort to protect America's most treasured landscapes, to strengthen our local economies, and to ensure the future of our natural, cultural, and recreation heritage. Now I would be remiss if I did not mention another program that has faced the same difficulty receiving its full authorized amount. That would be the Historic Preservation Fund, which also receives funding from the Outer Continental Shelf oil lease revenues but has rarely been appropriated more than half of the authorized level of $150 million. I hope that I can work with my colleagues to solve this issue for the Historic Preservation Fund, just as we are trying to do for the Land and Water Conservation Fund. This bill is also an important step forward for the Home Star Program, a bipartisan home efficiency effort that Congressman Welch has helped lead in the House, that will lower consumers' energy and water costs while creating jobs. As Vermont has shown time and again, energy efficiency retrofits work. They not only create quality jobs and save homeowners money on their energy and water bills, but they also reduce our dependence on foreign oil and cut down on harmful carbon emissions. The Clean Energy Jobs and Oil Company Accountability Act would reduce our dependence on foreign oil by making investments in vehicles that run on electricity and natural gas. The lack of fuel diversity in our transportation sector makes our economy and American consumers particularly vulnerable to increases in oil prices, and I am pleased that this bill invests in other transportation alternatives that will also bring down our carbon emissions. I am sorely disappointed in Washington's inability so far to overcome the entrenched power of special interests by acting on comprehensive climate change remedies. This bill is not a substitute for that, but it does signifies several constructive steps forward. I am proud to stand with Majority Leader Reid in support of the victims of the greatest environmental disaster on American shores. But the legislative package he has assembled will do more than just bring justice to these victims. It will save consumers and taxpayers money, create jobs throughout the country, and move our country toward a safer, more responsible energy industry. It is a commonsense solution. I hope it will receive bipartisan support.

Mr. LEAHY

Mr. LEAHY. Mr. President, today, I am pleased to introduce the Food Safety Enforcement Act, legislation that will hold criminals who poison our food supply accountable for their crimes. This common sense bill increases the sentences that prosecutors can seek for people who knowingly violate our food safety laws. If it is passed, those who knowingly contaminate our food supply and endanger Americans could receive up to 10 years in jail. Last year, a mother from Vermont, Gabrielle Meunier, testified before the Senate Agriculture Committee about her 7-year-old son, Christopher, who became severely ill and was hospitalized for 6 days after he developed salmonella poisoning from peanut crackers. Thankfully, Christopher recovered, and Mrs. Meunier was able to share her story, which highlighted for the Committee and for the Senate improvements that are needed in our food safety system. No parent should have to go through what Mrs. Meunier experienced. The American people should be confident that the food they buy for their families is safe. Current statutes do not provide sufficient criminal sanctions for those who knowingly violate our food safety laws. The fines and recalls that usually result from criminal violations under current law fall short in protecting the public from harmful products. Too often, those who are willing to endanger our children in pursuit of profits view such fines or recalls as just the cost of doing business. In order to protect the public and effectively deter this unacceptable conduct, we need to make sure that those who knowingly poison the food supply will go to jail. After hearing Mrs. Meunier's account, I called on the Department of Justice to conduct a criminal investigation into the outbreak of salmonella that made Christopher and many others so sick. The outbreak was traced to the Peanut Corporation of America. The president of that company, Stewart Parnell, came before Congress and invoked his right against self-incrimination, refusing to answer questions about his role in distributing contaminated peanut products. These products have been linked to the deaths of nine people and have sickened more than 600 others. It appears that Parnell knew that peanut products from his company had tested positive for deadly salmonella, but rather than immediately disposing of the products, he sought ways to sell them anyway. The evidence suggests that he knowingly put profit above the public's safety. The bill I introduce today would increase sentences for people who put profits above safety by knowingly contaminating the food supply. It makes such offenses felony violations and significantly increases the chances that those who commit them will face jail time, rather than a slap on the wrist, for their criminal conduct. I hope Senators of both parties will act quickly to pass this bill. On behalf of Mrs. Meunier and her son, Christopher, as well as many like them across the country, we must repair our broken food safety system. The Justice Department must be given the tools it needs to investigate, prosecute, and truly deter crime involving food safety. This bill will be an important step toward making our food supply safer. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. LEAHY

Mr. LEAHY. Mr. President, today, I am pleased to introduce the Food Safety Enforcement Act, legislation that will hold criminals who poison our food supply accountable for their crimes. This common sense bill increases the sentences that prosecutors can seek for people who knowingly violate our food safety laws. If it is passed, those who knowingly contaminate our food supply and endanger Americans could receive up to 10 years in jail. Last year, a mother from Vermont, Gabrielle Meunier, testified before the Senate Agriculture Committee about her 7-year-old son, Christopher, who became severely ill and was hospitalized for 6 days after he developed salmonella poisoning from peanut crackers. Thankfully, Christopher recovered, and Mrs. Meunier was able to share her story, which highlighted for the Committee and for the Senate improvements that are needed in our food safety system. No parent should have to go through what Mrs. Meunier experienced. The American people should be confident that the food they buy for their families is safe. Current statutes do not provide sufficient criminal sanctions for those who knowingly violate our food safety laws. The fines and recalls that usually result from criminal violations under current law fall short in protecting the public from harmful products. Too often, those who are willing to endanger our children in pursuit of profits view such fines or recalls as just the cost of doing business. In order to protect the public and effectively deter this unacceptable conduct, we need to make sure that those who knowingly poison the food supply will go to jail. After hearing Mrs. Meunier's account, I called on the Department of Justice to conduct a criminal investigation into the outbreak of salmonella that made Christopher and many others so sick. The outbreak was traced to the Peanut Corporation of America. The president of that company, Stewart Parnell, came before Congress and invoked his right against self-incrimination, refusing to answer questions about his role in distributing contaminated peanut products. These products have been linked to the deaths of nine people and have sickened more than 600 others. It appears that Parnell knew that peanut products from his company had tested positive for deadly salmonella, but rather than immediately disposing of the products, he sought ways to sell them anyway. The evidence suggests that he knowingly put profit above the public's safety. The bill I introduce today would increase sentences for people who put profits above safety by knowingly contaminating the food supply. It makes such offenses felony violations and significantly increases the chances that those who commit them will face jail time, rather than a slap on the wrist, for their criminal conduct. I hope Senators of both parties will act quickly to pass this bill. On behalf of Mrs. Meunier and her son, Christopher, as well as many like them across the country, we must repair our broken food safety system. The Justice Department must be given the tools it needs to investigate, prosecute, and truly deter crime involving food safety. This bill will be an important step toward making our food supply safer. 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 that the Senate has acted quickly and in a bipartisan way to ensure that fees collected by United States Patent and Trademark Office, USPTO, are not diverted for other purposes this fiscal year. The Director of the USPTO has done a remarkable job in his short tenure dealing with a massive backload of patent applications and a serious budget shortfall. The action that Congress has taken today will at least provide short term financial help to the agency by ensuring that the USPTO is not penalized for having done more work this fiscal year than it had anticipated. More needs to be done to modernize and improve our patent system, which is a crucial component of our economic recovery. Bipartisan patent reform legislation is ready for Senate action. This bill will provide the legal structure we need to allow our inventors to flourish. It will improve our economy and create jobs without adding a penny to the deficit. While I strongly support the action the Senate has taken today, we cannot fix our overburdened and outdated patent system simply through additional appropriations. Congress must act on meaningful patent reform legislation this year.

Mr. LEAHY

Mr. LEAHY. Mr. President, I suggest the absence of a quorum and ask unanimous consent that the time be equally divided.

Mr. LEAHY

Mr. LEAHY. Mr. President, today I introduce legislation to create an express exemption in the Federal Bankruptcy Code for personal firearms. Given the place that firearms occupy in our culture for law-abiding Americans, I believe it makes sense for the Federal Bankruptcy Code to reflect these values. The Supreme Court has confirmed that the Second Amendment protects a fundamental right. I agree that the right protected by the Second Amendment is ``deeply rooted in this Nation's history and tradition.'' One needs to look no further than the woods of Vermont in the autumn to know this is true. Amending the Code to expressly include this exemption will not only allow more Americans to participate in these traditions, but will further the exercise of the Second Amendment right itself. Under the Bankruptcy Code, debtors are permitted to exempt from the bankruptcy estate a wide variety of household goods and other personal effects. For example, a debtor using the Federal bankruptcy exemptions may exempt furniture, musical instruments, jewelry, and other household goods. The code defines ``household goods'' to include items such as linens, china, and a television or other entertainment equipment. All of this is subject to limitations on monetary value, which is important to ensure that the exemptions are not abused to the detriment of creditors. The code's list of exemptions is designed to permit a debtor to obtain a fresh start in such a way that he or she has the continued use of personal items that are both utilitarian and that add to the enjoyment of day to day life. I believe many Americans would place personal firearms squarely within both of these categories. Several States have enacted specific bankruptcy exemptions for firearms in their State laws. The Federal exemption I propose would leave all of these state exemptions untouched and would only apply if a debtor affirmatively chose, where permitted, to use the Federal exemptions. The exemption is modeled on the work these states have done and takes a modest approach that will nonetheless be meaningful for someone using the Federal exemptions. This legislation would permit a debtor using the Federal exemptions to at least exempt one rifle, shotgun, or pistol, separately or in combination, with an aggregate value of $3,000. For many Americans, a personal firearm--whether a hunting rifle, a family heirloom, or a firearm for self-protection--is an important possession. It is one that in many cases may have little significant monetary value to creditors. People own firearms for many lawful reasons. In many parts of the United States, hunting is an essential part of life. In others, people feel strongly about the need to own a firearm to help keep themselves and their families safe. For still others, firearms have deep historical or sentimental value. The Bankruptcy Code should reflect these values. Our bankruptcy policy is intended to help those in severe financial difficulty regain financial health and repay what they owe to their creditors to the extent possible. And in encouraging and helping those in bankruptcy to make a new start we are right to do so in a way that allows room for the things that give our lives enjoyment and meaning. If the amendment made by this legislation makes it possible for a parent and child to continue a family hunting tradition or a person to retain a piece of family history passed down through generations to them, those are good things. I hope all Senators will join me in supporting this legislation. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. LEAHY

Mr. LEAHY. Mr. President, today I introduce legislation to create an express exemption in the Federal Bankruptcy Code for personal firearms. Given the place that firearms occupy in our culture for law-abiding Americans, I believe it makes sense for the Federal Bankruptcy Code to reflect these values. The Supreme Court has confirmed that the Second Amendment protects a fundamental right. I agree that the right protected by the Second Amendment is ``deeply rooted in this Nation's history and tradition.'' One needs to look no further than the woods of Vermont in the autumn to know this is true. Amending the Code to expressly include this exemption will not only allow more Americans to participate in these traditions, but will further the exercise of the Second Amendment right itself. Under the Bankruptcy Code, debtors are permitted to exempt from the bankruptcy estate a wide variety of household goods and other personal effects. For example, a debtor using the Federal bankruptcy exemptions may exempt furniture, musical instruments, jewelry, and other household goods. The code defines ``household goods'' to include items such as linens, china, and a television or other entertainment equipment. All of this is subject to limitations on monetary value, which is important to ensure that the exemptions are not abused to the detriment of creditors. The code's list of exemptions is designed to permit a debtor to obtain a fresh start in such a way that he or she has the continued use of personal items that are both utilitarian and that add to the enjoyment of day to day life. I believe many Americans would place personal firearms squarely within both of these categories. Several States have enacted specific bankruptcy exemptions for firearms in their State laws. The Federal exemption I propose would leave all of these state exemptions untouched and would only apply if a debtor affirmatively chose, where permitted, to use the Federal exemptions. The exemption is modeled on the work these states have done and takes a modest approach that will nonetheless be meaningful for someone using the Federal exemptions. This legislation would permit a debtor using the Federal exemptions to at least exempt one rifle, shotgun, or pistol, separately or in combination, with an aggregate value of $3,000. For many Americans, a personal firearm--whether a hunting rifle, a family heirloom, or a firearm for self-protection--is an important possession. It is one that in many cases may have little significant monetary value to creditors. People own firearms for many lawful reasons. In many parts of the United States, hunting is an essential part of life. In others, people feel strongly about the need to own a firearm to help keep themselves and their families safe. For still others, firearms have deep historical or sentimental value. The Bankruptcy Code should reflect these values. Our bankruptcy policy is intended to help those in severe financial difficulty regain financial health and repay what they owe to their creditors to the extent possible. And in encouraging and helping those in bankruptcy to make a new start we are right to do so in a way that allows room for the things that give our lives enjoyment and meaning. If the amendment made by this legislation makes it possible for a parent and child to continue a family hunting tradition or a person to retain a piece of family history passed down through generations to them, those are good things. I hope all Senators will join me in supporting this legislation. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.