Jeff Sessions

Mr. SESSIONS

Mr. SESSIONS. Mr. President, on behalf of several Senators, I object to the distinguished Senator's request. I respect him, but there is an objection on this side.

Mr. SESSIONS. Mr. President, I have no objection to the second-degree amendment offered by the chairman of the Judiciary Committee.

Mr. SESSIONS. Reserving the right to object, I am not familiar with the amendment.

Mr. SESSIONS

Mr. SESSIONS. Madam President, I ask unanimous consent for 1 additional minute.

Mr. SESSIONS. Madam President, I express my appreciation to the Senator from Tennessee for his insightful comments. Indeed, it is a tangled web we create when we first start to regulate. It is a tangled web, too, when we start owning automobile companies which we know nothing about. Madam President, we are looking forward to next week and working as hard as we can to ensure that we have a very fine confirmation hearing in the Judiciary Committee for the judge nominated to be a Justice of the Supreme Court by President Obama, Judge Sotomayor. I will share a few thoughts about that and some matters that I think are important for my colleagues to think about as they study this issue and work to do the right thing about it. The President's nominee is, of course, his nominee, and it is our responsibility--and the only opportunity the American people have to know anything about this process is the hearing in which the nominee has to answer questions and respond. Senators will make comments and ask questions. When we elevate one of our citizens to a Federal judgeship, we give them an awesome responsibility, and particularly so when elevated to the Supreme Court. They are the final word on our Constitution, how the Constitution and our laws are to be interpreted. Some judges, I have to say, have not been faithful in their responsibilities. They have allowed personal views and values to impact them, in my view. We ask them as judges to take on a different role than they have in private practice. We ask them to shed their personal beliefs, their personal bias and, yes, their personal experiences. We ask them to take an oath to impartial justice. Our wonderful judicial system--the greatest the world has ever seen-- rests upon this first principle. It is an adversarial system that is designed to produce, through cross-examination and other rules and procedures, truth--objective truth. The American legal system is founded on a belief in objective truth and its ascertainability. This is a key to justice. But in this postmodern world, our law schools and some intellectuals tend to be of a view that words don't really have meaning; words are just matters some politically powerful group got passed one day, and they don't have concrete meanings and you don't have to try to ascertain what they meant. And, indeed, a good theory of law is to allow the judge to update it, change it, or adopt how they would like it to be. I suggest this is not a healthy trend in America. It impacts this Nation across the board in so many ways. But I think it is particularly pernicious, when it comes to the law, if that kind of relativistic mentality takes over. This notion of blind justice, objectivity, and impartiality has been in our legal system from the beginning, and it should not be eroded. Every judge takes this oath. I think it sums up so well the ideals of the fabulous system we have. A judge takes this oath: I do solemnly swear that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me under the Constitution and laws of the United States, so help me God. Well, I guess the Court hasn't gotten around to striking their oath yet--at least that part that says ``so help me God.'' Those phrases have certainly been attacked around the country by Federal judges, in many instances. This oath--I have to say this--stands in contrast to the President's standard for judicial nominees. I am concerned, based on her speeches and statements, that it may also be the judicial philosophy of Judge Sotomayor. In 2005, then-Senator Obama explained that 5 percent of cases, he believes, are determined by ``one's deepest values and core concerns . . . and the depth and breadth of one's empathy.'' He means a judge's personal core concerns, values, and empathy. Well, according to the President, in 5 percent of the cases where issues are close, that is acceptable. I think we must draw from his statement that it is acceptable for judges to not set aside their personal beliefs, not discard personal bias, not dispense with their personal experiences as they make rulings, as they decide cases, which is what judges do. According to the President, in 5 percent of cases, Lady Justice should remove her blindfold, take a look at the litigants, and then reach out and place her thumb on the scales of justice on one side or the other. I think this is a dangerous departure from the most fundamental pillar of our judicial system--judicial impartiality. That is why judges are given lifetime appointments. They are supposed to be unbiased and impartial. Whatever this new empathy standard is, it is not law. It is more akin to politics than law. Whenever a judge puts his or her thumb on the scale of justice in favor of one party or another, the judge necessarily disfavors the other party. For every litigant who benefits from this so-called empathy, there will be another litigant who loses not because of the law or the facts, but because the judge did not empathize or identify with them. What is empathy? Is this your personal feeling that you had a tough childhood or some prejudice that you have--you are a Protestant or a Catholic or your ethnicity or your race or some bias you brought with you to life and to the court? Is that what empathy is? Well, it has no objective meaning, and that is why it is not a legal standard. The oath of ``impartiality'' to ``equal justice to the rich and the poor alike'' is violated when such things infect the decisionmaking process. With this as his stated standard, the President nominated Judge Sonia Sotomayor for the Supreme Court of the United States. Thus far our review of her record suggests that she may well embrace the President's notion of empathy, and I will share a few thoughts on that. On a number of occasions over the years, Judge Sotomayor delivered a speech entitled ``Women in the Judiciary.'' In it she emphasizes that she accepts the proposition that a judge's personal experiences affect judicial outcomes: In short, I accept the proposition that a difference will be made by the presence of women on the bench and that my experiences will affect the facts that I choose to see as a judge. In fact, in one speech, she rejected another woman judge's view that a woman and a man should reach the same decision in a case. She explicitly rejected that concept. She reaffirms: I simply do not know exactly what that difference will be in my judging, but I accept there will be some [differences] based on my gender and the experiences it has imposed on me. I think this would tend to be a rejection of even the aspiration, the ideal, of impartiality that is fundamental to our legal system and our freedoms. In a later speech, Judge Sotomayor takes a giant step, expressing a desire to draw upon her experiences in her judging. She states: Personal experiences affect the facts judges choose to see. My hope is that I will take the good from my experiences and extrapolate them further into areas with which I am unfamiliar. I simply do not know exactly what that difference will be in my judging. But I accept that there will be some based on my gender and my Latina heritage. Well, are the days now gone when judges should see their taking office as a commitment to set aside their personal experiences, biases, and views when they put on the robe? Gone are the days when judges even aspire to be impartial. In that same speech, which has been given a number of times, Judge Sotomayor goes a step further, saying: I willingly accept that we who judge must not deny the differences resulting from experience and heritage, but attempt continuously to judge when those opinions, sympathies and prejudices are appropriate. She says a judge should attempt continuously to judge when those opinions, sympathies, and prejudices are appropriate. That means that a judge's prejudices are appropriate to use in the decisionmaking process. I find this to be an extraordinary judicial philosophy. Some might say you are making too much of it, that empathy sounds fine to me; I don't have any problem with that. Empathy is great, perhaps, if you are the beneficiary of it. The judge is empathetic with you, your side of the argument, but it is not good if you are on the wrong side of the argument, if you don't catch a judge's fancy or fail to appeal to a shared personal experience. This approach to judging, as expressed in her speeches and writings, appears to have played an important part in the New Haven firefighters' case Senator McConnell mentioned earlier. These are the 17 firefighters who followed all the rules, studied for the test. It was publicly set out how the promotions would take place in that department. A number of people passed, but a number of people did not, and there were a number of minorities who did not pass. They wanted to change the test after it had been carried out, to change the rules of the game after it had been carried out because they did not like the results. This is a results- oriented question. Bowing to political pressure, the city government looked only at the test results and the statistical data and changed the rules of the game. They threw out the test. This was challenged by the persons who passed. The district judge then agreed with the city in a 48-or-so-page opinion. It was appealed to Judge Sotomayor's court. In one paragraph only, she agreed with that decision, even though it raised fundamental, important constitutional questions, important questions. She concluded that the complaining firefighters were not even entitled to a trial, that the pretrial motions were sufficient to deny them the remedy they sought and to affirm the city's opinion in one paragraph. The U.S. Supreme Court disagreed. They wrote almost 100 pages in their opinion, and all nine Justices voted to reverse the opinion. It was not 5 to 4. Five of the Justices, the majority, ruled that based on the facts in evidence that had been presented prior to trial, the firefighters were entitled to total victory and be able to win their lawsuit. This is a pretty significant reversal, I have to say. The question is: Did she allow her prior experiences and beliefs to impact her decision in that case? I point out that she was an active member of the Puerto Rican Legal Defense Fund, where she spent a number of years working on cases such as this and filing litigation and challenging promotion policies in cities around the country, which is a legitimate thing for a group to do. But they did take a very aggressive standard criticizing tests and the standardized process of testing. Of course, her stated philosophy is that a judge should use life experiences in reaching decisions. We do know she believes a judge is empowered to utilize his or her personal ``opinions, sympathies, and prejudices'' in deciding cases. We do know her particular life experiences with the Legal Defense Fund were contrary to the claims brought by the New Haven firefighters. We know she was a leader and board member and chair of that organization's litigation committee. According to the New York Times, she ``met frequently with the legal staff of the organization to review the status of cases.'' According to the New York Times, ``she was involved and was an ardent supporter of their various legal efforts.'' She oversaw, as a board member and litigation chair, several cases involving the New York City Department of Sanitation, which challenged a promotion policy because Hispanics comprised 5.2 percent of the test takers but only 3.8 percent had passed the test. They declared that was an unfair result and challenged the test. Another involved the New York City Police Department on behalf of the Hispanic Police Society. Another one involved police officers in a discrimination case challenging the New York Police Department's lieutenants exam, claiming that exam was biased. Under her leadership, the Puerto Rican Legal Defense Fund, before she became a judge, involved itself in a series of cases designed to attack promotion exams because the group concluded that after the fact, after the test, not enough minorities were being promoted. It sounds a lot like this firefighters case we talked a good bit about so far. We are left to wonder what role did the judge's personal experiences play when she heard the case. Did her personal views, as she has stated, ``affect the facts she chose to see?''

Mr. SESSIONS. Madam President, those are important questions, and we will ask about them and give her full and ample opportunity to respond. I did wish to raise these issues. The firefighters were denied promotion, and under her stated philosophy, her prior background, they are left to wonder: Was perhaps the reason they lost in her court because she brought her background and her prejudices to bear on the case and did not give them a fair chance? Very few cases are taken by the Supreme Court, but the Supreme Court did take this one, to the benefit of the firefighters, and reversed this decision. All nine Justices concluded the decision was improperly done and should be reversed, and five of them rendered a verdict in favor of the firefighters on the record as existed then. I yield the floor.

Mr. SESSIONS

Mr. SESSIONS. Madam President, how much time is left?

Mr. SESSIONS

Mr. SESSIONS. This is an amendment to make permanent the E-Verify system that is supported by Secretary of Homeland Security Napolitano and would require that all governmental contractors who do work for the Federal Government use it before they hire people to ensure that the individuals they hire are Americans and not illegally in the country. At a time when our unemployment rate is now 9.5 percent, this is more important now than ever. I yield the floor.

Mr. SESSIONS. Madam President, I ask unanimous consent that the reading of the amendment be dispensed with.

Mr. SESSIONS. Madam President, I have an amendment at the desk, No. 1371, and would ask for its immediate consideration.

Mr. SESSIONS

Mr. SESSIONS. Madam President, I offered an amendment to the Homeland Security legislation that is before us which would make that system permanent, and make its use mandatory for contractors that do business with the U.S. Government. Essentially, employers all over America are accessing the E-Verify online system that allows them to have an instant check to determine whether the person who has applied for employment with them is legally in the country. They simply check their Social Security number and other data against the Social Security Administration and Department of Homeland Security databases. When the system determines a person is not here legally, employers don't hire them. Over 96 percent of the people are cleared automatically when a business checks. Of the remaining 3.9 percent of queries with an initial mismatch, only .37 percent of those were later determined to be work authorized. A certain percent of applicants are found to be here illegally, and they should not get a job or any taxpayers' money from a part of the stimulus package. Stimulus funds were set aside to help us reduce our unemployment rate in this country and to hire American workers. The prospect of jobs should not be a magnet to draw more illegal workers into the country. The first thing you do, if you have an immigration problem, is stop rewarding those who break the law. One of the things you do not do is reward people who come illegally with jobs. You do not have to arrest them or do anything unkind. You simply do not hire them, especially with taxpayers' money that is designed to create American jobs. This has been a matter we have talked about for some time. It is very important in this time of economic slowdown because the Bureau of Labor Statistics reported that the unemployment rate for June, just a week or so ago, had jumped to 9.5 percent, 467,000 jobs lost, the highest unemployment rate in 25 years. We have massive job losses. A lot of good people are out of work, they need work and are willing to work. E-Verify is not a perfect system. People can find ways beat it, no doubt, but it actually works. One study by the Heritage Foundation concluded that as much as 13 percent of the jobs created under the stimulus plan would go to people illegally in the country the way we were operating. By utilizing the E-Verify system, I have no doubt we could drop that percentage dramatically. I am very concerned about it. I am a bit baffled by the difficulty we have had in moving forward with this amendment. I will say that two bits of progress--small progress, I know--have occurred. The House Homeland Security appropriations bill for fiscal year 2010 has come over to the Senate, and it includes a 2-year extension of E-Verify. That is better than letting it expire. In addition, the Senate version of the bill includes a generous 3-year extension of this proven system. I have to say that is OK, but neither bill has any language that would make this system permanent. It leaves it on very shaky ground, making businesses that might voluntarily want to utilize it wonder if it really is the policy of our country to use it. Madam President, over 1,000 businesses a week are now voluntarily signing up to use the system. Failing to make the system permanent also raises questions about the sincerity of our commitment. More significantly, neither one of the bills has any language that says that government contractors, people who are doing work for the U.S. Government, paid for by us, the taxpayers, must use this system. I ask, Why not? What possible, justifiable, rational reason can we give to pass legislation designed to help deal with this recession, to try to create American jobs and not make sure federal contractors only hire lawful workers? What basis could we utilize to say that those contractors should not at least take about 2 minutes--that is about all it takes to punch in a Social Security number into the system--to see whether a person applying for a job is legally in the country. There is a long history on this amendment. For some reason, interest groups have been lobbying against permanent authorization and mandating use of E-Verify by federal contractors. Certain business groups oppose this amendment. It scares them. Why? I suggest there is only one logical conclusion: They like the idea of hiring illegal workers. But how can we as Members of the Senate representing the American taxpayers possibly justify using their money that is designed to create jobs for American citizens to hire people who are here illegally, creating an even greater magnet to attract more people to come into our country illegally? I have offered this amendment to the appropriations bill to ensure this successful program be made permanent. And, of course, any time in the future if it ceases to be practical, we could end it. But this amendment would make it permanent, sending a signal--that is part of what we want to do--and it would also be mandatory for government contractors. If a Federal contractor gets a contract to do work, at least they ought to determine whether a worker is legally in the country before they hire them. I don't think that is too much to ask, and I cannot imagine why anyone would oppose it. But I understand, once again, we are going to have objections. It is working, and Department of Homeland Security Secretary Janet Napolitano recently said this in response to a question I asked: The administration---- She is talking about the Obama administration-- strongly supports E-Verify as a cornerstone of work site enforcement and will work to continue to improve the program to ensure it is the best tool to prevent and deter the hiring of persons who are not authorized to work in the United States. I think that is a pretty good affirmation of it. In fact, that has been a known reality for years. We have known this system has worked for years, but we have had people say: Oh, it is a bureaucratic nightmare. Why do businesses voluntarily sign up to use it, then? They say some people might be held up in employment. Under the bill, if something in the system raises questions about your employability, the person can still be hired while the problem is worked out. What we found is that 96 percent of the people are cleared immediately and only a very small number have turned out to have some sort of mistake in their situation. It is just not a practical objection, in my view. I understand that some are claiming--my colleagues on the other side of the aisle--that it looks as if Secretary Napolitano will announce something with regard to federal contractors soon, maybe even tomorrow. That would be good. It would be a Presidential directive that could, in the short run, solve this problem. But we have heard that talk before. President Bush finally, after being subjected to some criticism about this, issued Executive Order 12989 last June. That order mandated the use of the E-Verify system for Federal contractors and subcontractors and was supposed to take effect in January of this year. President Obama came in, as he has the power to do, and he delayed implementation of the order. Indeed, we have had four delays to date in implementing this Executive Order. The first was when President Obama said that the January 28 date was not appropriate. He put it off to February 20 and said that on February 20, businesses that get government contracts have to use the system. Then a few weeks later, the implementation was pushed back to May 21. Before May 21 got here, they pushed it back to June 30. A few weeks ago, we heard it would not be implemented until some time in September. And now we are hearing that they may implement it soon. E-Verify is certainly one of the most effective tools we have, as the Secretary herself has stated. Why are we not moving forward with making it permanent, I ask. I ask Members of Congress in the House and in the Senate, why don't we play a role in this? Why leave it totally up to the President, who is subjected to all kinds of political and corporate lobbying to not do this program? Why don't we as a Senate just pass it, as we do so many other things, and make it law? If Secretary Napolitano plans to do this in the future, it wouldn't conflict with anything she planned to do. If they were not going to do it, it would be mandated and it would come into effect. We have to be aware that we have had a lot of obstacles before with the implementation with this system and it has not gone forward in an effective way. I don't think we should wait any longer. Jobs are being lost every single day. They are being lost in significant numbers to people illegally in our country. T.J. Bonner, the head of the Border Patrol Union, told us most passionately at a Judiciary Committee hearing a number of years ago that jobs are the magnet. If you can stop the magnet, the number of people they have to deal with at the border can be reduced. It sends a signal that the days of open borders and the ability to get a job even if you are illegally here are past. That is the way you do things and make it work. It is all part of a plan to send a message to the world that we are not open for illegality. Under E-Verify nobody is arrested, nobody is captured and taken to be deported. We just simply are taking a reasonable step to reduce the magnet of jobs from taxpayers' money, not private businesses, just government businesses and government contractors. The Federal Government uses it today in its hiring process. I was surprised to hear one of my Democratic colleagues asking that we not support this amendment, saying that we should have a biometric employment identification database and that he cannot support E-Verify because it is not strong enough. That was a remarkable thing. Anyone who has studied the history of this program has good reason to wonder about the sincerity of people who object because E-Verify is not tough enough. The reason people are objecting is because it works. That is why the immigrant advocacy groups and the business crowd object to it. That is why. There may be better systems, but this one has been up and running for some time and been incredibly successful. It was contended that I.D. thieves can defeat the system. I suspect that is so. But does that mean the system has to be perfect before we use it? That argument ignores the fact that this bill appropriates a significant amount of extra funds to assist the Department of Homeland Security's continuing effort to reinforce the system's antifraud protections. We have money in this legislation to try to eliminate the ability of people to defeat the system by fraud. I don't think the argument can rationally be made that extending it would be ``a waste of taxpayers' money.'' We already have the system up and running. In reality, it is not going to cost any more money to have people use it. The system is up and working. I guess if people want to use that as an excuse to vote against the amendment, they can, but it makes little sense to me. I would like to see an enhanced biometric system. It is absolutely something that can work. We need to do that. There are a lot of things we can do this very day, but you have to admit, if we cannot get the votes to just maintain the E-Verify system, it looks as if we may have even more difficulties with an advanced system. I won't go on at length about this anymore. We have debated it before. Earlier this year on the stimulus bill, I offered an amendment to make E-Verify apply to the stimulus bill and the people who got government contracts would have to use it. The House put that in their bill. I kept getting objection from the Democratic leadership to my amendment. I couldn't understand why. And then I began to think about it, and it dawned on me what was happening. If my amendment were to pass and the language was in the House bill, unless real skullduggery were to occur, that language should be in the final bill. But if they could keep the language out of the Senate bill, even though the House had put the language in their bill by an overwhelming vote, they could take it out in conference when they meet in secret to deal with the conflicts between the House bill and the Senate bill. So I brought it up three or four times, and every time I tried to get a vote, it was blocked. Then, finally, the bill passed without my amendment having passed. And do you know what happened? When they met in secret, in conference, the House leadership--the Speaker and her team--receded to the Senate bill, agreed to eliminate their language, and therefore the language wasn't in the bill. And what happened politically? All the House Members, Republicans and Democrats, could say: I voted for E-Verify. And the Senate Members, when hearing complaints, could say: Well, I would have voted for it if it had come up. It just never came up. See, this was the plan all along. I just have to tell you what the truth is and how this happened and what is at work out there. So I hope Secretary Napolitano will do what she can do and the President will do what he can do and order that this system be mandatory for government contractors and to permanently authorize it. But I don't see any reason in the world why we should wait on that. What we should do as a Congress, if we believe in what we say about our goal to eliminate the surge of illegal immigration and trying to protect American jobs at this time of economic recession, is we ought to vote for the amendment. What harm can there be? So I urge my colleagues to do the right thing on this amendment and vote for it. I am baffled as to why there would be hesitation about it. I think if people look at it, it is very simple. The E-Verify system is up and running. The government employment offices use it before they hire anybody for the government. Thousands of businesses are using it every day. Over 130,000 employers are currently enrolled in the program, and about a thousand businesses a week are signing up to use it. It protects them, in a way. If somebody says: You knowingly hired illegal workers, they can say: I checked and they had a good I.D. and a good name, and I did my best. And that will protect them from complaints against them. Most employers want to do the right thing. They do not want to hire people who are not lawfully in the country. So that is why it is working even as a voluntary program. We are not hearing complaints about it. It is not violating people's civil rights. It is working in a healthy way. All we need to do now is make this system permanent, not keep leaving it out here in limbo. And secondly, let's make sure it applies to people who not only go directly to work for the U.S. Government but for contractors who do work for the government, people who are getting money under the stimulus bill, which was designed to create jobs for American citizens. I thank the Chair, and I yield the floor. Madam President, I suggest the absence of a quorum.

Mr. SESSIONS

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

Mr. SESSIONS. Madam President, the nomination of a new Justice to the Supreme Court has somewhat unexpectedly brought to our mind a core question both for the Senate and the American people, and that is: What, if any, is the appropriate role for foreign law to play in the interpretation of our Constitution--meaning, should judges look at what other countries say when they are determining what are our constitutional rights. This is not an academic question; it is a question that has the potential to impact our fundamental rights guaranteed to us by the U.S. Constitution. Until recent years, the answer has always been understood to be no, apart from a few rare circumstances, certainly, and certainly never in the interpretation of the meaning of our precious constitutional rights. This traditional understanding has served to protect our constitutional right by ensuring that judges remain true to the will of the American people, not the will of foreign judges or courts. Our system has a critical component: moral authority. That moral authority comes from the basic concept that our law is a product of the will of the people through the people they chose to represent them. The Constitution begins ``We the People do ordain and establish this Constitution.'' Our laws are enacted by a Congress, a body subject to the will of the people, composed of people elected by the people. We are accountable to the American citizens. The novel idea that foreign law has a place in the interpretation of American law creates numerous dangers. A number of academics, and even Federal judges, I would say, are seduced by this idea. Judge Sotomayor clearly shares in that idea. I am somewhat surprised, but it is true, as I will discuss. Her vision seems to be that we should change our laws, or listen to other laws and judges, and sort of merge them with this foreign law. That is the overt opinion of Mr. Koh, who was just nominated and confirmed to the chief counsel of the U.S. State Department. Mr. Koh is quite open about it--shockingly so, really. But I suggest that if we become transnational, we suffer two monumental blows to our legal system. First, the laws we are subject to would not be laws made by us. This should remind us of the Boston tea party. The colonies objected to paying taxes, but not just any taxes; they objected because the taxes were being imposed on them by the British Parliament, and they didn't have a voice in it. The complaint was ``taxation without representation.'' Thus, the moral power of the American law to compel obedience arises from the people's choice to enact it in the first place. That moral authority is undermined when we allow foreign law, which we had nothing to do with, to impact our law. That is a pernicious thing, I suggest. Second, it is not ever going to work in a good way. Most countries don't have laws, truth be known. They have politics masquerading as laws. Trying to merge our system, based on truth, the law, and the evidence, with these political legal systems will only result in our being shortchanged. We can reach agreements affecting mutual interests with foreign nations and adhere to them as long as we agree to do so-- treaties and other kinds of agreements--but to submit ourselves to their political policies while pretending we are merging our law with theirs is foolishness. It also creates confusion on a matter of utmost importance. The question is, who does the judge serve, the people of the United States or the people of the world or some individual country with whom they agree or the amorphous ``world community,'' which has been referred to? Furthermore, reliance on foreign law places our constitutional rights in jeopardy. There are great differences between American and foreign law on cherished rights protected by our Constitution. The Constitution's protection of free speech is probably unparalleled anywhere in the world. Other nations punish sometimes spirited debate on controversial matters. They call it sometimes ``hate speech'' and take action against speech and other things that we would allow without a single thought, but it is criminalized in other countries. The Constitution clearly protects the right to keep and bear arms. Other nations ban private gun ownership entirely. The Constitution allows for the death penalty. Other nations reject the use of the death penalty, even for violent killers, while some other nations have the death penalty and they impose it without due process being carried out. Yet this troubling potential for infringements on constitutional rights, I suggest, is only the tip of the iceberg. First and foremost, reliance on foreign law creates opportunities for judges to indulge their policy preferences. In a speech that was given to the Puerto Rico chapter of the American Civil Liberties Union on April 28 of this year, 2009, 1 day after having been contacted by the White House about the possibility of a Supreme Court vacancy, Judge Sotomayor placed herself firmly on what I believe is the wrong side of this debate, stating in this speech: To suggest to anyone that you can outlaw the use of foreign or international law is a sentiment that is based on a fundamental misunderstanding. What you would be asking American judges to do is close their minds to good ideas. Well, the ideas our judges are supposed to reflect are the ideas that the Congress sought to be good, the ones we enacted into law--not what was enacted in France, Saudi Arabia, China, or any other place. This is a matter of real importance. This whole concept of foreign law has been a matter of real controversy for several years. It is a timely subject, for sure. I thought it was pretty roundly condemned, although one judge on the Supreme Court defends it. In her speech, Judge Sotomayor explains: The nature of the criticism comes from . . . a misunderstanding of the American use of that concept of using foreign law, and that misunderstanding is unfortunately endorsed by some of our own Supreme Court justices. Both Justice Scalia and Justice Thomas have written extensively criticizing the use of foreign and international law in Supreme Court decisions. So she criticized Justice Scalia and Justice Thomas, who have expressed opposition to this. Let me be blunt. I believe it is Judge Sotomayor, not Justices Scalia and Thomas, who is wrong. Under her approach, a judge has free rein to survey the world to find what they might consider to be good ideas and then impose these views on the American people, calling it law. However, this is not the American system. Our system requires judges to adhere to this Constitution, to the statutes, and to the legal precedent, to the end that judges follow the will of the people of our country as expressed in our law. The Constitution says ``We . . . do ordain and establish this Constitution for the United States of America,'' not some other. Judges are not free to amend it by citing some other foreign constitution. I think this is a big deal. Judges are not free to indulge their own personal opinions about what good policy is. Judges do not set policy and search for support for that in foreign law. Despite Judge Sotomayor's claim at a Duke Law School panel discussion that ``courts of appeals is where policy is made,'' judges are not policymakers. They are servants of the law, if they are fulfilling their role properly--the law as it is, not the way they might wish it to be. Second, reliance on foreign law causes confusion rather than clarification as to the state of American law. Judge Sotomayor claims that foreign law ``can add to the story [sic] of knowledge relevant to the solution of . . . [a] question [sic],'' paraphrasing Supreme Court Justice Ruth Bader Ginsburg, who pioneered this concept. She made those statements. Judge Ginsburg's citation of it in cases and her defense of it in speeches has really led to this controversy to which Justices Scalia and Thomas have responded. On the contrary, reliance on foreign law creates confusion. Consider Judge Sotomayor's dissenting opinion in Croll v. Croll in the interpretation of a treaty--one of the few instances in which reliance on foreign law may be perfectly permissible. Judge Sotomayor repeatedly criticized the majority judges on the panel as ``parochial'' for consulting American dictionaries to understand the meaning of custody as determined by the Hague Convention on International Child Abduction, and then she relies on foreign interpretations of those words instead. Yet the majority rightly rebuked Judge Sotomayor for relying on the scattered and divergent foreign legal cases on this subject. The majority even cites a Supreme Court precedent that warns against relying on foreign law where it is in a state of confusion. Third, the reliance on foreign law is also based on a misconception that judges, rather than elected officials in the political branches of government, play a role in advancing our Nation's foreign policy. Judge Sotomayor states this: I share more the ideas of Justice Ginsburg in thinking . . . 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. But judges are not diplomats. It is the job of diplomats to protect our standing in the world, and they have to explain to the world why we rule the way we rule on our cases. That is their responsibility. Fourth, reliance on foreign law blurs the distinction between domestic and foreign law, undermining our ability to make democratic choices. The examples of the Supreme Court reliance on foreign law, cited approvingly by Judge Sotomayor, involved the interpretation of the Constitution dealing with purely domestic legal issues that do not and should not touch on any matter of international concern. For example, she approvingly cites the case of Roper v. Simmons in which five Justices of the Supreme Court recently rendered a decision based in part on their review of foreign law and concluded that our Constitution declares that we cannot execute a violent criminal if that criminal is 1 day under 18 years of age when he killed someone or a group of people. There is nothing in the Constitution that says that. They found some foreign law to make an argument about what the Constitution says about what age a State can set for the death penalty. I know we can disagree on what the age should be, but it is a legislative matter. The Court in that case said it was looking to ``evolving standards of decency that mark the progress of a maturing society.'' What kind of standard is that for law? Where do you find what a maturing society now believes? Do you check with China? Do you check with Iran? Or maybe France? Where do we do this? How do they divine what this all is? The Court concluded that the death penalty violated the eighth amendment which prohibits cruel and unusual punishment. There are at least six or more references in the Constitution itself to capital crimes, to taking a life without due process. It has always been contemplated in the Constitution that the death penalty is not cruel and unusual. That was for drawing-and-quartering and such matters as that. If basic constitutional rights are subject to redefinition by considering foreign law, our Constitution ceases to be the bulwark for our liberty it has always been. The Constitution will be weakened. Its authority and power will be diminished. Yet this is precisely the view of foreign law advocated by Judge Sotomayor, who says that these courts that do this ``were just using foreign law to help us understand what the concept meant to other countries, and to help us understand whether our understanding of our own constitutional rights fell into the mainstream of human thinking.'' I am not sure, did the judge conduct worldwide polls of human thinking? How does a judge find out what the mainstream of human thinking is? In truth, many of the critics of this idea have hit the nail on the head. They say that all it does is allow a judge to look around the world to find somebody who agrees with them and use that as authority to do what they wanted to do all along. Judge Sotomayor not only advocates for reliance on foreign law, but she also goes a step further than Justice Ginsburg, advocating for adoption of the techniques of foreign judges, even ones that serve to conceal the individual judge's reasoning process from public scrutiny. In her forward to the book ``The International Judge,'' which she was chosen to do, Judge Sotomayor states: [T]he question of how much we have to learn from foreign law and the international community when interpreting our Constitution is not the only one worth posing. As ``The International Judge'' makes clear, we should also question how much we have to learn from international courts and from their male and female judges about the process of judging and the factors outside the law that influence our decisions. In her speech in 1999, Judge Sotomayor expressed admiration for the French tradition of judicial panels of judges issuing single decisions, commenting: With a single decision, there is less pressure on individual judges and less fear of reprisal for unpopular decisions. According to law professor William D. Popkin, French legal opinions are anonymous, unanimous, and laconic, the legal ``equivalent of flashing a policeman's badge,'' and ``[t]he irony about French judicial opinion writing is that minimal reason-giving allows French judges to conceal a bold judicial lawmaking role, perhaps even bolder than in the case of U.S. and English judges because of the lack of any formal notion of precedent.'' That is different from the American heritage of law. Judges sign opinions. But we have seen at least three very significant opinions in recent years and months from Judge Sotomayor that were per curiam. No one judge assumed responsibility for the decision, and they were very short--so in a way, maybe she is following that--really surprisingly short in the case involving firearms, in the case involving the firefighters in Connecticut. They were very short opinions and not a lot of discussion and per curiam. The problems with this tradition are clear. The approach makes it easier for judges to conceal the grounds of their decisions, making it more difficult to assess whether their legal reasoning was justified. Only then can one see if proper principles are being followed. Indeed, Judge Sotomayor may already be following that, as I noted with some of the per curiam opinions we have seen. I have to say the judge wants more international law, not less. Ominously, Judge Sotomayor states: International law and foreign law will be very important in the discussion of how we think about the unsettled issues in our legal system. It is my hope that judges everywhere will continue to do this because . . . within the American legal system, we're commanded to interpret our law in the best way we can, and that means looking to what other, anyone has said to see if it has persuasive value. The judge makes an audacious claim that the American legal system commands judges to look at foreign law and highlights the role of making decisions on unsettled cases. There have been and will be many differences between domestic and foreign law on matters that are fundamental. This is normal and understandable because different nations have different cultures, values, and legal systems. The United States should be independent to pursue its own individual choices expressed through the American people through their elected officials to reach the fullest and richest expression of our exceptionalism as a nation. The American ideal of law is objectivity in deciding the case before the court, that case being sufficient for the day. This is unusual. Most countries are not so restrained. To a much greater degree, foreign judges see themselves as policymakers. In Afghanistan and Pakistan recently, the chief judge was setting all kinds of policy in Afghanistan. I thought it was most unusual. Surely nothing like that would happen here because we have a different heritage. I suggest that for an ambitious, strong-willed American judge, such freedom to search around the world to identify arguments that might be helpful in allowing them to reach a result they might like to reach would be a great temptation. It is a siren call that ought not to be followed, and great judges do not do so. They analyze the American statutes, the American Constitution in a fair and objective way. They apply it to the evidence fairly and honestly found and render a decision without any regard to the parties before them, to the rich and poor alike, as their oath says. That is why we give them independence as a judge to show they will be more willing to render those kinds of opinions. I am troubled by this, I have to say. I did not expect to see a nominee who would be one of the leading advocates for the adoption of foreign law in the American legal system. I think it is wrong. I don't think that is a good idea. The American people need to be talking about that issue as they think about the confirmation that will be coming up. Our nominee, Judge Sotomayor, is delightful to talk to. She has a record and a practice as a private practitioner, as a prosecutor, as a district judge, and an appellate judge. All of those are good. She has many good qualities. But some of the issues I am raising today and have raised previously do cause me concern. I thank the Chair, and I yield the floor.

Mr. SESSIONS

Mr. SESSIONS. Madam President, the individual right to keep and bear arms--I think a fundamental right guaranteed by the explicit text of the second amendment of the U.S. Constitution--is at risk today in ways a lot of people have not thought about. Although the Supreme Court recently held that the second amendment is an individual right, which is a very important rule, many significant issues remain unresolved, which most people have not thought about. The Supreme Court, including whoever will be confirmed to replace Justice Souter, will have to decide whether the second amendment has any real force or whether, as a practical matter, to allow it to eviscerate its guarantees. The second amendment says that ``the right of the people to keep and bear Arms, shall not be infringed.'' ``[T]he right of the people to keep and bear Arms, shall not be infringed.'' I know there is a preamble about a well-regulated militia being important to the security of the State, but the Supreme Court has ruled on that in Heller and said that does not obviate the plain language that the right to keep and bear arms is a right that individual Americans have, at least vis- a-vis the U.S. Government. Not all the amendments, I would say, are so clearly a personal right. The first amendment, if you will recall, protects freedom of religion and freedom of speech. It talks about restricting Congress: Congress shall make no law with respect to the establishment of a religion or prohibiting the free exercise thereof. So some could argue that does not apply to the States. It would apply only to the Federal Government because it explicitly referred to it. However, the Supreme Court has held it does apply to the States, and the right of speech and press and religion are applicable to the States and bind the States as well. In the case of District of Columbia v. Heller, the Supreme Court recently held that the second amendment ``confer[s] an individual right to keep and bear arms.'' This is consistent with the Constitution and was a welcome and long-overdue holding. Despite this holding, however, many important questions remain. For example, it is still unsettled whether the second amendment applies only to the Federal Government or to the State and local governments as well--a pretty big question. This question will determine whether individual Americans will truly have the right to keep and bear arms because if that is not held in that way, it would allow State and local governments--not bound by the second amendment--to pass all sorts of restrictions on firearms use and ownership. They may even ban the ownership of guns altogether. So we are talking about a very important issue. Remember, the District of Columbia basically banned firearms. It is a Federal enclave, in effect, with Federal law. And the Supreme Court held that the Federal Government could not violate the second amendment, was bound by the second amendment, and that legislation went too far. But they, in a footnote, noted they did not decide whether it applies to the States, cities, and counties that could also pass restrictions similar to the District of Columbia. President Obama, who nominated Judge Sotomayor, has a rather limited view of what the second amendment guarantees. In 2008, he said that just because you have an individual right does not mean the State or local government cannot constrain the exercise of that right--exactly the issues the Supreme Court has not resolved yet. Can States and localities constrain the exercise of that right in any way they would like? In 2000, as a State legislator, the President cosponsored a bill that would limit the purchase of handguns to one a month. In 2001, he voted against allowing the people who are protected by domestic violence protective orders--because they felt threatened--he voted against legislation that would allow them to carry handguns for their protection. So there is some uncertainty about his personal views. Let's look at Judge Sotomayor, whom the President nominated, and her record on the second amendment. That record is fairly scant, but we do know that Judge Sotomayor has twice said the second amendment does not give you and me and the American people a fundamental right to keep and bear arms. The opinions she has joined have provided a breathtakingly, I have to say, short amount of analysis on such an important question to the U.S. Constitution. And the opinions she has written lack any real discussion of the importance of these issues, in an odd way. Judge Sotomayor has gone from sort of A to Z without going through B, C, D, and so forth. For example, in her most recent opinion in January of this year--Maloney v. Cuomo--which asked whether the Supreme Court's protection of the right to bear arms in DC--the Heller case--would apply to the States, she spent only two pages to explain how she reached her conclusion. Her conclusion was that it did not. The Seventh Circuit dealt with this same question and reached the same conclusion, but they gave the issue the respect it deserved and had eight pages discussing this issue, at a time when Judge Sotomayor only spent about two pages on it and not very much discussion at all. The Ninth Circuit reached a different opinion. They say the second amendment does apply to individual Americans and does bar the cities of Los Angeles or New York or Philadelphia from barring all hand guns because you have an individual constitutional right to keep and bear arms. So the Ninth Circuit disagreed, and they had 33 pages in discussing this important issue. Further, in deciding that the second amendment applies to the people, the majority in the Supreme Court dedicated, in Heller, 64 pages to this important issue. Including dissents and concurrences on that decision, the entire Court generated 157 pages of opinion. Judge Sotomayor wrote only two pages in a very important case as important as Heller. Judge Sotomayor's lack of attention and analysis is troubling. These truncated opinions also suggest a tendency to avoid or casually dismiss constitutional issues of exceptional importance. Other examples might include the New Haven firefighters case, Ricci v. DeStefano, which is currently pending before the Supreme Court on review, and the fifth amendment case of Didden v. Village of Port Chester, which was recently discussed in the New York Times. It dealt with condemnation of a private individual's property. All those were serious constitutional cases. They had the most brief analysis by the court, which is odd. I do not think it is right for us to demand that we know how a judge will rule on a case in the Supreme Court. I am not going to ask her to make any assurances about how she might rule. But I do think it will be fair and reasonable to ask her how she reached the conclusions she reached and perhaps why she spent so little time discussing cases of fundamental constitutional importance. I am not the only one who has been troubled by the second amendment jurisprudence of Judge Sotomayor. As I mentioned previously, the Ninth Circuit disagreed with her opinion and held that the second amendment is a fundamental right applicable to the States and localities. Additionally, in a June 10 editorial, the Los Angeles Times--a liberal newspaper--disagreed with her view in Maloney as to whether the second amendment applies against States and localities. Moreover, in a June 10 op-ed in the Washington Times, a leading academic argued that the decision in Maloney was flawed. So these are critical questions that will determine whether the people of the United States have a fundamental right guaranteed by the Constitution to keep and bear arms. So I think it is important and it is more than reasonable for the Senators to analyze the opinions on this question and to inquire as to how the judge reached her decisions and what principles she used in doing so. I would say we are moving forward with this confirmation process. It is a difficult time for us in terms of time. There are now only eight legislative days before the hearings start. There is a lot of work to be done, a lot of records that have not yet been received. So our team and Senators are working very hard, and we will do our best to make sure we have the best hearings we have ever had for a Supreme Court nominee. I see my colleague, Senator Hatch, in the Chamber, who is a fabulous constitutional lawyer and former chairman of this Judiciary Committee. I was honored to work for him, serve under him, when he was our leader. I know whatever he says on these subjects is something the American people need to listen to because he loves this country, he loves our Constitution, and he understands it. I thank the Chair and yield the floor.

Mr. SESSIONS

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

Mr. SESSIONS

Mr. SESSIONS. Madam President, I thank Senator McConnell for his thoughtful comments. He is a former member of the Judiciary Committee, a lawyer who has studied these issues and cares about them deeply, and I value his comments. I do think that, as Senator McConnell knows, and while he is here, once a nominee achieves the Supreme Court, they do have a lifetime appointment and these values and preferences and principles on which they operate go with them. So it is up to us, I think my colleague would agree, to make sure the values and principles they bring to the Supreme Court would be consistent with the rule of law. So I appreciate the Senator's comments.

Mr. SESSIONS. I thank the Senator. I would note that there are only nine legislative days between now and the time the hearing starts, so we are definitely in a position where it is going to be difficult to be as prepared as we would like to be when this hearing starts. We still don't have some of the materials we need. My staff and I have been working hard to survey the writings and records of Judge Sotomayor. Certainly, the constitutional duty of the Senate to consent to the President's nomination is a very serious one. In recent years, we have seen judicial opinions that seem more attuned to the judge's personal preferences than to the law, and it has caused quite a bit of heartburn throughout the country. We have seen judges who have failed to understand that their role, while very important, is a limited one. The judge's role is not policy, politics, ethnicity, feelings, religion, or personal preference because whatever those things are, they are not law, and first and foremost a judge personifies law. That is why lawyers and judges, during court sessions--and I practiced hard in Federal court for all of 15 years, so I have been in court a lot--when they go to court, they do not say even the judge's name and usually don't even say ``judge.'' They refer to the judge as ``the Court.'' They say, ``If the Court please, I would like to show the witness a statement,'' or a judge may write, ``This Court has held,'' and it may be what he has written himself, or she. All of this is to depersonalize, to objectify the process, to clearly establish that the deciding entity has put on a robe--a blindfold, according to our image--and is objective, honest, fair, and will not allow personal feelings or biases to enter into the process. So the confirmation process rightly should require careful evaluation to ensure that a nominee--even one who has as fine a career of experience as Judge Sotomayor--meets all the qualities required of one who would be situated on the highest Court. As this process unfolds, it is important that the Senate conduct its evaluation in a way that is honest and fair and remember that a nominee often is limited in his or her ability to answer complaints against them. So the time is rapidly approaching for the hearings--only nine legislative days between now and July 13--and there are still many records, documents, and videos not produced that are important to this process. My colleagues and friends are asking: What have you found? What evaluations have you formed? What are your preliminary thoughts? And I have been somewhat reluctant to discuss these matters at this point in time, as we continue to review the record. In truth, the confirmation process certainly must be conducted with integrity and care, but it is not a judicial process, it is a political process. The Senate is a political, legislative body, not a judicial body, and it works its will. Its Members must decide issues based on what each Member may conclude is the right standard or the right beliefs. I have certainly not formed hard opinions on this nominee, but I have developed some observations and have found some relevant facts and have some questions and concerns. It is clear to me that several matters and cases must be carefully examined because they could reveal an approach to judging that is not acceptable for a nominee, in my opinion. I see no need not to raise those concerns now. Discussing them openly can help our Senate colleagues get a better idea of what the issues are, and the public, and the nominee can see what the questions are now, before the hearings start. Unfortunately, the record we have is incomplete in key respects, and it makes it difficult for us to prepare. As I review the record, I am looking to try to find out whether this nominee understands the proper role of a judge, one who is not looking to impose personal preferences from the bench. Frankly, I have to say-- to follow up on Senator McConnell's remarks--I don't think I look for the same qualities in a judge that the person who nominated her does-- President Obama. He says he wants someone who will use empathy--empathy to certain groups to decide cases. That may sound nice, but empathy toward one is prejudice toward the other, is it not? There are always litigants on the other side, and they deserve to have their cases decided on the law. And whatever else empathy might be, it is not law. So I think empathy as a standard, preference as a standard is contrary to the judicial oath. This is what a judge declares when they take the office: I do solemnly swear that I will administer justice without respect to persons, and do equal right to the poor and the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me. So I think that is the impartial ideal. That is the ideal of the lady of justice with the scales and the blindfold, which we have always believed in in this country and which has been the cornerstone of American jurisprudence. So what I have seen thus far in Judge Sotomayor's record--and presumably some of her views are the reason President Obama selected her--cause me concern that the nominee will look outside the law and the evidence in judging and that her policy preferences could influence her decisionmaking. Her speeches and writings outside the court are certainly of concern, some of which Senator McConnell mentioned. I wish to discuss some other areas that I think are significant also. She has had extensive work with the Puerto Rican Legal Defense and Education Fund and been a supporter, presumably, of what it stands for. So that is one of the matters I will discuss a bit here. Also, I will discuss her decision to allow felons, even those convicted and in jail, the right to vote, overruling a long-established State law. Some other matters I will discuss include the New Haven firefighters case. Looking at the long association the nominee has had with the Puerto Rican Legal Defense and Education Fund--an organization that I have to say, I believe, is clearly outside the mainstream of the American approach to matters--this is a group that has taken some very shocking positions with respect to terrorism. When New York Mayor David Dinkins criticized members of the radical Puerto Rican nationalist group and called them ``assassins'' because they had shot at Members of Congress and been involved in, I guess, other violence, the fund, of which judge Sotomayor was a part, criticized the mayor and said they were not assassins and said that the comments were ``insensitive.'' The President of the organization continued, explaining that for many people in Puerto Rico, these men were fighters for freedom and justice. I wonder if she agreed with that statement and that the statements of the mayor of New York were insensitive. These Puerto Rican nationalists reconstituted into groups such as the FALN, which we have recently had occasion to discuss in depth. The FALN itself was responsible for more than 100 violent attacks resulting in at least 6 deaths. I find it ironic that once again we find ourselves discussing these murderous members of FALN, when not long ago we were considering whether to confirm Attorney General Eric Holder, who was advocating pardoning them and President Clinton did. Now we find ourselves wondering about this nominee to the Court and what her views are on these matters and how her mind works as she thinks about these kinds of issues. We do not have enough information, unfortunately, to assess these concerns effectively. We requested information relating to Judge Sotomayor's involvement with the fund, a typical question of all nominees but critically important for a Supreme Court nominee. But we have not received information. Indeed, we have received 9 documents totaling fewer than 30 pages relating to her 12 years with the organization. So it is not possible for us to make an informed decision at this point on her relationship with an organization that seems to be outside the mainstream. What we know, basically, is from publicly available information, and what has been provided this committee, is that this is a group that has, time and again, taken extreme positions on vitally important issues such as abortion. In one brief, which was in support of a rehearing petition in the U.S. Supreme Court, a brief to the Supreme Court, the Fund criticized the Supreme Court's decision in two cases that both the State and Federal Government should restrict the use of public funds for abortion--the question of public funding of abortion. Incredibly, the Fund joined other groups in comparing these types of funding restrictions to slavery, stating: Just as Dred Scott v. Sanford refused citizenship to Black people, these opinions strip the poor of meaningful citizenship under the fundamental law. In their view, the equal protection clause of the U.S. Constitution prohibited restrictions on either Federal or State Government provision of funding abortions. I think this is an indefensible position. We do not know how much Judge Sotomayor had to do with developing these positions of the Fund-- but certainly she was an officer of it, involved in the litigation committee during most of this time--because we do not have the information we requested. We do know the Fund and Judge Sotomayor opposed reinstatement of the death penalty in New York based not on the law but on what they found to be the inhuman psychological burden it places on criminals, based on world opinion, and based on evident racism in our society. What does this mean about how Judge Sotomayor would approach death penalty cases? I think she has affirmed death penalty cases, but on the Supreme Court, there is a different ability to redefine cases. These personal views of hers could very well affect that. Recently, five Justices of the Supreme Court decided, based in part on their review of rulings of courts of foreign countries, that the Constitution says the United States cannot execute a violent criminal if he is 17 years and 364 days old when he willfully, premeditatedly kills someone. They say the Constitution says the State that has a law to that effect cannot do it. Looking to ``evolving standards of decency that mark the progress of a maturing society''--this is what the Court said, as they set about their duty to define the U.S. Constitution; this is five Members of the Supreme Court, with four strong dissents: looking to ``evolving standards of decency that mark the progress of a maturing society,'' we conclude the death penalty in this case violated the eighth amendment. There are at least six or eight references in the Constitution to a death penalty. If States don't believe 18-year-olds should be executed, or 17, they should prohibit it and many States do. But it is not answered by the Constitution. But five judges did not like it. They consulted with world opinion and what they considered to be evolving standards of decency and said the Constitution prohibited the imposition of a death penalty in this case, when it had never been considered to be so since the founding of our Republic. I don't think that is a principled approach to jurisprudence. That is the kind of thing I am worried about if we had another judge who will think like that on the bench. I will ask about some other cases, too, that give me pause. For centuries States and colonies, even before we became a nation, have concluded that individuals who commit serious crimes, felonies, forfeit their right to vote, particularly while they are in jail. It is a choice that States can make and have made between 1776 and 1821. Eleven State constitutions contemplated preventing felons from voting. New York passed its first felon disenfranchisement law in 1821. When the 14th amendment was adopted in 1868, 29 States had such provisions. By 2002, all States except Maine and Vermont disenfranchised felons. For years, these types of laws have been upheld by the courts against a range of challenges. But in Hayden v. Pataki, in 2006, Justice Sotomayor stated her belief that these types of laws violate the Voting Rights Act of 1965, even though that act makes no reference to these longstanding and common State laws and even though they are specifically referenced in the fourteenth amendment to the Constitution itself. In her view, with analysis of a few short paragraphs only, the New York law was found--or she found--she concluded that the New York law was ``on account of race,'' and therefore it violated the Voting Rights Act. It was ``on account of race'' because of its impact and nothing more. Statistically, it seems that in New York, as a percentage of the population, more minorities are in jail than nonminorities. Therefore, it was concluded that this act was unconstitutional. I think this is a bridge too far. It would mean that State laws setting a voting age of 18 would also violate Federal law because, within the society or in most of our country, minorities would have more children under 18 so that would have a disparate impact on them. I do not think this can be the law, as a majority of the colleagues on that Court explained, and did not accept her logic. Actually, her opinion was not upheld. I look forward to asking her about that. I am aware that Judge Sotomayor would say she is acting as a strict constructionist by simply applying literally the 40-year-old Voting Rights Act of 1965. I do not think so. I remember when Miguel Estrada, that brilliant Hispanic lawyer whom President Bush nominated to the appellate courts and who was defeated after we had seven attempts to shut off a filibuster on the floor of the Senate but could never do so, said during his hearings that he didn't like the term ``strict construction.'' He preferred the term ``fair construction.'' He was correct. So the question is, Is this a fair construction of the Voting Rights Act, that it would overturn these long-established laws when no such thing was considered in the debate on the legislation? That historic laws, which limit felons voting, are to be wiped out, even allowing felons still in jail to vote? I do not think so and neither did most of the judges who have heard these cases. With regard to the New Haven firefighters case, I will say we will be looking into that case in some length. Stuart Taylor did a very fine analysis of it when he was writing, I believe, at the National Journal. He recognized that no one ever found that the examination these firefighters took was invalid or unfair. As he has explained, if the ``belated, weak, and speculative criticisms--obviously tailored to impugn the outcome of the tests--are sufficient to disprove an exam's validity or fairness, no test will ever withstand a disparate-impact lawsuit. That may or may not be Judge Sotomayor's objective. But it cannot be the law,'' says Mr. Stuart Taylor in his thoughtful piece. The firefighters, you see, were told there was going to be a test that would determine promotion, that it would determine eligibility for promotion. The tests were given at the time stated and the rules had been set forth. But the rules were changed and promotions did not occur because the Sotomayor court, in a perfunctory decision, concluded that too many minorities did not pass the test, and no finding was made that the test was unfair. We will be looking at that and quite a number of other matters as we go forward. I will be talking about the question of foreign law and the question of this nominee's commitment to the second amendment, the right to keep and bear arms. The Constitution says the right to keep and bear arms shall not be infringed. We will talk about that and some other matters because, once on the Court, each Justice has one vote. It only takes five votes to declare what the Constitution says. That is an awesome power and the judges must show restraint, they must respect the legislative body, they must understand that world opinion has no role in how to define the U.S. Constitution, for heaven's sake. Neither does foreign law. How can that help us interpret the meaning of words passed by an American legislature? Oftentimes, world opinion is defined in no objective way, just how the judge might feel world opinion is. I am not sure they conduct a world poll, or what court's law do they examine around the world to help that influence their opinion on an American case? This is a dangerous philosophy is all I am saying. It is a very serious debate. There are many in law schools who have a different view: there is an intellectual case out there for an activist judiciary or a judiciary that should not be tethered to dictionary definitions of words. Judges should be willing and bold and take steps to advance the law they would set and to protect this or that group that is favored at this or that time. I think that is dangerous. I think it is contrary to our heritage of law. I am not in favor of that approach to it. I yield the floor and suggest the absence of a quorum.

Mr. SESSIONS. I will yield.

Mr. SESSIONS

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

Mr. SESSIONS

Mr. SESSIONS. Mr. President, I wish to share a few thoughts about the E-Verify system. That is the system businesses are voluntarily using today in large numbers provided by the U.S. Government that allows a company to check the Social Security number of an applicant for a job to make sure they are lawfully eligible for employment. This system is growing and working very well. We have had some problems, I think, with Congress, and I attempted to offer an amendment to fix some of those problems on the tourism bill that is before us but was not able to do that. So I wish to share a few thoughts about it. I have been trying to get this situation fixed for some time. E-Verify is an online system that gives very rapid identification of an individual through the Social Security Administration and Homeland Security to determine whether they are eligible for a job. A business just checks those numbers, and if they come back as clear and they hire the individual, it provides them protection from a charge that they may have knowingly hired someone who was illegally in the country or otherwise not able to be employed. So it is a good system. As I said, as of June 13, this month, 130,000 employers are enrolled in the program. They have, among them, 501,000 hiring sites. It is free and voluntary, and it is the best means available to determine the eligibility of those who apply. According to the Department of Homeland Security, 96 percent of the employees are cleared automatically, and growth continues at over 1,000 new users and participants each week as more and more businesses are using it. An employer, as I said, gets protection if they use it. In 2009, this year, 5.6 million inquiries were run. In 2008, through the whole 12 months, more than 6.6 million inquiries were run, and they continue to grow. In Alabama alone, there are 1,000 employers who use the E-Verify system. It has been proven effective, and I think it should be made permanent and mandatory for everybody who does business with the U.S. Government. As a matter of fact, that was what the law was supposed to be in January, but it is not. So the program is to expire in September unless it is extended. Now, I am told the Homeland Security legislation the House passed--or will pass--will extend the E-Verify Program for 2 years. I am told the Senate Homeland Security bill may well report language that will extend it for 3 years. Why we don't make it permanent is beyond me. It is a cornerstone of the enforcement system of business and employers to ensure that they are attempting to comply with the law, and if they are not, to be able to identify them. I was extremely disappointed when the economic stimulus package was up earlier this year and passed, where we spent $800 billion to stimulate the economy and create jobs, it was passed without any requirement that E-Verify be a part of the stimulus package. So a contractor who gets a job with the U.S. Government, with money paid from the stimulus package, legislation that was designed to create jobs for American citizens, could actually go out and hire people illegally in the country. That is not what the American people have a right to expect. That is not good policy. It should not be done. We have surging unemployment, unfortunately. All of us hoped it would come in less than it is now. I know the President's budget, offered earlier this year, projected that unemployment would top at 8.4 percent. It is now 9.4 percent, the highest in over 20 years. It is continuing to go up, from what it appears. So we have an obligation to try to use what resources we are expending in a way that helps the American worker find work. Some of these stimulus jobs are good jobs. So the House has supported the extension of E-Verify. It passed in the House last July, 407 to 2. Yet it still hasn't become law to extend it past September. One of the main purposes of the stimulus bill was to see that people got work. I think if we don't extend E-Verify, people have a right to question how serious we are about using that money--that huge amount-- wisely to create jobs for American citizens. An amendment offered and accepted in the House on the stimulus bill was by Congressman Jack Kingston. It said that funds made available under the stimulus package could not be made available to any business that did not use E-Verify. They apparently accepted that without a single dissenting vote. It was in the House legislation. I offered it in the Senate stimulus bill and did everything I could to see that we could make that a part of the law and make it permanent. It was blocked in the Senate by the Democratic leadership. I am worried that we talk a good game about doing something about this, but so far, we have been very ineffective in taking real action that will work. Let me share one more thing about Executive order 12989. President Bush issued an Executive order, and that order called for the implementation of the E-Verify system for government contractors in January of this year. It mandates the use of E-Verify for all Federal contractors and subcontractors. It was supposed to take effect in January. I believed President Bush should have been stronger about that than he was, but they went into it carefully, and that is what they decided to do. When President Obama came in, immediately he extended that and put it off and blocked its enforcement. So it is still not in the law. Now it is being delayed until September 8--that rule that a government contractor at least ought to check his employees to see if they are legally entitled to be employed. How simple is that? It takes a few minutes, and thousands of businesses are voluntarily doing it today. This decision, again, to delay it now until September 8 is the fourth delay this year by President Obama. I believe it signals the fact that this administration is not yet serious about their stated goal of making sure that employers comply with the law and not hire people illegally. On January 28, it was pushed back to February 20. A few weeks later, the implementation was pushed back to May 21. Prior to that, it was pushed back to June 30, and now it is further delayed until September 8. This system is up and working. It has been up for years now. It is nothing unusual. I cannot imagine that if this Senate is allowed to vote up or down on whether to make this the law that we would not pass it. I am going to offer an amendment that will do just that. That is the right thing to do. It makes common sense. What I am afraid may happen is that we will have, through maneuvering and chicanery, actions taken to block that vote. If the Democratic leadership in the Senate blocks a vote on this question, that can only be interpreted as their position is that we should not extend E-Verify and that we should not make it apply to government contractors. It cannot be interpreted any other way because we have been talking about this for years. Everybody knows what the issue is. I am concerned. I hope the President, who has had his staff on board now for 5 or 6 months--it is time for them to get their act together and let us know where they stand. Just delaying this is an indication to me they are not serious about it. It should not have taken 5 minutes to know that a government contractor should not be hiring people illegally in the workforce. How long does it take to do that? This is not a new issue. But they are studying it, they say. OK, let's study it. But sooner or later, it is time to act. To me, there are no two ways about it. There is one logical answer to this question. If we want to make sure the government money that is going out--money taken from American taxpayers--provides jobs for American workers, we need to pass legislation to mandate that. I hope we will. I hope the President will be able to get this study complete, which they claim they are doing, and get on with doing the right thing. We have waited long enough. I thank the Chair, yield the floor, and I suggest the absence of a quorum.

Mr. SESSIONS

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

Mr. SESSIONS. Mr. President, the nomination of a new Justice to the Supreme Court of the United States brings to our minds a core question, both for the Senate and the American people, and that is: What is the proper role of a Federal judge in our Republic? Answering this question is not simply an academic task, it is fundamental to what we will be doing here. How the American people and their representatives and their Senators, the ones who have been delegated that responsibility, answer that question impacts not only the future of our judiciary but I think the future of our legal system and the American experience. In traveling the world as part of the Armed Services Committee, I am more convinced than ever before that the glory of our American experience, our liberty, and our prosperity is based on the fact that we have a legal system you can count on. When you go to places such as Afghanistan or Iraq or Pakistan or the West Bank or Bosnia and you see people--and they cannot get a legal system working. It does not work, and people are not protected, in their persons, from attack, and their property is not protected, contracts often are not enforced properly. That just demoralizes the country. It makes it very difficult for them to progress. I am so proud of the American legal system. It is something we inherited, we built upon. It is the bulwark for our liberty and our prosperity. So we ask this question: What do judges do? Do they faithfully interpret our Constitution and laws as written or do they have the power to reinterpret those documents through the lens of their personal views, backgrounds, and opinions? Is the Judiciary to be a modest one, applying the policies others have enacted, or can it, the Judiciary, create new policies that a judge may desire or think are good? When the correct answer to a legal case is difficult to ascertain, is a judge then empowered to remove his or her blindfold, that Lady of Justice with the blindfold on holding the scales? Can they remove the blindfold and allow their personal feeling or other outside factors to sway the ultimate decision in the case? I am going to be talking about that and addressing those questions in the weeks to come. But I do think we need to first begin at the source. We must return to the words and ideas of those who founded our Nation, whose foresight resulted in the greatest Republic this world has ever known and the greatest legal system anywhere in the world. It is clear from reviewing these words and ideas and ideals, particularly as expressed in the Constitution itself, that our Founders desired and created a court system that was independent, impartial, restrained, and that, through a faithful rendering of the Constitution, serves as a check against the intrusion of government on the rights of humankind. The Founders established a government that was modest in scope and limited in its authority. In order to limit the expansion of Federal Government power, they bounded the government by a written Constitution. Its powers were only those expressly granted to the government. As Chief Justice John Marshall famously wrote: This government is acknowledged by all to be one of enumerated powers. Enumerated means the government has the power it was given and only those powers it was given. If you will recall the Constitution starts out: We the people of the United States of America, in order to establish a more perfect Union . . . So the people established it, and they granted certain powers to the branches of government. But those powers were not unlimited, they were indeed limited. They were enumerated and set forth. But our Founders knew these limitations, history being what it is, standing alone were not enough. So they created three distinct branches of the government, creating a system of checks and balances to prevent any one branch from consolidating too much power. The Constitution gives each branch its own responsibility. Article I of the Constitution declares: All legislative powers, herein granted shall be vested in a Congress of the United States. Article II two declares: The executive power shall be vested in a President of the United States. And Article III declares: The judicial power of the United States shall be vested in one Supreme Court. And such other Courts as the Congress creates. These words are unambiguous. The Judiciary possesses no power to make law or even enforce law. In Federalist No. 47, one of our Founding Fathers, James Madison, cites the Constitution of Massachusetts which states: The judicial shall never exercise the legislative and executive powers, or either of them, to the end that it may be a government of laws and not of men. So Madison, in arguing for the Constitution, trying to convince the Americans to vote for it, quoted the Massachusetts Constitution--this provision in it, with approval stating that is essentially what we have in our Federal Government. Madison was a remarkable man. He went on to describe the separation of powers as the ``essential precaution in favor of liberty.'' Alexander Hamilton, in Federalist No. 78--written to encourage Americans to support the Constitution--quotes the French philosopher, Montesquieu, who said: There is no liberty if the power of judging not be separated from the legislative and executive powers. The judicial branch, then, is limited to the interpretation and application of law--law that exists, not law they create. At no point may its judges substitute their political or personal views for that of elected representatives or to the people themselves--the people's will having been permanently expressed in the Constitution that created the judiciary. To gain a deeper understanding of this role, it is instructive to look further in Hamilton's Federalist No. 78, widely regarded as one of the definitive documents on the American court system. In it Hamilton explains that ``the interpretation of the law is the proper and peculiar province of the courts. The constitution . . . must be regarded by the judges as a fundamental law. It therefore belongs to them to ascertain its meaning.'' Judges do not grant rights or remove them. They defend the rights that the Constitution enumerates. So it is thus no surprise that Hamilton says a judge must have an ``inflexible and uniform adherence to the rights of the Constitution.'' In order to ensure that judges would consistently display such adherence to the Constitution in the face of outside pressures, our Framers took steps to ensure that the judiciary was independent from the other branches and insulated from political interference. As was often the case, the Framers were guided by the wisdom of their own experience. They had a lot of common sense in the way they dealt with things. In England, colonial judges were not protected from the whims of the King. Included in the Declaration of Independence's litany of grievances is the assertion, when Jefferson was setting forth the complaints against the King, he asserted that the King had ``made Judges dependent on his Will alone, for the tenure of their offices . . .'' That was a complaint. That was one of the things we objected to in the way the King was handling the people in the Colonies. That was part of the Declaration. When the Constitution was drafted, that matter was fixed. In order to shield the courts from the threat of political pressure or retribution, article III effectively grants judges a lifetime appointment, the only Federal office in America that has a lifetime appointment. We have to answer to the public. So does the President. It also specifically prohibits Congress from diminishing judicial pay or removing judges during times of good behavior. So Congress can't remove a judge or even cut their pay. Hamilton referred to this arrangement as ``one of the most valuable of modern improvements in the practice of government.'' He went on to say that he saw it as the best step available to ``secure a steady, upright, and impartial administration of the laws.'' So Madison hoped the courts, set apart from the shifting tides of public opinion, would be better suited to act as ``faithful guardians of the constitution'' to stand against ``dangerous innovations in government.'' In other words, courts are removed from the political process not so they are free to reinterpret the Constitution and set policy, but so they are free from the pressures of those who would encourage them to do just that. The Framers also understood that the courts, as an unelected branch of government with a narrow mandate, would also necessarily be the weakest branch. Hamilton wrote that whoever looks at the ``different departments of power must perceive that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. . . .It may truly be said to have neither force nor will, but merely judgment. . . .'' So in light of this narrow mandate that judges have been given, judges have understood from time to time that they ought not to be drawn into the political thicket; that they ought to decline to answer questions that they felt were more appropriately to be addressed by the political branches of government. Typically, this distant approach has been invoked when the Constitution has delegated decision-making on a particular issue to a particular branch, when the court finds a lack of ``judicially discoverable and manageable standards'' to guide its decision-making, or when the court feels it best not to insert itself in a conflict between branches. That is what is happening. They are showing restraint and discipline. This is an example of judicial restraint because it respects the powers of the other branches and the role of elected representatives rather than the appointed judges in establishing policy. This is not an academic exercise or an abstract hypothetical. Judicial activism has enormous consequences for every American because if judges who are given a lifetime appointment and guaranteed salaries are given the power to set policy, then that is an anti-democratic outcome because we have created someone outside the political process and allowed them to set policy for the country and they cease to be accountable to the American people. The men and women of the Supreme Court hold extraordinary power over our lives. It takes only five Justices to determine what the words of the Constitution mean. You may think it is nine; it is really just five. If five of the nine agree that the Constitution means this or that, it is as good--hold your hats--as if three-fourths of the States passed a constitutional amendment along with the supermajority votes of the Congress. So this is a powerful thing a Supreme Court Justice possesses, the ability to interpret words of the Constitution. When Justices break from the ideal of modest and restrained practices, as described by Hamilton, they begin creating rights and destroying rights based on their personal views, which they were never empowered to do. The temptation to reinterpret the Constitution leads judges, sometimes, to succumb to the siren call of using that opportunity they might possess to enact something they would like to see occur. Maybe somebody will write in a law review that they were bold and courageous and did something great. We have seen some of these actions occur. Under the power to regulate business and commerce the government is given, our Supreme Court recently ruled that carbon dioxide, which is a naturally occurring substance in our environment--when plants decay, they emit carbon dioxide; when they live, they draw in from the air carbon dioxide; it is plant food--they ruled that it was a pollutant. As a result, regardless of how you see that matter, I think when the statute was passed they gave EPA regulation to control pollution in the 1970s long before global warming was ever a consideration; that Congress had no contemplation that it would be used to limit carbon dioxide some years later. But that is what the Court ruled. I only say that because that was a huge economic decision of monumental proportions. It called on an agency of the U.S. Government to regulate every business in America that uses fossil fuels. It is a far-reaching decision. Right or wrong, I just point out what five members of the Court can do with a ruling, and that was five members. Four members dissented on that case. At least two members of the Supreme Court concluded that the death penalty is unconstitutional because they believe that it is cruel and unusual as prohibited by the eighth amendment to the Constitution. They dissented on every single death penalty case and sought to get others to agree with them. Some thought others might agree with them. But as time went by, they have now left the bench and no other Judges have adhered to that philosophy. But I would say that it is an absolutely untenable position because the Constitution itself makes at least eight references to the death penalty. It is implicit in the Constitution itself. It says the government can't take life without due process. So that contemplates that there was a death penalty, and you could take life with due process. The Constitution also refers to capital crimes and makes other references to the death penalty. Every single Colony, every single State at the founding of our government had a death penalty. It is an abuse of power for two Judges to assert that the eighth amendment, which prohibited drawing and quartering and other inhumane-type activities, actually should be construed to prohibit the death penalty. That is judicial activism. They didn't like the death penalty. They read through the Constitution, found these words, and tried to make it say what it does not. So the question is not whether these policies are good or bad, whether you like the death penalty or not. That is a matter of opinion. And how one believes that global warming should be confronted is not the question. The question is whether a court comprised of nine unelected Judges should set policy on huge matters before the country that we are debating in the political arena. Should that not be the President and the Congress who are accountable to the voters to openly debate these issues and vote yes or no and stand before the people and be accountable to them for the actions they took? I think the Constitution clearly dictates the latter is the appropriate way. A number of groups and activists believe the Court is sort of their place and that social goals and agendas they believe in that are not likely to be won at the ballot box, they have an opportunity to get a judge to declare it so. We have the Ninth Circuit Court of Appeals en banc ruling that the Pledge of Allegiance to the Constitution is unconstitutional because it has the words under God in it. Actually, that has never been reversed. It has been vacated in a sense because the Supreme Court rejected it on, I think, standing grounds. But at any rate, those are the things that are out there. It is not in the Constitution. This is a bad course for America. If the judiciary heads further down that path, then I think we do have dangers because we are actually weakening the Constitution. How can we uphold the rule of law if those who weigh the scales have the power to tip them one way or the other based on empathy, their feelings or their personal views? How can we curb the excess of Federal power if we allow our courts to step so far beyond the limits of their legitimate authority? How can the least among us depend on the law to deliver justice, to protect them, to steadfastly protect their liberties, if rulings are no longer objective and if a single judge has the power to place his or her empathy above the law and the evidence? So with these fundamental questions in mind, I hope the comments I make in the weeks to come will be of some value as we talk about the future of the judiciary, what the role of a judge ought to be on our highest court, and to uphold our sacred charter of inalienable rights. So let me repeat, I love the American legal system. I am so much an admirer of the Federal legal system I practiced in for 15 years before fabulous judges. They were accused sometimes of thinking they were anointed rather than appointed. But I found most of the time--the prosecutor that you are--they did follow the law and they tried to be fair. I think the independence we give them is a factor in their fairness and something I will defend. But there is a responsibility that comes with the independence judges get. And that responsibility is that when they get that bench and they assume that power, they not abuse it, they use integrity, they are objective, and they show restraint. Mr. President, I yield the floor.

Mr. SESSIONS. Mr. President, I see my colleague from Ohio is here. I am wondering if we are in an alternating situation. I wish to speak for about 5 minutes. Would that be all right?

Mr. SESSIONS. Mr. President, my colleague from Illinois, Senator Durbin, is such a fine lawyer and an excellent Senator. I would respectfully talk about some of the ideas he suggested. One, he raised the question about the case of Brown v. Board of Education where the Court held that separate was not equal, and that somehow this is a justification for a judge setting policy. He thought it wasn't good policy. I would see it differently. I would say Brown v. Board of Education was the Supreme Court saying that the Constitution of the United States guarantees every American equal protection of the laws. They found that in segregated schools, some people were told they must go to this school solely because of their race, some people must go to this school solely because of their race, and that, in fact, it wasn't equal. So there are several constitutional issues plainly there, and I don't think that was an activist policymaking decision. I think the Supreme Court correctly concluded that these separate schools in which a person was mandated to go to one or the other based on their race violated the equal protection clause of the United States, and, in effect, they also found it wasn't equal, which they were correct in doing. With regard to the Lilly Ledbetter case, Senator Durbin and my Democratic colleagues during the last campaign and during the last several years have talked about this case a lot. I would just say that everybody knows it is a universal rule that whenever a wrong is inflicted upon an individual, they have a certain time within which to file their claim. It is called the statute of limitations. If you don't file it within the time allowed by law, then you are barred from filing that lawsuit. It happens all over America in cases throughout the country. The U.S. Supreme Court heard the evidence, and it was argued in the U.S. Supreme Court. This one lady, Lilly Ledbetter, took her case all the way to the Supreme Court. They heard it, and they concluded that she was aware of the unfair wage practices that she alleged long before the statute of limitations--long before--and that by the time she filed her complaint, it was way too late. In fact, one of the key witnesses had already died. So it was years after. So they concluded that. The Congress, fulfilling its proper role, was unhappy about it and has passed a law that I think unwisely muddles the statute of limitations on these kinds of cases dramatically, but it would give her a chance to be successful or another person in that circumstance to be successful. So this wasn't a conservative activist decision; it was a fact-based analysis by the Supreme Court by which they concluded that she waited too long to bring the lawsuit, and it was barred. Congress, thinking that was not good, passed a law that changed the statute of limitations so more people would be able to prevail. It is not wrong for the Court to strike down bad laws. We just had a little to-do with Attorney General Holder today in the Judiciary Committee in which the Office of Legal Counsel of the Department of Justice had written an opinion that he kept down and has still kept it hidden that declared that the legislation we passed to give the District of Columbia--not a State but a district--a U.S. Congressman was unconstitutional. He didn't want that out since he and the President supported giving a Congressman to the District of Columbia. But I think that case is going up to the Supreme Court, and I would expect it will come back like a rubber ball off that wall because I don't think that was constitutional. And I don't believe that is activism or an abuse of power; it is simply a plain reading of the Constitution. If the Congress passes laws in violation of the Constitution, they should be struck down. There is nothing wrong with that if the Court is doing it in an objective, fair way, not allowing their personal, emotional, political, cultural, or other biases to enter into the matter. So I think we are going to have a great discussion about the Supreme Court and our Federal courts. I look forward to it. I really appreciate Senator Durbin. He is a superb lawyer. If I were in trouble, I would like to have him defending me. I thank the Chair, and I yield the floor. Health Care Reform

Mr. SESSIONS

Mr. SESSIONS. Mr. President, about 2 weeks ago I spoke on the floor about the unprecedented budget deficits this country is now facing and the fact we are spending money we do not have. I specifically discussed the impact that is having on Treasury yields. What we know is that President Obama's budget has been scored by the Congressional Budget Office, which is our group, and I think they do a pretty good job. They take pride in being independent and fair. The head of it was selected by the Democratic majority in the Senate. It is certainly not a Republican organization. They are just fair, trying to do the best they can to try to calculate the numbers. What they calculated was that at the rate of deficit spending we are now undertaking, the total American debt will double in 10 years, from $5.7 trillion to over $11 trillion. In 10 years it will triple to $17 trillion. That is a lot of debt. You might ask how do you do that? How do you spend more money than you take in? The way we do it is we borrow it, just like other people do. The Government borrows it. The way it does is, it puts out an auction or sale of Treasury bonds or bills, T-bills they call them, and people buy those things if they choose to do so, and the Government pays them a certain interest rate, whatever the interest rate is at the time. On short-term debt instruments--short term are under a few months-- those interest rates are still rather low because people are panicked over the economic situation. They are afraid to put their money in the stock market, so they bought Treasury bills. Other people around the world did too. They are not getting much interest, but they believe the Government will pay them back in dollars, eventually. So what has been happening to the 10-year Treasury bill, one of the foundations of our borrowing, is the rate has continued to go up. Two weeks ago, I pointed out that the 10-year Treasury yield had increased 54 percent this year, at that time from 2.4 percent in January, to 3.7 percent. Barron's, a major financial publication, predicted a few weeks ago that Treasury yields could top 4 percent this year. Well, guess what. Treasury yields topped 4 percent last week. The Wall Street Journal in a front-page article on June 11 said that the 10-year Treasury yield briefly hit 4 percent yesterday afternoon before closing at 3.94 percent. That would be a 67-percent increase in the Treasury bill interest rate just this year. Why are the rates going up? It seems there is some disagreement between Washington and Wall Street. The Wall Street Journal article says this: Many policymakers see the rise in Treasury yields as a sign that investors are optimistic that the economy is on the mend. But many market participants say higher long-term bond yields indicate investors are increasingly worried about inflation. So I interpret that to mean that the Washington politico crowd, looking to see a positive vision here, say it is because the economy is doing better. And that could be a factor. But the folks on Wall Street, who are buying the T bills, say differently. Is the government responsible for this increase in interest rates? It seems that is a real possibility. The Federal Reserve is creating inflation concerns through its massive asset purchase program. The Fed plans to purchase $1.25 trillion in mortgage-backed securities, $200 billion in Freddie Mac and Fannie Mae debt, and $300 billion in Treasury bills this year. Since there are not enough people who want to buy the Treasury bills, the Federal Reserve is stepping in and buying them in an attempt to keep the rate down. So far the Fed has purchased $481 billion in mortgage-backed securities, and $130 billion in Treasuries. The intention of the program is to reduce the Treasury yield and interest rates, but it may be backfiring. A Forbes.com article on May 28 quotes former Federal Reserve Governor Lawrence Meyer on how this kind of action could actually have a different impact. It could actually cause inflation and even cause a rise in the Treasury bond yield. This is what he said: This can become counterproductive. To the extent that you stoke inflation fears and you get an inflation risk premium built in [to the bond yield] you can't ease that away. You do have to be careful and more measured than that. In other words, when there is a perception which may be reality that not enough people are willing to buy these Treasury bonds at lower rates, because they think even 4 percent may not be enough because they may fear that inflation is going to be 6 or 7 percent down the road, they do not want to lock themselves in for 10 years at a 4-percent interest rate that is below the inflation rate. So the Fed steps in and buys some of this to keep it low, and that may be having the perverse incentive of causing a belief to occur in the marketplace that inflation is on the way, and scares people even more. Also let me say this about the voluntary purchase of Treasury bills by citizens of the United States, people in China, the Middle East, and around the world. They do not have to buy Treasury bills. We are going to be offering amounts, these kinds of bills, in volume we have never offered before in the history of the Republic. So the question is, who wants to buy them? Who wants to hold a mortgage on the United States? What if we inflate our currency? Maybe 4 percent is not enough. Maybe they want more. Maybe China, which had a huge trade surplus a few years ago, is deciding they are not going to buy so many Treasury bills in the United States. Maybe they decide they need to invest in their own economy, which is not doing as well as it has done in the past. The same about the Middle East. They used to have huge reserves of American money as a result of the high price of gasoline and price of oil on the world market. That price dropped some. So perhaps they do not have as much money to buy our Treasury bills either. So who is going to buy them? We are not talking about a little bit, we are talking about going from $5 trillion in total debt today to $11 trillion in 5 years, and $17 trillion in 10 years. So we are talking about over $10 trillion in new debt we have to sell to someone in the world market. Also, what is the impact of the Federal Reserve, that entity we have created by law, when they buy Treasury bills? What occurs there? I remember hearing Mr. Bernanke, the Federal Reserve Chairman, talking about this on ``60 Minutes.'' Some of you may have seen him being interviewed on that program. I went back and had the transcript of that program called up, and we reviewed it. It is what I thought he said. In response to reporter Scott Pelley's question, Chairman Bernanke said about the Fed's programs: It's much more akin to printing money than it is to borrowing. Mr. Pelley replied: You've been printing money? And Mr. Bernanke replied: Well, effectively. And he added: And we need to do that, because our economy is very weak and inflation is very low. So if you want to know the definition of printing money, that is it. Some people say that is not a fair thing to say; we are not printing money. Mr. Bernanke says we are printing money. He is the Chief of the Fed. He is the guy who does it. Why does this matter to the average American? Even those who are not planning to buy a Treasury bill any time soon will be affected. That is because mortgage interest rates--what we pay to borrow money to buy a house with--track the 10-year Treasury yield. So as the 10-year Treasury goes up, mortgage rates go up too, and it is much harder for people to buy a home or to refinance. Or if you want to sell a home, it is harder for the person who wants to buy it to borrow the money. He has got to pay considerably more for a house in the interest rate. In fact, according to the Wall Street journal, 30-year mortgage rates have gone up 16 percent in the past 2 weeks, from 5 percent to 5.79 percent. This is the money, when you go out, you have to borrow money to buy a house with. What we need to happen in America is people buying homes and taking them off the market. There is a huge difference between 5 percent and 6 percent. On $100,000, 5 percent interest would be $5,000 a year you pay in interest; $400-plus a month. On 6 percent interest, it is $6,000 a year, or $100 more a month on $100,000. For a $200,000 mortgage it would be twice that. It would be $2,000 or $3,000 more a year you would pay in interest alone because the rate went up a bit. We were hoping that the interest rates would stay low to encourage people to buy homes, encourage people to refinance, and be able to live a better life. The Wall Street Journal article said that this increase--from 5 to almost 6 percent--will cut the number of people with an incentive to refinance their homes and save money by paying less interest by half. Let me mention one more thing. One of the things that is interesting in all of this is the impact our spending has had on the economy. We all hoped it would have a pretty dramatic impact. But it is not being nearly as effective as people thought. Even I thought we would have some impact in the short term. But I believe that CBO is correct. When we passed the $800 billion stimulus package that was supposed to put money out into the economy to build roads and bridges, we found out only 4 percent of the money went to roads and bridges, 96 percent went to other kinds of government spending, but that $800 billion was supposed to create a good bit of jobs and get this economy moving. I want to say things are not going as well as we would like. I remain optimistic. The Fed is doing all of these things, the spending is coming along. Surely we are going to have a benefit from that in the near term. But this shows the deficit surge. The deficit, by which I mean how much more money we are spending than we take in. This goes through March of this year. You can see how the deficit is increasing, how much our shortfall is. And by March, it has already topped $953 billion. That is more than twice the biggest deficit President Bush ever had. And he was criticized for his deficit. That is twice. We have not gotten to the end of the fiscal year yet. What the CBO projects--this is our own Congressional Budget Office, their numbers, and they are running the tally of how much we are spending and how much is coming in. They calculate by the end of the year the deficit will be $1.8 trillion, which is about four times the highest deficit President Bush ever had. I say that because people say: Well, President Bush had deficits too. Yes, he did. A lot of that was not justified, in my opinion. But we never had deficits like this in the history of the American Republic. And you do have to borrow this money. This is in March. By September 30, we are looking at a deficit of $1.8 trillion this year alone. And the whole debt of the American Republic, since its founding, is about 5.7 trillion before this year started. What is that? That is one-third in 1 year. We hoped that spending and this activity would help improve the unemployment rate. But you can see, it is going up. It was 6.6 and it has gone up to 8.5. Well, it is not 8.5 percent. That was in March. The latest number is 9.4 percent. So I do not know how much real boost we have gotten from this reckless spending. So much of it we knew was not job creating, and we debated that. It was clear that a lot of this was the kind of spending that would not create jobs. As I said, you heard about roads and bridges. Well, only 4 percent of the money went to roads and bridges. A lot of it went to all kinds of programs that are not job-creating programs. So I am concerned about that. This is a vibrant country, and I think we have the capability of bouncing back from hard times. I will just say, we are at 9.4 percent unemployment. Unemployment in the early 1980s, under President Reagan, when they had to break the back of surging inflation, they broke the back of 13-percent inflation. Unemployment hit 10.8 percent. So it is not as bad as it was in the 1980s, and we bounced back from that, and we can bounce back from this. But I have to say to my colleagues, if we do not have fiscal sanity in how we do our business, if we do not have a possibility of showing growth in revenues from economic growth and the containment of spending--and our deficits are surging for as far as the eye can see-- then I am not sure we will have the kind of healthy, robust resurgence we would normally expect to occur after a recession. Look at these numbers. This is very disturbing. We borrow all this money, and we spend it today. I know a great lawyer who has written a book, ``The Case for Character.'' He said: This is a question of character, what I am going to talk to you about here. It is a question about the moral character of the Congress and the President of the United States and how we approach our duties in a responsible manner. In 2009, this year, we expect that the taxpayers of the United States--on the $5.7 trillion we have borrowed--will pay $170 billion in interest. That is a total loss. That is money that goes out to people who have loaned us money. It is interest, just like on your credit card or on your mortgage--$170 billion. And look how it goes up. This is a chart I have of the interest each year. And 10 years from now, if we follow the President's budget, it will be $806 billion, according to the Congressional Budget Office. All right. That is just money. How much is that? How much is $806 billion? Let me tell you what we do today. The Federal highway bill is about $40 billion. The Federal aid to education in all its forms is about $100 billion. So now, since we take money from the future, and we spend it today in a reckless way, I think, to get some sort of hope for stimulus we have not seen much of, we are going to saddle the people in 2019 with an annual debt payment of $806 billion--10 times the Federal education budget, 20 times-plus the highway budget. So we do need to be focused on this issue. Let me say one more thing. According to the Congressional Budget Office, the deficit is supposed to drop down in 2 or 3 years, but already it looks as if we will not meet those numbers. The economy is not as strong as they were projecting. It was a rosy scenario. But they project about $600 billion is what the deficit will be 2 or 3 years from now--30, 40 percent higher than anything President Bush ever had-- $600 billion. Then it starts up again, and it goes up to the 10th year. And in the 10th year, under the scoring of the President's budget by the Congressional Budget Office, the deficit will be over $1 trillion in that year--$1.1 trillion. That is not sustainable. And they are not projecting an economic slowdown. They are projecting modest growth over that period of time, solid growth for the last 5 years during this period. If we have a recession, presumably the deficits would be even larger than that. I guess I would say to my colleagues, this is a matter we need to start thinking about. It cannot be ignored. Nothing comes from nothing. If you get money to spend today, you must spend every dollar of it with care because you have borrowed it from the future, and somebody has to pay it back. It is not free money. Maybe it feels as if it is free today because we did not have to pay higher taxes or we did not cut some other spending program to get the money to do what we would like to do with it. We just borrowed it. But borrowing has consequences. Every year from here on out, that $806 billion will go up probably because in 2019 they expect not a balanced budget but an annual deficit of that year to be over $1 trillion. So the thing is going to continue to worsen. If we do not make some changes, this will continue. By the way, this does not include the spending we are talking about on health care, which you heard a speech about earlier. I will say this about it: the Health, Education, Labor and Pensions Committee has released details on a bill. According to CBO, what they have released so far scores at $1 trillion. Oh, we just got another $1 trillion not calculated in these numbers. ``Well, everybody just needs to have health insurance.'' So who is going to pay for it? We have to be smart. We have to see how we can improve health care, get more people insured, create a better system with the absolute lowest possible cost because we cannot continue this kind of reckless spending. Instead of learning a lesson from the already surging deficits, we seem to be blithely going on with a huge new spending program on top of that. The American people, I think, are uneasy. They think we are out of control up here. They do not think they have ever seen anything like this: deficits the likes of which we have never seen in peacetime. The U.S. Government passed a bill last fall that was supposed to buy toxic mortgages from banks, and now they bought a controlling share in General Motors. How did this happen? Did Congress ever vote on that? No. We did not vote on it. They took advantage of the language in that bill, which I was opposed to and voted against. One of the reasons I opposed it was because it was too broad and an unbelievable abrogation of congressional power to the Secretary of Treasury, who had already helped lead us into financial catastrophe. But people in panic, they all voted and gave him this power. Did anybody know we were going to use that money to buy an automobile company? No. In fact, Secretary Paulson at one point was asked at a hearing: What about buying stock in banks? This was supposed to be helping the banks. In the House committee, he said, no, we did not want to buy stock in banks. But a week after that bill passed, he was buying stock in banks. And they have not yet begun to buy toxic mortgages. Maybe they will begin soon. They say they have a plan now. I am saying the American people are right to be concerned about the reckless, irresponsible behavior of this government in Washington. I hope they will continue to watch what is going on. I hope the American people will speak out and let the folks up here know they expect us to do something more than deal with the problem next week. They expect us to be thinking about the long-term health of the American economy. I heard a well-known financial expert say: Well, you know what? I am not saying there will be reckless inflation occurring, although some people are predicting that. He said: After President Reagan broke inflation and we got the economy on a sound track, the economy grew at about 3 percent a year and inflation was about 2 percent. He said: What I am worried about is that what we are going to see in the next 10 years is inflation at about 3 percent and growth at about 2 percent. That is not good. You want your growth to exceed the inflation rate. I do not know what will happen. I cannot predict it. But I know this: We are going to have less money to spend on the things we need because we are going to have to be paying a huge amount in interest. Those are real concerns. This matter is not going away. I believe the American people are becoming more and more attuned to these matters. That is what the Tea parties were about--a sort of spontaneous reaction by the American people saying: What are you guys doing up there? Surely you know this is not the way to handle America's business. I will say, I am going to continue to report on things that are developing. Surely we will begin to see some improvement in the unemployment rate and maybe some economic growth in the weeks to come. You would normally expect that when you pump the kind of money we have pumped into this economy. But in the long run, this begins to drag down the gains you make in the short run. That is what I am saying. In fact, the Congressional Budget Office said--analyzing the stimulus package alone--it would increase our GDP, our growth for 2 to 3 years, but if you took that over 10 years, the economy would grow less over the 10 years than if we had no stimulus package at all. That is because when you borrow money, not only do you have to pay interest on it, but it crowds out borrowing from the private sector. If a corporation wants to borrow money through the issuance of bonds, they are having to compete with the Treasury bills that are now paying 4 percent, and they will have to pay a good bit more because people think the Treasury bills are better, safer investments than some private corporate bonds. It hurts the private sector because now they are paying considerably higher interest rates to get people to loan money to them instead of loaning it to the U.S. Government. I thank the Presiding Officer for the opportunity to share this. I hope and pray we can all figure out a way to work together to do a better job of being stewards of this economy. It is a high responsibility we have. No one knows everything. No one has a perfect answer to it. We are going to have to go through some tough times. I think that is clear, and there is no need to sugar-coat that. I am not blaming President Obama for everything that has gone wrong, and he inherited so much of this. I have talked about Secretary Paulson. I do not think Secretary Geithner is any better. He was Secretary Paulson's top adviser when they came up with this plan last fall. But, at any rate, we need to get our heads together and know one fundamental thing: Nothing comes from nothing. There is no free lunch. If you borrow money to spend today, there will be a cost in the future, and those costs can outweigh the benefits that are occurring today. I thank the Chair and yield the floor.