Arlen Specter

Mr. SPECTER

Mr. SPECTER. Mr. President, I have sought recognition to introduce legislation to further expand the home buyer tax credit. A robust home buyer tax credit will spur consumer demand and help to stop the fall in home values, which continues to affect millions of Americans. This decline is destroying the savings and net worth of Americans, whose homes are their most valuable asset. Many now have mortgages that exceed the value of their homes. The Housing and Economic Recovery Act of 2008 created a tax credit for first-time home buyers of $7,500 through June of 2009. However, taxpayers were required to repay the tax credit in equal installments over 15 years, which greatly reduced its effectiveness. The 2009 Stimulus bill waived the repayment requirement for purchases made in 2009, increased the value of the credit to $8,000, and extended eligibility for purchases made through November of 2009. Further improvements are necessary, in my judgment, to bring about a recovery in the housing market that will ultimately contribute to the turnaround of the broader economy. First, this bill would amend the Stimulus bill and raise the value to $15,000, or 10 percent of the value of the home, whichever is less. Second, this bill would make the home buyer tax credit available to any individual who purchases a home, not just first-time home buyers. Doing so would stimulate demand for the entire range of homes on the market. Finally, this bill would remove the income eligibility threshold. Again, doing so would stimulate demand for the entire range of homes on the market. Currently, the credit is reduced for individuals with modified adjusted gross income, AGI, of more than $75,000, $150,000 for joint filers, and is zero for those individuals with modified AGI in excess of $95,000, $170,000 for joint filers. The need for a robust home buyer tax credit is clear. According to the National Association of Realtors, pending home sales hit a record low in January 2009. The Pending Home Sales Index, which measures the number of sales contracts signed each month, fell 7.7 percent to 80.4, the lowest mark since 2001 when tracking began. At the same time, the housing affordability index rose 13.6 percentage points to a record high of 166.8. A value of 100 means that a family with the country's median income has exactly enough income to qualify for a mortgage on a median-priced existing single-family home. The higher the index, the better housing affordability is for buyers. These two figures, taken together, demonstrate that a robust home buyer tax credit is needed to spur demand from Americans that are hesitant to buy homes for fear that prices will not stabilize. Recent reports indicate a 13-month supply of unsold new homes, compared with a 4-month supply under more normal circumstances. Add to that a continually increasing number of foreclosed homes. According to the RealtyTrac 2008 Year-End Foreclosure Market Report, a total of 3.2 million foreclosure filings--default notices, auction sale notices and bank repossessions--were reported on 2.3 million U.S. properties during 2008, an 81 percent increase in total properties from 2007 and a 225 percent increase in total properties from 2006. Jobs across all industries have been lost as a result of the housing crisis. According to a March 2, 2009, op-ed in the Washington Post by Robert J. Samuelson, ``Since late 2007, housing-related jobs-- carpenters, real estate agents, appraisers--have dropped by 1 million, a quarter of all lost jobs.'' I applaud the efforts of Senator Johnny Isakson, who has been the leader on this issue in the Senate. I cosponsored his legislation in the 110th Congress to create a home buyer tax credit. In the 111th Congress, I supported his amendment to the Stimulus bill to make improvements to the credit and I have decided to join him as a cosponsor of S. 253, which seeks to make further improvements. The bill I am introducing is different from S. 253 in three main ways. First, my bill would improve the home buyer credit using the 2009 Stimulus bill as a starting point. Second, my bill would increase the value of the credit to $15,000, or 10 percent of the home value, whichever is less, whereas S. 253 would increase the credit amount to 10 percent of the home price capped at 3.5 percent of Federal Housing Administration loan limits. These limits are geographically dependent and would yield a credit ranging between approximately $10,000 and $22,000. Finally, my bill would remove income limitations on the credit, whereas S. 253 limits the credit for individuals earning up to $125,000, or $250,000 in the case of a joint return. I believe it is important for both bills to be pending so that additional ideas can be debated. To that end, I look forward to working with Senator Isakson to build consensus and support for further improvements. As long as forecasts predict that home prices are falling and that the economy will remain weak, a large fraction of potential homebuyers may choose to remain on the sidelines without a robust tax credit in place. I urge my colleagues to support this legislation, or the legislation introduced by Senator Isakson, to make further improvements to the home buyer tax credit.

Mr. SPECTER

Mr. SPECTER. I begin by complimenting my distinguished colleague from Virginia for his initiative in proposing the creation of a national commission to examine criminal justice. There have been many Commissions in recent years, recent decades. But the problems which we are now confronting warrant a fresh look. Senator Webb has proposed that. This Commission has the potential to be not just another Commission but to make some very significant advances on this very serious problem. The principal issue on crime is public security, protection from violent criminals. I have long believed the issue could be divided into two parts. One is the violent career criminals. They are defined as someone who has committed three or more serious crimes. One of the first bills which I authored was the armed career criminal bill, which was enacted in 1984, which made it a Federal offense punishable by what is the equivalent of a life sentence under the Federal system, 15 years to life, for anyone caught in possession of a firearm who has committed three or more offenses--a robbery, burglary, rape, arson or the sale of drugs. Statistics show that about 70 percent of violent crimes are committed by career criminals. It is my view, shared by many, that those people ought to be sent to jail for life. They ought to be separated from society. The second category involves those who have been convicted of crimes and who are going to be released. With respect to juveniles, we call that juvenile delinquency, at least in Pennsylvania we do, as opposed to a criminal charge. They are going to be released. First and second offenders are going to be released. The object is, how do we deal with them to, No. 1, protect society and, No. 2, to take them out of the crime cycle so they can have productive, contributing lives in society? We know what to do, but we have never done it. The steps are to work with those who suffer from drug abuse or alcohol abuse. We find that 70 to 80 percent of the people arrested have drug or alcohol problems. They have to be treated, detoxification. Then they need literacy training. So many cannot read or write. Then they need job training so they will have a trade or skill. Then they need to be placed in society. It is no surprise, when someone who is a functional illiterate, without a trade or skill, gets out of jail, that the odds are high they will go back to jail. There are a number of programs but not enough, not sufficiently carefully thought through, to place people. We have tax credits which will encourage employers to hire people. In the stimulus package for veterans or juvenile offenders, there is a 40-percent tax break on the first $6,000 of a job which is paid. That is a start. But it doesn't go very far. We have been unwilling to make the kind of investment to provide that kind of realistic rehabilitation. Therefore, we have recidivism and the revolving door in our jails. The public is the principal loser because these people come out and commit more crimes. Individuals are lost. So both in terms of the individual on rehabilitation, to have a productive role in society, a decent life, and for public safety. Candidly, you don't get too far on legislation looking out for the criminals on rehabilitation. But when you talk about the threat to society from repeat crimes, then people pick up their ears. There has been a fascinating debate recently about whether we can afford to have a criminal justice system that keeps people in jail and protects the public, whether we can afford to have the death penalty imposed. Is it too expensive to undertake the litigation process for society. I do not think we can make a decision on public safety based upon cost. Security is the basic purpose, fundamental first purpose of Government. National security on the international scene, protection from attacks; now we have a new form of security in terrorism. When we come to the domestic scene, it is a matter of having safety on the streets. There is a debate as to whether we ought to have the death penalty. That is a worthwhile debate. The Supreme Court has been moving in a number of areas to limit the application of the death penalty. From my experience as district attorney of Philadelphia, I believe the death penalty is a deterrent. I questioned FBI Director Mueller about it yesterday in the Judiciary oversight hearing. Director Mueller thinks the death penalty ought to be retained. When I was an assistant DA many years ago, I had a case in the Pennsylvania Supreme Court when I was chief of the appeals division. There were three young hoodlums, Williams, Caters, and Rivers. They were 19, 18, and 17. They planned a robbery. The two younger ones, Cater and Rivers, said to Williams, who had a gun: We are not going if you take the gun along. They had IQs under 100 but were smart enough to know that if a gun was taken, there might be a killing. That would be felony murder and they could get the death penalty. Williams said: I won't take the gun. He put it in the drawer, slammed it shut. Then, unbeknownst to Cater and Rivers, he took the gun back, put it in his pocket, went to rob a grocer in north Philadelphia, a tussle ensued. Williams pulled the gun and shot and killed a man named Viner. All three were sentenced to death in the electric chair. Williams actually was executed. This goes back to about 1960. Cater and Rivers got a life sentence. I argued the case in the State Supreme Court which upheld the death penalties and then later, when I was district attorney, I joined in the recommendation of a life sentence for Cater and Rivers. The point is that even with a marginal IQ, there was a deterrent effect. The critical factor in my thinking on their not having the death penalty was they didn't want to take the weapon. In the eyes of the law, they were as guilty as Williams. They were coconspirators. When you rob and a killing ensues, a murder ensues, it is murder in the first degree and calls for the death penalty. The commission which has been proposed here today ought to take a look at white-collar crime, and ought to make an evaluation of the sentencing which has been imposed and whether it is adequate. If you are dealing with a domestic quarrel, a husband-wife dispute--there are many homicides arising in that context--a jail sentence is not a deterrent. If you are dealing with white-collar crime, there is a deterrent. Today, we have--and I questioned FBI Director Mueller about this yesterday. He said they have many investigations being undertaken as a result of what has happened with corporate fraud, the misrepresentation of assets, leading us to the tremendous economic problems which we face today. There is no doubt about the deterrent effect. I urged Director Mueller to expedite some of the cases. There is great public concern about whether there will be accountability. I said yesterday--and repeat to--we do not want to send anybody to jail who does not deserve to go to jail, but you do not have to investigate a case for years and bring forth 100 charges, 100 counts of an indictment. It can be done on a much more rapid pace and have an appropriate trial and have a result, and it would be important to show the example and to show the American people there is accountability. When we talk about the jails, the commission ought to make a determination as to whether there are people in jail who ought not to be in jail. This morning's news has a report about the State of New York reexamining sentencing on drug laws. There is a lot of thought that the drug laws catch too many people, and many people go to jail who ought not to be in jail. Well, that is a question that ought to be examined. Our whole prison system in Pennsylvania is called a correctional system, which is a misnomer. It does not correct people. It does not have the facilities to correct people. What they do is warehouse. A related issue that considerable work has been done on recently is the issue of mentoring. We have some 80,000 at-risk youth in the city of Philadelphia, determined by a hearing which was held recently. Those at-risk youth can go one of two ways: They can move through the education system, if they have proper guidance; or they can be on the streets and turn into criminals, as so many of them do. Mentoring is a way of providing some guidance. There are so many single-parent homes--a working mother, nobody to give guidance. We have appropriated federally, recently, $25 million nationally for five target cities, one of which is Philadelphia, but that is a very modest beginning. But to be a surrogate parent, you have an opportunity. That is a subject which a commission ought to undertake. Those are some of the ideas which are current in this very complex field. In trying to estimate the cost of crime, it is hard to do. My own judgment would be, if you put a billion-dollar price figure on the cost of robberies, burglaries, corporate fraud, automobile thefts, to say nothing about the pain and suffering people have--the anxiety in the middle of the night when there is a loud noise in your house; the consolation you have, to some extent, from an alarm system that does not go too far--but this is a big problem in America, and it is a problem which has largely gone unsolved. Problems of crime are the same today as they were when I first entered the field as an assistant district attorney decades ago. There are ways to deal with violent crime. There are ways to deal with realistic rehabilitation. There are ways to deal with deterrence on white-collar crime--that it ought not to be only a fine, which turns out to be a license to do business. In the confirmation hearing of the new Assistant Attorney General for the Criminal Division, that point was emphasized. But what Senator Webb has had to say today, and the blueprint he has outlined, could be a major advance on a very complex problem, which needs a--I was about to say ``solution,'' but there is not going to be a solution--but there can be an enormous amelioration if we tackle the problem with the guidance that could be provided by the Webb commission. May I give it the name: The Webb commission? Hearing no objection, so ordered.

Mr. SPECTER. Mr. President, I seek recognition to comment on my cosponsorship of the Dam Rehabilitation and Repair Act of 2009 and clarify my intent with respect to Davis-Bacon prevailing wage requirements under this bill. This bill would establish a grant program within the Federal Emergency Management Agency to provide assistance to states for the rehabilitation of publicly-owned dams that fail to meet minimum safety standards. I am cosponsoring this bill because it is my understanding that there are at least 3,040 deficient dams in the United States, including 369 in Pennsylvania. These dams pose an unacceptable level of risk to the public and should be rehabilitated expeditiously. I cosponsored similar legislation in the 110th Congress, however, I am advised that it was not considered by the Committee on Environment and Public Works due to concerns over language in the bill which would have required that dam repair work funded under the act adhere to Davis-Bacon locally prevailing wage requirements. As a result, this year's version of the bill, as introduced, does not contain Davis-Bacon prevailing wage requirements out of deference to the Ranking Member of the Committee. However, I am a strong supporter of Davis-Bacon, having voted in favor of preserving it 23 separate times on the Senate floor since 1982. Accordingly, it is my intention to work to reinsert Davis- Bacon requirements into the bill either in committee or on the Senate floor.

Mr. SPECTER

Mr. SPECTER. I begin by complimenting my distinguished colleague from Virginia for his initiative in proposing the creation of a national commission to examine criminal justice. There have been many Commissions in recent years, recent decades. But the problems which we are now confronting warrant a fresh look. Senator Webb has proposed that. This Commission has the potential to be not just another Commission but to make some very significant advances on this very serious problem. The principal issue on crime is public security, protection from violent criminals. I have long believed the issue could be divided into two parts. One is the violent career criminals. They are defined as someone who has committed three or more serious crimes. One of the first bills which I authored was the armed career criminal bill, which was enacted in 1984, which made it a Federal offense punishable by what is the equivalent of a life sentence under the Federal system, 15 years to life, for anyone caught in possession of a firearm who has committed three or more offenses--a robbery, burglary, rape, arson or the sale of drugs. Statistics show that about 70 percent of violent crimes are committed by career criminals. It is my view, shared by many, that those people ought to be sent to jail for life. They ought to be separated from society. The second category involves those who have been convicted of crimes and who are going to be released. With respect to juveniles, we call that juvenile delinquency, at least in Pennsylvania we do, as opposed to a criminal charge. They are going to be released. First and second offenders are going to be released. The object is, how do we deal with them to, No. 1, protect society and, No. 2, to take them out of the crime cycle so they can have productive, contributing lives in society? We know what to do, but we have never done it. The steps are to work with those who suffer from drug abuse or alcohol abuse. We find that 70 to 80 percent of the people arrested have drug or alcohol problems. They have to be treated, detoxification. Then they need literacy training. So many cannot read or write. Then they need job training so they will have a trade or skill. Then they need to be placed in society. It is no surprise, when someone who is a functional illiterate, without a trade or skill, gets out of jail, that the odds are high they will go back to jail. There are a number of programs but not enough, not sufficiently carefully thought through, to place people. We have tax credits which will encourage employers to hire people. In the stimulus package for veterans or juvenile offenders, there is a 40-percent tax break on the first $6,000 of a job which is paid. That is a start. But it doesn't go very far. We have been unwilling to make the kind of investment to provide that kind of realistic rehabilitation. Therefore, we have recidivism and the revolving door in our jails. The public is the principal loser because these people come out and commit more crimes. Individuals are lost. So both in terms of the individual on rehabilitation, to have a productive role in society, a decent life, and for public safety. Candidly, you don't get too far on legislation looking out for the criminals on rehabilitation. But when you talk about the threat to society from repeat crimes, then people pick up their ears. There has been a fascinating debate recently about whether we can afford to have a criminal justice system that keeps people in jail and protects the public, whether we can afford to have the death penalty imposed. Is it too expensive to undertake the litigation process for society. I do not think we can make a decision on public safety based upon cost. Security is the basic purpose, fundamental first purpose of Government. National security on the international scene, protection from attacks; now we have a new form of security in terrorism. When we come to the domestic scene, it is a matter of having safety on the streets. There is a debate as to whether we ought to have the death penalty. That is a worthwhile debate. The Supreme Court has been moving in a number of areas to limit the application of the death penalty. From my experience as district attorney of Philadelphia, I believe the death penalty is a deterrent. I questioned FBI Director Mueller about it yesterday in the Judiciary oversight hearing. Director Mueller thinks the death penalty ought to be retained. When I was an assistant DA many years ago, I had a case in the Pennsylvania Supreme Court when I was chief of the appeals division. There were three young hoodlums, Williams, Caters, and Rivers. They were 19, 18, and 17. They planned a robbery. The two younger ones, Cater and Rivers, said to Williams, who had a gun: We are not going if you take the gun along. They had IQs under 100 but were smart enough to know that if a gun was taken, there might be a killing. That would be felony murder and they could get the death penalty. Williams said: I won't take the gun. He put it in the drawer, slammed it shut. Then, unbeknownst to Cater and Rivers, he took the gun back, put it in his pocket, went to rob a grocer in north Philadelphia, a tussle ensued. Williams pulled the gun and shot and killed a man named Viner. All three were sentenced to death in the electric chair. Williams actually was executed. This goes back to about 1960. Cater and Rivers got a life sentence. I argued the case in the State Supreme Court which upheld the death penalties and then later, when I was district attorney, I joined in the recommendation of a life sentence for Cater and Rivers. The point is that even with a marginal IQ, there was a deterrent effect. The critical factor in my thinking on their not having the death penalty was they didn't want to take the weapon. In the eyes of the law, they were as guilty as Williams. They were coconspirators. When you rob and a killing ensues, a murder ensues, it is murder in the first degree and calls for the death penalty. The commission which has been proposed here today ought to take a look at white-collar crime, and ought to make an evaluation of the sentencing which has been imposed and whether it is adequate. If you are dealing with a domestic quarrel, a husband-wife dispute--there are many homicides arising in that context--a jail sentence is not a deterrent. If you are dealing with white-collar crime, there is a deterrent. Today, we have--and I questioned FBI Director Mueller about this yesterday. He said they have many investigations being undertaken as a result of what has happened with corporate fraud, the misrepresentation of assets, leading us to the tremendous economic problems which we face today. There is no doubt about the deterrent effect. I urged Director Mueller to expedite some of the cases. There is great public concern about whether there will be accountability. I said yesterday--and repeat to--we do not want to send anybody to jail who does not deserve to go to jail, but you do not have to investigate a case for years and bring forth 100 charges, 100 counts of an indictment. It can be done on a much more rapid pace and have an appropriate trial and have a result, and it would be important to show the example and to show the American people there is accountability. When we talk about the jails, the commission ought to make a determination as to whether there are people in jail who ought not to be in jail. This morning's news has a report about the State of New York reexamining sentencing on drug laws. There is a lot of thought that the drug laws catch too many people, and many people go to jail who ought not to be in jail. Well, that is a question that ought to be examined. Our whole prison system in Pennsylvania is called a correctional system, which is a misnomer. It does not correct people. It does not have the facilities to correct people. What they do is warehouse. A related issue that considerable work has been done on recently is the issue of mentoring. We have some 80,000 at-risk youth in the city of Philadelphia, determined by a hearing which was held recently. Those at-risk youth can go one of two ways: They can move through the education system, if they have proper guidance; or they can be on the streets and turn into criminals, as so many of them do. Mentoring is a way of providing some guidance. There are so many single-parent homes--a working mother, nobody to give guidance. We have appropriated federally, recently, $25 million nationally for five target cities, one of which is Philadelphia, but that is a very modest beginning. But to be a surrogate parent, you have an opportunity. That is a subject which a commission ought to undertake. Those are some of the ideas which are current in this very complex field. In trying to estimate the cost of crime, it is hard to do. My own judgment would be, if you put a billion-dollar price figure on the cost of robberies, burglaries, corporate fraud, automobile thefts, to say nothing about the pain and suffering people have--the anxiety in the middle of the night when there is a loud noise in your house; the consolation you have, to some extent, from an alarm system that does not go too far--but this is a big problem in America, and it is a problem which has largely gone unsolved. Problems of crime are the same today as they were when I first entered the field as an assistant district attorney decades ago. There are ways to deal with violent crime. There are ways to deal with realistic rehabilitation. There are ways to deal with deterrence on white-collar crime--that it ought not to be only a fine, which turns out to be a license to do business. In the confirmation hearing of the new Assistant Attorney General for the Criminal Division, that point was emphasized. But what Senator Webb has had to say today, and the blueprint he has outlined, could be a major advance on a very complex problem, which needs a--I was about to say ``solution,'' but there is not going to be a solution--but there can be an enormous amelioration if we tackle the problem with the guidance that could be provided by the Webb commission. May I give it the name: The Webb commission? Hearing no objection, so ordered.

Mr. SPECTER

Mr. SPECTER. Mr. President, I seek recognition to comment on my cosponsorship of the Dam Rehabilitation and Repair Act of 2009 and clarify my intent with respect to Davis-Bacon prevailing wage requirements under this bill. This bill would establish a grant program within the Federal Emergency Management Agency to provide assistance to states for the rehabilitation of publicly-owned dams that fail to meet minimum safety standards. I am cosponsoring this bill because it is my understanding that there are at least 3,040 deficient dams in the United States, including 369 in Pennsylvania. These dams pose an unacceptable level of risk to the public and should be rehabilitated expeditiously. I cosponsored similar legislation in the 110th Congress, however, I am advised that it was not considered by the Committee on Environment and Public Works due to concerns over language in the bill which would have required that dam repair work funded under the act adhere to Davis-Bacon locally prevailing wage requirements. As a result, this year's version of the bill, as introduced, does not contain Davis-Bacon prevailing wage requirements out of deference to the Ranking Member of the Committee. However, I am a strong supporter of Davis-Bacon, having voted in favor of preserving it 23 separate times on the Senate floor since 1982. Accordingly, it is my intention to work to reinsert Davis- Bacon requirements into the bill either in committee or on the Senate floor.

Mr. SPECTER

Mr. SPECTER. Mr. President, I have sought recognition to speak briefly on the nomination of David S. Kris to be Assistant Attorney General in the National Security Division of the Department of Justice. Let me say preliminarily how nice it is to see the other--I shouldn't say ``the other Senator''--the Senator from Pennsylvania presiding today. I compliment Senator Casey on an outstanding tenure for, let me see, 2 years and almost 3 months. I express my appreciation for his cooperation in working together on so many projects. May I say further for the Record, since it is in black and white and not in Technicolor, I think there is a slight blush on Senator Casey for the warranted praise. Now on to the other subject at hand. David Kris has been nominated for this very important position. He comes to it with excellent credentials. He is a graduate of Haverford College, a college I know very well, being my oldest son, Shanin, graduated there, and the Harvard Law School, an institution I don't know quite so well but one I hear is a very good school, not perhaps up to--well, I won't comment about that. After graduation from law school, Mr. Kris served as clerk to Judge Stephen Trott on the Ninth Circuit; was in the Criminal Division of the Department of Justice for 8 years; was Deputy Attorney General for 3 years. He has excellent academic and professional standards. I ask unanimous consent to have Mr. Kris's resume printed in the Record at the conclusion of my comments.

Mr. SPECTER. Mr. President, Mr. Kris has the commendations and recommendations of both Attorneys General for whom he worked--Attorney General Janet Reno and Attorney General John Ashcroft. John Ashcroft, our former colleague in the Senate who sat on the Judiciary Committee, described Mr. Kris's ``intelligence, independence, and wisdom'' as ``valuable national assets.'' After years of public service, Mr. Kris joined Time Warner and even found time to write a legal treatise on national security investigations and prosecutions. He is considered an expert on the Foreign Intelligence Surveillance Act and leading authority on national security law. I urge my colleagues to support his nomination. I yield the floor. Exhibit 1 David S. Kris, Assistant Attorney General, National Security Division Birth: 1966, Boston, Massachusetts. Legal Residence: Bethesda, Maryland. Education: B.A., Haverford College, 1988; J.D., Harvard Law School, 1991. Employment: Clerk, Judge Stephen S. Trott, U.S. Court of Appeals for the Ninth Circuit, 1991-1992. Attorney, Criminal Division, U.S. Department of Justice, 1992-2000. Associate Deputy Attorney General, U.S. Department of Justice, 2000- 2003. Vice President, Time Warner, Inc., 2003-2005. Chief Compliance Officer, Time Warner, Inc., 2005-Present. Senior Vice President and Deputy General Counsel, Time Warner, Inc., 2006-Present. Nonresident Senior Fellow, Brookings Institution, 2008-Present. Adjunct Professor of Law, Georgetown University Law Center, 2008-Present. National Security Adviser, Hillary Clinton for President and Obama for America, 2008. DOJ Agency Review Team Member, President-Elect Transition Team, 2008-2009. Selected Activities: Award, Attorney General's Award for Exceptional Service, 1999, 2002. Award, Assistant Attorney General's Award for Special Initiative, 1998. Awards for Special Achievement (various dates prior to 2000). Member, Edward Bennett Williams Inn of Court, 1995-2007; Massachusetts Bar, 1991-Present; New York State Bar, 2003- Present; Maryland State Bar, 2008-Present.

Mr. SPECTER

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

Mr. SPECTER. Mr. President, I have sought recognition to state my position on the bill known as the Employee Free Choice Act, also known as card check. My vote on this bill is very difficult for many reasons. First, on the merits, it is a close call and has been the most heavily lobbied issue I can recall. Second, it is a very emotional issue with labor looking to this legislation to reverse the steep decline in union membership and business expressing great concern about added costs which would drive more companies out of business or overseas. Perhaps, most of all, it is very hard to disappoint many friends who have supported me over the years, on either side, who are urging me to vote their way. In voting for cloture--that is to cut off debate--in June of 2007, I emphasized in my floor statement and in a Law Review article that I was not supporting the bill on the merits but only to take up the issue of labor law reform. Hearings had shown that the NLRB was dysfunctional and badly politicized. When Republicans controlled the board, the decisions were for business. With Democrats in control, the decisions were for labor. Some cases took as long as 11 years to decide. The remedies were ineffective. Regrettably, there has been widespread intimidation on both sides. Testimony shows union officials visit workers' homes with strong-arm tactics and refuse to leave until cards are signed. Similarly, employees have complained about being captives in employers' meetings with threats of being fired and other strong-arm tactics. On the merits, the issue which has emerged at the top of the list for me is the elimination of the secret ballot, which is the cornerstone of how contests are decided in a democratic society. The bill's requirement for compulsory arbitration if an agreement is not reached within 120 days may subject the employer to a deal he or she cannot live with. Such arbitration runs contrary to the basic tenet of the Wagner Act for collective bargaining, which makes the employer liable only for a deal to which he or she agrees. The arbitration provision could be substantially improved by the last best offer procedure, which would limit the arbitrator's discretion and prompt the parties to move to more reasonable positions. In seeking more union membership and negotiating leverage, labor has a valid point that they have suffered greatly from outsourcing of jobs to foreign countries and losses in pension and health benefits. President Obama has pressed labor's argument that the middle class needs to be strengthened through more power to unions in their negotiations with business. The better way to expand labor's clout in collective bargaining is through amendments to the NLRA rather than eliminating the secret ballot and mandatory arbitration. Some of the possible provisions for such remedial legislation are set forth in the appendix to this statement. In June 2007, the Employee Free Choice Act was virtually monolithic: 50 Senators, Democrats, voted for cloture; and 48 Republicans against. I was the only Republican to vote for cloture. The prospects for the next cloture vote are virtually the same. No Democratic Senator has spoken out against cloture. Republican Senators are outspoken in favor of a filibuster. With the prospects of a Democratic win in Minnesota yet uncertain, it appears the 59 Democrats will vote to proceed, with 40 Republicans in opposition. If so, the decisive vote would be mine. In a highly polarized Senate, many decisive votes are left to a small group who are willing to listen, reject ideological dogmatism, disagree with the party line, and make an independent judgment. It is an anguishing position, but we play the cards we are dealt. The emphasis on bipartisanship is misplaced. There is no special virtue in having some Republicans and some Democrats take similar positions. The desired value, really, is independent thought and an objective judgment. It obviously cannot be that all Democrats come to one conclusion and all Republicans come to the opposite conclusion by expressing their individual objective judgments. Senators' sentiments expressed in the cloakroom frequently differ dramatically from their votes in the well of the Senate. The Nation would be better served, in my opinion, with public policy determined by independent, objective legislative judgments. The problems of the recession would make this a particularly bad time to enact the Employee Free Choice Act. Employers understandably complain that adding such a burden would result in further job losses. If efforts to give labor sufficient bargaining power through amendments to the NLRA are unsuccessful, then I would be willing to reconsider the Employee Choice legislation when the economy returns to normalcy. I am announcing my decision now because I have consulted with a very large number of interested parties on both sides and I have made up my mind. Knowing that I will not support cloture on this bill, Senators may choose to move on and amend the NLRA as I have suggested or otherwise. This announcement should end the rumor mill that I have made some deal for my political advantage. I have not traded my vote in the past and would not do so now. I ask unanimous consent that the text be printed in the Record, as well as an appendix with suggested revisions to the National Labor Relations Act.

Mr. SPECTER. I yield the floor.

Mr. SPECTER

Mr. SPECTER. Mr. President, I have sought recognition today to submit a resolution to designate March 25, 2009, as National Cerebral Palsy Awareness Day. Cerebral palsy is a group of chronic, neurological disorders that appear in infancy or early childhood and permanently affect body movement and muscle coordination necessary to maintain balance and posture. Cerebral palsy is caused by damage to one or more specific areas of the brain, usually occurring during fetal development; before, during or shortly after birth; or during infancy. The top two risk factors for the disorders are premature births and multiple births, and despite the introductions of modern prenatal testing, improved obstetric care, and newborn intensive care technologies, the Centers for Disease Control and Prevention, CDC, estimates that every year 10,000 babies born in the United States will develop cerebral palsy. These disorders are not caused by problems in the muscles or nerves but, instead, damage to motor areas in the brain. Cerebral palsy currently affects children at a rate of 1 in 278 and an estimated 800,000 Americans. The majority of children who have cerebral palsy are born with it, rather than developing the disorder over time; however, it may not be detected for months or years. Over 75 percent of individuals with cerebral palsy also have one or more additional developmental disability including epilepsy, intellectual disability, autism and visual impairments or blindness. The disorders are not progressive and are noncommunicable. Currently, there is no cure for cerebral palsy. There are treatments, however, which can serve to alleviate some of the symptoms. Treatments now include physical and occupational therapy; speech therapy; drugs to control seizures, relax muscle spasms, and alleviate pain; surgery to correct anatomical abnormalities or release tight muscles; braces and other orthotic devices; wheelchairs and rolling walkers; and communication aids such as computers with attached voice synthesizers. It is essential that more research be conducted on ways in which to prevent and treat cerebral palsy. As chairman and ranking member of the Labor, Health and Human Services, and Education Appropriations Subcommittee, I led the effort to successfully double funding for the National Institutes of Health, NIH. Funding for the NIH has increased from $11.3 billion in fiscal year 1995 to $30 billion in fiscal year 2009. In addition, I cosponsored an amendment to H.R. 1, the American Recovery and Reinvestment Act to provide an additional $10 billion to the NIH. In 2008, the NIH provided $28 million for cerebral palsy research, which is a $16.5 million increase over 2000, when the NIH provided $11.5 million. The Department of Health and Human Services' ``Healthy People 2010'' report identified cerebral palsy as one of the important public health conditions to be monitored, and the CDC regularly conducts studies on the prevalence of cerebral palsy across the nation. This report will help the CDC to provide a more comprehensive picture of cerebral palsy and advance efforts to provide better services for these children. Raising awareness of cerebral palsy is integral in the fight against this debilitating condition. I encourage my colleagues to work with Senator Casey and me to designate March 25, 2009, as ``National Cerebral Palsy Awareness Day.''

Mr. SPECTER

Mr. SPECTER. What is the business pending before the Senate at the moment?

Mr. SPECTER. Mr. President, I came at 2 o'clock, when this nomination was listed for argument, and another Senator was speaking on another subject. We have just heard another Senator speaking on still another subject. Only two Senators have spoken so far in favor of the nomination. I say to my colleagues on both sides of the aisle, if they have anything to say about the nominee, they ought to come to the floor and speak. The chairman has raised a proposal about voting on the nomination and speaking afterward. Part of our deliberative process is to have Senators speak with the prospect--maybe unrealistic, maybe foolish--of influencing some other votes. We are not going to influence any votes if we speak after the vote is taken. But it may be that we are not going to have speakers. I urge my colleagues to come to the floor. This is Thursday afternoon. In the Senate, that is a code word. It means we are about to leave. There are no votes tomorrow, so there will be some interest in departure not too long from now. I think we ought to conclude at a reasonable time. In advance, I had been advised that quite a number of people want to speak for quite a long time. We got an allocation of 3 hours for the Republican side. That means 6 hours equally divided. Now it appears that some who had wanted extensive time will now not be asking for that extensive time. We ought to make the determination as soon as we can as to who wants to speak and for how long so that we can figure out when is a reasonable time to have the vote and conclude the debate so Senators may go on their way. Turning to the subject matter at hand, the nomination of Dean Elena Kagan for Solicitor General of the United States. I begin by noting Dean Kagan's excellent academic and professional record. I call her Dean Kagan because she has been the dean of the Harvard Law School since 2003. She has excellent academic credentials: summa cum laude from Princeton in 1981, and magna cum laude from the Harvard Law School in 1986, where she was on the Harvard Law Review. She clerked for Circuit Judge Mikva and Supreme Court Justice Marshall and she has had government service. I ask unanimous consent that her resume be printed in the Record at the conclusion of my remarks.

Mr. SPECTER. The office of Solicitor General is a very important office. That is the person who makes arguments to the Supreme Court of the United States on behalf of the United States government. In addition to making arguments, the Court frequently asks the Solicitor General for the Solicitor General's opinion on whether a writ of certiorari should be granted in pending cases. So the Solicitor General is sometimes referred to as the 10th Supreme Court Justice--a pretty important position. I have gone to substantial length, really great length, to find out about Dean Kagan's approach to the law and approach to the job of Solicitor General and to get some of her ideas on the law because she is nominated to a critical public policymaking position. I had the so- called courtesy visit with her in my office, which was extensive, as ranking member on the Judiciary Committee. We had an extensive hearing, where I questioned her at some length. Written questions were submitted, and she responded. I was not satisfied with the answers that were given, and when her name came before the committee for a vote, I passed. That means I didn't say yea or nay. I wanted to have her nomination reported to the floor so we could proceed, and I wanted an opportunity to talk to her further. I did so earlier this month. I then wrote her a letter asking more questions and got some more replies. I use the word ``replies'' carefully because I didn't get too many answers as to where she stood on some critical issues. During the course of the hearing, we discussed extensively some of her very deeply held positions. The question was raised by me, given those positions, would she be able to take a contrary position on some statute that she is obligated to uphold in arguments before the Supreme Court. She said she would. But the question remains, when you feel so strongly--and the record will show what she had to say--whether you can really make a forceful argument as an advocate. Theoretically, you can. Lawyers are not supposed to necessarily believe in their positions; they are supposed to advocate. The clash and clamor of opposing views in our adversarial system is supposed to produce truth. Lawyers advocate more so than state their own positions. But there is a degree of concern when the views are as strongly held as Dean Kagan's have been. After the long process I have described, I still don't know very much about Dean Kagan. It is frequently hard, in our separation of powers, for the legislative branch to get much information from the executive branch. We look for information, and frequently we are told it is executive privilege. We are told it is part of the deliberative process or we are simply not told anything, with long delays and no responses. The legislative branch has two critical pressure points. One pressure point is the appropriations process, to withhold appropriations, which, candidly, is not done very often. It is pretty tough to do that. Another point is the confirmation process where nominations are submitted to us to be confirmed, which the Constitution requires. So there the executive branch has no choice. They can't talk about executive privilege or deliberative process or anything else. But there is a question as to how thorough nominees answers to questions should be. In discussing what answers we can reasonably expect from Dean Kagan, the issue of the questioning of judicial nominees is implicated to the extent that the tides have shifted as to how many questions Supreme Court nominees are asked. Not too long ago, there weren't even hearings for Supreme Court nominees. Then the generalized view was that nominations were a question of academic and professional qualifications. Then the view was to find out a little bit about the philosophy or ideology of a nominee but not to tread close to asking how specific cases would be decided. The President is customarily afforded great latitude with nominations. Then Senators look for qualifications, with the generalized view that they don't want to substitute their own philosophy or own approach to the law for the discretion of the President. Some Senators do. There is no rule on it. We may be in a period of transition where some have said the Senate ought to do more by way of utilizing Senators' own philosophical positions in evaluating the President's nominees, that we have as much standing on that front as the President. That is an open question, but I don't propose to suggest the answer to it today or to take a position on it. But it bears on how far we can go in asking Dean Kagan questions. I don't know very much more about her now than I did when we started the process. From the many questions that I asked her on cases, I have picked out a few to illustrate the problem I am having with figuring out where she stands and the problem I am having with her confirmation. One case of substance and notoriety is a case involving insurance for Holocaust survivors. The Southern District of New York Federal court held that plaintiffs' monetary claims were preempted by executive policy. The Second Circuit wrote to the Secretary of State and asked for the administration's position on the adjudication of these suits with respect to U.S. foreign policy. Dean Kagan was asked the question of what was her view on this case. This was a pretty highly publicized case, and it is pretty hard to see how an insurance company ought to be preempted or protected by foreign policy considerations. Well, Dean Kagan didn't tell us very much in her answer. The answer takes up two-thirds of a page, and most of it is about the consultative process, which I am, frankly, not much interested in. I want to know what she thinks about the policy. She said: At the end of this process, the decision of the Solicitor General on seeking certiorari is likely to reflect in large measure the views of the State Department as to the magnitude of the foreign policy interests involved. It does not say very much. I want to know what foreign policy interests she is concerned about. Another case involving the terrorist attacks captioned ``In re Terrorist Attacks on September 11, 2001'' where people who were victimized on that day sought damages from Saudi Arabia, Saudi princes, and a banker, who were alleged to have funded Muslim charities that had provided material support for al-Qaida. The Southern District of New York Federal Court dismissed the plaintiffs' claims on the grounds that the defendants were immune from suit. The Second Circuit affirmed, and the Supreme Court then asked the Solicitor General's Office for its recommendation as to whether to grant the petition for certiorari. There, you have the ``tenth'' Supreme Court Justice, the Solicitor General, coming into the picture. Well, when I questioned Dean Kagan on this case, her response was: ``I am unfamiliar with this case. . . . A critically important part of this process would be to'' work with the clients, the Department of State, and the Department of Justice. And the ``inquiry would involve exploration of the purposes, scope, and effect of the Foreign Sovereign Immunities Act, as well as consideration of the role private suits might play in combating terrorism and providing support to its victims.'' Well, we do not know very much about her views from that answer. There has been a lot of information in the public domain that Saudi charities were involved. Fifteen of the nineteen hijackers were from Saudi Arabia. People were murdered. There are claims pending in court. The question is whether the Supreme Court is going to take the case. Well, I wish to know what the nominee for the position of Solicitor General thinks about it. I had calls from people in high positions--I do not want to identify them--saying: Well, don't ask those kinds of questions. Somebody in the executive branch. Well, I am not prepared to relinquish the institutional prerogatives of the Senate to ask questions. The executive branch nominees want confirmation. Well, Senators want information to base their opinions on. In the case of Republic of Iraq v. Beaty, the question was whether Iraq was amenable to suit under the exception to the foreign sovereign immunity clause. American citizens were taken hostage by Saddam Hussein in the aftermath of the first gulf war. They got more than $10 million in damages. The question, then, is, what would the Solicitor General do? The case is now pending before the Supreme Court. Dean Kagan gives an elongated answer saying very little, virtually nothing: I have no knowledge of the case and cannot make an evaluation of its merits, even if this evaluation were appropriate (which I do not believe it would be) while the case is pending before the Court with a brief from the Solicitor General supporting reversal. Well, Dean Kagan has a point as to how much knowledge she has of the case. But when she says that an evaluation is not appropriate while a brief is pending from the Solicitor General supporting reversal--she is not the Solicitor General. She has not submitted the brief. She is not a party to the action. She is a nominee. She wants to be confirmed. I wish to know how she would weigh this issue. Americans taken hostage by Saddam Hussein, and the verdict of $10 million--why not have a judicial determination in a matter of this sort? How much do we defer to foreign governments who have murdered and abused and kidnapped American citizens? I think those are fair questions. I will discuss one more question because I see my colleague Senator Sessions is on the floor. That is the Kelo case, Kelo v. London, a very famous, widely publicized case on eminent domain. Well, does Dean Kagan have the record in the case? Has she gone through it line by line? No, that has not happened. But the case is pretty well known. It is pretty hard to say you do not know much about that. This is what she said in response to my question regarding the case: I have never written about the Takings Clause; nor have I taught the subject. . . . Well, if that is relevant--I do not know if we would confirm very many people to the Department of Justice Attorney General position or Solicitor General position or to other positions if you had to have written about it or if you had to have taught a class on the subject. Here again, we know very little as to what she thinks about an issue. In essence, it is difficult to cast a negative vote on someone with the qualifications and background of Dean Kagan, but we have a major problem of institutional standing to find out from a nominee what the nominee thinks on important questions. The nominee disagrees with what I have said. I have talked to her about it. She thinks she can be an advocate for issues even though she feels very strongly the other way. She feels she does not have to answer questions because it would be inappropriate because the case is pending and the Solicitor General has rendered an opinion. Well, I disagree with that. I have no illusion the issues I have raised will prevail. I think it is pretty plain that Dean Kagan will be confirmed. But I do not articulate this as a protest vote or as a protest position, but one of institutional prerogatives. We ought to know more about these nominees. We ought to take the confirmation process very seriously. I believe the scarcity and paucity of Senators who have come to the floor to debate this nomination does not, candidly, speak too well for this institution. We are all waiting to vote to go home. But this is an important position. For a Supreme Court Justice nominee, television cameras would be present during the hearings, and everybody would be there, and everybody would be on camera. Well, I think we have to pay a little more attention, and I have gone to some length to try to find out more about Dean Kagan. In the absence of being able to do so and to have a judgment on her qualifications, I am constrained to vote no. Before I yield the floor, Mr. President, again, I ask my colleagues to come to the floor if they are going to have something to say. I would hope we could wind up our activities. We could go until 8 o'clock. I do not think we ought to do that. My view is, we ought to vote no later than 5. But I am not the leader. That is just my view. But I do think people ought to come if they want to speak. Or maybe we will vote at 5 o'clock, and people can speak afterwards. I do not know how it will work out. But I think it would be very healthy if people spoke before the vote on the assumption that we have debate to try to influence other Senators because we are the world's greatest deliberative body, so it says in all the texts. I yield the floor. Exhibit 1 Elena Kagan solicitor general of the united states Birth: 1960; New York, New York. Legal Residence: Cambridge, Massachusetts. Education: B.A., summa cum laude, Princeton University, 1981; Daniel M. Sachs Graduating Fellow, Princeton University; M.Phil., Worchester College, Oxford, 1983; J.D., magna cum laude, Harvard Law School, 1986; Supervising Editor, Harvard Law Review. Employment: Judicial Clerk, Judge Abner Mikva, U.S. Court of Appeals for the D.C. Circuit, 1986-1987; Judicial Clerk, Justice Thurgood Marshall, U.S. Supreme Court, 1987-1988; Staff Member, Dukakis for President Campaign, 1988; Associate, Williams & Connolly LLP, 1989-1991; Assistant Professor, University of Chicago Law School, 1991-1994; Tenured Professor, 1995-1997; Special Counsel, Senate Judiciary Committee, 1993 (summer); Associate. Counsel to the President, Executive Office of the President, 1995-1996; Deputy Assistant to the President for Domestic Policy, 1997- 1999; Visiting Professor, Harvard Law School, 1999-2001; Professor of Law, 2001-Present; Dean, 2003-Present. Selected Activities and Honors: Public Member, Administrative Conference of the United States, 1994-1995; Litigation Committee Member, American Association of University Professors, 2002-2003; Recipient, 2003 Annual Scholarship Award of the American Bar Association's Section of Administrative Law and Regulatory Practice, 2003; Board of Trustees, Skadden Fellowship Foundation, 2003-Present; Board of Directors, American Law Deans Association, 2004-Present; Research Advisory Council, Goldman Sachs Global Markets Institute, 2005-2008; Honorary Fellow, Worcester College, Oxford University, 2005-Present; Board of Advisors, National Constitution Center's Peter Jennings Project for Journalists and the Constitution, 2006-Present; Member, New York State Commission on Higher Education, 2007-2008; John R. Kramer Outstanding Law School Dean Award, Equal Justice Works, 2008; Recipient, Arabella Babb Mansfield Award, National Association of Women Lawyers, 2008; Board of Directors, Equal Justice Works, 2008-Present.

Mr. SPECTER

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

Mr. SPECTER. Mr. President, I have sought recognition to discuss briefly the pending nomination of David Ogden to be Deputy Attorney General. I had spoken on the subject in some detail 2 days ago, and my comments appear in the Congressional Record. But I wish to summarize my views today and also to respond to an issue which has been raised about undue delay on Mr. Ogden's nomination. There has been no such delay, and I think that is conclusively demonstrated on the record. President Obama announced Mr. Ogden's nomination on January 5, but the Judiciary Committee did not receive the nomination materials until January 23, and he was not officially nominated until January 26. Then the committee promptly held a hearing on his nomination on February 5, 13 days after receiving his nomination materials. His hearing record was open for written questions for 1 week, until February 12, and Mr. Ogden returned his responses on February 18 and 19. Following Mr. Ogden's hearing, the Judiciary Committee received an unprecedented number of opposition calls and letters--over 11,000 contacts in opposition to the nominee, unprecedented for someone in this position. Despite this opposition, the committee promptly voted on Mr. Ogden's nomination on February 26. I note that the week prior to the committee's vote on Mr. Ogden's nomination was a recess week, and it was the same week the committee received Mr. Ogden's answers to his written questions. As is the standard practice, the committee would not have voted on him prior to February 26 because the record was not complete. Rather than hold this nominee over for a week in committee, which is any Senator's right, Republicans voted on Mr. Ogden's nomination for the first time he was listed, on February 26. And now, 45 days after Mr. Ogden was nominated, the Senate is poised to vote on his nomination. Even allowing that Mr. Ogden's nomination was announced on January 5--66 days ago--the Senate is still acting as quickly as it has on past Deputy Attorneys General. On average, since 1980, Senators have been afforded 65 days to evaluate Deputy Attorney General nominees. Senators were afforded 85 days to evaluate the nomination of Larry Thompson and 110 days to evaluate the nomination of Mark Filip, both nominated by President George W. Bush. In fact, we are voting on Mr. Ogden's nomination faster than any of President Bush's nominees: Larry Thompson, 85 days; James Comey, 68 days; Paul McNulty, 147 days; and Mark Filip, 110 days. I believe these facts put to rest any allegation there was any delay. I spoke on Wednesday urging my colleagues to move promptly, noting I had a call from Attorney General Holder who said he was needed. Not having had any top-level people confirmed, I think the Attorney General's request is a very valid one. In my position as ranking member, I am pushing ahead and trying to get the Ogden nomination voted on. On Wednesday, I noted the fine academic record and professional record and put his resume into the Record, so I need not do that again. I noted on Wednesday in some detail the opposition which had been raised by a number of organizations--Family Research Council, headed by Tony Perkins; Fidelis, a Catholic-based organization; the Eagle Forum; and the Alliance Defense Fund--on the positions which Mr. Ogden had taken in a number of cases. I also noted the judgments that when Mr. Ogden took those positions, he was in an advocacy role and is not to be held to those policy positions as if they were his own. I noted that the Judiciary Committee is taking a close look at other nominees--Elena Kagan, for example--on the issue of whether she adequately answered questions. I am meeting with her later today. Her nomination is pending. Also, the nomination of Ms. Dawn Johnsen involving the issue of her contention that denying a woman's right to choose constitutes slavery and a violation of the 13th amendment. I believe on balance Mr. Ogden ought to be confirmed, as I said on Wednesday, noting the objections, noting the concerns, and contrasting them with his academic and professional record. He took advocacy positions well recognized within the profession, but that is a lawyer's responsibility. He cannot be held to have assumed those positions as his own policy. We will later today take up the nomination of the Associate Attorney General. While I have the floor, I think it appropriate to make some comments regarding this nomination. Thomas Perrelli is the nominee. He has an outstanding academic record: a graduate of Brown University, Phi Beta Kappa and magna cum laude, very substantial indicators of academic excellence. Then Harvard Law School, again magna cum laude, 1991; managing editor of the Harvard Law Review. He clerked for Judge Lamberth in the U.S. District Court for the District of Columbia. He has been an associate at Jenner & Block; counsel to the Attorney General; Deputy Assistant Attorney General; and later a partner in Jenner & Block. He was named to the ``40 under 40'' list by the National Law Journal; a recipient of the Jenner Pro Bono Award; and recognized as one of Lawdragon's 500 ``New Stars, New Worlds.'' Mr. President, I ask unanimous consent to have printed in the Record his resume.

Mr. SPECTER. Mr. President, there had been some question raised as to Mr. Perrelli's representation of clients in a couple of cases-- including the American Library Association v. Attorney General Reno, where he appeared on behalf of a coalition of free speech groups and media entities (including Penthouse) arguing that the Child Protection Restoration and Penalties Enhancement Act of 1990 criminalized material in violation of the first amendment. There were a number of letters filed by pro-life organizations, including the Pennsylvania Family Institute, International Right to Life Federation, Family Research Council, and the National Right to Life Committee. We have evaluated those issues closely. I questioned Mr. Perrelli in some detail on the position he took in the Terri Schiavo case where he claimed the Federal court did not have jurisdiction. It seems to me as a legal matter, the State court did not have exclusive jurisdiction, that the Federal court could take jurisdiction under Federal doctrines. He defended his position saying that he was taking an advocate's role, and he thought it was a fair argument to make. My own view was that it was a little extreme. I think all factors considered, the objections which have been raised of Mr. Perrelli as Associate Attorney General turn almost exclusively on positions he took as an advocate. I believe his outstanding academic and professional record support confirmation. Again, we are taking a very close look at all of the nominees but, on balance, it seems to me that is the appropriate judgment. Here, again, we are almost 2 months into a new administration and the Attorney General does not have any upper echelon assistants. These confirmations will provide that assistance. I think it is fair to note that Mr. Perrelli's nomination was supported overwhelmingly in the committee, the same conclusion I came to. It was a 17-to-1 vote in his favor. Only one Senator voted no and one Senator voted to pass. That is showing pretty substantial support. I thank the Chair. I note the presence of the distinguished chairman of the committee, so I yield the floor to Senator Leahy.

Mr. SPECTER. Mr. President, if Senator Leahy would like my time, he is welcome to all of it.

Mr. SPECTER

Mr. SPECTER. Mr. President, I have sought recognition to comment on my cosponsorship of the Clean, Low-Emission, Affordable, New Transportation Efficiency Act, CLEAN TEA. This bill, which I introduced along with Senator Carper, would establish a fund for transportation initiatives designed to reduce greenhouse gas emissions. The fund would be supported by 10 percent of the proceeds of any future cap-and-trade system established by Congress to address the issue of climate change. The funding could be used by States and local planning organizations for the development of projects such as rail, transit, transit-oriented land use and other initiatives designed to reduce emissions from the transportation sector. It is important to note, however, that the bill is not focused solely on providing alternatives to auto use. Highway operational improvements such as demand management programs and intelligent transportation systems would also be eligible if they reduce emissions by utilizing highway capacity in a more efficient manner. These are important steps in lowering our Nation's greenhouse gas emissions, reducing our dependence on foreign oil and promoting transportation mobility. Since transportation accounts for one-third of greenhouse gas emissions, it stands to reason that revenue generated from a cap-and-trade system should be devoted to creating a more sustainable transportation future.

Mr. SPECTER

Mr. SPECTER. Mr. President, I ask unanimous consent that Ronald Rowe, a detailee with Senator Hatch, be granted the privilege of the floor for the remainder of the day.

Mr. SPECTER

Mr. SPECTER. The comments that are in Ms. Kagan's letter require further analysis. She has, as a generalization, stated that she does not think it appropriate to answer certain questions about her views because she has the ability as an advocate to disregard her own personal views and to advocate with total responsibility to the law, even though she may have some different point of view. I think as a generalization, that is valid. However, as I discussed at her hearing, some of her points of view raise a question as to whether, given the very strongly held views she has expressed, she can totally put those views aside. When her nomination was before the committee for a vote, I passed. I agreed it ought to go to the floor, and we ought not to delay; but I wanted to have another talk with her. I have scheduled a meeting for tomorrow to go over Dean Kagan's record because I think it is important to take a very close look at it. I also think it is relevant to comment about the pending nomination of Dawn Johnsen for Assistant Attorney General in charge of the Office of Legal Counsel. That is the Assistant Attorney General who passes on legal questions, a very important position. They all are important, whether it is Deputy Attorney General or Solicitor General or Assistant Attorney General for the various divisions. But the Office of Legal Counsel, OLC as it is called, is especially important. We now have challenges in dealing with opinions on the torture issue by people who held leadership positions in the Office of Legal Counsel under President George W. Bush--whether they were given in good faith and whether they went far beyond the law as to what interrogation tactics were appropriate. With respect to Ms. Johnsen's nomination, she has equated limiting a woman's right to choose with slavery in violation of the 13th amendment. While I personally believe, as did Senator Goldwater, that we ought to keep the Government out of our pocketbooks, off our backs, and out of our bedrooms, I am not going to raise the contention that abortion restrictions are a violation of the 13th amendment and that it constitutes slavery. Her nomination is being subjected to very careful analysis, especially the part of her testimony where she disclaimed making that the connection between abortion restrictions and the 13th amendment because the records and a footnote suggest the contrary. I talk about the nominations of Dean Kagan and Ms. Johnsen briefly, when considering the nomination of Mr. Ogden, to point out that there is very careful scrutiny given to these very important positions. I am looking forward to meeting Dean Kagan tomorrow to examine further her capabilities to be the Solicitor General and advance arguments with the appropriate adversarial zeal. We have an adversarial system. We put lawyers on opposite sides of the issue and we postulate that, from the adversarial system, the truth is more likely to emerge. An advocate has to pursue the cause within the range of advocacy. With Ms. Johnsen, we are going to be considering further her qualifications in light of her statements to which I have referred. But coming back to Mr. Ogden, my net conclusion is that he ought to be confirmed. I say that based upon a resume that is very strong, both academically and professionally. I think it is important to note that when questioned about some of his positions, Mr. Ogden has, one might say, backed off some of his earlier views. When asked about some of the things he had written, he criticized a 1983 memo he wrote when he was a law clerk to Justice Blackmun that referred to the defenders of a challenged law in a way that disparagingly suggested their insincerity. He told the committee that after maturing, he had some different views. In a 1990 tribute to Justice Blackmun, he expressed agreement with the Justice's endorsement of affirmative action programs that entailed set-asides or quotas. At his hearing, he said he now believes that such an approach was inappropriate and instead believes that consideration of race, as he put it, ``in limited circumstances'' should be one of many factors in affirmative action programs. Mr. Ogden also stated he no longer agrees with the position he took in a 1980 case comment that ``state expansion of speech rights at the expense of property rights does not constitute a taking.'' That case comment involved the issue of whether there was an unlimited right of speech on private property. So he has maintained a little different position. It is fair to raise a question about whether statements made in the confirmation amount to a confirmation conversion. That has been an expression used from time to time that you have to take statements at a confirmation with a grain of salt because of the motivation to be confirmed. That has to be taken into account. But I listened to what Mr. Ogden had to say, and I think he is entitled to modify his views over a substantial period of time from what he did in 1983 and 1990, with a maturation process. Then there is the consideration that the President is entitled to select his appointees within broad limits. The Deputy Attorney General, while important, is not a lifetime appointment as a judge. I had a call from the Attorney General who raised the issue that he does not have any deputies and the Department of Justice has now been functioning for more than a month and a half. It is a big, important department, and we ought to give appropriate latitude to President Obama and appropriate latitude to Attorney General Holder and move ahead with Mr. Ogden's confirmation. For all of those factors, I intend to vote in favor of Mr. Ogden. I think those who have raised objections have done so, obviously, in good faith. They are entitled to have their objections considered and to know that the Judiciary Committee is giving very careful analysis to their facts and will do so, as I have outlined, on the consideration of other nominees. Madam President, I ask unanimous consent that the full text of an article I referred to from Mr. Rivkin and Mr. Casey be printed in the Congressional Record, along with the resume of Mr. Ogden.

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

Mr. SPECTER. Madam President, at the outset in addressing the Chair, may I note that it is my distinguished colleague, Senator Casey from Pennsylvania. Nice to see you acting as Vice President, Senator Casey. May I just say that in the 2 years plus that you have been here, I have admired your work and found it very gratifying to be your colleague in promoting the interests of our State and our Nation. I have sought recognition to comment on the nomination of David W. Ogden to be Deputy Attorney General. In reviewing the pending nomination, I have noted Mr. Ogden's academic and professional qualifications. I have also noted certain objections that have been raised by a number of organizations. As a matter of fact, some 11,000 contacts in opposition to the nomination have been received by our Judiciary Committee offices. As to Mr. Ogden's background, his resume, his education, and his professional qualifications--he received his undergraduate degree from the University of Pennsylvania in 1976, Phi Beta Kappa, and his law degree from Harvard, magna cum laude, where he was an editor of the Law Review. I know it is difficult to get a Phi Beta Kappa key at the University of Pennsylvania. I know that being on the Law Review at a school like Harvard is an accomplishment. He then clerked for Judge Sofaer on the United States District Court for the Southern District of New York. I came to know Judge Sofaer when he was counsel to the New York Department of State. I have a very high regard for him. Mr. Ogden then clerked for Harry Blackmun on the Supreme Court. That is a distinguished achievement. Then he worked for Ennis Friedman Bersoff & Ewing and became a partner there. Then he was a partner at Jenner & Block and was an adjunct professor at Georgetown University Law Center from 1992 to 1995. He then had a string of prestigious positions in the Department of Justice: Associate Deputy Attorney General, Counselor to the Attorney General, Chief of Staff to the Attorney General, Acting Assistant Attorney General for the Civil Division, and Assistant Attorney General for the Civil Division--all during the administration of President Clinton. We have seen quite a series of nominees come forward when the current administration selects people from a prior administration. There have been quite a few people who served in President Reagan's administration who later served in President George H.W. Bush's administration. Then some of those individuals served in the administration of President George W. Bush. Similarly, individuals from President Carter's administration came back with President Clinton, and the people from President Clinton are now serving in President Obama's administration. So it is a usual occurrence. Contrasted to the resume Mr. Ogden has, I have noted the objections raised by the Family Research Council headed by Mr. Tony Perkins, who wrote the committee expressing his concerns about Mr. Ogden's nomination because, as Mr. Perkins puts it: Mr. Ogden has built a career on representing views and companies that most Americans find repulsive . . . Mr. Ogden has also profited from representing pornographers and in attacking legislation designed to ban child pornography. It was also noted by those opposing his nomination that a brief filed by Mr. Ogden in Planned Parenthood v. Casey argued that ``women who have had abortions suffer no detrimental consequences and instead should feel `relief and happiness' after aborting a child.'' Fidelis, a Catholic-based organization, Concerned Women of America, Eagle Forum, and the Alliance Defense Fund have also written the committee in opposition to Mr. Ogden's nomination based on similar concerns; specifically, his representation of several entities in the pornography industry and organizations that oppose restrictions on abortions. As I noted earlier, the committee has received an unprecedented number of opposition phone calls and letters for a Department of Justice nominee. In total, the committee has received over 11,000 contacts in opposition to the nomination. The objections raised call into focus the issue as to whether an attorney ought to be judged on the basis of arguments he has made in the representation of a client. I believe it is accurate to say that the prevailing view is not to bind someone to those arguments. I note an article published by David Rivkin and Lee Casey, who served in the Justice Department under President Reagan and President George H.W. Bush, that advances the thesis that a lawyer is not necessarily expressing his own views when he represents a client. They point out how Chief Justice Roberts' nomination to serve on the U.S. Court of Appeals for the District of Columbia Circuit was vociferously opposed by pro-choice groups based upon briefs he had filed when he served as Deputy Solicitor General under President George H.W. Bush and the arguments for restrictions of abortion rights contained in those briefs. I recollect that NARAL had a commercial opposing then-Judge Roberts. I spoke out at that time on the concern I had about their inference that those were necessarily his own views. As I recollect, NARAL withdrew the commercial. The article by Mr. Rivkin and Mr. Casey notes the objections of the Family Research Council, Focus on the Family, and Concerned Women for America, and comes to the conclusion that a persons's representation of a client does not necessarily state what a person's views are on an issue. I further note that Mr. Ogden has been endorsed by very prominent people from Republican administrations: Deputy Attorney General Larry Thompson, former Assistant Attorney General Peter Keisler, former Assistant Attorney General Rachel Brand, and former Acting Assistant Attorney General Daniel Levin. Professor of law Orin Kerr at George Washington University Law School noted that he disagreed with arguments that Mr. Ogden had made, but despite his disagreement with Mr. Ogden's arguments, he believed those arguments should not be held against him. In the consideration of nominees who are now pending before the Judiciary Committee, we are taking a very close look at all of them. I think it appropriate to note at this point that the nomination of Harvard Law School dean Elena Kagan is being analyzed very carefully. Without going into great detail at this time because her nomination, which has been voted out of committee, will be on the floor at a later date, I and others voted to pass on Ms. Kagan because we are not satisfied with answers to questions that she has given. I ask unanimous consent to put in the Record a letter that I wrote to Dean Kagan, February 25, 2009, and her reply to me on March 2, 2009.

Mr. SPECTER. I thank the Chair and yield the floor to my distinguished colleague from Montana.

Mr. SPECTER

Mr. SPECTER. Madam President, I join in congratulating the distinguished senior Senator from Vermont. I have had the pleasure of knowing him longer than his Senate colleagues because we met in 1970 at a district attorneys convention where I was the host in Philadelphia. We have been fast friends ever since, going on the 29th year I have been working with him on the Judiciary Committee and on the Appropriations Committee. We have disagreed very infrequently. Mostly, we have been able to carry forward bipartisanship, which has been in the interest of the Senate and in the interest of the country. I could commend him for many of his votes, but I would pick out his vote in favor of Chief Justice Roberts at a time when there were considerable political considerations and strengths against an affirmative vote. He saw the importance of a unifying factor being the ranking member--I chaired at that time--and saw the importance of a unifying factor with a courageous vote. He has been an extraordinary Senator. I look forward to seeing him serve many years, and I hope to serve with him. I thank the Chair and yield the floor.