Jeff Sessions

Mr. SESSIONS

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 President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. SESSIONS

Mr. SESSIONS. Mr. President, I thank Senator Johnson for his comments and value his opinion on this nomination. I look forward to seeing this nominee confirmed. The confirmation process we have in this country is a very important matter. Our Democratic colleagues are, understandably, inclined to be supportive of whomever the President puts up. It has been a recognized responsibility for the minority party, the party that is not of the President's party, to ask questions and dig into the backgrounds of these nominees and move the good ones and raise the proper questions if there are problems. Mr. Jeffrey L. Viken has an impressive background. Early in his career, he was an Assistant and Acting U.S. attorney. He is a member of the trial lawyers plaintiff bar association in South Dakota. He has been in private practice for 22 years, and for the last 6 years he has been a Federal Public Defender where he defends criminal cases. So he has been a prosecutor and a public defender. I guess that is a pretty good match, and I am happy we were able to work out this agreement with the majority and process this nomination very quickly. Actually, he was voted out after his first appearance before the Committee and is already on the floor. But I would note for some people who say there has been a dragging of feet on the nominations that the President did not send this nomination forward, his first district court nominee to the Senate, until June 25, a few months ago, when the Senate and the Judiciary Committee were consumed with the Supreme Court nomination of now-Justice Sotomayor. Understandably, Chairman Leahy could not and did not report his nomination until after that confirmation process was over, until after Labor Day. We were then able to come to a time agreement and also to vote on the nomination of Judge Gerard Lynch, who is a highly able nominee but an activist judge with a philosophy too close, by my way of thinking, to Justice Brennan on the Supreme Court for whom he clerked. So I think it is healthy for us to ask questions. I voted for Judge Lynch for the Second Circuit, and he was confirmed by a very large vote. We will continue to work with the majority party and the President and move the nominees at an appropriate pace. I wanted to note a little bit more about the pace of nominations. You know, it is not possible for the Senate to confirm a nomination until the President has nominated someone. I have heard my colleague, the Chairman, Senator Leahy, say that we haven't had enough confirmations, but I would note that there is an 11-percent vacancy rate in the Federal courts. That is not an extraordinarily high vacancy rate. It takes some time to do background checks and for the President to consider the people he might want to nominate and to consult with Members of the Senate as he does so. I would note that at this moment there are 74 Federal District Court vacancies--Judge Viken is nominated for one--but there are only 9 nominees before the Senate. There are 28 circuit and district court seats that are deemed to be judicial emergencies, but only 6 nominees have been submitted to the Senate for those judicial emergency seats. We can't confirm people until they are nominated. We can't do a background check on nominees until they have been nominated. We can't have the information and their records and their FBI backgrounds and the bar association evaluations take place until they have been nominated. I would just make my commitment that we will continue to move nominees like Mr. Viken in a timely fashion. I reviewed his record. I have also carefully reviewed his responses to questions from the Senate Judiciary Committee. One of his answers, I have to note, was troubling to me. He stated that he believes he fits President Obama's standard for the types of judges he will nominate to the Federal courts; that is, he meets the President's ``empathy standard.'' President Obama described that standard as follows: We need somebody who's got the heart, the empathy, to recognize what it's like to be a teenage mom, the empathy to understand what it's like to be poor, or African-American, or gay, or disabled, or old. And that's the criteria by which I am going to be selecting my judges. In 2005, when then-Senator Obama was in the Senate and he explained on the floor his vote against Chief Justice John Roberts, who I think is one of the finest nominees we have seen in decades and whose testimony before the Judiciary Committee was stunning in its impressiveness and his grasp of the legal issues, his comprehensive knowledge of how the Court worked, and cases--there was not a case brought up that he didn't seem to fully know about. Virtually every case the Supreme Court had ever written he seemed to be knowledgeable about. It was just a tour de force. Senator Obama voted against Judge Roberts and stated that 5 percent of cases are determined by ``one's deepest values and core concerns . . . and the depth and breadth of one's empathy.'' We can only take this to mean that the President believes that in 5 percent of all cases, judges should not set aside their personal beliefs, biases, or experiences. I think this is a radical and a dangerous departure from the most important pillar, the fundamental pillar of the judicial system--judicial impartiality. Whatever the empathy standard is, it is not law, and we have courts of law in this country. Whenever a judge employs his personal beliefs, biases, or experiences to make a decision that favors one party, is it not true that he necessarily has, therefore, disfavored the other party as a result of his personal beliefs and biases? For every litigant who benefits from the judge's so-called empathy, there is a litigant who loses not on the basis of law but because the judge did not identify with them. When people are nominated to our Federal bench, we ask them to take a judicial oath before they take office. The oath embodies the time- honored American tradition of blind justice. The oath says this: I . . . do solemnly swear that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me . . . under the Constitution and laws of the United States, so help me God. I am pleased to say the Supreme Court has not yet struck down ``so help me God'' in the oath, and hopefully they never will. I think the President's standard for judicial nominees plainly conflicts with that oath. We have had a big discussion about that, and it is not a little bitty matter. It is not a small matter. Judges take the oath to be impartial. I practiced law in Federal court for many years, and I have always believed and expected that a judge who heard my case would rule on the law fairly and objectively. If I lost and did not have sufficient law or evidence and logic to support my position, I did not expect to prevail. That is the kind of concept that underlies American justice. Aside from nominee David Hamilton, almost every one of President Obama's nominees, including Justice Sotomayor, has rejected outright the empathy standard. So at first blush, I found Mr. Viken's answer that he believes he fits that standard to be concerning. However, his answers to questions we submitted to him for the record provide maybe a more complete view. This is what he said in his answer in writing: A judge's consideration of a case must always be governed by impartiality, evenhandedness, attention to the facts presented by the parties, and respect for established law. Empathy is a personal characteristic which may assist a judge in analyzing the human circumstances which bring people before the court. But the law and not the personal experiences of jurists is the path to justice in considering each case. I think that is OK. I am not sure how you can have any empathy-- empathy is a personal characteristic, maybe? I would hate to disagree with the President who nominated me, but that is a pretty good statement overall. He also stated he believes that, ``The role of a Federal district judge encompasses diligent legal scholarship''--that is true--``a strong work ethic''--true--``impartial and dispassionate consideration of proven facts and reasoned legal arguments, fidelity to binding and persuasive precedent, and respect for all who appear before the court.'' I think that is good statement. I think if he will conduct himself on the bench according to those standards he will do well. And I believe he will. I am glad to see he is an honors graduate, but he didn't go to some of these schools, Senator Johnson, he went to school in South Dakota; he has practiced law before judges over the years, a lot of practice; and in the course of that, you learn that judges really do--the good judges--consistently try to reach the right dispassionate result. I think he may have made some statements about empathy that are not perfect, but my judgment is that he has been in the courtroom and he has been before good judges. I am hopeful he is going to be a very good judge. We will see. I think the issues become even more problematic when someone is nominated for the Supreme Court or for a circuit court because those higher courts seem to be the ones who feel less compunction in allowing their personal views to influence cases. Because this nominee is nominated to a seat on the district court and is confined not only by the U.S. Supreme Court but also by his circuit, the circuit precedent, and because he stated he believes the role of a judge entails the impartial and dispassionate consideration of proven facts and reasoned legal arguments, fidelity to binding and persuasive precedent, I would certainly give him the benefit of doubt and vote in favor of his nomination. I am hopeful he will follow through on those statements and will interpret the law as written, refraining from imposing personal views in his decision and will basically follow the oath to uphold the Constitution, first and foremost. Even if he didn't like it, he should uphold it. In closing, I would like to quote from an essay by the former chairman of the Judiciary Committee, Senator Hatch, which was published on Constitution Day. He said this: The Constitution--its words and their meaning--was established by the people, can only be changed by the people, and is sacredly obligatory upon all government, including judges. That is why in the debate on judicial selection is really a debate over judicial power. It is a debate over whether the Constitution controls judges or judges control the Constitution; over what the Constitution really is, with nothing less than liberty itself at stake. I think that is an eloquent statement of the role of a judge, and why at its most base level, policy in a democracy must be set by the elected branches who are accountable to the people. Judges are supposed to be neutral arbiters of the law, deciding a case based on the law and facts, without allowing their personal, political, or ideological views or biases to enter into the decision- making process. That is why they put on a robe, to suggest their impartiality. That is why they take the oath I quoted from. And that is the key ingredient of our legal system, the greatest legal system the world has ever known. I yield the floor. The PRESIDING OFFICER (Mr. Lautenberg.) Who yields time? If no one yields time, time will be divided equally.

Mr. SESSIONS

Mr. SESSIONS. Madam President, I wish to share a few thoughts about the process we are going through and the impact it is having on spending by the U.S. Government. We are at a rate that everyone agrees is unsustainable. Worse than that, I think it is irresponsible, and we do not need to be doing the things we are doing now. I object. The ramp-up in discretionary spending for the appropriations in fiscal year 2010 is unprecedented. We know we have the biggest deficits we have ever had in the history of the Republic. Now we are passing more appropriations bills that will take effect next year that will have unprecedented spending levels. For example, the agriculture bill; I have always tried to support Agriculture Appropriations in the Senate. I have not always been able to do so. It had an increase of 14.5 percent. At that rate, spending on agriculture will double in 5 years. The average increase in agricultural spending, compounded over the past 7 years, from 2003 through 2009, was just 2.1 percent. So we have 14 percent. Now we have the Interior and EPA funding and their increases this year in the bill before us today, which is 16.6 percent. What is inflation? Two percent or less. That is a 16-percent spending increase in 1 year. At that rate, spending for Interior and EPA would double every 4 to 5 years. Within this bill, the increase for the EPA is 33 percent. I guess that would double in 2 to 3 years. Since EPA was added to the Interior financing in 2006, it is difficult to compare--at least prior to that. However, we have added EPA funding to the Interior funding to get a comparison over previous years. The average annual increase in Interior-EPA Appropriations, from 2001 to 2009, is 1 percent but this year 16.6 percent. And we have the largest deficit in the history of the Republic this year. When we pass a stimulus bill that is huge, in terms of additional spending, that is not being counted in what I am making reference to today. We also passed the Transportation HUD bill, commonly called the THUD bill. Looking at its configuration for the past 3 years, we are able to conclude how that developed. From 1995 to 2009, we have seen a 5.2- percent average increase in discretionary spending--5.2 over the last 8 years. This year, what do you think it is? It is 23 percent. At a 23- percent rate, spending for highways in America would double in 3 to 4 years. Why is this important? Let me back up one more time and mention the stimulus package. We passed, this year--the President insisted on it, and he was able to force it through--an $800 billion stimulus package. It was supposed to be to fix our crumbling infrastructure, our highways and bridges. Did you know only 4 percent or less of that $800 billion went to highways and bridges? That was a flimflam. The number I am talking about in the basic highway budget we passed, I guess, a few weeks ago, that bill has a 23-percent increase, in addition to the money they got out of the stimulus package. To show you how large that $800 billion is--the stimulus package-- spending only 4 percent on highways increased the Federal highway funding by about 40 percent. It may be more. You can say: Well, Jeff, the economy isn't doing well, so we need to spend more money. I submit that we are spending money to a degree that it is putting a cloud over the future of our Nation, and people who are involved in finance and investment and business are worried not about what is going to happen in the next year but about what is going to happen in the next 5 to 10 years. How can we sustain something that is unsustainable? The administration said this cannot be sustained and Democratic Senators have said it. Certainly, I say it. In 2008, the entire national debt from the beginning of the founding of our Nation through 2008 was $5.8 trillion. According to our Congressional Budget Office, which I believe is a fair and impartial group, they calculated the President's budget and what it would mean to the deficit. They concluded that in 5 years--and the President submitted a 10-year budget--that would double to $11.8 trillion. That which we took over 200 years to accumulate--$5.8 billion--would be doubled in 5 years. By 2019, 10 years from now, it would triple to $17.3 trillion in debt. The road we are on today will triple the national debt. I am not making up these numbers. These are the Congressional Budget Office numbers. It is stunning. In fact, it is based on the assumption that unemployment would top out at about 8 percent. What are we moving to now? About 10 percent. It also assumed a vigorous bounce-back in economic growth next year, which it doesn't look like we are going to get. So the results of those numbers can be worse than it appears here because the economy isn't coming back as rapidly as we would like it to. It is hard to figure this. Some might say: I am unable to understand this, Sessions. How much money is this? A trillion dollars doesn't mean much to me. Well, we spend less than $100 billion a year on education now. We spend about $40 billion on highways. Do you know how much we spend on interest on the debt? People think you can just print the money, and that is not what happens. We borrow. We sell Treasury bills and notes; people buy them and we have to pay them interest. Right now, interest rates are pretty low. It is expected those interest rates are going to increase from the financial sector on Wall Street, and the CBO, which calculates these numbers--everybody assumes the interest rates will go up some. How much, we don't know. They took a moderate increase in interest rates. In 2009, this year, the interest on our debt is expected to be $170 billion. That is going to go up every year. Why? Because the deficit this year is going to be about $1.8 trillion. We have never had such a deficit in the history of the Republic. Last year, we had a $450 billion deficit, the largest deficit in the history of the Republic. This year, it will be $1.8 trillion. What does that mean? We have to borrow that money. Over the 10-year budget window, as assumed by the CBO, the deficits will never fall below $600 billion. In fact, it will average over $900 billion--almost $1 trillion a year. That is how you get to $17 trillion after 10 years. So we have to borrow that money in the world marketplace. Countries such as China bought huge amounts of our Treasury. We pay them interest on that money. What does this mean over the 10 years? I think this can help the American people understand how sizable this debt is. As I noted, we spend $100 billion on education federally and $40 billion on transportation. This year, 2009, we spent $170 billion on interest. In 2009, under the red line here on the chart, it will be $799 billion--$800 billion--money that we used to be in a position to do things with, such as build roads and do other things the Nation needs. That is now going to have to be spent every year--$800 billion-- to pay interest. That is why Alan Greenspan, Wall Street experts, Ben Bernanke, and others have said this is unsustainable; we cannot continue this course. What do we get from the Appropriations Committee and the Senate leadership? We get an Interior bill that increases funding 16.6 percent. That is not acceptable. That is simply too much spending. As I indicated, a lot of money is being pumped into Interior and environmental appropriations from this $800 billion stimulus. I am not counting that. This is baseline spending. So next year, if somebody in this Congress were to have an epiphany and become frugal, and we cut the budget and don't increase it a bit, what will be the average increase over 2 years? It would be 8 percent. That is totally unacceptable. In the last 3 years, spending for interior and the environment, 2007 had a 5.6-percent increase; in 2008, a 3.7-percent increase; last year, minus 2.9. So you are averaging far less than that. This is a thunderous increase in spending in this Appropriations bill. I cannot support it. There are a lot of good things in this legislation, and I would like to support it. But I will not vote for a bill that increases discretionary spending by 16 percent. Has anybody been in a townhall lately and talked to their constituents? How concerned are they? They think we have lost our minds up here. Have we not? Is the message not getting through? Look at this highway bill--a 23-percent increase in HUD and highway spending. It is 23 percent, and that doesn't include the stimulus money, which amounts to a 40-percent increase on top of that. This is baseline spending. When you put it in the baseline and do not make it an emergency, stimulus spending, you have created momentum for continuing increases in the future. How many people think we are going to cut spending for next year? How many people think we will have spending for HUD and transportation that will be below or equal to the inflation rate? Unless the American people get heard soon, we will have another budget with a big increase. We have never seen 23 percent and those kinds of baseline expenditures before. I don't want to go on anymore at length. I don't want to vote against these bills. I would like to vote for the good things in them. But we have to simply recognize what we are doing is unacceptable. The American people are furious with us. They are rightly furious with us. We need to get our act together. When we had a shortage, one of the most significant votes I recall we took-- it was so irresponsible--was when Senator Vitter, from Louisiana, offered an amendment that said the shortage in gas tax revenue that we find with the highway bill, that should be made up by taking money from the stimulus package. That had been unspent--$800 billion. If it only takes $20 billion or something such as that, that is what the bill was supposed to be for--crumbling infrastructure. He proposed that and it was voted down. Why? Because they did not want to take a dime out of the $800 billion stimulus bill, even if it was not spent, and they wanted to fill that gap with more debt. Since we are already in deficit, to find another $20 billion or so to complete the highway bill over the next year or two, we just have to increase the debt. That is what we have been doing. It is an unsustainable course. I urge my colleagues to begin to say no. Let's vote no on this legislation. Let's start sending the American people a message that we hear their concerns, we know their concerns are legitimate and right, and it is time for us to be responsible. I yield the floor.

Mr. SESSIONS

Mr. SESSIONS. Madam President, I wish to thank the Senator from California. Her courtesy is legendary in this body and I thank her for that. I am taken aback and flabbergasted by the Obama administration's decision announced today to cancel the European missile defense site. I ask, what does that mean? What will be the consequences of that decision? I wish to share a few remarks about it and note that this shift is contrary to the sense-of-the-Senate language that we included in the Defense bill passed a few weeks ago by this Senate. It is a very significant decision. I want to give it more thought. I don't want to overstate the problem. However, I wish to be on record today as saying this is a surprising decision, one that I have been involved in the discussion of for quite a number of years, and I feel as if it is a big error. What happens? We asked our allies in Central Europe, Poland, and the Czech Republic to stand with us and to agree to place a radar in the Czech Republic and to place our defensive missile interceptors in Poland. The heads of those governments agreed to that. There was a lot of opposition here in the United States to the proposal. Likewise, there was opposition expressed in Poland and the Czech Republic from the traditional European left, many of them Marxists or hard-line leftists who have opposed the West's and the world's defense program for many years. However, that opposition was overruled and these nations were proud to be and to stand with the United States of America. It did not bother them that their big neighbor, Russia, objected. They are a sovereign nation of which they are quite proud. They were proud to make a decision and reach an agreement with the United States of America that could defend this country from limited missile attack from a rogue nation such as Iran. If Iran were to launch a missile attack that could reach the United States, its path would take it over Europe, and European nations were not immune to the threat of such an attack on their soil. So they felt they were participating both in the defense of Europe and in the defense of the United States, and it was a good government public interest decision that they were pleased to participate in and stood up with us. We made a commitment to Poland and the Czech Republic, of course, when we asked them to do this and go through this process to build a system. For years, we have been moving forward with that plan in mind in the Senate. This year, we had quite a bit of discussion about it in the Senate and we reached an agreement that I think pretty much stated flatly what our position. There were some who objected, and this is how we modified the language to finally state: It is the sense of the Senate that (1) the United States Government should continue developing and planning for the proposed deployment of elements of a Ground-based Midcourse Defense system, including a midcourse radar in the Czech Republic and Ground-based interceptors in Poland, consistent with the Duncan Hunter National Defense Act of 2009. Paragraph 2 says: In conjunction with the continued development of the planned Ground-based Midcourse Defense system, the United States should work with its North Atlantic Treaty Organization allies to explore a range of options and architectures to provide missile defenses for Europe and the United States against current and future Iranian ballistic missile capabilities. Any alternative system that the United States Government considers deploying in Europe to provide for the defense of Europe and a redundant defense of the United States against future long-range Iranian missile threats should be at least as capable and cost-effective as the proposed European deployment of the Ground-based Midcourse Defense system; and any missile defense capabilities deployed in Europe should, to the extent practical, be interoperable with United States and North Atlantic Treaty Organization. Indeed, NATO endorsed this program. For a while, some of our Members said, Well, I am not too sure about this. What does NATO say? NATO did endorse it. This action of backing down from our European-site Missile Defense system sends an overt signal to our allies that we don't fulfill our commitments, and it is bound to make our allies in Central Europe particularly nervous. This decision sends a message from the administration that we reward bad behavior. The defense of this decision to abandon this program is that we are not doing this to curry favor with Russia, but that clearly is a State Department goal in this process because the Russians have objected to the deployment of this system--although it had virtually no capability with 10 interceptors in Poland to in any way defend against the massive arsenal that the old Soviet Union developed and that Russia now maintains. So it does appear to be an attempt to placate Russia at the expense of our great allies, the Czech Republic and Poland. And we are walking away from a bipartisan commitment to national missile defense on a European site, as I noted, included in the National Defense Authorization Act for 2010. We accepted the sense-of-the-Senate language unanimously because both parties agreed to this. Senator Lieberman and I were the primary sponsors, along with Senator Begich and others on the Democratic side, and a strong contingent of Republicans. Let me say this about the whole system. I am worried--and I hope my colleagues will take this point under consideration. We have spent approximately $20 billion developing something many people believed would never work; that is, the ability to intercept in space an incoming ICBM missile and hit it bullet to bullet. We don't even deploy or utilize explosives. The kinetic energy is so great that it destroys the target when it hits. Our military experts have said that if North Korea were to be able to successfully launch a missile, they believe they could knock it down. We are improving our system as we have a number of them deployed, and we plan to deploy more. Yet this year's budget was a stunning retrenchment in our missile defense system. Let me summarize the things that occurred. Even though this language contemplated moving forward in Europe, this is what we did regarding the United States. For quite a number of years, we planned to deploy 44 interceptor missiles--most in Alaska and a number in California. We talked about what to do about the Iranian threat, to provide redundant coverage for those missiles coming over from the east. We agreed that we would seek the agreement of Poland and the Czech Republic to base assets there. Fifty-four interceptors were to be deployed, 10 at the European site and 44 on the West Coast of the United States. What happened in this year's budget was that the 44 to be deployed in Alaska and California have been cut to 30. The next technological advance to our missile defense system, the MEV--multikill vehicle--would be the warhead which could take out multiple incoming missiles with one missile. We think that was very capable technology that would be developed. That was zeroed out. We had an additional system of a smaller but very high-speed interceptor, called a kinetic energy interceptor, KEI, that has been on the drawing board for a number of years and is showing a great deal of promise. That was zeroed out after years of funding. We had plans and were working on the airborne laser, ABL, an amazing technology that our Defense Department believes will work--and we will test it this year. The airborne laser can knock down missiles, particularly in their ascent phase from an airplane. That missile system, after this year, will be zeroed out. The 10 missiles we intended to base in Central Europe have been eliminated, it appears. At least that has been the President's recommendation and decision that we heard about today. So I would say this: We believe, looking carefully at the numbers and putting in some extra loose change, for $1 billion, we could fully deploy the full system--with the full compliment of 44 missiles in the United States and 10 in Europe. We have spent over $20 billion to get to this point. So it is unthinkable to me that we would eliminate any future advancements in the system. I think, from a cost point of view, it is an unwise decision. I am concluding that money is not the problem. I can only conclude that the Obama administration has decided that they agree with the naysayers who opposed President Reagan when he said this could ever be a successful system. They opposed it, and it looks like a political decision to me. Some sort of judgment decision to cancel this is involved here more than a dollars-and-cents issue because in the scheme of a $500 billion-plus defense budget, $1 billion over several years to complete the system as planned is not the kind of budget-breaking number that should cause us to change our policy. Senator Lieberman and I had offered this sense of the Senate amendment, and it passed the Senate just a few weeks ago. I believe it is the right policy. I think the administration is trying to do some, perhaps, good things. They think maybe they are attempting to placate or somehow reach out to Russia and gain some strategic advantage from that--although the Secretary of Defense, I understand, today said it didn't have anything to do with the Russian foreign policy, and I am not sure the administration acknowledges that either. ``The Czech premier, Jan Fischer, said Thursday''--this is in an Associated Press article--``that President Barack Obama told him Washington had decided to scrap the plan that had deeply angered Russia.'' It seems to me that is a part of it. Let's go to the core of this Russian objection. As I have said on the floor, Russia knows this system poses no threat to their massive arsenal. They know that. Their objection to this system has been, in my view, a political objection, a foreign policy bluster and gambit to try to create a problem with the United States and extract something from us. They consistently oppose it. Let's note the Reuters news article today by Michael Stott, which is an analysis of this. The headline of the article is ``Demise of U.S. shield may embolden Russia hawks.'' In other words, this weakness, this retreat, this backing down may well encourage them to believe that if they are more confrontational on other matters, they may gain more than by being nice to this administration. The lead paragraph said: Washington hopes that by backing away from an anti-missile system in east Europe, it will get Russian cooperation on everything from nuclear weapons cuts to efforts to curb Iranian and North Korean nuclear ambitions. But will Moscow keep its side of the bargain? That is a good question. Mr. Stott goes on in his perceptive article to say: With the shield now on the back burner, both sides believe a deal cutting long-range nuclear arsenals can be inked this year and Russia has already agreed to allow U.S. military cargos to transit across its territory en route to Afghanistan. That is something we have been asking them for some time, and they have dangled it out there. Apparently, a valuable but not critical ability to transport cargo may have been gained from this. The author says: Russian diplomacy is largely a zero-sum game and relies on projecting hard power to forced gains, as in last year's war with Georgia over the rebel regions of Abkhazia and South Osettia or the gas dispute with Ukraine at the start of the year. Western concepts of ``win-win'' deals and Obama's drive for 21st century global partnerships are not part of its vocabulary. The Western idea that if you cut a deal, both sides will benefit-- that is not the way the Russians think. Continuing: Diplomats here say Moscow hardliners could read the shield backdown as a sign of Washington's weakness. Far from doing the bidding of the United States, they may instead press for further gain to shore up Russian power in the former Soviet bloc. That is the Czech Republic, Ukraine, Georgia, Poland, the Baltics, Latvia, Estonia, Lithuania, and Hungary. The author goes on to say: Ukraine, Georgia, and other Kremlin foes in the ex-Soviet Union may be the first to feel the consequences. Poland and the Czech Republic are also nervous. In Warsaw, the timing of the U.S. move is particularly delicate as it coincides with the 70th anniversary of the Soviet invasion of eastern Poland. Analysts are particularly concerned about Ukraine, which faces a presidential election next January. Most of Russia's vast gas exports flow through its territory and the country reluctantly hosts a large Russian naval base. I don't know what the geopolitical goals are here. I think it is a mistake not to deploy this system we committed to deploying. I believe we are not going to be able to rely on the good faith of the Russians, and I think they may misread what we have done. Instead of leading to further accommodation, it may lead to emboldening them to go forward with further demands against the United States. I thank the Chair and yield the floor.

Mr. SESSIONS

Mr. SESSIONS. Madam President, this nominee is a brilliant lawyer and an excellent, hard-working judge. He has made a number of speeches in the past which evidenced an activist philosophy. I voted against him in 1997 when he came up. And absent one or two opinions since then, it seems he has done an excellent job on the bench. I remain concerned that we are seeing a pattern of nominees who believe they have the power to amend the Constitution. One--not this one--has said he can make footnotes to the Constitution. But this nominee is a man of good integrity, a proven record on the bench, and I will support the nomination. I yield the floor.

Mr. SESSIONS. Madam President, I ask for the yeas and nays.

Mr. SESSIONS

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

Mr. SESSIONS. Mr. President, I wish to speak today on President Obama's nominee for the Second Circuit Court of Appeals--a court one step below the U.S. Supreme Court--Judge Gerard Lynch. I have carefully reviewed Judge Lynch's background and his rulings as a district court judge. He is a Columbia law graduate and a former Federal prosecutor in the Southern District of New York. For the most part, he has been a very good district judge. He is exceedingly capable and a man of high integrity. After reviewing his record and responses to questions from the Senate Judiciary Committee, I decided to support his nomination. I do so because I believe he will adhere to his judicial oath which requires judges to administer justice without respect to persons, to do equal right to the poor and the rich, and to faithfully and impartially discharge and perform their duties under the Constitution and laws of the United States and not above it. In responses to my questions, Judge Lynch affirmed that circuit courts have no greater freedom than district courts to decide law outside the bounds of precedent, but they must apply the law and the precedent to which they are bound. Judge Lynch also stated that a judge is to ``apply the law impartially'' and ``should not identify with either side'' in a case. Even though I will support Judge Lynch and admire him and enjoyed meeting with him, I want to share some concerns about his rulings and some statements he has made over the years that I think are matters that ought not go unremarked before his confirmation. The role of a judge is to follow the law regardless of personal politics, feelings, preferences, or ideology. I think, for the most part, he has done that in his cases. One case that is troubling, however, is U.S. v. Pabon-Cruz in which Judge Lynch attempted to get around the jury process and the sentencing process because he believed a mandatory minimum sentence required by Congress of 10 years for a conviction of receiving and distributing child pornography was unduly harsh. He announced that he would tell the jury about the penalties in the case, which is not appropriate. In its order prohibiting Judge Lynch from informing the jury about what the punishment would be in the case, the Second Circuit, on which he now seeks to sit, expressly stated that Judge Lynch's ``proposed jury instruction regarding the penalties the defendant faces if convicted is a clear abuse of discretion in light of binding authority.'' Judge Lynch disagreed with the Second Circuit's decision, calling it a ``mistaken conclusion.'' Judge Lynch clearly believed he had the right to ignore precedent and established law and inform the jury about the penalties that were applicable upon their verdict of guilty so that the jurors, in effect, would have an opportunity to ignore the law and choose not to apply it because he did not think the penalty was fair, apparently. I am disappointed by the fact that Judge Lynch appears to believe this sentence was inappropriate, but more importantly, that he should have been allowed to invite jury nullification, which is, in effect, to say to a jury: You don't find the defendant guilty if you think the punishment is inappropriate. In response to one of my written questions, Judge Lynch said that while he accepts the ruling of the Second Circuit, he continues to believe his instincts were correct. He stated: The rationale for this decision-- Of the Second Circuit which reversed him-- which I fully accept, in light of the ruling of the Second Circuit, was erroneous--was that unlike most cases in which the jury fully understands the seriousness of the crime charged, in that case the jury may have misperceived the relative seriousness of the two overlapping charges in the case. Judge Lynch's actions in that case are especially disconcerting when considered in light of his written remarks criticizing the textualist approach to constitutional interpretation. In a 2001 speech on the Supreme Court's decision in Apprendi v. New Jersey, Judge Lynch stated: I would like to welcome-- Talking here about Justice Scalia and Justice Thomas-- also to a more realistic, more flexible, and in the end more honest way of protecting the constitutional values they share. Judge Lynch, in effect, endorsed this flexible judicial philosophy and advocated it previously. Concern over his statements in previous years contributed to my vote against his nomination to the U.S. District Court on that occasion. In a 1997 law review article entitled ``In Memoriam: William J. Brennan, Jr., American''--that is, of course, Justice William Brennan for whom he formerly clerked--Judge Lynch admonished the successors of Justice Brennan that they must also engage in constitutional interpretation ``in light of their own wisdom and experience and in light of the conditions of American society today.'' In that same article, Judge Lynch stated he personally believed it was a ``simple necessity'' that the Constitution ``be given meaning for the present.'' Judge Lynch's praise for Brennan's ``present-day meaning'' approach included the opinion that Justice Brennan's ``long and untiring labor to articulate the principles found in the Constitution in the way he believed made most sense today seems far more honest and honorable than the pretense that the meaning of those principles can be found in eighteenth- or nineteenth-century dictionaries.'' So I have a problem with that speech from 1997 and that strong statement of adherence to the doctrine that Justice Brennan was the foremost advocate of a living constitution and that words don't have fixed meanings; that you can make them say what you want them to say to affect the result you think is appropriate today. The Constitution is a contract with the American people. We have every right to amend it through the amendatory process, but judges don't have a right to amend it based on what they perceive it to mean. Based on what? What information have they received that makes them think they have a better idea of what the Constitution ought to mean than how it has been interpreted for 200 years? This is a serious matter because judges are unelected. They have a lifetime appointment, and we give them that because we want unbiased, objective analyses. But it doesn't mean they are empowered to update the Constitution to make it say what they would like it to say today. They are not empowered to do that. In fact, it erodes democracy when they do that because the elective branches, those of us in this Senate, are accountable. Judges aren't accountable. Another of Judge Lynch's cases that bears mention is United States v. Reyes. In that case, a police officer asked a defendant drug dealer, who had not yet been read his Miranda rights, whether he had anything on him that could hurt the officer or his field team. Even though the defendant had not been frisked, Judge Lynch concluded the defendant was the subject of a custodial interrogation under Miranda, and that before the police officer could ask whether he had anything to endanger the officers, he had to warn him of his Miranda rights. As a result, Judge Lynch excluded from the record statements that the defendant made at that time which implicated him in the crime. The Second Circuit--the circuit which he will now serve on--reversed Judge Lynch, holding that the public safety exception was in fact applicable and that the cases Judge Lynch had relied upon in his ruling were distinguishable. The court noted that drug dealers often have hypodermic needles or razor blades on their person that could pose a danger to police officers. Additionally, the defendant was not handcuffed at the time of the arrest and could have reached for a concealed weapon. The Second Circuit also noted that the questions asked by the officer were ``sufficiently limited in scope and were not posed to elicit incriminating evidence,'' and the police ``cannot be faulted for the unforeseeable results of their words or actions.'' Judge Lynch has also advocated that Miranda warnings be administered for searches, which has never been the case. In a symposium commentary, Judge Lynch proposed a Miranda-type rule for searches that would invalidate consents to search unless the party whose consent is sought is first advised that he or she has the constitutional right to refuse such consent. Well, Miranda was never required by the Constitution. It was a prophylactic protective rule the Court conjured up. Somehow the system has survived it, but it has done some damage in terms of not getting the kind of admissions and confessions you might otherwise get. That is just a fact. At any rate, to expand that now to searches, which has never been done, I think is an unhealthy approach. You might say: Well, theoretically, if you are going to do these Miranda interviews you could do it on searches. But I would just note that Miranda itself is a protective rule, not a mandated constitutional rule. I mentioned the foregoing issues because they are of great concern to me. It appears, notwithstanding, in the vast majority of his cases, Judge Lynch has been a very careful judge who has followed the law. He has stated that he understands that circuit judges are ``bound by Supreme Court and prior circuit precedent, and their job is to apply, fairly and accurately, the holdings and reasoning of such precedent.'' Given his commitment to do that, I will vote for him, and I hope he will continue his excellent service on the bench, but that he will interpret the law as written and will refrain from imposing personal views in his decisions. It is unfortunate, and I am concerned also, that the President, in his nominations, is moving a number of people for the Federal bench that are clearly activists. Many of them don't have the length of time on the bench that Judge Lynch does, or his skills as a judge, frankly, and it is causing us some concern, and we will have some real debate about it. The nomination of Judge David Hamilton for the Seventh Circuit Court of Appeals raises that issue and concern with me. The White House has said it intended to send a message with his appointment, and I would say that it did. Judge Hamilton's appointment is significant. Instead of embracing the constitutional standard of jurisprudence, Judge Hamilton has embraced President Obama's empathy standard. Indeed, he said as much in his answers to questions for the record following his confirmation hearing in the Judiciary Committee. He rejects the idea that the role of a judge is akin to that of an umpire who calls balls and strikes in a neutral manner. Rather, he believes a judge will ``reach different decisions from time to time . . . taking into account what has happened and its effect on both parties, what are the practical consequences.'' Judge Hamilton also appears to have embraced the idea of a living constitution. The last time I was at the Archives Building, I saw a parchment from 1789--not breathing. It is a document. It is a contract. It guarantees certain rights to every American, and judges aren't empowered to rewrite it, to make it say what they think it ought to say today. In a speech in 2003, Judge Hamilton indicated a judge's role included writing footnotes to the Constitution. When Senator Hatch questioned him about these comments in a follow-up question, he retreated somewhat, but then gave a disturbing answer to the next question about judges amending the Constitution or creating new rights through case law and court decisions. This judicial philosophy has clearly impacted Judge Hamilton's rulings during his time as a district court judge. He has issued a number of controversial rulings and has been reversed in some noteworthy cases. For example, he ruled against allowing a public, sectarian prayer in the Indiana State Legislature and was reversed by the Seventh Circuit. He ruled against allowing religious displays in public buildings and was unanimously reversed by a panel of the Seventh Circuit. He blocked the enforcement of a reasonable informed consent law dealing with abortion matters for 7 years. He continued to block enforcement of that law and was eventually firmly and forcefully overruled by the Seventh Circuit for being in violation of the law. Judges, the State, and other people spent all kinds of money, and attorney generals of the State spent money and time and effort to litigate these matters, and finally winning, but, in effect, the people of the State, for 7 years, were unable to enforce a constitutional statute their duly elected representatives had passed. That is the power of an unelected Federal judge sometimes, and we need to be sure judges who go on the bench understand they are not allowed to do that. They are supposed to be a neutral umpire. If the case law and the Constitution say this is a good statute, they need to affirm it whether they like it or not, whether they would have voted differently or not. If he wants to be in the legislature and vote on the statutes, let him seek that office. A Federal judge must be able to dispense rulings in a neutral fashion so the emblem that hangs over the Supreme Court, which has been embraced by the American people--equal justice under law--can be carried out in every aspect of a legal proceeding. A judge must put aside political views which may be appropriate as a legislator, executive, or an advocate, and interpret the law as it is written. He must keep his oath to uphold the Constitution first and foremost. As I have said before, the Constitution is a contract between the American people, especially in a government of limited powers that is established by the people. It is a judge's duty to abide by the Constitution and protect and defend it and all the laws duly passed by Congress that are consistent with that Constitution. We have preserved our Nation well by insisting that our judiciary remain faithful to the plain and simple words of the Constitution and the statutes involved. So, Mr. President, I am impressed with the skill, the legal ability of Judge Lynch, whose nomination is before us today. I have reviewed his record carefully. I have listened to his answers. I have seen some of his speeches. In a few cases, they cause me concern. But I think giving deference--and appropriate deference--to the President's nomination, he should be confirmed. I will ask my colleagues to support the confirmation. But I want to say that all of us in this body, as well as judges, have a duty to preserve and defend our Constitution. You can erode the Constitution in a number of ways, and one way it can be changed and altered impermissibly is when judges redefine the meaning of words. So when a judge says we shouldn't resort to 18th century dictionaries, that makes me nervous. What does that mean? You just give a new definition to the word, the one that people ratified--the amendment they passed and ratified, which had a certain meaning and was understood to have that meaning? Now that you are on the bench, and you think it shouldn't be enforced that way, and you would like to see a different result, you just sort of amend it or write a footnote to it? I don't think that is good judicial policy, and I feel an obligation--I think a number of us in this Senate do--to confirm good judges--men and women of character and ability and faithfulness to our laws and Constitution--but also raise the concerns that we have and to use every bit of our ability and strength to oppose nominees who won't be faithful to those high ideals that have made us a nation of laws and made us prosperous and free. I thank the Chair, and I yield the floor. I suggest the absence of a quorum.

Mr. SESSIONS

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

Mr. SESSIONS. Mr. President, I am concerned that we in this Congress are not properly attached to reality. I spent time in my State over the recess, and people talked to me repeatedly about their concerns about excessive government spending. It is a real national issue. We know our national debt, the total debt is on track to double in 5 years and triple in 10. That is the public debt this country owes, and we have to pay interest on it to countries such as China and individuals all over the world. We pay a lot of interest every year. The interest is going to surge over the next 10 years under this proposal. I feel as if we are not connected, we are not hearing it. We think it is business as usual, and it is not business as usual. States throughout our country, cities throughout our country are cutting spending, trimming budgets, finding more ways to be efficient, looking for ways to save money and be within their budgets. Most States have a balanced budget amendment, and they have to stay within their budget. We do not. We came within one vote several years ago passing out of the Senate a balanced budget amendment, but it failed. Now we are proceeding on a stunningly reckless course of spending. I have always tried to support agriculture. It is a big thing in my State. But I could not vote for the last agriculture bill we had. There was a 14-percent increase in agriculture spending. We know the rule of 7--most people do. If you increase something at the rate of 7 percent a year, it will double in 10 years; at 14 percent, it will double in 5 years. So the entire agriculture bill of the United States is on track to double in 5 years at that rate, and that does not include the extra money that came out of the stimulus bill, which is significant. If you include that, it would amount to a 67-percent increase in agricultural funding. I just bring that up. This is a bill I care about. The transportation and HUD bill that is before us today is worse. It has a 23-percent increase in spending which is on top of a 13-percent increase in spending in the bill last year. That does not include the stimulus package spending. At a 23-percent rate, spending on Housing and Urban Development, and Transportation would double in 3 to 4 years. If you include the stimulus package money which we passed in February it is a 165-percent increase in spending from fiscal year 2008 to fiscal year 2010. That is a stunning increase, at a time when we do not have the money, and the American people know it. That is one of the complaints about health care. It is all part and parcel of a concern by the American people. What I understand them to say to me is: Have you guys lost your minds up there? Do you no longer feel a sense of responsibility? You are going to triple the national debt in 10 years? How can you justify that? We have vote after vote and they fail. We need to be containing spending. We had an amendment that was offered to deal with a shortfall in transportation money. We have a problem. We have a real problem. People are using less gasoline, and the taxes for our highways primarily come from people paying a tax per gallon. If they use less gallons, we have less money coming into the basic highway fund. I would like to see that number lifted. How can we do it? Senator Vitter proposed a very commonsense amendment. He said: Let's put up, I think it was $18 billion, out of the stimulus bill--most of which was promised for roads anyway, but they have not been fixed--he said take that money and fix the shortfall in the transportation bill. I voted for that. It failed because they preferred to fix the shortfall in transportation by borrowing more on top of the stimulus bill; every penny of it is borrowed. We don't have the money. We have to borrow it. We pay interest on it. Somebody has to pay that for the indefinite future because the 10-year budget the President has submitted to us has no hint it will contain spending. In fact, the deficits grow in the out years, which is why we have such a terrible problem. Earlier today we had an amendment by Senator Ensign that said: Let's freeze spending. Let's show some restraint such as our States are doing, such as our families are doing. No. Just flat spending. You see, transportation and these other programs that are in this bill, they are getting stimulus money out of the $800 billion on top of that. So why do they need a baseline increase of 23 percent? Next year, we will be hearing: We are only going to do a 15-percent increase on the baseline and be proud of that. I don't like the way we are doing this. I don't think we are listening to the American people. It is not the right thing to do. I have a few charts I would like to share that bear repeating because I am not making up these numbers. These are numbers by the Congressional Budget Office. They are basically a nonpartisan group of fine folks who try to give us honest data on which we can make decisions. The chairman of it is selected by the Congress. Of course, the Congress is a Democratic majority, and they were able to select a Director. This is what they scored President Obama's budget. This is the public debt of the United States of America, much of it held by China and other countries around the world, individuals around the world. They buy our T-bills, and we pay them interest. This chart is in trillions. In the entire history of our country up through 2008, we had accumulated a public debt of $5.8 trillion. A lot of people think that is too high. I think that is too high. We are carrying a big debt, and we do not need it to continue. Under the budget that is before us today, that we passed, it looks like we are spending at least on that level, if not more, based on the bills we see coming forward. Our spending will double the entire national debt in 5 years to $11.8 trillion, and in 10 years, according to the Congressional Budget Office, it will be $17.3 trillion. That is a stunning figure. It should put chills through the backbones of everybody in this Congress. How can we justify this? States are trimming their budgets, and we had a 14-percent increase in agriculture, which we not long ago voted on, and now we have a 23- percent increase in HUD. This is not responsible. We came into this year with a deficit. The President said we had to rush through a stimulus bill, and they passed it by just a couple of votes--$800 billion, every bit of it borrowed because we did not have the money. We were already in debt. If you spend more money when you are in debt, how do you get it? You borrow it. You have to get people to buy your Treasury bills. The interest rate on 10-year Treasury bills was over 2 percent in January. In July, they reached 3.6 percent or so because people are getting worried. They think we might have an inflationary spiral. They think interest rates may go up. So they are not so willing to loan money at a low interest rate for 10 years like they were at the beginning of the year. This causes a problem. Let me show this chart, which I think brings the numbers home in a way we can comprehend them because it is difficult to comprehend numbers this big. People assume, when I throw these billion-dollar figures around, surely people up there know what they are doing, and, Sessions, you are just exaggerating. You don't like to spend money, and you are exaggerating. It is not an exaggeration. I am talking about the entire debt of America tripling in 10 years. Look at the interest. We spend approximately $100 billion now on highways. I said $40 billion, but I think with the stimulus and the spending from gas taxes, we spend about $100 billion on our highways. We spend about $100 billion on education. On September 30, 2009, the estimate is that we will pay $170 billion in interest. We get nothing for it. It is just like paying interest on your credit card. The bank gets it. You don't get it. They loaned you money. You owe them money-- interest--to keep the money they loaned you. As the debt increases and we have a modest adjustment in the interest rate--not a big adjustment but one the Congressional Budget Office projects will occur, a raising from the relatively low interest rates we have today--as those go up, the interest we will pay each year, the burden we pay first before we can buy anything with the taxpayers' money is increasing. We see the numbers here. In 2019, 10 years from today, the Congressional Budget Office estimates the U.S. Government will be paying out $799 billion a year in interest. We don't get anything for that. It goes out to people all over the world who bought our Treasury notes, and we send out this interest. We send it to some Americans who buy it. They get this interest. It is money we do not have to do things we want to do for our constituents. And, in essence, as a moral matter, we are reaching into the future and we are taking money from the future and spending it today to meet our desires today, without doing what our States and cities and counties are doing--figuring out how to get by with less in tough times and looking forward to the day they will be able to see growth again and be able to not have to be on such a spare budget. But that is life. We are not able to pass a law to reverse life and the challenges and difficulties and uncertainties we face every year in our personal lives and in our national lives and in our economic lives. So that is the lower number. That is assuming things are going pretty well. Look at the interest rates that the blue chip forecast of economists, who are a good group of people--and they make forecasts that are pretty accurate. They have been more accurate than the government over the years. The Blue Chip Forecast says the interest rate is going to be more than CBO scores. They say the interest rate in the tenth year would be $865 billion. And interest rates could surge to the level of the 1980s, which would be 10 percent interest rates. If you had that kind of interest rate, we would spend $1.29 trillion on interest before we could do anything to purchase things for our constituents. Remember, the highway money is about $100 billion; education is about $100 billion. We will be spending $800 billion on interest--$600 billion plus more than we spent this year, just on interest, because of irresponsible spending. So I would say, count me as somebody who is getting the message, both from my own study of what is occurring here, being on the Budget Committee, and from what I am hearing from my constituents. They say: It is time for you guys to get responsible. We are upset. And why shouldn't they be upset? Somebody comes to a town meeting and they are a little hot with their Congressman or their Senator. Are we supposed to think this is a threat to democracy, when we have this kind of behavior going on in the Congress? They ought to be hot. There is every reason to be hot. We do not need to be doing this. You may say: Well, we are having a hard time economically, Senator. We have to spend a little money now to get this thing going. The outyear budget projection, according to the Congressional Budget Office, assumes robust growth. In 2012 and 2013 they are projecting over 4 percent growth. We may not have 4 percent growth. If we don't have 4 percent growth, we are going to have larger deficits than they are projecting. And in the outer years they are projecting a solid 2- or 3-percent growth out there. No recession in this. So this is not a projection based on the assumption of a recession putting us in this kind of debt. How much do we spend each year? Well, it is about $3.5 trillion. That is how much a trillion dollars is. We have $1.8 trillion in debt this year. We will be short this year $1.8 trillion. We will spend $1.8 trillion more than we take in. That is $1,800 billion. And those are things that should cause us to think about what we are doing. We have done nothing like this before, I don't think, except maybe a life-and- death struggle in World War II, when people all over the country were drafted. I would note that 43 cents out of every dollar we are spending this year is borrowed. That is not acceptable. We have heard from administration officials, from Alan Greenspan and other experts, that this whole budget picture is unsustainable. That is what they say. TV commentators, editorial writers say it is unsustainable, the debt cycle we are in. Let me ask this: What does unsustainable mean? It means just that. It cannot be allowed to continue. I had somebody ask me recently in the airport: Well, when are you going to start paying it down? When are you going to start paying the debt down? The same way I have to do in my house with my credit cards, my mortgage. The answer is: There is no prospect of paying it down. Last year was the highest deficit we have had--$450 billion in 1 year. This year it will be $1,800 billion. In the next 10 years, according to CBO, the least deficit we will have--and they are projecting 2 or 3 years from now--is $600-plus billion. That is the lowest. Then it starts back up again, and in the tenth year it is over $1 trillion. There is no prospect of a balanced budget anywhere out there, and we act as though it is business as usual. We can spend and spend--so 23 percent on this bill, 14 percent on that bill on top of the stimulus money we put in. What we should do is have at least level funding with the stimulus money piling into the economy--the $800 billion there. In closing, I would say we are not getting it. We are not listening to the American people. We are not even reading our own budget numbers, and we are hurting our country. This $800 billion in interest every year? This will devastate our ability to fund the government. Not only that, it will require either more and more and more borrowing or more and more and more taxes, neither one of which is good for this economy. It is not good for America. We do not have to do this. I don't mean to be partisan about it. Republicans' hands are not clean on this either. But the leadership in this Senate needs to understand these fundamental principles and needs to send some signals that they understand it and are prepared to do something about it. And that includes the President of the United States of America. He needs to understand what is happening to this country as a result of his budget and take some steps that will show in reality we are going to bring this ship back on course again. You say: Well, you have this health care bill and that is what is driving it. The health care bill is not in there. This budget analysis was done before health care even came up. It will cost more, of course, and make these numbers look even bigger. So we have to grow up and be responsible. Our Republic is depending on us to lead and tell the truth, and the truth is we are on an unsustainable course. The truth is this administration and the leadership in this Senate and the House of Representatives has no plan to get us off this unsustainable course. The American people are the only ones, it looks like, who have sense enough to know what is occurring, and I hope they will continue to make their voices heard. I thank the Chair, and I yield the floor.

Mr. SESSIONS

Mr. SESSIONS. Madam President, the nominee to be Administrator of the Office of Information and Regulatory Affairs, Mr. Cass Sunstein, is before the body. He will be, if confirmed, a part of the White House Office of Management and Budget. He will have a number of responsibilities. It is certainly a very significant position. This job has the responsibility of renewing all regulations proposed by all the Departments and agencies of the government. The regulations they issue are many. Laws are passed in this Congress, sometimes in haste, leaving the details of execution to the various agencies of our government--the Department of Defense, the Department of Homeland Security, the Department of Agriculture, all the agencies. They have powers to effectuate the statutes passed by Congress. They set forth the details of how it is done. There are thousands of pages of regulations enacted every year. They are published in the Federal Register. No Senator or Congressman, to my knowledge, has ever sat down and read the Federal Register. Federal regulations have much the same force as law. Indeed, people can go to jail for violating Federal regulations, and some do go to jail for violations of Federal regulations. Some of this is, in fact, a product of necessity. For example, you create a park. When does the park open and close? And if people come in and litter, or people come in after hours, they can be punished, arrested, put in jail. Often those regulations and the punishment are set forth through regulation and not through the statute that created the park to begin with. But it is a matter of real importance. Persons who produce these regulations are nameless and faceless denizens of the bureaucratic deep. They possess enormous power. As a prosecutor, I prosecuted cases. At the DEA, many of the drug regulations enforced by the Drug Enforcement Administration are based on regulations they pass, not what was actually required by the Congress of the United States. Major policy decisions are often set forth in that fashion, including environmental regulations, health care regulations, and reimbursement rules and hospital requirements. Financial institutions can be done through regulations and controlled through them. Truly, there is a concern about the disconnect between the democratic accountability we are known for in our country and this process of administrative regulations. During President Reagan's time, I believe, Congress passed a law that created this position: the Administrator for the Office of Information and Regulatory Affairs, the idea being to have another unelected bureaucrat--and that is what this one is--but to be a central clearinghouse for all the proposed regulations and to question the lawfulness or the necessity or the cost of these thousands of regulations that get promulgated on a yearly basis. It is an important position that can protect and at least somewhat ensure that our constitutional liberties are not being eroded. Enter Mr. Sunstein. He is a most likable person, a national intellectual, always interesting, sometimes taking positions that those on the left--of which he clearly is a part--disagree. Indisputably, he is a man of the left. However, he has taken, over the years, quite a number of positions, some of which are pretty shocking. So I think he is not normally the kind of person you would appoint to this kind of green-eyeshades position--somebody who would be sitting down on a daily basis reading the regulations and studying them and researching them-- to be a free spirit, as our nominee is. So I have some concerns about it. Over the course of his career in academia, Professor Sunstein has clearly advocated a number of positions that are outside--well outside--the American mainstream. While much of the criticism of his nomination rightly has focused on his animal rights advocacy, where he, in effect, and plainly said he thought animals should be able to have lawyers appointed to defend their interests--and these are controversial matters--but he has other legal writings that are controversial also and do not just deal with the question of animal rights. I would like to highlight just a few of those positions. In his 2008 book titled ``Nudge: Improving Decisions About Health, Wealth and Happiness,'' Professor Sunstein advocates an approach to the law based on economic and behavioral principles which he dubs ``libertarian paternalism.'' Under Professor Sunstein's theory, the government can take steps to ``nudge'' individuals toward making what he would say are better decisions, and at least what the government considers to be more desirable social behavior. Professor Sunstein argues that the government can achieve these goals while not being actively, or at least obviously, coercive. His theory operates on the assumption that the average person is ``lazy, busy, impulsive, inert, irrational, and highly susceptible to predictable biases and errors.'' So the government needs to be a little paternalistic, he suggests, and take care of them and issue regulations and pass laws that keep them from doing things that some bureaucrat or some Congressman thinks is not socially desirable. As Professor Sunstein argues: For too long, the United States has been trapped in a debate between the laissez-faire types who believe markets will solve all our problems and the command-and-control types who believe that if there is a market failure then you need a mandate. The laissez-faire types are right that . . . government can blunder, so opt-outs are important. The mandate types are right that people are fallible, and they make mistakes, and sometimes people who are specialists know better and can steer people in directions that will make their lives better. That is what he has said. Presumably, in Professor Sunstein's view, the ``specialists'' who ``know better'' than ordinary Americans are government bureaucrats. He seems to believe Americans are ``lazy'' and ``inert,'' and I think this is not a healthy view. So I question whether anyone who thinks Americans are fundamentally lazy can perform his role as the gatekeeper of government regulation in the Obama administration. Professor Sunstein's approach is consistent with much of what we have seen from this administration, I have to say, which seems to believe that government control of health care, the financial markets, and the business community generally is preferable to free market policies. Americans are not comfortable with this. I have been out having townhall meetings. I know they are not comfortable with it. According to recent polling, 52 percent of voters worry that the government will do too much to ``help'' the economy. That is from a Rasmussen poll of June 2, 2009. Fifty-nine percent of voters believe the financial bailouts were a ``bad idea.'' The masters of the universe thought it was going to be great. We spent $800 billion, the largest expenditure in the history of the American Republic, and every penny of that is going to the national debt because we were already in debt. We borrowed every penny of it. We have had very low stimulative effect from that. The American people are right about that. Only 31 percent of voters believe this stimulus bill has helped the economy. And we do not need a poll to tell us how uncomfortable the American people are with the President's effort to overhaul health care. So the American people ought to understand if we confirm Professor Sunstein, he will be the chief architect and gatekeeper over all of the regulations that this administration will be attempting to implement in a myriad of areas--not just health care and financial markets but agriculture, the environment, energy, a host of areas that impact the people of our country. I think his views make him a person who should not be in this position. Let's take another issue that is important to a lot of people. Professor Sunstein has taken an extremely aggressive position with respect to abortion. Under his views, laws restricting access to abortion ``co-opt women's bodies for the protection of fetuses.'' According to Professor Sunstein, such laws ``selectively turn women's reproductive capacities into something for the use and control of others.'' In his view, ``abortion should be seen not as murder of the fetus but instead as a refusal to continue to permit one's body to be used to provide assistance to it.'' Failure to accept this view, he wrote, is simply a product of one's accepting the preexisting baseline of women as child-bearers. The role of involuntary child-bearer, he argued, results ``only from government interference limiting the capacity to choose not to bear a child involuntarily.'' Well, I think this is a disturbingly far-reaching and excessive view on this important issue of abortion. It fails to recognize in any way the moral aspect of this debate which has divided America since the Supreme Court decision in Roe v. Wade. I think his view mocks those who have a different view based on their deep beliefs and analysis of what that life is that is within the mother. What about the question of affirmative action? We talked a good bit about that during the Judge Sotomayor hearings in the firefighters case. Professor Sunstein has taken an extreme view, I think, in these issues, arguing that affirmative action programs ``should generally not be thought to raise a serious constitutional issue.'' In his view, ``the current distribution of benefits and burdens along racial lines is an outgrowth of a long history of discrimination.'' Professor Sunstein has returned to this theme repeatedly. In 1992, in an article, he again argued that existing law depends heavily on ``existing distributions of wealth and power.'' Specifically, he argued that the conservative objection to affirmative action programs--namely, that discrimination is discrimination regardless of the pretext--simply takes as a given existing distributions of wealth and power without considering the historical and legal context that led to those distributions. Professor Sunstein further argues that the constitutional text imposes no clear ban on affirmative action. Well, the Constitution says everybody should be given due process and equal protection of the laws. When you advantage one person because of their race, you disadvantage another person because of their race. It is not a zero sum game. He goes on to say that there is ``no clear moral argument [that] requires courts to treat affirmative action policies with great skepticism.'' In 1997, after the Fifth Circuit struck down the University of Texas School of Law's affirmative action admissions policy as a violation of the equal protection clause of the U.S. Constitution, Professor Sunstein dubbed the Fifth Circuit's decision in Hopwood as hubristic and compared it to Dred Scott v. Sanford, stating: [A] court opinion outlawing affirmative action is closely analogous to Dred Scott, and defective--abusive, overreaching--for the same reason: It would be an amazing act of hubris. As we discussed in some detail during the recent nomination of Judge Sotomayor, the Supreme Court's jurisprudence in this area requires any government discrimination--and that is what happens when you have a quota--that any discrimination by the government be subject to strict scrutiny of the courts because on its face it seems to be unfair. We know that as a result of long-term systemic discrimination, particularly against African Americans, courts have found that to remedy that, it is perfectly all right to remedy this lack of equal protection by fixing it and imposing certain remedies that favor groups that have been discriminated against as a remedial act. But when you pass the remedial stage and you are in a stage of objectivity, as we have in most of America today, then if you favor one group over another, the Supreme Court says that has to be looked at under strict scrutiny. You have to be careful you are not overreaching here. It seems Mr. Sunstein has no sympathy for that whatsoever. And that is the Adarand decision basically by the Supreme Court. He seems to hold the view that such discrimination is not only permissible but that the strict scrutiny standard announced in Adarand and other Supreme Court cases is totally inappropriate. I question whether someone who holds these views should be put in a position to make the kinds of decisions he will be making as the regulations czar, some might say. With regard to the nominations of Federal judges, he has taken some positions that I think have been unhealthy for the country. Back in 2001, the New York Times had an article. It was a very significant little article. It wasn't a big article, but it was very important and significant. It reported that Professor Sunstein, along with Professor Tribe and Marcia Greenburger--lawyers all--attended a private retreat where they lectured Democratic Senators on how to block Republican judicial nominees by ``changing the ground rules.'' The title of the article by Neil A. Lewis was ``Democrats Readying for a Judicial Fight.'' And, indeed, they did. I think this Senate has been less healthy as a result of what they accomplished through the filibuster of judges on a routine basis. Again, according to the New York Times, it was reported that they argued at the meeting that: It was important for the Senate to change the ground rules and there was no obligation to confirm someone just because they were scholarly or erudite. A month later, Professors Sunstein and Tribe, along with Ms. Greenburger, were invited to testify before the Judiciary Subcommittee on Administrative Oversight and the Courts in a hearing titled ``Should Ideology Matter? Judicial Nominations 2001.'' They argued at that hearing that political ideology of nominees is a legitimate issue for Members to consider in their record. I think that has been an unhealthy thing, and we have had a number of debates and hearings on it since. I believe my Democratic colleagues, to their credit, have backed away from that. In other words, it is all right to dig deeply into a nominee's judicial philosophy and whether they are committed to the law and how they envision their process of interpreting the Constitution. But it is quite another to say that, if you have this political ideology or these views, that you can no longer be chosen to be someone who can decide cases fairly, because most judges have some personal views and they have to decide cases every day, setting aside those personal views. At the hearing, I thought he made an odd statement. He said that the current Supreme Court ``has no left at all.'' He believes that the people who have been generally reported to be activists or liberals were centrists and that presumably, I guess, the bad folks on the Court were the judges who believe in enforcing the law as written regardless of their personal views. Indeed, he testified at that hearing that he ``can't think of a single nominee by President Clinton to the lower Federal courts who genuinely counts as a liberal.'' Well, Mr. Sunstein has a lot of ability. He has taken some positions on animal rights that are clearly shocking and that are troubling in light of how important it is to have a person in this position who has good judgment to render good decisions about the regulations that would impact every American in this country. I don't have anything personal against this nominee. He has many friends. He is a prolific writer and commentator. But I think his views are outside the mainstream, and I will be voting against the nomination. I thank the Chair and yield the floor.

Mr. SESSIONS

Mr. SESSIONS. Mr. President, I rise today to pay tribute to a wonderful Alabamian and American, LTC Mark Stratton, 39, of Foley, AL, who was killed in Afghanistan on Memorial Day this year and laid to rest among the heroes at Arlington National Cemetery in June. Lieutenant Colonel Stratton was serving as commander of a Provincial Reconstruction Team, PRT, and was killed when an improvised explosive device, IED, detonated as his convoy was passing. Having had the privilege of attending Lieutenant Colonel Stratton's funeral and hearing the stories told by his family members and those who had worked with him, it is clear that Lieutenant Colonel Stratton was a man of honor who took great pride in his service to our Nation. In my conversations with his mother, Mrs. Jan York, she described her son as ``good, determined, focused and he loved God, he loved America and loved the Air Force. He accomplished so much.'' She also described how proud he was, as a leader of his PRT, to have completed an important road project. He was proud because he knew it was a project of permanence that would benefit the lives of the people of the area. This is so typical of the patriotic selfless attitude of our magnificent military personnel. His colleague and friend, Lieutenant Colonel Risner said of him, ``He put the airmen that he was supervising or leading first, every step of the way.'' This is the sign of a true leader who was dedicated both to the mission and to the development of his subordinates. In admiration of his committed service and ultimate sacrifice, his colleagues on the Joint Staff in the Pentagon will pay tribute to him later this month by naming a conference room in his honor. I believe that it is a fitting homage to an individual who represented the best of what an airman and officer should be. It is good that our military leaders in the Pentagon will remember the sacrifice this great American made for his country and strive to honor his commitment in the way our military operations are carried out. My thoughts and prayers are with his wife Jennifer; their three young children Delaney, Jake, and A.J.; his mother Jan York and her husband Buddy; his brothers, Michael Stratton and Frankie Little; as well as his many friends and fellow warriors as they continue to grieve the loss of this great man. This is an incalculable loss for them, but I know that they will be able to take wonderful lessons from the way he lead his life both publicly and privately. They will also be able to take comfort from the great heritage he leaves to his family and to his Nation.

Mr. SESSIONS

Mr. SESSIONS. Mr. President, I would like to take a moment to join with my colleagues, and I see quite a number on the Senate floor now, to pay tribute to Ted Kennedy. He was a truly remarkable force in the Senate, a champion of liberalism--perhaps the Nation's leading champion of liberalism. He believed government could serve the people, and it ought to do more to serve people. On that we sometimes disagreed, but he believed it with a sincerity and he battled for it with a consistency that is remarkable. He constantly sought to utilize the ability of government to do good for the American people, and that is admirable. He also was a champion of civil rights. He was a force during the civil rights movement, and his activities, his personal leadership, truly made a difference in making this a better country. Without his leadership, things would have been much more difficult for sure. I have a vivid memory of him--presiding as I did when I first came to the Senate, a duty given to the younger, newer Members--in the night, Ted Kennedy, alone on the Senate floor, roaring away for the values he believed in. It was just something to behold, in my view. I saw nothing like it from, maybe, any other Member. He had served so many years in the Senate--and I learned today from our chairman on Judiciary, Senator Leahy, that he served on the Senate Judiciary Committee longer than any other Senator in history. But even as his years went by, many years in the Senate, he did not lose the drive, the will, the energy, the commitment to give of himself for the values he believed in. As I told one reporter after his death, I would just hope to be somewhat as effective in promoting the values I believed in as he was in promoting those values. If we disagreed, and sometimes we certainly did, people continued to admire him, I think, to a unique degree. There were no hard feelings. You would battle away, and then afterwards it would be a respectful relationship between Senators. I think that is pretty unusual and something that is worthy of commenting on. He talked to me about being a cosponsor, his prime cosponsor on a bill. He said he wanted to work with me on something important. It was a bill we commonly referred to as the prison rape bill. There was a lot of concern that in prisons, people who are arrested were subjected to sexual abuse. That, in my view, is not acceptable. I know the Presiding Officer, a prosecutor, knows people deserve to do their time in jail, but they should never be subjected to those kinds of abuses. So we passed a pretty comprehensive bill. I was proud of it and proud to be with him at the signing ceremony. I also talked to him and we met and talked at some length about a major piece of legislation to increase savings in America, savings for the average working American who had not been able to share in the growth of wealth that so many have been blessed with in this country. I thought we had some pretty good ideas. Savings at that time had fallen below zero--actually 1 percent negative use of people's savings which were going away. I guess now we are at 5 or 6 percent savings rate after this turmoil we have had economically. I do not think the idea should go away. Maybe it lost a little steam in the fact that we have seen a resurgence of savings today, but I was very impressed with his commitment to it, the work of his fine staff, and his personal knowledge of the issue. I see my other colleagues. I will join with them in expressing my sincere sympathy to Vicki and their entire family for their great loss. The Senate has lost a great warrior and a great champion of American values. I yield the floor.

Mr. SESSIONS

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

Mr. SESSIONS

Mr. SESSIONS. I ask unanimous consent that the order for the quorum call be rescinded.

Mr. SESSIONS

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

Mr. SESSIONS. Mr. President, I had the opportunity this morning to talk with Judge Sotomayor and congratulate her on her confirmation to the Supreme Court. It is an exceedingly important position. Her nomination initiated a national discussion about the role of a judge in American society. I hope it rose to the level of debate and discussion that was worthy of such a great occasion. She is a wonderful person. She is going to give her best effort to be a great Justice on the Court. I hope and pray she will achieve that. I reached a conclusion, as did a number of my colleagues, that her statements and expressions of judicial philosophy were such that it caused concern and gave rise to a belief that her approach to judging was part of a growing idea that judges are not bound by the law and facts but are rightly able to allow their personal views to influence their decisions. Her testimony was different, however, from what was reflected in her speeches. I am hopeful that her testimony will be the basis by which she conducts her business on the bench. I congratulate her. I think our discussion was at a high level. It dealt with an issue that so many of us feel very deeply about; that is, that the law must be objective, that judges must show fidelity to the law as written, even if we in Congress have not written it so well and if they would like to see it differently. That is the cornerstone of the American legal system, and I am proud of it. I received an e-mail a few days ago from Sarah Chayes who has written a book about Afghanistan. She was an NPR reporter, stayed in Afghanistan, fell in love with the country, has learned the language and works tirelessly to improve the lives of people in that country. She told about being in the States and meeting with the relative of an individual who tried so hard in Iraq to promote law and justice. She said this lady, her relative, said what most impressed her in America was the law. She said it was not food, it was not technology, it was not wealth that we had, it was the legal system we had. It is a beautiful, wonderful thing. It is a heritage we have received. We have not earned it. We have inherited it, and we have a responsibility to make sure we pass it on in a healthy state, to those who will follow us. So my congratulations go to Judge Sotomayor. I know her mother and other family members are so excited this day. This was one of the shortest confirmation processes in recent memory. I know that she is pleased that it was completed before the August recess. It will allow her to move and get herself organized for the beginning of the term in October. So, again, my congratulations are to her. I appreciate the Members of the Senate, Chairman Leahy, for allowing a full and robust debate on this issue. I will assure my colleagues, the issue of judicial activism is not going away. The American people feel strongly that judges must operate as their judicial oath says, in accordance with the Constitution and laws of the United States--not above them. They expect them to work diligently to determine the right answer to each case before them and to find and declare that right answer, even if the law they base it on is one they personally would like to see altered. That is the ideal of American justice, and we will be continuing to battle for that as the months and years go forward. I think it is an important issue this country will be wrestling with. I thank the Acting President pro tempore and yield the floor. Mr. President, I suggest the absence of a quorum.

Mr. SESSIONS

Mr. SESSIONS. Mr. President, before we leave for our August recess, I think it is good to maintain our watch on what is happening in the financial markets. I have reported on these matters several times this year because I think it is something we have to talk about. The reason we have to talk about it is because the United States is borrowing more money this year than any year in the history of the American Republic. It dwarfs anything we have ever done before, and it is an action that has consequences. We cannot borrow dramatically without having consequences occur, just as they do in our families. If your family goes more into debt, you are burdened with high interest rate payments that produce nothing but are monies you expend because you borrowed money. That is what interest is. It does not do you any good. It is a painful thing for no immediate benefit. The benefit comes when you borrowed it and bought something with it, but in the long run you carry that interest unless you pay the debt off in the future. The problem this country has is that according to the President's own budget, in the next 10 years we have no plans whatsoever to pay down any debt. In fact, the debt is surging in the outyears. Growing the deficit for each annual accounting will increase in the outyears. So we are in an unsustainable rate of spending in America. We have heard those phrases, and ``unsustainable'' means just that: We can't keep it up in this fashion. I will put this chart up that is not disputed by anybody who has been involved in the process. It represents what the Congressional Budget Office--a nonpartisan group, but in truth it is hired by the Democratic majority here in the Congress, in the Senate--has scored the President's budget and what it will mean for us in terms of debt over the next 10 years. It is a 10-year budget, and we are supposed to look out into those years. In 2008, the total debt in America was $5.8 trillion. From the beginning of the American Republic until 2008, we had accumulated $5.8 trillion in debt. That is a lot of money; more than we needed to have been carrying as a debt. President Bush was criticized for having several deficits, one over $400 billion, and another one either at or around $400 billion. Other years were less: $100 billion, $160 billion, something like that. But he was criticized for that because it helped cause the debt to go up. But look what the Congressional Budget Office says we are going to be facing 5 years from now in 2013: a doubling of that debt to $11.8 trillion. Ten years from now it will triple to $17 trillion. The debt will increase in the out years. President Bush was rightly criticized for having added a $450 billion deficit in 1 year. We will not see in the next 10 years, according to the Congressional Budget Office, a single deficit year that low. The lowest they project is that it would be $600 billion plus. In the tenth year, out here in 2019, it is projected the deficit will be $1.1 trillion. This year, the deficit is projected to be $1.8 trillion. We will soon know. Some say it will be $2 trillion; $1 trillion, of course, is one thousand billion dollars--a lot of money. It has consequences. Where do you get this money? Where do we get the extra $2 trillion we are spending today that we don't have? Where do we get it? Well, we go into the marketplace and we ask people to buy Treasury bills and loan us the money. It is basically a note. They give us their money and we give them a promise to pay, plus interest. If you don't have any plan to pay down those debts, and we don't--indeed, we continue to project a surge in borrowing even in the tenth year, with no recession being projected in this next 10 years, so it is a grim prospect to pay this kind of interest. This chart deals with the interest payment. People think: Well, somehow we can borrow and it doesn't hurt us. That is not so. If you borrow, you have to pay interest on it. This country pays interest today on the debt of $5.8 trillion. We are sort of fortunate because in this economic slowdown interest rates are low, but they are not going to stay low, and that is the problem. Not only that, the size of the debt is increasing. So in 2009, it is projected that the interest on our debt will be $170 billion. Well, the entire Federal education budget--what, $100 billion--the entire Federal highway budget prior to this stimulus package, at least, was $40 billion. So $170 billion goes out in interest to people all over the world and in the United States who have bought Treasury bills, including foreign countries such as the Arab countries who have so much of the American dollars because we buy their oil, and China, we buy their products and they have American dollars, and they have been buying our Treasury bills. But look what happens over the 10-year window. This is according to the Congressional Budget Office--a fair, objective analysis of what we are looking at. Let's take the red numbers. This is what we would be paying out annually in interest. It goes up--by 2019, the interest we would pay at the originally projected rate of interest CBO used--to $800 billion in 1 year in interest we pay on the debt. People are getting worried the interest rates are going to go up because we are borrowing so much money and people are going to be afraid that the dollar will be devalued, and our currency will be inflated. Therefore, they won't get as much return because they will be cheated because the dollars they get back from the United States in terms of interest aren't the same valuable dollars they were originally. The fundamental thing that is working up here in people's minds is that the interest rates could go up. If we use the Blue Chip economics forecast, the total payment in interest could be $865 billion. If it goes up higher to the rates we saw in the 1980s, it could be $1.3 trillion. That is just interest, in 1 year, that we would have to pay. Our total budget today is about $3 trillion. That would be more than a third of the budget. I don't think the Members of this Congress understand the seriousness of this problem, because look at the bills that go through here. I am a big supporter of farm programs. I supported farm bills year after year, but I couldn't vote for the one this year. It had a 11-percent increase in discretionary spending under the agriculture bill--11 percent. You know, at 7 percent return, your money doubles in 10 years; at 11 percent, the agriculture budget will double in several years. At a time when we are running up unprecedented debts, we have an 11- percent increase there. It is difficult for me to comprehend. I don't think we are serious about it. Now the House has put in three airplanes so Members of the Congress can take trips with them, presumably. Somebody somewhere needs to be asking: Where are we going to get this money? Every dime of it will be borrowed. The $800 billion we passed earlier this year that was supposed to stimulate the economy, keep the unemployment rate from going up, and cause economic growth to occur, was borrowed. We didn't have that money. The first automobile clunker bill, $1 billion, was borrowed on top of that. It wasn't even paid for out of the stimulus bill. It was new billion dollars. Then the new clunker bill that passed here last night in the House, they said: Well, it was going to come out of the stimulus package and, therefore, it wouldn't add to the debt because we have already authorized this stimulus money to be spent, but that is not what the House leadership said. They promised they wouldn't reduce any of the spending that was provided for in the $800 billion stimulus package. Only 11 percent of the discretionary funds will be spent by October 1. They wouldn't take the money out of that to fund the clunker program. They promised without any equivocation that they would replenish that to borrow money. They are going to borrow that money so they don't have to reduce any of this spending in the stimulus package. The Treasury issued a record amount of debt this past year--an unbelievable amount, actually. The Treasury Department said Wednesday it is going to sell a record $75 billion in Treasury bills just next week so we can pay all of these obligations, we have appropriated the money for. We don't have the money, so we have to borrow it. In particular, the Treasury officials need to ensure that demand from China--that is, China's purchasing of our Treasury bills--doesn't fall off. We want them to keep buying. There are several problems, however. China doesn't have as much money as they did because their sales are not going as they were, and they are using some of their surplus money to stimulate their own economy. So they are not going to have as much money to buy Treasury bills as they did, frankly. But at any rate, demand from China, the largest holder of U.S. Government debt, is shaky. We put out the Treasury bills by auction at an interest rate and people bid for them, basically, and the government has to raise the rate high enough to get people to give them the money so we can spend in Congress. According to yesterday's Wall Street Journal, last week's auctions of fixed-rate Treasury notes saw lukewarm demand from China and other investors. They are getting worried. Chinese officials had indicated they want inflation-protected securities, especially as the U.S. economy starts to recover. Inflation-protected securities. That is the TIPS. Right now they are not paying much interest. It is pretty low interest. But if you have a TIP, inflation-protected securities, and the interest rate goes up, then you get paid more. The return on your Treasury bill goes up. It is not fixed. ``Inflation is the No. 1 worry,'' said Mark Chandler, global head of currency strategy for Brown Brothers Harriman & Company: ``This is the government saying, `We will take that inflation risk away from you.' '' That is what a TIP does. It says, Don't worry about inflation; if the inflation goes up, we will pay you greater interest on the Treasury bill you buy. And the spread--the difference between the 10-year TIPS--inflation- protected securities--and the regular 10-year Treasury note has risen from near zero at the beginning of this year to about 2 percent today. That means that one can get a 2-percent better rate by buying regular Treasuries, 10-year Treasury notes, but people still want TIPS. People with money want TIPS. Why? Because they are afraid in the next 10 years we are going to have a surge of inflation and a 3.7-percent 10-year Treasury bill. Well, they would rather have a 1.7-percent TIPS than get 2 more percent on the U.S. Treasury bill. According to yesterday's Wall Street Journal, officials from the United States and China discussed TIPS issuance in high-level talks last week. U.S. officials assured their Chinese counterparts that they remain committed to TIPS sales, according to a person with knowledge of the discussions. China has accumulated more than $2 trillion in foreign exchange reserves and has invested about $800 billion in the U.S. Treasury. Meanwhile, interest rates on regular 10-year Treasuries have increased from 2.4 percent to 3.75 percent this year, an increase of over 50-percent. So the interest rates on the 10-year Treasury has increased over 50 percent since January. Why? Because people are not willing to give the government money at the lower 2.4 percent rate because even though we are in a recession and interest rates are very low, they know with this kind of debt, this kind of future debt that the United States is facing, we are going to have a tremendous temptation to inflate the currency. And we are going to have that pressure because one way to beat your debt, of course, is to pay it back in dollars not worth as much as the dollar the person loaned. If they loan you a dollar today, and the dollar drops 20 percent, you can pay them back with dollars worth 80 cents rather than a dollar. That is a pretty good deal, if you can get away with it. People are smart and they see this coming. They are demanding higher interest rates now, or they won't loan us the money--like any smart businessperson would. I say to my colleagues you don't get something for nothing. There is no free lunch. You cannot run up this kind of debt without consequences for the young people of this country in the years to come. They are going to be carrying a $800 billion-a-year annual interest rate in 10 years. Most likely, this number will be higher than $800 billion a year, whereas our generation today is carrying a $170 billion a year annual interest payment. I do not believe we have to do that to help this economy come out of recession. In fact, when you talk to people who are involved in the American financial sector, the biggest worry they have is interest and the debt. For everything else, they can see a way the U.S. economy will come out of it. If we burden ourselves with more debt than we can sustain--and we are clearly heading in that direction--long-term investors are worried. They don't see this coming out right. That is why they say it is not sustainable. I wished to share these remarks before we recess for August. I don't think it should be forgotten. We have a responsibility to see that every dollar we spend produces something of value. While it can also have a stimulative effect, it needs to produce something of value; it cannot just be thrown away. We need to look for every possible way to contain this growth in spending. It is unacceptable and it cannot continue. Somehow, some way, Congress has to get the message; and I don't think we have gotten it. I don't think we understand that millions of people are losing their jobs. People who used to have overtime are not getting it today. Many who were working full time are working part time today. Families who used to have two wage earners now only have one. This is serious. We are going to have to recognize we cannot spend our way out of it. We cannot borrow our way to prosperity, as one Alabamian told me at a townhall meeting. Mr. President, I yield the floor.

Mr. SESSIONS

Mr. SESSIONS. Mr. President, Senator Whitehouse's legislation would help American consumers bring civil claims against foreign manufacturers who produce faulty goods and send them into the U.S. market. Currently, it is nearly impossible for harmed American consumers to bring a tort action against foreign manufacturers of products that are flawed or even dangerous. Foreign manufacturers are often difficult to identify or locate and even if found, the process of seeking damages against them is extremely costly and burdensome. Without the threat of litigation, foreign manufacturers have little to no accountability to their American consumers, resulting in lower quality and often defective products. Furthermore, American companies who unknowingly buy shoddy products from foreign manufacturers and then resell them to consumers become the sole defendant in tort cases filed against them when foreign defendants cannot be located. According to the Consumer Product Safety Commission, Chinese manufacturers were responsible for 69 percent of all product recalls in 2007 and 53 percent in 2008. These numbers demonstrate the need for Congress to take action to protect American consumers. Senator Whitehouse's proposal is a positive step in the right direction. I have witnessed the effects of this problem firsthand in my State. Mr. Chuck Stefan from Alabama testified before the Subcommittee on Administrative Oversight and the Courts, which Senator Whitehouse chairs and I serve as ranking member, about the hardships his business has faced in seeking damages against a foreign manufacturer. Mr. Stefan is a Senior Executive Vice President at the The Mitchell Company, a homebuilder in Alabama, Florida, and Mississippi. Forty-five of the houses he built have been identified as containing a defective type of Chinese sheetrock, which produces corrosive gases. These gases are not merely unpleasant. They damage the copper found in piping and wiring systems. When the problem was first discovered, The Mitchell Company could not even determine who manufactured the drywall as it was only stamped ``made in China.'' When the manufacturing parties were finally identified as both Chinese and German-based, it was a substantial and costly burden to serve them properly even though the companies had extensive operations in the United States. Mr. Stefan emphasized the fact that when foreign manufacturers cannot be held accountable, it hurts his company's bottom line and harms U.S. consumers. Stores such as Mr. Stefan's are becoming all too common and it is incumbent upon Congress to work towards ameliorating the burdens that U.S. businesses and consumers face when seeking damages against foreign manufacturers. This issue is one that affects consumers nationwide. I am grateful to Senator Whitehouse for taking the initiative to ensure that Congress does its part in solving this problem.

Mr. SESSIONS

Mr. SESSIONS. Mr. President, Senator Whitehouse's legislation would help American consumers bring civil claims against foreign manufacturers who produce faulty goods and send them into the U.S. market. Currently, it is nearly impossible for harmed American consumers to bring a tort action against foreign manufacturers of products that are flawed or even dangerous. Foreign manufacturers are often difficult to identify or locate and even if found, the process of seeking damages against them is extremely costly and burdensome. Without the threat of litigation, foreign manufacturers have little to no accountability to their American consumers, resulting in lower quality and often defective products. Furthermore, American companies who unknowingly buy shoddy products from foreign manufacturers and then resell them to consumers become the sole defendant in tort cases filed against them when foreign defendants cannot be located. According to the Consumer Product Safety Commission, Chinese manufacturers were responsible for 69 percent of all product recalls in 2007 and 53 percent in 2008. These numbers demonstrate the need for Congress to take action to protect American consumers. Senator Whitehouse's proposal is a positive step in the right direction. I have witnessed the effects of this problem firsthand in my State. Mr. Chuck Stefan from Alabama testified before the Subcommittee on Administrative Oversight and the Courts, which Senator Whitehouse chairs and I serve as ranking member, about the hardships his business has faced in seeking damages against a foreign manufacturer. Mr. Stefan is a Senior Executive Vice President at the The Mitchell Company, a homebuilder in Alabama, Florida, and Mississippi. Forty-five of the houses he built have been identified as containing a defective type of Chinese sheetrock, which produces corrosive gases. These gases are not merely unpleasant. They damage the copper found in piping and wiring systems. When the problem was first discovered, The Mitchell Company could not even determine who manufactured the drywall as it was only stamped ``made in China.'' When the manufacturing parties were finally identified as both Chinese and German-based, it was a substantial and costly burden to serve them properly even though the companies had extensive operations in the United States. Mr. Stefan emphasized the fact that when foreign manufacturers cannot be held accountable, it hurts his company's bottom line and harms U.S. consumers. Stores such as Mr. Stefan's are becoming all too common and it is incumbent upon Congress to work towards ameliorating the burdens that U.S. businesses and consumers face when seeking damages against foreign manufacturers. This issue is one that affects consumers nationwide. I am grateful to Senator Whitehouse for taking the initiative to ensure that Congress does its part in solving this problem.

Mr. SESSIONS

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

Mr. SESSIONS. Those letters were from Fidelis, Defending Life, Faith and Family, outlining their opposition; a letter from the National Rifle Association; a letter from the National Right to Life Committee; a letter from FRCAction; the Women's Coalition for Justice; the SBA List, the Susan B. Anthony List; the American Association of Christian Schools; and the Ethics and Religious Liberty Commission of the Southern Baptist Convention. Those were one group of letters. In addition, there are letters from the National Rifle Association, as I mentioned earlier. They have not often, if ever, weighed in on a judicial nomination. But this case, this nomination was so close to one of the most critical issues facing the country today. That is, whether the second amendment applies to States. If the second amendment does not apply to States, then States and cities can completely ban guns within their jurisdiction. Judge Sotomayor earlier this year, after the Heller decision, in the first case of its kind after the Supreme Court's decision in Heller, concluded the second amendment does not apply to the States. She concluded in her very brief opinion that the second amendment does not apply to the States; they could eliminate firearms. She concluded it was settled law that this was the case when the Supreme Court in Heller--and as the ninth circuit concluded, which held differently--explicitly left open this question. So I think any person who cares about the second amendment and the right to keep and bear arms has to be very troubled that the nominee, earlier this year, concluded that it does not apply and it is settled law, when the Supreme Court had opened it up, as the ninth circuit said. If it is not reversed, her opinion is not reversed, then cities and counties will be able to restrict firearm possession completely. Sandra Froman, who is the former president of the National Rifle Association, a Harvard law graduate herself, wrote that: Surprisingly, Heller was a 5-4 decision, with some justices arguing that the Second Amendment does not apply to private citizens or that if it does, even a total gun ban would be upheld if a ``legitimate governmental interest'' could be found. She goes on to say: The Second Amendment survives today by a single vote in the Supreme Court. Heller was a 5-to-4 decision. Both its application to the States and whether there will be a meaningfully strict standard of review remain to be decided by the High Court. I have offered that letter and other letters that we have received into the Record. I also printed in the Record a series of op-eds I have written on the way I believe an analysis of a nominee should be conducted and what are the important principles. Mr. President, I would like to express my appreciation to my staff whose assistance throughout this process was critical to the fair hearing that Judge Sotomayor received. The Senate Judiciary Committee held a hearing for Judge Sotomayor more quickly than it had for the last three Supreme Court nominees, despite the fact that she has been touted as having the most extensive legal record of any recent Supreme Court nominee. As such, my staff went to great efforts to prepare for the hearing on her nomination. Our team was led by chief counsel for the Supreme Court nomination Elisebeth Cook; staff director Brian Benczkowski; chief counsel William Smith; deputy staff director Matt Miner; and general counsel Joe Matal. Their knowledge of the issues and wise counsel proved invaluable during this confirmation process. In addition, I am grateful to our Supreme Court team, including counsels Ted Lehman, Seth Wood, Ashok Pinto, Ryan Nelson, and Isaac Fong; law clerks Chris Mills, Matt Kuhn, Anne Mackin, and Andrew English; and intern Jamie Sunderland. I would like to acknowledge and extend my gratitude to the dedicated and talented members of my permanent staff who worked tirelessly on this nomination, all the while handling the regular legislative business and other nominations that came before the Judiciary Committee: counsels Danielle Brucchieri, Bradley Hayes, Nathan Hallford, and Phil Zimmerly; professional staff member Lauren Pastarnack; and staff assistants Sarah Thompson and Andrew Bennion. I would be remiss if I failed to mention the important work done every day by my communications director Stephen Boyd, press secretaries Sarah Haley and Stephen Miller, and press assistant Andrew Logan. The people I have mentioned bore the bulk of the workload, laboring tirelessly night after night, day after day, and nonstop through the weekends. They deserve our recognition as a tribute to their hard work, professionalism, and dedication to public service. I also would like to acknowledge the great help we received from the Republican majority leader and his staff: John Abegg, Josh Holmes, and Webber Steinhoff; as well as the invaluable contributions of Republican Policy Committee counsel Mark Patton. Finally, my thanks to the Judiciary Committee's chief clerk, Roslyne Turner and her assistant, Erin O'Neill. All of these fine staff members contributed to this process and we would not have been able to conduct such a fair and thorough hearing without their hard work and their professionalism. To each of them, I extend my heartfelt thanks.

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

Mr. SESSIONS. Madam President, we have heard a number of discussions from Senators throughout this confirmation process regarding judicial activism--what is it and what does it mean. I think our former Judiciary Committee chairman and great legal constitutional scholar, Orrin Hatch, has defined it clearly and fairly and in the right way. Orrin Hatch has said for years that judicial activism is when a judge is assigned a case and they allow their personal, political, moral, religious or ideological views to influence their decision, and not render a verdict based on the law and the facts. It is true of a conservative jurist with a conservative ideology as well as a liberal. In truth, in recent years, we have had a pretty frequent national debate--for maybe 20 or more years--over this question. The intellectual defense of activism--the living constitutional view of activism--has come from the liberal side. Conservatives have said: No, that is not the role of a judge. A judge is supposed to decide the discrete issue before them in a way that handles that case because it may well provide precedent in the future. And that is what they should do and not be expansive in their rulings and set policy or to promote some long-term agenda they believe--rightly or wrongly--may be the greatest thing the country could ever do. They weren't elected to set policy. Judges aren't elected to declare to the United States how we ought to tax or regulate the environment or that kind of thing. That is what the legislative branch gets to do. So I wished to raise that and discuss it a little further. It has also been mischaracterized that conservative jurists who show restraint are activists--they are not, but they have been accused of activism-- because they have actually seen fit to throw out and find unconstitutional a statute passed by Congress. Well, we passed an 800- page stimulus package, we passed a bailout bill last fall that nobody even got to read or to study. I am surprised there are not more pieces of legislation held unconstitutional than there are. It is not activism for a judge, such as Chief Justice Roberts--who has been accused of being an activist--to declare a statute unconstitutional. What would be wrong is if he were doing so to promote his own personal views about policy. That would be wrong. The second amendment to the Constitution says that ``a well-regulated militia being essential for the security of a free State, the right of the people to keep and bear arms shall not be infringed.'' That is what the second amendment says. It is in the Constitution. It is one of the Bill of Rights. Essentially, when the city of Washington, DC--a Federal enclave, a district--saw fit to almost completely ban the right of citizens in this city to have guns, Chief Justice Roberts and four other members of the Supreme Court found it violated the Constitution. It violated the right of the people to keep and bear arms. That is not activism, is what I am saying. Somehow we have gotten confused on this matter. Therefore, we need to be alerted to it. Sometimes my colleagues, I think, have tried to say: Well, everybody does it. Everybody is an activist, so the Constitution is a malleable document. It gets redefined as the years go by. It is a living document, they say. But it is not living, is it? You can go over to the archives building and you can see it. It is a contract. The American people granted certain rights to this government and they reserved certain rights to themselves. Of the rights they reserved, for example, was the right of free speech, the right to assemble, and to criticize their incumbent politicians if they are not happy with them. They reserved the right to keep and bear arms. I think we need to get our minds straight. Judges should see their role as a limited role, and they should not seek to impose their policy values on the country. They should see it as then-Judge Roberts said in his hearing so beautifully and so eloquently: A judge is a neutral umpire. They call the balls and strikes. They do not take sides in the ball game. How much more basic can it be than that? I wanted to try to clarify that point, and I think it is important. We have other constitutional rights--the right to keep your property unless it be taken for public use, such as a highway. That is a public use. But in the Kelo case, 5 to 4, and in the case rendered by Judge Sotomayor, they ruled that the government could take one man's drugstore--his property on which he was going to build a private drugstore--and the city could condemn it and give the property to another man to build a different drugstore on for personal profit. Where does the public use come from? Justice O'Connor dissented in the Kelo case and ruled the other way. She ruled the other way, and it was okay to do that. The case dealing with Judge Sotomayor went even further than that. But it is not activism for a court to say that no city, or whatever, can take a man's property under some redevelopment scheme or plan so they can get more tax money, because if they take it and give it to this other private guy, he can build a big shopping center there and they will get more tax revenue. That is not a public use. The question is: Is the property used for a public purpose, not otherwise? The Constitution gives an individual the right to have their own property and people can't take it from you. The Constitution, likewise, says every American citizen is entitled to equal protection of the laws and that they cannot be denied equal protection of the laws on account of their race. It is a big important constitutional issue. So we get into a situation where a city, New Haven, conducts a fair test, by all accounts; a carefully crafted test. No one criticized its validity. They conducted a test and 18 firefighters passed the test. They testified that they studied very hard to master the test which related directly to their firefighting ability. They go out and do the right thing and they are on track to be promoted. But not enough people of one group or another did well on the test, and the city--the government--decides they didn't get the results they liked on this test and so they threw it out. It is not activism for the U.S. Supreme Court to say--really all of them to say--that this is not right, that this is not complying with the Constitution or even the civil rights statutes in America that require equal justice under the law, not favoritism based on one or the other because of their background, ethnicity, or race. That is just what it is all about. The Justices on the Supreme Court, the ones who are known for showing restraint, should not be criticized if on occasion they declare the U.S. Congress did something wrong and it was unconstitutional. I am afraid we do it more often than we like to admit, the truth be known. Bills come through here late at night, nobody has done any constitutional research on most of what is in them to see if it is constitutional or not. The American people are entitled to have the final decision about constitutionality rest with a court that is prepared to defend their individual rights. On the three cases I mentioned--the case of a property taking from a private individual, the case of 18 firefighters who passed the test and were ready to claim their promotion, and the question of the right to keep and bear arms--each one of those was an individual situation in which an individual American appealed to the courts and claimed they have a right in plain words provided to them by the Constitution and they are asserting that right and they are pleading their case in the Court and asking the Court to grant them that right. In the three cases I mentioned, unfortunately Judge Sotomayor ruled with the government, the power of the State, and against the individuals asserting their claims in three exceedingly important cases. It is not activism to throw out a city's decision on forfeiture or guns; nor is it activism to throw out a decision that discriminates against American citizens based on their race. That is one of the things we discussed a lot in this debate. I think it has been a good debate. I complimented Senator Leahy this morning again. He gave us all a chance to ask questions. We had 30 minutes, as we have done before. Some wanted to do less, but he said no, that is the way we do these things. We had 30-minute rounds and then 20-minute rounds and then 10-minute rounds to ask questions. I think pretty much the fundamental issues involved in this nomination got discussed in committee. Some written questions were filed in addition. Now that it is on the Senate floor, I believe the Members of the Senate have an adequate record from which they can make a decision on what they think is best for America. I believe we should not have anyone on the Court who is not committed to the Constitution, not committed to putting aside their personal political agenda, and who will stay in strict adherence to the law and the facts of the cases that come before them. That is how I evaluated this case. I am proud of Judge Sotomayor. She handled herself well and patiently at the committee. She was asked a lot of tough questions, but if you want to be a Justice on the U.S. Supreme Court you have to be prepared for that. You should not submit yourself if you are not prepared for that. But she handled it nicely and courteously. I think the Senators conducted themselves well also. A lot of people wanted to vote for her but, as the hearings went by and they studied the record, they concluded they were not able to vote for her based on philosophy and her approach to the law. But I think the committee hearing did what it was supposed to. There have been no delays. This will be one of the fastest confirmations in history. Within a few hours we will be having an up- or-down vote on her confirmation, unlike what happened when Judge Alito--a fabulous nominee, in my opinion--was subjected to a filibuster before he was confirmed. She is going to be given an up-or-down vote in just a few hours. I thank the Chair for this time. I look forward to the rest of the debate and final vote in a few hours. I yield the floor and suggest the absence of a quorum.

Mr. SESSIONS. Madam President, there are a number of letters from people and groups who have given great thought to this nomination and who have written to oppose it. I ask unanimous consent to have some of these letters printed in the Record.