Jeff Sessions

Mr. SESSIONS

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.

Mr. SESSIONS

Mr. SESSIONS. Mr. President, we had a number of Members discuss the second amendment issue that was dealt with by Judge Sotomayor in two different cases. It is an important question and I think her nomination raises very serious concerns about it. I would like to try as fairly as I can to analyze the circumstances in her dealing with these issues and why I think it is a problem that Senators rightly have objections to. The second amendment is in the Constitution. It is the second of the first 10 amendments. It is part of the Bill of Rights. If you remember, the people were not so happy with the Constitution. They wanted to have a guarantee of individual rights that they as American citizens would possess no matter what the Federal Government or anyone else wanted to do about it. So they passed the right not to establish a religion, free speech, free press, the right to jury trial and other matters of that kind in the first 10 amendments, as adopted. The second amendment was one of those, of course. It says: A well regulated militia being essential to the security of a free State, the right of the people to keep and bear arms shall not be infringed. The right of the people to keep and bear arms shall not be infringed. Over the years, laws have been passed that caused difficulties and that began to overreach with respect to the second amendment right. The American people have gotten their back up, as the Senator from Alaska told us, Senator Murkowski. People in Alaska, people in Alabama, people all over America are concerned about this. It is a constitutional right. It has been there since the founding of the Republic. I think most scholars have believed for some time that it is, in fact, an individual right, that the first clause regarding the well- regulated militia did not undermine the final declaratory clause which said: The right of the people to keep and bear arms shall not be infringed. But no Supreme Court case had ruled on that squarely until last year when the Supreme Court took up the Heller case, which was in the Federal city we are in today, DC. The Supreme Court in the Heller case said it was an individual right and it prohibited the city of Washington, DC, from effectively barring any citizen in the District from having a gun. It was an exceedingly broad ban on guns. But I would note something that ought to be remembered: It was a 5-to-4 decision--four members of the Supreme Court did not agree. Some people do not agree. One of our Democratic colleagues yesterday said of the result in Heller, that it was ``a newly minted and narrowly enacted constitutional right.'' That is cause for concern. The Constitution, I don't think, is newly minted. I don't think the Court created a right. I think the Court simply declared a right that was plainly in the Constitution. So this is part of our concern. I would suggest that it is a fragile right, however, based on the way some of the courts have been ruling and based on how Judge Sotomayor ruled. Somebody had raised the point several times that it is somehow not right that the National Rifle Association here, at the end, after the hearings, declared that they think that Judge Sotomayor should not be confirmed. Certainly they were reluctant to be engaged in this debate. But for the reasons I would note--and Senator Murkowski and others have noted--I don't think they had much choice, because it is a critical thing we are dealing with here, the next appointment to the U.S. Supreme Court. In a year after the Heller case was decided that the right to keep and bear arms is a personal or individual right and it cannot be abridged by the Federal Government, the case came before her as to whether the second amendment applied to States and cities. What if other cities were to declare that you couldn't have a gun in the city, or a State were to declare you couldn't have a firearm, or if a State were to place massive restrictions on the use of personal weapons? She took that case, the first major case after Heller to deal with this issue. Anyone who is familiar with the appellate courts in America, as this judge would be, would know this was a big, big, big case, a case of great importance coming on the heels of the widely discussed Heller decision. In it, she rendered an exceedingly short opinion. In it, she found it was ``settled law'' that the second amendment does not apply to individual Americans in States or cities. The city or State could completely bar them from having any kind of gun. In the Heller case, to be fair with her, this is what the circumstances were. There was an old 1800s case that basically held this way. It basically held that the second amendment did not apply to the States. I think the judge could rightly conclude that she may have been bound by that case. However, in the Supreme Court decision, they put a footnote in it and said: we are not deciding the question of whether the second amendment applies to the States because we are deciding a case in the District of Columbia, and the law in the District of Columbia is not city law. The law in the District of Columbia is U.S. Government law. They put a footnote and indicated that the incorporation doctrine was out there, but that they would review that in the future. My first point is this: I don't believe it would be appropriate to say it is settled law that the second amendment does not apply to the States after the Heller case. That troubled me that she said that. Judge Sotomayor made a decision in the Maloney case, the first major case after Heller. It was only eight paragraphs in a case that everyone knew was of great importance. And only one paragraph dealt with the question of whether the second amendment would apply to the States. Those who have supported Judge Sotomayor have correctly noted that the seventh circuit heard the same kind of case some months later and they agreed with the Maloney case and Judge Sotomayor. They spent, however, a number of pages on it. They spent 2\1/2\ pages on the question of whether it was incorporated against the States. But they concluded that even with the footnote in the Heller case, they concluded that the more clear authority was still this old case that is out there in the 1800s. They did not say, however, that it was settled law. The ninth circuit took up the very same case just a few months after Judge Sotomayor's Maloney decision. In a 19-page opinion that discussed in great depth the important constitutional issues, the panel said, when you read the Heller decision, when you consider the footnote of the Supreme Court's opinion where they said they didn't explicitly decide whether it applied to the States, they found differently. They found the second amendment does apply to the States and cities, and the States and cities must comply with it, and they can't ban all guns. They found not only that it was not settled law. To the contrary, they found that the footnote in the Supreme Court opinion ``explicitly left open this question.'' And because they found the question was left open by the Supreme Court, they felt they were authorized to consider the constitutional laws and questions that are important and render a decision that they thought was the right constitutional decision. That is why they went forward in that fashion. At the hearing, the judge was asked a number of questions about this. I didn't find those questions answered very persuasive, frankly. In some instances, I found them confusing. There was no retreat that I heard from this untenable position. In answering questions from Senator Hatch, the judge said that: The Supreme Court didn't consider [the second amendment] fundamental [in the Heller case] so as to be incorporated against the state. . . . Well, it not only didn't decide it, but I understood Justice Scalia to be recognizing that the [C]ourt's precedent held that it was not fundamental. In the course of her decision she also found a critical question, that the second amendment is not a fundamental question. The judge was just wrong on that in a big, big case. It is the kind of thing you shouldn't make a mistake on. In the majority's footnote on this issue, the Court expressly reserved the question of whether the second amendment applies to the States. The footnote said this: With respect to Cruikshank's one of the old cases --continuing validity on incorporation, a question not presented in this case . . . So they explicitly said that they didn't were addressing this issue. But it is pretty clear that the doctrine that allows the Bill of Rights, the first 10 amendments, to apply to the States. That doctrine has developed dramatically in the 20th century, over the last 100 years. Virtually every one of the 10 amendments has been incorporated against the States. But the Second Amendment has not yet been applied to the States. To me, that is an odd thing in light of the doctrine of the incorporating of the first 10 amendments as protections for individual Americans against both the Federal Government and State and local governments. That doctrine has developed great strength and power over the last 100 years. Few people would want to go back. I think most people would be awfully surprised to learn that the second amendment would not be one of those applied to the States. It certainly, in my opinion, is not settled law. This case was dealt with in a most cursory manner. It dealt with a matter of huge national importance. It is the kind of case that legal scholars watch closely. It was an exceedingly short opinion, a few paragraphs. It showed little respect for the seriousness of the issue. It didn't discuss it in any depth. It incorrectly stated it was settled law that the second amendment would not apply to the States. These are the problems we have with it. Judge Sotomayor now seeks to be on the Supreme Court. And with regard to the 5-to-4 decision in Heller and to the question of whether she should recuse herself, as asked by Senator Kyl, she indicated that if her case came up, she would recuse herself. It could come before the Supreme Court. It is that important. But if one of the other cases raising exactly the same issue came up, she refused to say she would recuse herself. Of course, if her case comes up, it is a matter of ethics that she would have to recuse herself. I thought that since having already clearly decided precisely the same issue the Supreme Court would have to deal with, she ought to have indicated to us that since she expressed her opinion on it, she wouldn't sit on the case. But that did not happen. I will share likewise another concern we have about the firefighters case and how that was handled in such a short manner. The firefighters contended that they had studied hard. They had passed a promotion exam. They were on the road to being promoted. The city, because of political complaints about the fact that certain groups did not pass the test in a way that raised concerns, decided they would give up and not have the test and wipe out the test and not follow through with the test. The firefighters felt they had done everything possible, and they challenged that. Indeed, later the Supreme Court held that no evidence was ever presented that the test was not a fair and good test. Indeed, they had taken great care to get good people to help write the test in a way that would be neutral and fair to all groups of people and would not have any kind of unfair advantage. When that case came before the judge, I was very disappointed that she and her panel treated it as a summary order. A summary order is reserved for cases that present no real legal question. Summary orders are not even circulated among the other judges in the circuit. Here, it was a summary order that did not even adopt the opinion of the lower courts that had ruled in this fashion. It just summarily dismissed the firefighters' claim and rendered judgment in favor of the city which had altered the plan for promotion. It was basically done because of their race. The equal protection clause of the Constitution says that all American citizens are entitled to equal protection of the laws, regardless of race. That is what their complaint was, one of the complaints. I would note that this was not even an opinion. It was basically a line or two summarily dismissing this. Then one of the other judges on the court apparently found out this opinion had been rendered in a case that struck him, apparently, as a matter of real importance, a case that ought not to be disposed of by a summary order, that the firefighters were at least entitled to an opinion. And by the way, they never got a trial. Basically it was dismissed prior to trial on motions. So after great debate within the circuit, a little bit of a dust-up within the circuit, by a 7-to-6 margin, Judge Sotomayor casting the decisive seventh vote, they decided not to rehear the case and any precedent that may exist in the circuit. But at that point, I guess as part of the process of confrontation that arose there, the panel issued an opinion that adopted the lower court opinion, a procuring opinion. They didn't write their own opinion but basically adopted the lower court's opinion. It was from that decision, as a result of by chance another judge heard about it, not through the normal processes but, according to Stuart Taylor's article, from seeing it on television, that the case got some attention. And the Supreme Court agreed to hear it and reversed the case and rendered a judgment in favor of the firefighters. I think that was not responsible. That was a huge case of major constitutional import. It should have been written in detail. Any person, any judge should have done that, particularly one who would be considered for the Supreme Court. So I will say those two opinions to me are troubling in that I think they were wrong, No. 1. And No. 2, they were exceedingly short, too short, when you consider the seriousness of those issues. I yield the floor.

Mr. SESSIONS. Mr. President, I ask unanimous consent 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 believe there are a few minutes left on this side of the aisle. I would just like to share a few thoughts. I see Senator Brown is here and would also like to speak tonight. I think some others may also. One of the things that has been discussed tonight from my Democratic colleagues is the great American ideal of equal justice under law. Those words are indeed chiseled on the face of the Supreme Court across the street, and it has been invoked as a reason to support this nominee. But I would suggest that at its most fundamental level that is one of the serious objections and concerns we have. Lawsuits have parties. If you have empathy for one party, if you have a sympathy for one party, if you have a prejudice that favors one party, then that is not equal justice. In her own speeches and statements, Judge Sotomayor has said: I accept the fact that my background, my sympathies, even my prejudices--those are her words-- will affect the facts, affect how I decide cases--that her background will ``affect the facts I choose to see.'' These were not just speeches given one time but repeated over a period of a decade. So it raises real questions about that because the oath that a judge takes is a powerful thing. The oath reflects the ideal of American justice. And the oath says a judge will not be a respecter of persons. The oath says a judge shall do equal justice to the poor and the rich alike. The oath says a judge will be impartial; that they will carry out their duties under the Constitution and under the laws of the United States--not above the laws of the United States. A judge is not above the law. They are not empowered to utilize any of their personal views, politics, morals, or values in the process of their judging to manipulate the law, to carry out an agenda they may believe is the greatest thing for all of America. They are not entitled to do that. So from her speeches and her approach to the law, there is a great concern to the extent of which I have not seen before in speeches and expressions, in Law Review articles by this nominee that suggests an acceptance of the fact that her background and experiences, opinions, sympathies, and prejudices will affect her rulings. She goes on to say: I accept the fact that my background will ``affect the facts I choose to see.'' For a lawyer like myself who has practiced a good bit in Federal court, tried quite a few cases, this is a stunning development that a judge is going to tell me: Well, I may not see those facts because of my background, my sympathies, and my prejudices. That is what a judge puts on that robe for. The robe is to symbolize they pull themselves apart from the everyday pressures that are on them, the everyday biases and prejudices; that they will be a neutral, fair, objective umpire and will call the balls and strikes, call the game without taking sides, without trying to achieve a given result. This is the ideal of American justice. One of our colleagues said he objected because some of us were advocating a strange and strained conservative orthodoxy, that we would not vote for anybody who did not agree with some sort of philosophy like that. What I said at the opening of the hearing was that I would not vote for her, and no Senator should vote for any nominee, whether liberal or conservative, who was not committed--committed--as their oath commits them, to setting aside personal values, opinions, and so forth, and rendering true justice based on the law and the facts, whether they like the law or not. So I think this is a big deal. They say: Well, you never confirmed a liberal Democrat, Sessions. You are a conservative Republican. But I would. And I voted for quite a number of them under President Clinton. I expect I will vote for quite a number under President Obama. I voted for 95 percent of President Clinton's nominees in the time I was in the Senate. It is not their politics. It is not the church they belong to. It is not whether they go to church. It is not what their moral values are. It is when they get on that bench and they decide cases, are they going to follow the law and the facts? That is the question, and that is what we are looking for. It is sort of surprising to see a nominee express repeatedly over a period of years a contrary view. And to suggest that, well, it may be an aspiration to be unbiased, but it is just a mere aspiration--and to explicitly reject the classical formulation of a judge's role as expressed by Justice O'Connor, when she said: A wise old woman and a wise old man should reach the same conclusion--well, that is what we always have believed in America. Now we have this new theory that, well, you can bring to bear your background, and you might reach a better conclusion because you have different experiences you can bring to bear. That is not our goal in America, in my view. Our legal system is built on a belief that there is a right answer to even the most difficult cases, and judges ought to give their absolute best effort to find that right answer. It is based on law and the facts and not what their personal views and values are. That is what we are all about. I think it is an important issue. And the activist, whether liberal or conservative, the activist judge allows those values and prejudices and political views and ideology to affect their rulings. It causes them to find some way to achieve a result that furthers an agenda they believe in. That is not justice, that is politics. When President Obama says he wants a judge who will show empathy, I ask: Whom does he show empathy for? If you show empathy for one party, haven't you had a bias against the other? Who got empathy in the firefighters case? Was that equal justice under law--under law? The Constitution says no one shall be deprived of equal protection of the laws on account of their race. But the firefighters who passed the test--a test that was never found to be defective, and the Supreme Court found it was not found to be defective--they had that test thrown out because they didn't like the racial results of it. Isn't that discriminating against the people who worked hard and studied and passed the test? Lieutenant Vargas testified before our committee. I asked him, and he said if everybody had studied as hard as he had, a lot more of them would have passed. It was just a question of the commitment to learn the things necessary to be a leader in a fire department where you send people into life-and-death situations. This is not a little matter. You need to know things. So I don't want anybody to think that what we are doing is some strange or strained approach to the law. I believe we are asking fundamental questions about law and justice in America and the Supreme Court of the United States. Aren't we entitled to expect that this nominee, such as every other judge who has ever taken the bench in any Federal court in America, should be not mildly committed to the oath but absolutely committed to the oath; committed to not being a respecter of persons; committed to equal justice for the poor and the rich; committed to impartiality; committed to conducting their office under the Constitution and under the laws of the United States and not above it. I think that is what we need to be looking for. I am afraid this nominee, based on several important cases and a plethora of speeches over a decade, doesn't meet the standard. I wish it weren't so. I thought things would get better at the hearing. I don't think they did. That is my best judgment. So that is why I have concluded I cannot support her nomination. I thank the Chair and yield the floor.

Mr. SESSIONS. Madam President, I ask unanimous consent to have 5 additional minutes.

Mr. SESSIONS. Madam President, we will discuss some of the other cases in more detail later. But one need only look at the papers filed in the district court and the court of appeals to see that the Adarand issue and the constitutional question were central issues in this case. Look at Judge Cabranes' decision, where one of the first cases he cites is Adarand. One does not expect this type of mistake or a lack of accuracy from a Supreme Court nominee in a case of this importance, when she understands she will have to discuss before the Judiciary Committee. Judge Sotomayor repeatedly stated, including in her opening statement, that litigants deserve explanations; that she looks into the facts, delves into the record, and explains to litigants why she rules for or against them. I have read the one-paragraph Ricci opinion. Judge Sotomayor did not afford the firefighters the respect they deserved. I have also considered very carefully Judge Sotomayor's views regarding the Second Amendment, and I am troubled by her record and not reassured by the answers she gave during the hearing. In sum, she effectively held that the Second Amendment--the right to keep and bear arms--does not bind the States, and that means any city or any State in America, if her opinion is upheld, can ban all guns in those jurisdictions. If her opinion is not reversed, that is what will happen in America. I would note the Supreme Court, in ruling on the Heller case, held clearly for the first time that the Second Amendment is an individual right that applied to the District of Columbia, which effectively banned firearms in the District of Columbia. They said that was not constitutional, that the citizens of the District of Columbia have a constitutional right to keep and bear arms and it cannot not be eliminated. So if the Sotomayor opinion is upheld, I can only say the Second Amendment might be viable in the District of Columbia but not in the other cities and States throughout the country. With regard to the takings case, one of the most significant takings cases in recent years, she ruled against a private landowner who had his property taken. He intended to build one kind of pharmacy on it. A developer who was working with the city utilized the powers of the city to attempt to extort money from that individual so he could build another private drugstore on that lot. When the owner refused, the city condemned the man's property, gave it to the developer, who then built his own kind of drugstore there. I believe this is in violation of the constitutional protection that private property can only be taken for public use. So words have meaning. The Constitution and laws of the United States have meaning. People come to courts to assert their rights under the Constitution and laws. In these three cases I have mentioned, the litigants did not have their rights properly listened to nor protected, in my opinion. Is it because she would have preferred different results from the promotional exam for firefighters? Is it because she did not believe in the rights protected by the Second Amendment as set forth in the Constitution? Is it because she favors redevelopment? We are left to wonder because the cases were certainly not decided based on the plain language of the Constitution, and she did not openly and thoroughly in any one of these cases engage in a serious discussion of issues raised. Each was just a page or two or three. One of the most important tools of a judge is words. The meaning of words is obviously where the power of our Constitution and laws is found. When a judge feels empowered to redefine the meaning of words in our Constitution, they feel empowered to amend our Constitution. If they don't like the death penalty, maybe they will call it unconstitutional. If they don't like the right to keep and bear arms, maybe they will say the Second Amendment doesn't apply to States and cities. In a recent speech before this nomination, Professor Allen C. Guelzo, a two-time winner of the Lincoln Prize, wisely noted that a constitutional system resides on a bedrock of shared assumptions. While it may seem to be a collection of laws and statutes, the most important thing is that ``those laws and statutes depend first on a reverence for words, for reason, and for orderliness.'' He adds that ``reverence must grow . . . from the confidence that words, reasons . . . really do protect'' the rights of citizens. Citizens must know their rights, when clearly stated in the Constitution, will be steadfastly protected by the courts. It is here that I have significant qualms. The ease by which the nominee reconciled or attempted to reconcile fundamentally different statements in speeches at our hearing evidences a lack of respect for the meaning of words. Her explanation of controversial decisions lacked clarity, a very serious shortfall indeed for a Supreme Court Justice. So I came to this process with an open mind regarding Judge Sotomayor. She has many wonderful qualities, and I truly mean that. And I like her. She was ever graceful in her testimony. But certain aspects of her record troubled me--whether, for example, she has the kind of deep commitment to the ideal of objectivity and impartiality that I believe necessary. I had hoped those concerns would be addressed effectively. Unfortunately, many of the answers did little to ease my concerns but, instead, reinforced them and led to more unanswered questions. Regrettably, I cannot support her nomination to a lifetime appointment to the U.S. Supreme Court. I thank the Chair and yield the floor.

Mr. SESSIONS. I appreciate the opportunity to speak. Before I do, I want to say that we had some disagreements as we went along about how to conduct the hearings. But Chairman Leahy made a commitment that we would have a fair hearing, that every Senator would have an opportunity to question the witnesses and have the time to follow up, and he complied with that. I think we had a good hearing. Judge Sotomayor was voted out of the committee, and I appreciate her kind words to me and to our colleagues on how she felt she was treated. I think the hearings were fair and effectively discussed the important issues raised by this nomination. Our confirmation process began with the President indicating that empathy was a standard that he believes should be applied to selecting judges. There is some disagreement about that. I am one of those who do not believe that is a legal standard. It is a kind of standard that is closer to a political standard, and we need to be careful that politics do not infect the judiciary. I certainly do not profess to be able to say with certainty how Judge Sotomayor will perform if confirmed to the Supreme Court. History shows that Justices, once confirmed, often surprise. I have previously expressed my evaluation and decision in this matter. I will just say I hope I am wrong. But I have concluded that the nominee has a fully formed judicial philosophy, one that is held by quite a few other lawyers and judges, but it is a philosophy contrary to the classical underpinnings of the American legal system, a system that has blessed us so much. Edmond Burke, in his famous speech ``On Conciliation with the Colonies,'' urged the King to avoid war, noting that the Colonies were simply asserting the rights to which they had become accustomed. He observed that almost as many copies of Blackstone's Commentaries on the Laws were being sold in America as in England. From the beginning, Americans have honored law because, I suspect, it was the arena in which the poor individual citizen could and often did prevail against the powerful. Even before the Revolution, judges, juries, and English law decided cases. It was a people's power controlled by law that would prevail even over the political wishes of the powerful. Laws, Burke noted, were to be created by the people through their elected representatives, not judges. Law in the new Republic was not an abstract. It was concrete. The laws meant what they said. If by some loophole even an evil act was not covered by criminal law, the prisoner was to go free. Importantly, our system rested upon a near universally held belief that law and order were necessary for freedom and progress to occur. It further rested on the firm belief that there was such a thing as objective truth and that if a real effort was put forth, truth could be ascertained. For most, this was an easy concept, since a belief in God, the ultimate truth, was widespread. Thus, the legal system was arranged to best discover truth. Rules of evidence, cross-examination, and the adversarial system were parts of the design to discover truth. Many nations have tried to replicate it without success. It is a national treasure, our legal system. I believe our Federal courts are the greatest dispensers of justice the world has ever known. For 15 years, I practiced full time as a Federal attorney before Federal judges. I saw the system operate. I have seen State and local judges, Republicans and Democrats, serve faithfully day after day, adhering to the ideal of objectivity, fairness, and law. But many intellectuals in recent decades look upon such an approach as anti-intellectual. They conclude such thinking that judges actually do in an ideal way, they find this is hopelessly naive. They think it is unrealistic. The brilliant jurist and intellectual Jerome Frank, quoted favorably by Judge Sotomayor in a law review article, said as much in the early part of the last century. Since then, many theorists have gone even further, moral relativists, postmodernists, deconstructionists, critical legal studies adherents, they all come from the same pond. They don't believe--some don't--that there is an ascertainable truth. They believe these ideals actually confuse thinking and mislead. They believe it is results that count. I don't agree. The American people don't agree. Ideals are important. High standards can be reached. Not every time, I am sure, but most times. If the ideal is not ardently sought, it will be reached less and less. The American people are not cynics who settle for less than the ideal of impartiality and equal justice for the poor and the rich under the Constitution and the laws of this country. Each judge operates under the Constitution and laws of this country. They expect, rightly, that every judge will be fully committed to the heritage of law and the judicial oath they take to follow it. That is why I have expressed the view since this process has begun, that we are at a fork in the road, perhaps. Will we continue to adhere to the classical ideal of American jurisprudence, or will we follow results-oriented judging, where judges cease to be committed to the law and equal justice because they know it is not possible. Do they believe words are just words? Do they believe the Constitution can be made to say what one wants it to say? In this world, the Constitution cannot bind a judge to what the judge considers an unwise result. Instead, we should see the Constitution as a flexible, living document. Under this view, judges are not just umpires. Judges are more powerful. Judges can make the Constitution and law say what they would prefer it to say. Judges can ensure that the right team wins. Judges can make policy. That is the seductive siren call of judicial activism, and judicial activism is an impropriety that can be embraced by conservatives as well as liberals. Our former chairman, Senator Hatch, has often said: Activism is a tendency in a judge to allow their personal and political views and values to override the law and the facts of a case to achieve a result they think is desirable. That is what is not acceptable in our system. That is why, at the most fundamental level, many have a problem with this nominee. It seems clear from her writings and speeches that she is a devotee of the new philosophy of judging. Her speeches, over the years, are quite clear on this matter, although her hearing testimony backtracked from it in a somewhat confusing manner. Regrettably, I was not able to support her nomination in committee, nor will I support her nomination before the full Senate. I would like to discuss in greater detail a few of the reasons that lead me to that conclusion. There are more things that will be discussed later as we go along, but let me say a few things now. Even before the nomination of Judge Sotomayor, I made clear what my criteria would be for assessing a Supreme Court nominee: impartiality, commitment to the rule of law, integrity, legal experience, and judicial temperament. Judge Sotomayor possesses the well-rounded resume I like to see in a Supreme Court Justice. She has a wonderful personal story. She was a prosecutor. She was a private practitioner. She was a trial judge, and she was an appellate judge. Those are good experiences for a judge on the Supreme Court. However, her speeches and cases she has decided are troubling because they reflect the lack of a proper sense of the clearly stated constitutional rights that are guaranteed to American citizens. Her testimony was her opportunity to convince us she would be the type of Justice we could vote for. Instead her answers lacked clarity, the consistency and courage of conviction one looks for in a nominee to the Supreme Court. In many instances, she raised more questions through her testimony than she answered. Judge Sotomayor's expressed judicial philosophy rejects openly the ideal of impartial and objective justice. Instead, her philosophy embraces and accepts the impact that background, personal experience, gender, sympathies, and prejudices--these are her words--have on judging. A fair and plain reading of these speeches-- read in context--calls into question Judge Sotomayor's commitment to impartiality and objectivity. When given an opportunity to explain this philosophy, as was reflected in speech after speech, year after year, Judge Sotomayor dodged and deflected. In many cases, her answers could not be squared with the facts. It has been suggested we should disregard those speeches. It has been suggested they are just words, that they are merely meant to inspire. In short, it has been suggested the words of the speeches simply do not matter. But words do matter. Words are important. They must have meaning or the result is chaos. No one should know this more than a judge. Her speeches and academic writings were not offhand comments delivered without the aid of notes. They were carefully crafted to dispute the notion that impartiality is realistic, or even possible. These were not the musings of a second-year law student. They were all delivered after she was a Federal judge. They were delivered to a number of different audiences, a number of different forums, including a bar association. In her speeches and academic articles, Judge Sotomayor describes other approaches to judging and her approach to the law. She describes the factors judges should consider when reaching decisions. She describes her fully formed judicial philosophy. She challenges the mainstream concept of judging. Make no mistake, judicial philosophy matters. It guides judges. It tells them what to consider. Importantly, it tells them what not to consider. Judicial philosophy is quite different from a judge's personal, political, moral or social views that a judge is to set aside when they decide a case. That is what blindfolded justice means. When a judge puts on that robe, they are, in effect, saying to everyone in that courtroom that their personal biases and prejudices and so forth will not impact the fairness of the ruling they are called upon to make. Judges in trial and appellate courts, of course, are constrained by precedent. Even if a trial or appellate judge harbors a radical approach to the law, the threat of reversal restricts that judge's ability to employ that philosophy. But on the Supreme Court, however, these restrictions are removed. On the Supreme Court, there is no additional review. On the Supreme Court, a judicial philosophy that is fully formed is permitted to reach full bloom. As a liberal law dean recently said in the Los Angeles Times: ``There's a huge difference between being a court of appeals judge who is bound by precedent and a Supreme Court justice who can rewrite those precedents.'' That is why judicial philosophy matters. Frankly, after reviewing her consistent speeches in preparation for the confirmation hearing, I expected Judge Sotomayor to defend her views. I expected her to defend her statement that ``[t]he law that lawyers practice and judges declare is not a definitive, capital `L' law that many would like to think exists.'' I expected her to defend the notion that the court of appeals is where ``policy is made.'' I expected her to defend her statements in favor of using foreign law to interpret American statutes and her statement that there is ``no objective stance, but only a series of perspectives.'' However, during her testimony, many of Judge Sotomayor's answers were inconsistent with her record and others were evasive and not adequate. On several occasions, Judge Sotomayor appeared to run away from the philosophy she had so publicly articulated. Other answers, I concluded, were not plausible. It has been repeatedly suggested that Judge Sotomayor's words and speeches are being taken out of context. I have read the speeches in their entirety. Her words are not taken out of context. In fact, when one reads her speeches in their entirety, in context, the impact is more troubling, not less. For example, Judge Sotomayor said, on repeated occasions, that she ``willingly accept[s] that . . . judge[s] must not deny the differences resulting from experience and heritage but attempt . . . continuously to judge when those opinions, sympathies and prejudices are appropriate.'' When I asked whether there was ``any circumstance in which a judge should allow prejudices to impact decision-making,'' she replied: ``Never their prejudices.'' This is quite the opposite of what her speeches said. In the hearing, she said her speeches discussed ``the very important goal of the justice system . . . to ensure that the personal biases and prejudices of a judge do not influence the outcome of a case.'' Well said. But that is not what her speeches said--in context or line by line. She was not urging that judges guard against their prejudices, as their oath calls on them to do. She was accepting that a judge's prejudices may influence their decisions. Similarly, Judge Sotomayor repeatedly stated she accepts that who she is will ``affect the facts I choose to see'' as a judge--the facts she chooses to see as a judge. She accepts this. When I asked her about this statement, she said: ``It's not a question of choosing to see some facts or another, Senator. I didn't intend to suggest that.'' But that is what she said repeatedly. She accepts the fact that who she is will ``affect the facts I choose to see'' as a judge. The context of her speech states a clear philosophy. Judge Sotomayor was contrasting her own views with that of Judge Cedarbaum and Justice O'Connor, two women judges of prominence. Of course, Justice O'Connor was a former member of the Supreme Court. The context was her view that ``[i]n short . . . the aspiration''--I am quoting her--``the aspiration to impartiality . . . is just that, an aspiration.'' Such a statement evidences a lack of the kind of firm commitment to fairness and to the judicial oath of impartiality that is expected, in my opinion. We have heard again and again that our concerns are based on three words: The ``wise Latina woman.'' That is not the case. We are talking about a judicial philosophy, as reflected in speech after speech, year after year. That is what is causing the problem here. Senator Coburn, at the hearing, made a point that I think is worthy of emphasizing: that her refusal to effectively defend her own speeches and statements was almost as troubling as the philosophy contained within those speeches. As the Washington Post, in endorsing her, on July 19, in their editorial, said: Judge Sotomayor's attempts to explain away and distance herself from [the ``wise Latina'' statement] were unconvincing and at times uncomfortably close to disingenuous, especially when she argued that her reason for raising questions about gender or race was to warn against injecting personal biases into the judicial process. Her repeated and lengthy speeches on the matter do not support that interpretation. In Judge Sotomayor's opening statement, she said that her philosophy is ``fidelity to the law.'' But her record demonstrates that, if true, her view is far different than mine. For example, she has advocated for the use of foreign law by American judges. Once again, we are left with statements made at the hearing, though, that were in direct conflict with statements made before she was nominated. As Judge Sotomayor noted in her April 2009 speech--April of this year--before the Puerto Rico American Civil Liberties Union, the current debate regarding the use of foreign law in the courts, she noted, pits two distinct views against one another. On one side sit Justices Scalia and Thomas, who believe that foreign law should not be used in interpreting the U.S. Constitution. That is correct, in my view. On the other side is Justice Ginsburg, who believes that courts should be more aggressive in their use of foreign law. In this speech in April, Judge Sotomayor clearly indicated who she thinks has the better view of the issue, stating that she ``share[s] more the ideas of Justice Ginsburg . . . in believing, that unless American courts are more open to discussing the ideas raised by foreign cases, and by international cases, that we are going to lose influence in the world.'' Moreover, Judge Sotomayor talked approvingly about two recent Supreme Court cases in which Justices did look to foreign law precisely to interpret our Constitution. That is a very clear position. I think it is incorrect, but it is a clear one. Others adhere to it. When she came before the Judiciary Committee, however, Judge Sotomayor articulated a very different view of foreign law, stating: Foreign law cannot be used as a holding or a precedent or to bind or to influence the outcome of a legal decision interpreting the Constitution or American law that doesn't direct you to that law. Well, that is quite a different position from the theme and statements in her April speech. So I agree with my colleagues who lamented Judge Sotomayor's tendency to avoid answering questions, with one colleague noting her ``extreme caution'' in answering. I do not think many would dispute that she was less forthcoming than Judges Alito and Roberts, our latest confirmations to the Court just a few years ago. In addition to her stated judicial philosophy, I am also quite concerned regarding how Judge Sotomayor has approached the most important constitutional cases that have come to her court. Most of the cases a court of appeals judge considers are routine, fact dominated, and do not offer novel questions or require substantial legal discussion. Still, a few important cases that present new and critical issues do periodically come before the courts of appeals. These cases can give insight into how the nominee will handle the many such cases that regularly come before the Supreme Court. Within the last 3 years, Judge Sotomayor has heard three monumentally important cases at the circuit level: the constitutional right to be free of racial discrimination, the right to keep and bear arms, and the fifth amendment right to keep one's own property. In all three of these cases, Judge Sotomayor joined or authored very brief opinions--very brief opinions, oddly brief opinions--that avoided the kind of careful analysis we would expect of an appellate judge. In all three cases, individuals went to court with the plain text of the Constitution on their side. In each case, Judge Sotomayor reached conclusions that denied individual Americans their rights that they were asserting against governmental power. When confronted with an appeal based on fundamental notions of equal protection of the laws, Judge Sotomayor, to be charitable, took a pass. By now we are familiar with the basic facts of the New Haven firefighters, the Ricci case. Eighteen firefighters brought suit against the city of New Haven after the city threw out the results of a promotional exam. It was thrown out because not enough of certain minorities did well enough on the exam. Judge Sotomayor's decision in the case is troubling. Her curious one-paragraph summary order, and the Supreme Court's subsequent reversal, are the starting points. But there is more. And there is a reason that so much attention has been focused on this case. Her initial attempted disposal of the case by summary order was, quite simply, unacceptable and an embarrassment. A summary order is, by circuit rule, only for cases in which there is no legal principle worthy of discussion. In the end, every Supreme Court Justice concluded she applied the wrong legal standard in granting a judgment against the firefighters and for the city before a trial occurred, and a majority of the Supreme Court found that the firefighters' case was so strong that they were entitled to a verdict for their side on the evidence that already existed without a trial. The Supreme Court understood the importance of this case--why we care about it as Americans. As they said of Judge Sotomayor's logic: Allowing employers to violate the disparate-impact liability would encourage race-based action at the slightest hint of disparate impact. . . .That would amount to a de facto quota system. . . . That is the Supreme Court language. I was struck by something one firefighter, Lieutenant Vargas, said to us--that his testimony before the Senate was the first opportunity he had to tell his story because the district court threw out the case before he even had a trial. On appeal, Judge Sotomayor initially dismissed the case by summary order, meaning that a hard copy of her order was never even delivered to the other judges on the court. Had one of her colleagues, Judge Cabranes, apparently, independently, not heard about the case and sought a full review--a rehearing en banc is what he sought through the whole Second Circuit--it is likely the Supreme Court would never have even known the case existed or considered the case. It is also likely Lieutenant Vargas would never have had the opportunity to tell his story, to explain to his children his profound hope that, as a result of his efforts, they would be judged on their merit and not on their race or their ethnicity. In response to my questions, Judge Sotomayor also claimed that her Ricci decision was controlled by ``established'' Supreme Court precedent, saying ``a variety of different judges on the appellate court were looking at the case in light of established Supreme Court and Second Circuit precedent.'' But the Supreme Court did not see it that way. The Supreme Court noted that ``few, if any, precedents in the Court of Appeals'' discuss this issue. As noted commentator Stuart Taylor has recently confirmed, even if Judge Sotomayor had believed her panel was bound by Second Circuit precedent, review and rehearing by the whole Second Circuit would have provided the opportunity to review those previous cases afresh and to overrule them if they were unsound. But Judge Sotomayor cast the deciding vote against rehearing this case by the full circuit. She defended her ruling and defended whatever authority existed at the time in the Second Circuit. The case is also troubling to me because Judge Sotomayor had pledged to me during her confirmation, in 1997, that she would follow the Supreme Court's decision in Adarand--a well-known case--and subject any preference for one race over another race to the Court's established standard of strict judicial scrutiny. When I asked her about this promise she had made, I, once again, found her answer to be dismaying. She stated that the cases I asked about, the seminal equal protection cases--Adarand and so forth--``were not what was at issue in this decision.'' She was talking about the Ricci case. But that is not right. There were two very clear claims made by the firefighters in this case--one based on a statutory right and one based on the equal protection clause of the Constitution. One need only look at----

Mr. SESSIONS

Mr. SESSIONS. Yes, I will.

Mr. SESSIONS. Mr. President, while Senator McCain is here, we were talking about the amount of money the government has spent. We talked about how a third of the money has been obligated from this stimulus package. But I advise, according to the CBO report in June, they only expected 11 percent of the money to actually be disbursed by the end of this year, at least the money that deals with highways, mass transit, and issues of that kind. That is stunningly low because we were told something quite different. This Vitter amendment is exactly the kind of thing we need to be doing every single day: try to challenge the conventional thinking to figure out how we can deal with a need today without increasing America's debt. What Senator Vitter says is when we passed this $800 billion stimulus package in January, nobody had a chance to read it. We were told repeatedly--and the President himself said more than once--it was to build infrastructure, to complete highways, roads, and bridges. That is what the money was going to be for. He said in February: They are not going to be make-work jobs but jobs doing the work Americans desperately need done, jobs rebuilding our crumbling roads and bridges, and jobs repairing our dangerously deficient dams and levees so we won't face another Katrina. I am not sure Congress can stop another Katrina from coming, but we can perhaps be better prepared for it. But what a lot of people do not know, is that less than 4 percent of the money in that bill was directed for highways and bridges. It was a game, a political trick, because the American people believe that when you need to create jobs, you might as well build something that is permanent, that will benefit the people for years to come and that creates real jobs. In their minds, I think most people envisioned stepping up our road projects. But only, as I said, 4 percent of the entire package went for that purpose. Now we have a lot of that money not spent. Apparently, 89 percent will not be spent by the end of this fiscal year. Some of it is not obligated at all. We have a shortage in the foundational highway trust fund bill, and we need to come up with $27 billion. So which do we do? Do we take some of the money that was in the stimulus package that we were told was to be for roads and bridges and use that money and not increase the deficit because that money is already showing up as a hit to the U.S. Treasury or does the money come from some other source that will increase the debt by $27 billion? The only reason not to oppose this, that I can see, is some people have already spent this $27 billion in their own minds. They don't want to see it utilized for this purpose, and they are undermining our ability to do so. We have a national crisis. Let me show this chart. It is so stunning that people don't believe it, but it is based on the budget that President Obama submitted, his 10-year budget. It was analyzed by the Congressional Budget Office, our own group here who has a good reputation. Basically, the Director is elected by a Democratic majority in the Congress, and this is what they show about our deficit. We have to stop doing this. We cannot sustain a deficit. In 2008, the debt was $5.8 trillion. The debt of the United States, since the founding of the American Republic, was $5.8 trillion. In 5 years, according to the CBO, by following this budget, counting this stimulus package but not even counting the trillion dollar health care proposal and other things that might get added to it, they scored that in 5 years, the debt would be $11.8 trillion--double. In 5 more years, taking it to 10 years, the debt would triple to $17.3 trillion. This is the entire debt of the United States of America since the founding of the Republic--it will triple in 10 years. It is unacceptable. We cannot sustain this. Let me show this chart. Trillions is difficult for people to comprehend, but when you borrow money and you go into debt, you have to pay interest on it. People buy Treasury bills. That is what we do to fund the deficit. In 2009, this fiscal year, we will make interest payments of $170 billion on the debt and the money we borrowed. The total Federal highway program, I believe, is $40 or $50 billion, isn't that right Senator Inhofe? He is the expert. So this is four times the Federal highway bill annually. We spend approximately $100 billion on education. These interest payments increase every year. According to the Congressional Budget Office, 10 years from now, we will not be spending $170 billion on interest, we will be spending $799 billion. That is the red numbers, $799 billion in interest, for which we get not 1 foot of highway paved, not $1 to the classroom, not $1 for health care, just interest because we borrowed so much money. I also point out the numbers do not get better. Over the 10-year budget, the Obama budget, the debt goes up rapidly in the outyears. I note that President Bush was criticized for having a big deficit. The highest deficit he ever had--which was unacceptable, I have to say--was $459 billion. According to the Congressional Budget Office, there is not 1 year in the next 10 that we will have a deficit that low. The lowest year is over $600 billion. They calculate the deficit as it grows, and in the 10th year, they calculate the deficit for that 1 year to be $1.1 trillion--$1.1 trillion--on an upward spiral. What I wish to say is there is no plan to pay this debt off. The only plan we have is to see surging debts into the future. That is why you have heard this phrase repeatedly, ``This is not sustainable.'' And it is not. But when we cannot even use our stimulus money to fix the road problem we have, we are not serious about the challenges facing this country. The bit about interest, if the interest rates go up higher than CBO has scored based on the amount of money we have to borrow--and that could happen--we could end up with an annual interest payment of over $1 trillion.

Mr. SESSIONS. Mr. President, what is the time remaining on this side?

Mr. SESSIONS. I appreciate that comment and my colleague's leadership. He has consistently been a champion for infrastructure and roads. We face a tight budget, and I feel strongly about this. I know I am raising my voice but somehow we have to break through the fog and let the American people know that every time we face a little problem we can't just spend more money. We have to look for ways to solve the problem that doesn't increase our debt. By the way, in case anybody has any doubts, any new spending that we initiate increases the debt because we are running a deficit. So any new spending increases the deficit for the year because it is not offset or paid for. So I am worried about where we are heading. I do believe infrastructure will pay for itself in the long run, but there is a limit to how much we can spend on it. However, I will concede that we certainly don't need to have a savaging of our highway bill at this point in time and have hundreds of thousands of people perhaps laid off from work because we don't have the money to finish projects that need to be completed. Instead, let's take the money that is in the stimulus bill. Let's take that money and use it now to fix the shortfall in the highway trust fund. Once we do that, we will create jobs. How many, I don't know, but it will create jobs, and that is a double benefit. We get a permanent benefit for the American infrastructure, and we create jobs for Americans now. We take the money that is sitting there and not being spent and accelerate its use in the time we need it. I would point out to my colleague the reason this is important, and the reason the administration was able to ram through this stimulus bill--the largest single expenditure in the history of the American Republic, almost $800 billion in one fell swoop, with hundreds of pages and people having no idea what was in it--is because they said we are facing rising unemployment, and we need to get this money out in a hurry so we can put people to work. Well, only 11 percent of it is going to be obligated by the end of this year. Unemployment is already at 9.5 percent, and most experts are predicting it will probably continue to go up to 10, maybe 11 percent. Yet we can't get this money out, and we are cutting the highway budget? When we have this shortfall, what do people come up with? Well, they are going to pay for it by adding more debt. We have an economic slowdown, so we no longer have to worry about the deficit. We don't have to worry about the deficit, they tell us. But we do. Our children are going to be paying interest on these trillions of dollars for the rest of their lives, and the only people who are going to get the benefit from it are the people living today. That is a selfish thing. We should use the stimulus in an effective way to create jobs--and there are even debates about how wise some of those methods are economically. But the way this package is being managed, the money is not getting out, unemployment is surging, and there doesn't seem to be any hope for the short term for unemployment to abate. So I am worried about it. I do believe we can do better. They will say: Well, President Bush had a deficit. We inherited all this. But President Bush didn't ask for the $800 billion in stimulus money that President Obama asked for this year. That is on top of the debt, and I think anybody who is president needs to be thinking about how to reduce spending not see it spin out of control. I don't believe President Bush would have submitted a budget that shows in 10 years--in that one year, 2019--it would be $1.1 trillion. We have never seen anything like that. There will not be a year of President Obama's Presidency, according to this--if he serves 8 years--in which this deficit will be as low as President Bush's, and they are predicting growth. No recession is projected in the next 10 years, when CBO scored what the deficits might be. So this is a fair analysis of it. Mr. President, I want to say I am pleased Senator Vitter has proposed a way that will allow us to meet the shortfall in the highway trust fund without increasing the debt this year, and it is consistent with what the people who proposed the stimulus bill promised all along--that the stimulus money would be used for highways and bridges. It is the right thing to do. I hope we can pass this, and I think the American people should watch closely on how the votes go on this bill. I thank the Chair, I reserve the remainder of the time, and I yield the floor.

Mr. SESSIONS

Mr. SESSIONS. Madam President, among some of the things I think most Members would like to accomplish is fixing the highway trust fund, fixing the unemployment insurance shortfall, and to do something about the housing loan authority. Those are three matters we can address without increasing our deficit. There is $7 billion in the highway fund this amendment would fix, which is the short-term fix the House did; another $7 billion for unemployment insurance; and the $185 billion for the housing fix. Those things we can do within the stimulus package. Only 11 percent of the $800 billion will be spent by the end of this fiscal year. We can use that money to fund these programs, take care of them as we planned to do from the beginning but without increasing the debt. People say the underlying bill will not increase the debt. That is not accurate. If we agree to this amendment, we will prevent increasing the Nation's debt by $200 billion. I urge your support for the amendment. At this point in time we need to save a few billion dollars.

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

Mr. SESSIONS. Mr. President, I ask unanimous consent to call the amendment up and to be able to speak for 2 minutes.

Mr. SESSIONS. Mr. President, we have an opportunity to save $200 billion. It is time for us to do the right thing. We cannot keep spending more and more.

Mr. SESSIONS. Mr. President, that would be my preference. I would be pleased to call up this amendment now. I do not know what the time agreement is at this point.

Mr. SESSIONS. I thank the Presiding Officer. We cannot keep spending more and more. We have several different problems--we have housing problems; we have a problem with unemployment insurance because more people are unemployed than had been predicted; and we have a problem with a shortfall in the highway fund. Some Senators could argue we do not need to fix every one of these because we do not have the money. But in a way we do have the money because we passed $800 billion in a stimulus package earlier this year. It was supposed to be primarily, we heard, for roads. But only 4 percent went to roads. So we can fix the shortfall in the highway trust fund by using some of the $800 billion we have already spent. We can fix the other two problems--unemployment insurance and housing--in the same fashion. Those can be fixed out of this fund. This amendment would do that. It would reduce the other accounts across the board. Of course, we will still be in session this year and next year. If we need to adjust other things in some way, we can. Don't let anybody tell you this is going to savage some other account because we can fix those accounts. I will just say--I know my time is short--this is $200 billion that will either go to increase spending and increase debt, or we can meet these needs--which hopefully are all necessary--out of the funds we already have out there. If we do not start making these kinds of decisions soon, we are going to have a real problem. According to the scoring of the President's own budget, the total debt of America debt has gone from $5 trillion this year, to $11 trillion 5 years from now, to $17 trillion 10 years from now. I thank the Presiding Officer and yield the floor. Amendment No. 1907, as Modified

Mr. SESSIONS

Mr. SESSIONS. Mr. President, I support the expansion of nuclear power, and so do the American people. Seventy percent, according to the Nuclear Energy Institute, believe we should either build new or expand existing nuclear powerplants. It is the key to our energy future in several different ways. I believe we ought to have a robust goal toward expanding nuclear power, and that we should work to build 100 nuclear plants as quickly as possible. We built them quickly in wave of construction, and hopefully, we will be able to have a cookie-cutter design for plants that can be used on a regular basis with good engineering, and be a step above the plants we have today. Nuclear energy is a clean source of domestic energy. It is American- made energy. It is the kind of energy the American people support. It has a role to play in reducing our dependence on foreign oil and bringing down the price of gasoline. If we could convert more cars to utilizing electricity through plug-in hybrids, then 24-hour-a-day base load nuclear power can charge automobile batteries at night when the grid is not at full demand and a person can drive 40 miles or so the next day without using a drop of gasoline. Nuclear powerplants will provide long-term economic benefits. It makes great strides in reducing the amount of imported oil from foreign countries and it keeps our wealth at home. It certainly creates high- paying, clean American jobs. It is a serious solution to our energy future. New nuclear plant construction will supply as much as 50,000 megawatts of additional clean and affordable electricity to meet the demands of a growing economy. Nuclear power is the most cost-effective way to generate electricity. While wind and solar certainly have roles, they simply will not take us far enough. The average nuclear production costs have declined more than 30 percent in the last 10 years to an average of 1.7 cents per kilowatt hour. This includes the cost of operating and maintaining the plant, purchasing the nuclear fuel, and paying for the management of used fuel. The low and stable cost of nuclear power helps to reduce the price of electricity paid by consumers. We cannot just say that we need to use energy sources that are clean; we must also produce electricity at an affordable price, and nuclear power meets both of these criteria. One thing I am disappointed about in the bill we are working on today, is how this measure deals with the storage of nuclear waste. Yucca Mountain was chosen as the government's location for a deep geologic repository for the safe storage of used nuclear fuel. All aspects of the geological, hydrological, geochemical, and environmental impacts have been studied, including a detailed evaluation of how conditions might evolve over hundreds of thousands of years at Yucca Mountain. To date, we have spent more than 25 years and $10 billion on these studies, and the Department of Energy has summarized these studies in several scientific reports which served as the basis for the 2002 decision to approve Yucca Mountain as a site repository. These reports, which included input from extensive public review and comment, formed the foundation of DOE's June 2008 application to the Nuclear Regulatory Commission for a license to construct the repository. Ending Yucca Mountain could not only hinder new nuclear construction, it could also pose a serious budget question. The repository is currently financed through the Nuclear Waste Fund. Presently, ratepayers pay a one-tenth of 1 cent fee for every kilowatt hour of nuclear power they consume. This is collected through the monthly utility bill paid by ratepayers. Under the Nuclear Waste Policy Act, DOE must review the adequacy of the Nuclear Waste Fund fee every year. DOE last performed a fee assessment in August of 2008, when it found the fee was adequate. As a result, the total amount of money paid into the fund is approximately $750 million per year and about $1 billion in interest per year. The Congressional Budget Office cost estimate unit told the House Budget Committee that CBO could not estimate what the fee should be: In light of the [Obama] Administration's policy to terminate the Yucca Mountain project and pursue an alternative means of waste disposal, there is no current basis to judge the adequacy of the fee to cover future costs because the method of disposal and its lifecycle costs are unknown. That is certainly true. Therefore, utilities and regulators are now asking the Department of Energy to suspend the fee on nuclear power. Why should they pay a fee that is supposed to ensure their wasted nuclear fuel will be taken to a repository when this administration has sought to stop this repository and seems to be making progress in that direction? Suspending payments of the Nuclear Waste Fund could also complicate general budget matters as the Nuclear Waste Fund is included as a part of the General Treasury Fund, not a trust fund, and can be appropriated on an annual basis. The result is that these funds are often used for purposes other than the disposal of nuclear waste, with only IOUs being held to carry out the fund's purpose. For example, according to CBO, the fund provided $8 billion through 2006 in government spending that did not contribute to the deficit. In other words, they took this money from the fund. So we can see the issue. If the IOUs are ever paid, the money must come from somewhere, and that payment will be scored as an expenditure of the government. In fact, if lawsuits filed by utilities paying this fee to the government are successful, we are going to have to spend the money, according to the law, it seems to me, for nuclear waste disposal. If so, where will the money come from? We will have to find it in some other fashion. If we do like we do everything else around here, we will just add it to the deficit, another $8 billion to the current debt. Additionally, we cannot forget that the Nation's $11 trillion deficit must also be factored into the debate. Regardless of what the President's Blue Ribbon Commission decides concerning Yucca Mountain, the DOE will have to pay for the disposal of nuclear waste. That is the legal requirement. There are numerous lawsuits stemming from the delay. The courts have already found DOE partially in breach of contract for not taking the used fuel from the nuclear powerplants as required in exchange for the nuclear waste fee they have been paying. This has resulted in the Federal Government paying approximately $300 million to utilities in compensation costs, which is paid out of a judgment fund and not out of the Nuclear Waste Fund. They are not paying back the money with the funds already contributed by the utilities. They are taking it from the General Treasury, a judgment fund, and paying it out of that. And there may be more judgments coming along. Also, DOE has appealed judgments totaling approximately $400 million in additional cases they may well lose. That will be another $400 million that will have to be found and there are close to 40 lawsuits that have not yet gone to trial. According to CBO, because judicial claims for damages are made retrospectively, many more cases can be expected in the coming decades as utilities seek to recover their own costs for storing nuclear waste on site long after they expected it would be removed to a permanent disposal site. The repository is also slated to hold high-level waste left over from the Cold War, and the government may be liable for compensation costs from States currently hosting defense waste as well. The Treasury Department has estimated it will cost DOE about $300 billion to clean up and monitor several government sites that are contaminated with hazardous and radioactive materials. I ask my colleagues to listen to that number. As a result of activities in early nuclear development, there are waste sites in the country. The Department of Treasury has estimated it will cost about $300 billion to monitor and clean up several of those sites. I think that number is so breathtaking that I am amazed that more discussion has not occurred about it. I have raised the issue with the Department of Energy and the Department of Defense, as I serve on both Committees, and I believe it can be done for less than that. It has to be done for less than that. We do not have the $300 billion. We have to look for a better and more responsible way to deal with these cleanups. The waste needs to be stored somewhere. The President has indicated that Yucca Mountain is not one of the options for disposal of nuclear waste. I was disappointed to hear that. However, we must remember that Yucca Mountain remains the law of the land and that the administration does not have the ability to unilaterally terminate the project. In order to eliminate Yucca Mountain, Congress would have to amend the Nuclear Waste Policy Act, which set a deadline for the Federal Government to begin disposing of used fuel. However, more than a decade later, we still have not settled on a policy for how to accomplish this, and we have sunk nearly $10 billion into Yucca Mountain. That is a huge sum of money, even for the amounts we talk about today. Not to mention that it is the most studied geology on the planet. I do not think we should abandon this project simply because of political pressure. Regardless of what this administration says, we will continue to face the problem of nuclear waste management. We must have a successful plan to dispose of nuclear waste, whether it is through direct disposal or recycling. I believe we need to go forward with recycling and I have offered legislation to do just that. Either way, we are going to need a site, but if we recycle this waste, it would be less toxic. It would be radioactive for far fewer years than would be the case if it were not recycled and perhaps would then be more palatable to those who object to the site. Perhaps an answer, which to me makes sense, is to move the Nuclear Waste Fund off budget to a dedicated account so that the money will be used for what it was intended. Currently, it is being spent in other places and being replaced with an IOU. Why should utilities pay money into a fund when they are not getting any benefits that they were promised? It just lead us into liability and lawsuits, some of which are already being lost. I believe nuclear power has proven to be exceedingly safe in America. Not one American has lost their life operating a nuclear powerplant. The Three Mile Island situation, which caused so much fear and concern in America, did not result in even one person in the studies afterwards to have been sick. But the plants today, and the new ones we will build, will be even safer. They will be set up in such a way that even without power they would automatically shut themselves down through gravity flow into the reactor core. It is a new and safer design. They can be built in mass production quantities, resulting in lower costs per plant, and perfecting the technology and construction techniques that should result in reducing costs. It would allow the components to be produced in larger numbers, reducing costs, and help the Nuclear Regulatory Commission, because of the uniform nature of these plants, to regulate them even more effectively. Mr. President, I thank the Presiding Officer and would say again, nuclear power produces about 20 percent of our electricity today. It emits no CO2 or other global warming gases into the atmosphere. It is cost effective, it is all American, and it does not require us to expend large amounts of American wealth to foreign countries in order to maintain our energy supply. Nuclear power is the right thing to do, and I hope we will continue to work on it because I believe the country is ready to move in that direction. I thank the Chair and yield the floor. I suggest the absence of a quorum.

Mr. SESSIONS

Mr. SESSIONS. Madam President, tomorrow the Senate Judiciary Committee will vote on the nomination of Judge Sonia Sotomayor to serve as Associate Justice of the U.S. Supreme Court. I thank the nominee and the members of the committee, including our Democratic colleagues, and Chairman Leahy, for their efforts throughout the process. I appreciate Judge Sotomayor's kind words to us about how well the hearings went and her expression of gratitude for the kindness and respect she was shown. She is a good person with experience, the kind of experience one desires in a nominee, and her personal story is certainly inspiring. However, based on her record as a judge and her judicial philosophy, I have concluded that she should not be confirmed to our Nation's highest Court. While differences in style and background are to be welcomed on the Court, no one should sit on the Supreme Court, or any court, who is not committed to setting aside their personal opinions and biases when they render opinions and who is not committed faithfully to following the law, whether they like the law or not. Impartiality is the ideal of American law. Judges take an oath to pursue it, and the American people rightly expect it. Judge Sotomayor's speeches and extrajudicial writings represent dramatic expressions of an activist view of judging that is contrary to that ideal. Judge Sotomayor made speech after speech, year after year, setting forth a fully formed judicial philosophy that conflicts with the great American tradition of blind justice and fidelity to the law as written. These speeches also contradict the oath that judges take to ``do equal right to the poor and the rich'' and to do so ``impartially'' ``without respect to persons.'' Under the law, under the Constitution and laws of the United States, judges are subordinate to our Constitution and laws. This ideal is a high one indeed, and it requires a firm personal commitment to objective truth and a belief in the meaning of words. It has been suggested repeatedly that Judge Sotomayor's words and speeches are being taken out of context. I have read her speeches in their entirety. Her words are not taken out of context. In fact, when one reads the entire speeches, the context makes them worse, not better. My criticism also should not be considered as a personal attack on her as a person because there are a number of intellectuals, judges, and legal writers who believe in just such a new way of judging. It is quite fashionable among some--those who think they are more realistic than naive American citizens, judges, and lawyers who, they believe, delude themselves when they think a judge will or can find true facts and apply them fairly to the law as written. Most Americans and most Senators have heard about Judge Sotomayor's speeches, which are clearly outside the mainstream. She has repeatedly said, among other things, that judges must judge when ``opinions, sympathies and prejudices are appropriate.'' She accepts that who she is will ``affect the facts I choose to see as a judge.'' It is her belief that ``a Wise Latina woman, with the richness of her experiences, would more often than not reach a better conclusion than a white male.'' That there is ``no neutrality'' in judging, just a ``series of perspectives.'' She has also said the appellate courts are where policy is made. These matters have been discussed in some detail by my colleagues and at the hearing. Her testimony at the hearing was that these speeches do not reflect her philosophy of judging. It is hard for me to accept that her words, expressed over a decade in these speeches, do not reflect what she actually believes. Indeed, it is an odd position in which to find oneself to be at a hearing and say you don't believe what you have been saying over the years. But Judge Sotomayor has asked, and her supporters have asked, that we look at her judicial record which proves, she and her supporters say, she is unbiased, and shows that she does not allow personal politics and views to influence her decisions. They cite over 3,000 cases she has decided, most without controversy. They have gone to some length to discuss and defend the process by which she decides cases. Indeed, in her opening statement, Judge Sotomayor explained: ``[t]he process of judging is enhanced when the arguments and concerns of the parties to the litigation are understood and acknowledged.'' She did follow this style in many of the cases that came before her, going into detail and even being criticized by some in a Washington Post article for ``uncommon detail'' that risked ``overstepping'' the bounds of an appellate judge. But there is more to the story. Most cases before the courts of appeals are fact based and routine and do not raise the kind of serious constitutional issues that the Supreme Court hears and decides on a regular basis. I have reviewed carefully three cases--two decided in the last year, and one 3 years ago--that are the kinds of cases the Supreme Court deals with regularly. Unfortunately, Judge Sotomayor's handling of these cases was not good. They show, first of all, an apparent lack of recognition of the importance of the issues raised in these three cases. In each case, the decisions were extremely short and lacking any real legal analysis. These three cases also reached erroneous conclusions. They ignore the plain words of the Constitution, and they provide a direct look at how the nominee will decide many important cases that will come before the Court, if she is confirmed, in the decades to come. The case of Ricci v. DeStefano came to her three-judge panel of the U.S. Court of Appeals for the Second Circuit as an appeal by 18 firefighters. They had passed a promotion exam, but the exam had been thrown out by the city of New Haven because the city thought not enough of one group passed. The test was thrown out not because it was an unfair test. Indeed, the Supreme Court, when the case got there, found that ``there is no genuine dispute that the examinations were job- related and consistent with business necessity.'' Instead, the city threw out the test because the city did not like the racial results. Thus, the city discriminated against the firefighters who passed the exam because of their race. This case is a sensitive case, it is an important case, and we need to analyze it carefully. It is noteworthy because the court failed to adhere to the simple but plain words of the Constitution. In Ricci, Judge Sotomayor's opinion violated the plain constitutional command that no one shall be denied ``the equal protection of the laws'' because of their race. Additionally, the case is subject to criticism because of the manner in which it was handled. I want to talk about that a minute. Judge Sotomayor did not deal with this important constitutional issue--a very important constitutional issue--in a thorough, open, and honest way. Without justification and in violation of the rules of the Second Circuit, Judge Sotomayor and the panel initially dismissed the case by summary order; that is, without any published opinion, without even adopting the trial court's opinion. No opinion, no explanation. The effect of this summary order was to deal with the case in a way that would not require the opinion to be published or even circulated among the other judges on the circuit. This was not justifiable. The circuit court rule states that summary orders are only appropriate where a ``decision is unanimous and each judge of the panel believes that no jurisprudential purpose would be served by an opinion. . . .'' This is a huge constitutional question in this matter. If it were not, the Supreme Court would never have taken it up, and it almost slipped by. But by chance, other judges on the Second Circuit apparently found out about it through news accounts, apparently, and began to ask about this case that seemed to be of significant import. This resulted in a request by one of the judges--quite unusual when you are dealing with a simple summary order--to rehear the case before all of the circuit judges. It created a notable dustup. The result was a split court with half of the judges asking for a rehearing of the case, half against rehearing it, with the deciding vote not to hear the case, not to reconsider any of the precedent that may have existed, being cast by Judge Sotomayor herself. In effect, this was a vote to avoid the full and complete analysis this case cried out for from the beginning. It was only during this challenge that Judge Sotomayor's panel agreed to decide the case then by a per curium opinion, an unsigned opinion, which at least then adopted for the first time the lower court's opinion which, frankly, I don't think was a very fine opinion for this kind of important case. But that became the opinion she adopted. Still, the firefighters didn't give up hope. They then sought a review by the Supreme Court. Against long odds, the Supreme Court agreed to hear their plea. The Court found the ruling erroneous. They reversed the Sotomayor court's opinion and rendered a judgment in favor of the firefighters. They held that what the city of New Haven did, which Judge Sotomayor had approved, was simply wrong. At the Judiciary Committee hearing, firefighters Frank Ricci and Ben Vargas beautifully described what it meant for them to go from a summary dismissal in the Sotomayor court, to a summary judgment victory in the Supreme Court. Five years of personal cost, stress, and strain suffered by the firefighters were vindicated by an important victory for equal justice in the Supreme Court. But nothing can erase either the flawed result of Judge Sotomayor's panel decision or her panel's apparent attempt to sweep the case under the rug. Secondly, Judge Sotomayor's treatment of critically important second amendment issues that have come before her is equally troubling, for the same reasons. She simply got the text of the Constitution wrong and did so in such a cursory way that her actions seemed designed to hide the significance of the case and the significance of her ruling. Last year, in a case of great importance, the Supreme Court held in the Heller case that the second amendment, which protects the right of ``the people to keep and bear Arms,'' provides an individual right-- which I think it clearly does--and that, therefore, the Federal city of Washington, DC could not ban its residents from having a handgun in their homes for protection. In a footnote, the Supreme Court left open the question, not raised in the case, of whether the second amendment would bind the States. The question is simple and of fundamental importance to the second amendment: Does the Constitution bar States and cities from denying their residents the right of gun ownership? Pretty big question. Huge question. On January 28 of this year, in Maloney v. Cuomo, Judge Sotomayor issued an opinion on this very issue. And in this opinion, Judge Sotomayor again failed to follow the text of the Constitution. The Constitution is plain and simple on this issue: ``. . . the right of the people to keep and bear Arms, shall not be infringed.'' And when you are talking about the people, you are talking about the right not just as it is applied to the Federal Government, I would submit, but also to the States and cities. So the Sotomayor panel looked at this text and decided that a State or local government may infringe, even deny your right. Some argue that Judge Sotomayor was bound by precedent in her decision and there was old case law that her decision followed. But we have looked at this closely and tried to think it through. I would note that the situation the court found itself in shortly after the well- known, tremendously important Heller case had changed, and the Ninth Circuit panel, facing the very same issue, disagreed with Judge Sotomayor. It found that the second amendment does apply to the States. The Seventh Circuit, in a very thorough and carefully written opinion, and at its final conclusion, agreed with Judge Sotomayor's panel's decision, but it did so in such a way that it demonstrated its recognition of the importance of this right and the new situation created by the Supreme Court in Heller. This recognition was utterly lacking in Judge Sotomayor's very brief opinion. While it is argued that Judge Sotomayor relied on precedent, the precedent she cited was from the 1800s and does not use the modern test for incorporation that the Supreme Court employs in deciding whether rights apply to States, something that has been going on for nearly 100 years. Not only that, but even after the watershed decision by the Supreme Court in Heller, she held that it was ``settled law'' that the second amendment did not apply to the States and that the right to keep and bear arms is not a ``fundamental right.'' When these points were brought to the Judge's attention during the confirmation hearings, she declined to explain herself, claiming that she had not recently read the cases on which she so recently relied. This is not the level of analysis that the Judiciary Committee has the right to expect from a nominee to the U.S. Supreme Court. Make no mistake, the effect of this ruling, if not reversed, if it stands, will be to eviscerate the second amendment by allowing States and cities to ban all guns, as the District of Columbia had basically done before the Supreme Court reversed that in Heller. In simple terms, in a case of great constitutional importance, Judge Sotomayor, once again in an unjustifiably brief opinion, measured in mere paragraphs of analysis, gave short shrift to the plain words of the Constitution. I will say also that after the Supreme Court rendered its ruling in Heller, it had a footnote that said since this is a Federal cities case, we don't decide the application of the second amendment to the States. But in that footnote, the Court made it quite clear that the prior old cases were decided before it had adopted a different approach to incorporating constitutional rights against the States. It is pretty clear from that they have left this matter open. The judge on the Ninth Circuit found that the question was an open question after Heller. To say it is ``settled law'' that the second amendment does not apply to the States is not good, in my view. It is not settled law. I would certainly hope, and millions of Americans will be hoping, that the Supreme Court will not rewrite the Constitution; rather, they hope they will declare that the second amendment does apply to the States. Further, she said it was not a fundamental right. That was not a phrase used by the other two courts which considered this question, and it is gratuitous, in my opinion. The combination of saying it is not a fundamental right, which is important to the ultimate analysis, and her statement that it is ``settled law'' that the second amendment does not apply to the States indicates a lack of appreciation for the importance of the second amendment right and a hostility toward the second amendment. And similarly troubling were the judge's equivocations as to whether she would appropriately recuse herself from considering this issue that will surely come before her on the Supreme Court. She declined to commit to recusing herself if the Seventh or Ninth Circuit cases came to the Court, even though those cases raise exactly the same issue as the one she decided against gun rights. I would note also that even the Heller case--breathtaking to me--decided by a narrow vote of 5-4 that a right to keep and bear arms provided in the Constitution explicitly applies to bar the city of Washington, DC, from banning all firearms, basically. In addition to the firefighters case and the second amendment case, both of which involve important issues of constitutional law, Judge Sotomayor handled, in a similarly cursory manner, a very important private property rights case which some have called the most egregious property rights decision in this area since the Supreme Court's infamous decision in the Kelo case a few years ago. Just 3 years ago, after Kelo was decided, which caused quite a storm of controversy and a great deal of academic writing, Judge Sotomayor's court issued an opinion in which a private property owner found his property, on which he planned to build a CVS pharmacy, taken by condemnation by the city so that another private developer could build a Walgreen's on the same property. The way this condemnation came about should send chills down the spines of ordinary Americans, because the Walgreen developer, who was pursuing a redevelopment plan supported by the city, told the landowner that he could keep his land and build a CVS and they wouldn't condemn it. All he had to do was fork over $800,000 or half ownership in his business. I look at that and I can understand why the landowner thought he was being blackmailed. Judge Sotomayor looked at that and called it business as usual--a simple negotiation. But it is no negotiation when one party possesses the power through the city to take your property, whether you agree or not. In another curiously short 2-page opinion, Judge Sotomayor's court rejected the landowner's claims, holding that the courtroom doors were closed to the landowner because he had brought his claim too late. The logic was that the landowner had to bring his claim to court months before the extortion occurred. The effect was to violate the Constitution. The Constitution plainly states that property ``shall not be taken for public use without just compensation.'' The Supreme Court has been quite clear that means you can't take private property except for public use. At Judge Sotomayor's hearing, Professor Ilya Somin, who has written extensively on property matters, said this case was the most anti- property rights case since the infamous Kelo decision decided by a split Court a few years ago. Again, plain constitutional protections were ignored to the detriment of an individual American citizen who was standing up for his constitutional rights. So in three cases, contrary to the plain text of the Constitution, Judge Sotomayor has ruled against the individual and in favor of the State in the face of seemingly clear provisions of the Constitution, furthering what can be fairly said to be, in each case, a more liberal agenda in America. A liberal or a conservative political belief, a Republican or Democratic political belief does not disqualify someone from serving on the Supreme Court. What does disqualify is when a judge allows such beliefs or ideology or opinions to impact decisions that they make in cases. Anyone with more than a casual acquaintance with the law would instantly know that each of these three cases presented issues of great legal importance, and each deserved to be treated with great thoughtfulness. Judge Sotomayor surely understood that fact. Yet in each instance her decisions were unacceptably short. It seemed to me the only consistency in them was that the result favored a more liberal approach to government. So I have come to announce, regretfully, that I cannot support Judge Sotomayor's elevation to our highest Court. She also now sits in a lifetime appointment on the Nation's second highest court, the Court of Appeals. Her experience, however well rounded, and background, however inspirational, are not enough. What matters is her record on the bench and her stated judicial philosophy. I hope I am wrong, but my best judgment, my decision is that a Sotomayor vote on the Court--the Supreme Court--will be another vote for the new kind of ideological judging, not the kind of objectivity and restraint that have served our legal system in our Nation so well. Thus, I am unable to give my consent to this nomination. Madam President, I thank the Chair, and I yield the floor.

Mr. SESSIONS

Mr. SESSIONS. Mr. President, I want to make a few comments on the Defense bill that passed late last night. Senator Levin and Senator McCain did a very fine job in working through all the difficulties we faced and tried to put together a bill that would support our troops. Indeed, I was on a video conference this at noon with a group of Alabama National Guardsmen and their families, an MP company from Prattville, AL, that is undertaking its third deployment. The company was last deployed to Guantanamo and now they will be going to Iraq. We owe a great deal to these people who put their lives on the line for us. They leave their families and loved ones and go into harm's way to execute the policies that we have set. As a result, we must never forget what we owe them. I hope we never do. I think the bill we passed has some good things in it. Some are troubling to me. I did not speak last night, in the late evening, about section 1031 of the National Defense Authorization Act entitled ``Military Commissions and al-Qaida.'' It was an important little amendment and I want to share a few thoughts about it. What we discovered was in the Defense authorization bill, al-Qaida was removed from the unlawful enemy combatant definition. My amendment put that back into the bill. If you are a member of al-Qaida, you have earned the designation of an unlawful enemy combatant, or belligerent. We are now using the words unlawful enemy belligerent. Those individuals are people who operate outside the rules of warfare. They do not wear uniforms. They deliberately and systematically target women and children and innocents. They do not comply with the rule of law, the Geneva Conventions, and they, therefore, are not given the normal and full protections of the Geneva Conventions. A person who is at war with the United States, as al-Qaida has repeatedly announced that it is, who does their military activities without complying with the Geneva Conventions, deserves to be attacked. They deserve to be killed or captured by the U.S. military. If captured, they deserve either to be prosecuted or held until the hostilities are over. That is what the historic rules of warfare are, it is what we have always done, and we need not be confused in this war and start treating it as if it were some sort of criminal activity. Doing so would compromise our ability to be effective and place at greater risk those individuals whom we send in harm's way, such as the 217th Military Police troop from Prattville, AL, which is going to Iraq. We don't need to be confused about what this is. It is not a law enforcement operation. We also adopted an amendment last night that prohibited the intelligence communities of the United States, our agencies or our military, from giving Miranda warnings to people captured on the battlefield. Giving Miranda warnings to unlawful enemy combatants is unthinkable. It is a confusing thing. What you are basically telling these people that we capture is: Don't talk, we will give you a lawyer. In fact, some of the NGOs, were telling Americans not to talk to them and ask for lawyers, because we were beginning to give Miranda warnings. The premise of this amendment is not an overreach. It is consistent with our law. Make no mistake, al-Qaida has announced it is and continues to be at war with the United States. We are at war with them. We cannot mince words. We cannot lead the world to believe that we have softened our resolve to defeat this enemy that threatens us. According to a CNN report from July 15, 2009, al Zawahiri, bin Laden's deputy, called on Muslims to join in a jihad against the United States. I wish that were not so but that is what it is. Last week a terrorist group affiliated with al-Qaida targeted two American-owned hotels in Jakarta, Indonesia. On July 21, just a few days ago, a Wall Street Journal article pointed out last week's hotel bombings were not some isolated event: In the 19 months leading up to the Jakarta attacks, Islamic terrorists have brought their holy war to upscale properties in Kabul, Afghanistan; Islamabad, Pakistan; Mumbai, India; and Peshawar, Pakistan. The casualties thus far number 116 people killed and hundreds more injured. I ask my colleagues, in the middle of the war against al-Qaida, is it wise to remove al-Qaida from the definition of unlawful enemy combatant, or even the new form ``unprivileged enemy belligerent''? That is the new word we are using and perhaps it is all right. I don't know why we changed. But we have to be careful the words we use. Can anyone imagine the Congress removing ``Nazi'' from the wartime definitions in the middle of the Second World War? What do we hope to achieve by taking al-Qaida's name out? Fortunately, last night it was put back in. But what would have been achieved by removing their name from that list of organizations against which we are at war? The original Military Commissions Act passed in 2006 made it clear that the unlawful enemy combatant definition covered hostile groups ``including a person who is part of . . . al-Qaida, or associated forces.'' Let's be clear about what removing al-Qaida from the definition would have meant in the legal proceedings related to detainees. It will cloud them under uncertainty and ambiguity. Judges, whether military or civilian, will have to second guess whether al-Qaida members are truly eligible to be held as enemy combatants. This is not an unjustified concern. Let me tell you about one case where a Federal judge questioned whether an al-Qaida member who fought in the jihad could still be held as an enemy combatant. On April 15 of this year, Judge Huvelle of the U.S. District Court for the District of Columbia granted the habeas corpus petition of Yasin Muhammed Basardh, over the objections of the Obama administration. Habeas corpus petition is a right of a person in the United States who is held by the Government to ask why they are being held. It is referred to in the Constitution. Many of my colleagues have said you are denying these prisoners habeas corpus petitions--denying them, taking away something to which they are entitled. I would point out that is not correct. Nobody ever understood habeas corpus, as referred to at the founding of our Republic, as something applied to people captured in war against the United States. That was never what it meant. It is only a most recent incorrect definition of habeas that applied it to people who are trying to kill Americans and are at war against Americans. Some of the courts are confused on this, in my view. Congress has been a bit confused about it also. But Judge Huvelle, unwisely, I think, concluded that the United States could no longer hold Mr. Basardh because he no longer posed a realistic risk of joining the enemy--in his opinion. Judge Huvelle is not involved in the war. He is sitting safe and comfortable here in the District of Columbia. The execution of a war is placed in the hands of the men and women in the military to protect our country, whose lives are on the line. So this judge reached this conclusion because Basardh was cooperative while in custody at Guantanamo Bay. In her decision in 2009, Judge Huvelle failed to mention the many salient facts that showed why the Obama administration and the Bush administration before it opposed this man's release. According to unclassified Administrative Review Board records, Basardh was closely associated with al-Qaida, and directly linked to Osama bin Laden. He admitted to: No. 1, traveling from Yemen to Afghanistan to join the jihad, saying, ``Yes, I did go to Afghanistan for the Jihad.'' No. 2, training at the al-Qaida-run al Farouq camp near Kandahar in Afghanistan; No. 3, staying at Osama bin Laden's house in Kabul when the U.S. bombing began. ``It was Osama bin Laden's private house,'' he said. No. 4, meeting with bin Laden himself on numerous occasions. No. 5, responding to Osama bin Laden's call for all fighters to retreat and assemble at Tora Bora and, No. 6, being in the cave with Osama bin Laden at Tora Bora. If Federal courts are going to second guess the military on cases like Basardh under the current Military Commissions Act, Congress certainly should not weaken this act any more and give them any more ability to undermine our efforts. To the contrary, Congress should be crystal clear that membership in al-Qaida qualifies a detainee for unprivileged enemy belligerent status. My amendment removed any doubt over the detention of anyone who is a member of al-Qaida or served in its aid. My amendment will make clear that cases like this should not happen again. Simply put, if you are a member of al-Qaida you are going to be detained and held until the war is over, in the same way Nazi army prisoners of war treated during World War II. I urge my colleagues to think about this, to make sure we are fully cognizant of the dangers our country faces, and retain this language that was initially omitted, keeping al-Qaida by name as a group which we are at war against. It is important that doesn't get removed by the conference committee. I am going to be watching. I think it is a big deal. Oftentimes when the conference committee meets, they make substantive changes in the bill. Following conference, it will come back to the floor, and at that time we will be unable to amend it. I am going to watch. I think the American people need to know we are not confused in our thinking. We know against whom we are at war and we are committed to this effort and we are supporting our fabulous men and women who place their lives at risk for us. We must not undermine their efforts by creating circumstances in which Federal judges can treat military captives as ordinary criminals with all the rights pertaining thereto. I yield the floor.

Mr. SESSIONS

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

Mr. SESSIONS

Mr. SESSIONS. I know my colleague has given more time and effort to studying the sickness that is affecting our Congress with regard to how we spend money than anyone in this body, and he has taken a lot of heat for standing up and raising these issues. I salute him for it. But the amendment that is before us, it seems to me, is absolutely typical of how out of step Congress is. This may be a swell amendment for whoever benefits from it, but the people who are paying for it are not aware that the money they have earned from the sweat of their brow is now going to somebody who got a better health care plan, a better retirement plan and higher pay than they get, and more job security than they get. In my home county, the unemployment rate is over 20 percent. Then we have people with so much better jobs wanting more money. This is what, a $2 billion amendment? I would ask you, is this not sort of a pretty egregious example of the tendency we have to try to reward one group and ignore the cost that everybody else is going to have to pay?

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

Mr. SESSIONS. Mr. President, I wish to join my colleague, Senator Lieberman, in introducing amendment No. 1744, concerning the deployment of missile defenses in Europe, and also thank him for his leadership on this issue over many years. He is clearly one of the most effective spokesmen for clear and strategic thinking and has helped us for many years to establish good defense policy for our Nation. As Senator Lieberman has explained, this amendment would state it is the sense of the Congress that the administration should continue to develop the planned missile defense deployment through Poland and the Czech Republic, even as it considers other alternatives. Further, it would state that any alternative to the current plan must be as effective and affordable, and, most important, must be able to defend the United States as well as Europe against long-range ballistic missiles. This amendment is important at this time because the administration is now considering alternatives to the plan long pursued by the Bush administration to station ground-based interceptors in Poland, a missile-tracking radar system in the Czech Republic. Both Poland and the Czech Republic have signed agreements to host these missile defense assets after being told by the United States that we believed the plan is important to protect Europe and the United States from rogue states, more specifically, Iran's developing missile capability. After much effort and political capital has been expended, both in the United States and by our Polish and Czech Republic allies and friends, now the project has been put in somewhat of a limbo, I am afraid. Russia and the domestic left opposed this plan from the beginning. They lobbied the people and members of Congress in Poland and the Czech Republic to not do it. But they have gone forward with it today. If the objections of the United States to this system arise from Czech reasons, then I would refer my colleagues to a February 2009 CBO study Senator Lieberman cited, ``Options for Deploying Missile Defense in Europe,'' which came to the conclusion that a ground-based interceptor deployment in Poland and the Czech Republic is the most effective and affordable option available for the foreseeable future. The CBO concluded: ``This is the most effective and affordable option for the foreseeable future.'' Other options apparently now under consideration include the deployment of a land- or sea-based version of the Standard Missile 3, SM-3 which is now deployed on Aegis ships of the United States. The CBO found that this option, the SM-3, will not available until late in the next decade, is no less expensive than the GBI option and does not provide protection for the United States against long-range Iranian missiles. In other words, while the deployment of a land- or sea-based version of SM-3 may be suitable to protect Europe against medium- and intermediate-range missile threats, it would not contribute to the defense of the United States which could occur from the launch of an ICBM, an intercontinental ballistic missile, which would travel at a much higher altitude. Likewise, Admiral Stavridis, the new commander of the U.S. European Command, testified before the Senate Armed Services Committee during a hearing last month: Sea-based and transportable land-based assets are integral components of a comprehensive ballistic missile defense system but cannot defeat the entire range of threats by themselves. Sophisticated sensors are required for early acquisition and target determination, and ground-based interceptors are needed to defeat longer-range missiles. The missile Iran seeks to develop, and is moving forward to develop, would be capable of hitting the United States. Now they are seeking to develop ICBMs, and they are actively pursuing nuclear weapons, as we all know. Why, I would ask my colleagues, would we want to consider alternatives to the proposed GBI deployment in Europe that would not save any money and would not provide additional protection for the United States? I would recall the comments former Secretary of State Henry Kissinger made a few years ago about missile defense and whether we should deploy. His comment was: I have never heard of a nation whose policy it is to keep itself vulnerable to attack. Well, we do not need to be kept vulnerable to attack. We have the capability to defend ourselves and protect against incoming missiles. Some have suggested that such additional protection is not needed, that current ground-based interceptors deployed at our missile defense site in Fort Greely, AK, can provide complete protection for the United States against Iranian threats. But that argument does not tell the complete story. The truth is, deploying GBIs in Europe would provide an early opportunity to intercept Iranian missiles headed to the east coast, which could then be followed by an intercept attempt by Alaska, providing the United States an extra layer of protection. Just 10 missiles could provide a great additional protection for the United States. That is what is needed, an integrated, layered, ballistic missile defense shield that effectively protects America and her allies from rogue attack. Most Americans think we are adequately protected. I do remember a townhall meeting I held, and I asked the people there: What would happen if a missile was launched at the United States? They said: We would shoot it down. Well, that was before our system was up and running in Alaska, and it was not accurate. People think we do have a fully operational system, but we only have a few of those missiles up in Alaska, and we need this additional shield in Europe. Without the site in Poland, the United States would have only one opportunity to engage Iranian missiles headed for certain portions of our country. Why should we take that risk? Although the search for alternatives may please the Russians, it would perversely send the wrong message to our NATO allies and, in particular, to our friends in Poland and the Czech Republic who, despite pressure and threats from Russia, have agreed and stood firm and expressed their willingness to host these missile defense assets on their territory. I would remind my colleague that NATO, the North Atlantic Treaty Organization, the most successful defense treaty in the history of the world, endorsed the current plan at the April 2008 Bucharest Summit and noted in their declaration: We therefore recognize the substantial contribution to the protection of Allies from long-range ballistic missiles to be provided by the planned deployment of European-based United States missile defense assets. I also understand the Polish and Czech Parliaments have yet to ratify the agreements, and the ambivalence presented by the Obama Administration now regarding what was a firm policy of the United States, means, frankly, it is unlikely they will do so until our administration completes its consideration of alternatives. This has placed our situation in limbo. I am not happy with that. I think it was a mistake. After all, why should those parliaments take up an agreement that the United States may pull off the table? This unfortunate event was obvious from the beginning when we backed away from our plan and started showing uncertainty. It is obvious the political support in Central Europe may erode. I am left to conclude that the reason the administration is pursuing alternatives in this current plan is its hopes it will address Russian objections about the proposed deployment as part of a grand strategy to reset relations with Russia and conclude a follow-on to the START nuclear reduction agreement. I am not confident in this effort. In fact, it seems to, instead of moving our relations forward, have moved them backward. Let me make note of some recent events. Just days after the United States and Russia reached a broader agreement on arms reductions and missile defense cooperation at the July 6 Moscow summit, Reuters News Agency reported, on July 10, 4 days later, that Russian President Medvedev threatened the United States that if it did not reach agreement with Russia on our joint NATO/Polish/Czech plans for missile defense systems, Moscow would deploy rockets in an enclave near Poland. Typical Russian bluster, threat. Likewise, Russian Foreign Minister Sergey Lavrov has threatened to end arms control talks with the United States if we pursue cooperation with our allies on missile defense, a system that in no way threatens Russia's massive nuclear capability, and they know it. Ten interceptors of the United States in Europe are going to somehow have a capability to stop the thousands of Russian missiles and nuclear weapons that they have? Russia knows that our defenses would be no match. As reported by the Associated Press, just 1 day after the summit, Lavrov stated: If our partners make a decision to create an American missile defense system with global reach, then that will doubtless place a big question mark over the prospects for further reduction in strategic offensive weapons. Again, this is, unfortunately, a regressive approach by Russia on issues that I do not think is justified. It seems we are falling back into a darker approach to world affairs with threats instead of working together to build a more peaceful and prosperous, harmonious world. If, in fact, there were technical arguments in favor of alternative deployments, which there are not, Russian belligerence would now indeed be an argument for proceeding, nevertheless. The former Prime Minister of the Czech Republic, Mirek Topolanek, put the issue in its proper perspective when he stated: The moral challenge is clear and simple: If we are not willing to accept in the interests of the defense of the Euro-Atlantic area such a trifle as the elements of a missile defense system, then how shall we be able to face more difficult challenges that may come? That is an important statement. Are we losing confidence in ourselves? He is not alone in that view. Just last week, 22 prominent Eastern European political figures of important historic importance, including Poland's Lech Walesa and the Czech Republic's Vaclav Havel, published an open letter to President Obama expressing their uneasiness over U.S. maneuvers with Russia. This letter was sent to address their concerns in light of what appears to them to be Russia's attempt to reassert its influence over Russia's former Eastern European satellites. These are independent nations. They have been freed from Soviet domination. It is not their desire to kowtow to Russia and to have to seek Russia's permission over whether to put a radar site in their country. They are sovereign nations. These leaders noted in their letter that America's planned missile defense installations in Poland and the Czech Republic have become ``a symbol of America's credibility and commitment in the region.'' They further warned that: The Alliance should not allow the issue to be determined by unfounded Russian opposition. Abandoning the program entirely or involving Russia too deeply in it without consulting Poland or the Czech Republic can undermine the credibility of the United States across the whole region. I don't think that is no small matter. These are historic figures in Eastern Europe who suffered under the Communist boot. They do not want to go back. They are sending us a message. They are great American allies. They believe in freedom and democracy. This is not an academic matter to them, it is very real. I ask unanimous consent to have this letter printed in the Record at the conclusion of my remarks.