Sheldon Whitehouse

Mr. WHITEHOUSE

Mr. WHITEHOUSE. Mr. President, I ask unanimous consent that the Senate proceed to the immediate consideration of S. Res. 8, submitted earlier today by Senator Reid.

Mr. WHITEHOUSE

Mr. WHITEHOUSE. Mr. President, I understand there are 12 bills at the desk, and I ask for their first reading en bloc.

Mr. WHITEHOUSE. Mr. President, I ask unanimous consent that further reading of the bills be dispensed with.

Mr. WHITEHOUSE. Mr. President, I now ask for a second reading en bloc, and I object to my own request en bloc.

Mr. WHITEHOUSE

Mr. WHITEHOUSE. Mr. President, I ask unanimous consent that the joint resolution be read three times and passed, the motions to reconsider be laid upon the table, and that any statements relating thereto be printed in the Record.

Mr. WHITEHOUSE. Mr. President, I ask unanimous consent that the Senate proceed to the immediate consideration of S.J. Res. 3 introduced earlier today.

Mr. WHITEHOUSE

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 President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. WHITEHOUSE. I wanted, while the Senator from Oklahoma is still on the floor, to let him know I appreciate his concern and I am grateful for his kind words. I would hope the one or two red flags that he has mentioned are not such as to justify necessarily extending the period between nomination and confirmation hearings more than 2 weeks beyond what the Senate gave for other nominees such as Attorney General Thornburgh, Attorney General Barr--almost 2 weeks for Attorney General Reno, 2 weeks longer than for Attorney General Ashcroft, 1 day short of 2 weeks longer than for Attorney General Meese. Some of these people have some red flags too, but the Senate was able to do its job timely and I hope we will do so again. I yield the floor.

Mr. WHITEHOUSE. If I could finish the question----

Mr. WHITEHOUSE. I appreciate that very much. I thank the Senator from Oklahoma for his courtesy for yielding. I wanted to make sure the distinguished Senator was not suggesting that when the Senate allowed 26 days between Attorney General Reno's announcement and her nomination hearing, or allowed 25 days between Attorney General Ashcroft's announcement and his nomination hearing, or allowed 30 days between Attorney General Mukasey's announcement and his nomination hearing that the Senate was then underprepared or had not done its job in evaluating, or didn't have enough time to evaluate those candidates. I think they probably did. They appeared to going forward. By comparison, the 39 days----

Mr. WHITEHOUSE. Mr. President, a moment ago I had the honor of presiding before the distinguished Senator from Florida replaced me in the chair, and I was presiding during the time the distinguished Senator from Iowa, Mr. Grassley, and the distinguished Senator from Arizona, Mr. Kyl, came to the floor to discuss the timing of the nomination proceedings for the President-elect's candidate for Attorney General, Eric Holder. I had the chance to hear the points that they made, and I wish, just briefly, to respond to a few of them. As the junior member of the Senate Judiciary Committee, I am certainly in no position to speak for the chairman. Obviously we heard Senator Kyl ask that the timing be done on a reasonable basis, and I think Senator Leahy, the very distinguished chairman of the Judiciary Committee, is nothing if not reasonable and has shown enormous reasonableness with the timing of all the nominees that have come before him. And I would expect this to be no different. But in evaluating the reasonableness of the schedule that the chairman has proposed, or, I should say, announced, it may be worth putting it into the context of the history of these sorts of nominees. If you go all the way back to President Carter, for more than 30 years, whether the Senate was controlled by Republicans or Democrats, or the President was a Republican or a Democrat, we have had nominees for Attorney General come through the process. And throughout that long span of time, the average time between the announcement by the President of his choice for Attorney General and the nomination hearing, the average amount of time has been 29 days. And the average amount of time until a committee vote has been 37 days. So that is the background. If you average over 30 years, from the announcement, 29 days to the hearing, 37 days to the vote. The schedule that Chairman Leahy has proposed is 39 days to the hearing, and he hopes for 50 days to the vote. So instead of the average that it has been over 30 years of 29 days, the Republicans have 10 extra days beyond the average to do the work that they assert that they need to do, and the vote may not come for 50 days, which is 11 days longer than the average. I think everyone in this body understands the importance of a new President having his new Attorney General in place quickly. The President is going to be sworn in on January 20, and I think it is in all our interests as Americans to make sure that his choice is honored in a reasonable timeframe so that when the President takes office, he has an intact team. Certainly with the Attorney General as such an important part of the President's national security team in this time of national security concerns, he should have an intact team. And so it seems to me that the average is a pretty reasonable place to start, and when the chairman has given an extra 10 days beyond the average just to the beginning of hearings, and hopefully an extra 13 days beyond the average for the vote, it's a pretty good signal that the chairman is being very reasonable about this. Most recently, some of the Attorneys General whom we have seen, Attorney General Mukasey had a period of 30 days from his nomination to the start of the hearings. That was at President Bush's request. Remember, he indicated that he wanted to get him in place soon. The Department was in grave distress and we needed to act quickly. We acted in 30 days. We are acting here in 39 days, more than was given for Attorney General Mukasey. The vote hopefully will be the same as for Attorney General Mukasey: 50 days from the announcement to the vote. It doesn't sound unreasonable. Nobody said it was unreasonable when Attorney General Mukasey was put through that schedule. I don't see how it can be unreasonable that Eric Holder should have a more generous schedule, and somehow that is no longer reasonable. For Attorney General Ashcroft, it was 25 days to the hearing instead of 39; 39 days to the vote instead of the hoped-for 50. For Attorney General Reno, 26 days to the hearing instead of 39 days; 27 days to the vote instead of the hoped-for 50. Nearly twice as much time as for Attorney General Reno. So I think the point is pretty clear. It is the tradition and the history of this body to honor the President's request to act quickly, and in terms of the reasonableness of the schedule that Chairman Leahy has proposed, he has proposed a schedule that is on the generous side of the average and of recent history. With respect to the concern that there is a lot to look at in Eric Holder's history, well, every lawyer who is experienced and active enough in the profession to be a candidate to be Attorney General of the United States has got a long history to look at. That is a given. That is a constant. That is not something that is different about Eric Holder than about any of his predecessors. Indeed, if anything, the opposite concern would be justified, which is that we have already had a lot of time to look at Eric Holder. First of all, he has an astonishingly distinguished record to be Attorney General. It is remarkable--his personal story, his career. It is all spectacular, truly. But specific to the question of nomination, this is a lawyer who came right after law school to the Department of Justice and served as a prosecutor for a decade prosecuting public corruption cases. So he had to be cleared by the FBI to come in as a Department of Justice attorney, and he served there for all those 10 years. That is all a matter of clear public record. Everybody has had a chance to look at that forever. The next thing that happened, in 1988, Eric Holder was nominated by President Ronald Reagan to the bench to serve as Superior Court judge in Washington, DC. Again, he was confirmed by the Senate. We had a full look of everything up to 1988. After his service on the bench, Eric Holder was nominated by President Clinton to serve as the United States Attorney for the District of Columbia. United States Attorney Holder and I were colleagues; me in Rhode Island, him down in DC. I went through that process of nomination and confirmation. It is exhaustive. It was done for him. He was confirmed at that time. So as of the date he was appointed United States Attorney for the District of Columbia, we had done a complete Senate look of his record to that point. And that wasn't the last time. In 1997, President Clinton nominated United States Attorney Holder to serve as the Deputy Attorney General of the United States, Attorney General Reno's No. 2 in that department. And he was then confirmed by this body, the Senate, unanimously. And, again, we had that full record of his before us at that time. So this is a guy who has been the subject of very public attention as a public official, the Deputy Attorney General. There isn't a whole lot that one does as Deputy Attorney General that isn't available to the public, that isn't in the news media. This is not somebody who has come out of nowhere and who has a great, vast mysterious past history that we need to have a look at. Indeed, this body has had three looks at him, confirmed him three separate times. The most recent time as late as 1997, unanimously. So I think the notion that--with only 1997 to now to look through, a period of a mere decade--the idea that he is being shoved unreasonably rapidly through the process, when he is substantially slower than the average, simply doesn't hold water. And I would urge my Republican colleagues--again, they can have discussions with the chairman that obviously are at a rank higher than mine--but I would urge my colleagues to consider their views in that context: in the context of a spectacularly qualified individual who has thrice been confirmed by this body, as recently as 1997, and who is being given more time for scrutiny than the average or the recent Bush appointees, and in an environment in which I think we can all agree that after the Bush management of the Department of Justice, we badly need a new Attorney General in there and soon. So with those observations I will yield the floor. I thank my colleagues for waiting while I finished my remarks. I see the distinguished Senator from Oklahoma on the other side of the Chamber and I yield the floor.

Mr. WHITEHOUSE. Will the Senator yield for a question?

Mr. WHITEHOUSE

Mr. WHITEHOUSE. Mr. President, I ask unanimous consent that we extend morning business until 7:30.

Mr. WHITEHOUSE

Mr. WHITEHOUSE. Madam President, I rise today to address what I feel is an unfortunate omission from our economic rescue strategy to date. This week, we are considering another bailout which would give $15 billion in so-called bridge loans to America's struggling automakers. Now, when we debated a bailout program to protect our Nation's financial system back in September, we created legislative branch roles and executive branch roles. We ultimately passed legislation that empowered the Department of the Treasury to invest up to $700 billion. Debate was rushed. The Treasury Secretary came to us on a Friday in September and told leaders of both parties in both Houses that our economy would collapse if we did not take immediate action. With the threat of immediate financial calamity and the apparent good faith of Secretary Paulson, Congress moved quickly to pass the best bill we could. Senator Chris Dodd of Connecticut and my colleague from Rhode Island, Senator Jack Reed, worked heroically, almost around the clock, to negotiate for taxpayer protections and several levels of oversight. In the end, we created a program of congressional and executive roles but no judicial role. We ignored the role that courts can play here or, more correctly, that executive agencies can play when supported by judicial or even quasi-judicial due process. We are about to ignore that role again in the auto bailout. Why is this point important? This is important because under our American system of government, there are important powers of government that can only be exercised after due process opportunity for a hearing. The famous Supreme Court case of Fuentes v. Shevin is on point. I quote: The constitutional right to be heard is a basic aspect of the duty of government to follow a fair process of decision- making when it acts to deprive a person of his possessions. That is citation 407 U.S. 67 at 82. In other words, some means of restructuring require due process if they involve adjusting people's financial rights and claims. When we fail to provide that process, we unilaterally disarm government's response, taking away its ability to restructure using those means. The price of this repeated omission has been high. Going back before we even got into this current mess, when there was only a subprime mortgage problem, Senator Durbin of Illinois proposed a bill that would have empowered bankruptcy judges to modify the terms of a mortgage on a person's primary residence. One needed a due process hearing such as that in order to adjust the rights within that mortgage of the banks and the myriad investors who bought strips of that mortgage when it was carved up and sold to the four winds. Our Republican colleagues stymied this provision which we now see could have kept tens of thousands of families in their homes. Because the clarity and finality of a court decision on a troubled mortgage was not available, there was little alternative to foreclosure, and troubled mortgages, by the tens of thousands, cascaded into foreclosure--numbers never before seen in our history. Our fault. Bad design. And every day we don't get it right, every day we don't pass Senator Durbin's bill, that foreclosure problem worsens. Similarly, as part of the $700 billion Wall Street bailout, we could have addressed lavish and indefensible executive compensation by providing for some judicial power to restructure these packages. Because we didn't, these grotesque liabilities remain on the books of the bailed out entities as obligations to their disgraced management. According to an analysis by the Wall Street Journal, the executive deferred compensation obligations of bailed out Wall Street firms amount to more than $40 billion. Banks participating in the bailout program carried these obligations on their books, and the cash from our bailout is being used to pay them--or will be used to pay them. Taxpayer dollars will end up in the pockets of the scoundrels who tanked those firms. I contend we have to find ways in which the court system, due process, can be brought to bear on this problem. But again, the inaction on that so far is our fault. Bad design. Unilateral disarmament in the face of the Wall Street meltdown. Now we have the auto bailout plan with its provision for a ``car czar,'' but once again, lacks a role for those due process powers of government. Once we are committed to this deal--once we are in--the only tool we will have at that negotiating table is Uncle Sam's checkbook--that, and the somewhat improbable threat to walk away and tank the auto companies after having put $15 billion into them. So now we will have to negotiate about the companies' continuing lavish executive and board compensation packages and other obligations impeding a fair and rational recovery. As for looking backwards at preexisting obligations, as we say in Rhode Island, forget about it. That requires due process. We have created no process to even invoke government's power to review those. So the effect of all of this is to encourage special interests to play the holdout in the auto negotiations and dare us to tank the companies. It is going to be a high stakes game of chicken and, no matter who wins, the taxpayers lose. We created this ``hold out'' problem by not providing a judicial role in the restructuring. We could, for example, give the car czar the powers of a judicially appointed conservator or receiver--those are roles I have held--and the power to go to court for an order approving his plan or her plan over the objections of any holdouts. If we did that, it would change the bargaining position of the holdouts. This judicial due process would allow the strong powers of government that require due process to be brought to bear on this mess. We do this in a lot of different contexts. Bankruptcy courts oversee restructuring all the time and so do other quasi-judicial bodies. For example, the FDIC has the power under current law to place a troubled bank into receivership and wind it down as if in chapter 7, or put it under conservatorship to restructure it as if in chapter 11. The bankruptcy courts and the FDIC possess the tools necessary to cut through whatever Gordian knots may snarl restructuring plans absent that power. The judicial imprimatur will also increase public confidence in the fairness and the propriety of these plans. There is flexibility about how we do this. We don't have to have it be the FDIC. We don't have to have it be a bankruptcy court to recognize the due process powers of government. Fuentes v. Shevin again, and I quote: Due process tolerates variances in the form of a hearing ``appropriate to the nature of the case,'' and ``depending upon the importance of the interests involved and the nature of the subsequent proceedings, if any.'' I hope my colleagues will recognize the importance of authorizing judicially supervised powers in these bailout plans. I pledge to work hard with anyone who wants to achieve this goal. It is vital, I contend, to recognize that directed judicial oversight expands government's powers and authorities to do the things the public and the circumstances demand. It gives us a means to unsnarl the foreclosure mess on Main Street, to restructure obscene executive compensation on Wall Street, and to force good-faith negotiations in Detroit. We cannot ignore the judicial power in restructuring companies and industries. We must not let that sword sleep in our hands. Times are bleak in Detroit, as they are around the country. The automobile industry stands on the brink of collapse, and the jobs of thousands-- some say millions--of workers hang in the balance. Michigan shares the sad distinction with my home State of Rhode Island in having the Nation's highest unemployment rate, 9.3 percent, in October. Families are struggling in Rhode Island and across the country. That is the background against which we must consider whether to bail out yet another industry. In making such a weighty decision, I implore my colleagues, we must not consider just whether but how we go about doing this. I contend that we should empower our Government to take steps that we have, to date, foreclosed--steps that exercise the power of Government that can be only exercised after due process of law. I hope we consider that. Madam President, I ask unanimous consent that the Wall Street Journal article to which I referred be printed in the Record.

Mr. WHITEHOUSE. I thank the Chair, yield the floor, and I suggest the absence of a quorum.

Mr. WHITEHOUSE

Mr. WHITEHOUSE. Madam President, I ask unanimous consent to speak for up to 15 minutes as in morning business.

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

Mr. WHITEHOUSE

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

Mr. WHITEHOUSE

Mr. WHITEHOUSE. If there is no further business to come before the Senate, I ask unanimous consent that it stand adjourned under the previous order.

Mr. WHITEHOUSE

Mr. WHITEHOUSE. Madam President, I ask unanimous consent that when the Senate completes its business today, it stand adjourned until 9:30 a.m., Wednesday, November 19; that following the prayer and pledge, the Journal of proceedings be approved to date, the morning hour be deemed expired, the time for the two leaders be reserved for their use later in the day, and the Senate proceed to a period of morning business, with Senators permitted to speak for up to 10 minutes each; that following morning business, the Senate resume consideration of the motion to proceed to S. 3297. I further ask unanimous consent that with respect to the measures read for the first time, they be considered as having been read a second time on Tuesday for the purpose of placing the bills on the calendar with respect to rule XIV.

Mr. WHITEHOUSE

Mr. WHITEHOUSE. I ask unanimous consent that the resolution be agreed to, the preamble be agreed to, the motions to reconsider be laid upon the table en bloc with no intervening action or debate, and any statements be printed in the Record.

Mr. WHITEHOUSE. Madam President, I ask unanimous consent that the Senate proceed to the immediate consideration of S. Res. 706, submitted earlier today.

Mr. WHITEHOUSE

Mr. WHITEHOUSE. Madam President, I ask unanimous consent that the Senate concur in the House amendment and the motion to reconsider be laid upon the table, with no intervening action or debate.

Mr. WHITEHOUSE

Mr. WHITEHOUSE. Madam President, I ask unanimous consent that the Senate proceed to the immediate consideration of H.R. 5714, which was received from the House.

Mr. WHITEHOUSE

Mr. WHITEHOUSE. Madam President, I understand that there are four bills at the desk and I ask for their first reading en bloc.