we had the hearings on judge bork widely commented upon. very, very extensive hearings on his writings, his view of original intent. and there was an opportunity for the american peel and the scholars to see what was -- for the american people and the consoli throors see what was involved there. there has grown a myth that in that proceeding the nominee knee was bork, turning his name into a verb. my own view is that that is not so that the decision made in rejecting the confirmation of judge bork turned on the record, turned on what happened in the judiciary committee proceedings, that when you really took a look

at original intent, it was way outside of the mainstream of constitutional law, way outside of the constitutional continuum. if you looked to what congress intended in 1868 when the equal protection clause was passed in the 14th amendment in this chamber, the galleries were segregated. african-americans were on one side and caucasians were on another side. so the intent of the senators certainly couldn't have been that the equal protection meant integration. but after brown v. board of education in 1954, there was no doubt that equal protection did mean integration. the confirmation proceedings of chief justice rehnquist were very informative. chief justice rehnquist had more than 30 votes cast against his

nomination in 1986. the issue aroseerose as to the quadive his answering questions as to the role of the supreme court contrasted with the role of congress. chief justice rehnquist had written an interesting article for "the harvard law record" back in 1958 when he was a young practicing attorney criticizing the senate for the confirmation hearings of justice whittaker, not asking probing questions about due process of law. but only extolling justice whittaker's virtues because he represented both the state of kansas and the state of missouri, living in one state and practicing law in the other. and when chief justice rehnquist was asked questions about the authority of congress to take away the jurisdiction of the supreme court, he answered

finally that the congress did not have the authority on first amendment issues. but declined to answer about the fourth amendment, fifth, sixth, or eighth or to answer a question as to why he would respond on the first amendment but not on the others. and there are some issues which are so firmly established that they are outside of the respected rule that we don't ask nominees to say how they will decide upon cases that might come before them but where you deal wishes like marbury v. madison or brown v. board of education or the authority of the congress to take away jurisdiction of the supreme court, interrogation of marbury v. madison, there are questions which ought to be arch answered. the confirmation hearings

provide an opportunity to go into detail about the functioning of the court. a few years ago when the issue of judicial pay was before the congress, a number of senators were invited to confer with the justices and provided an opportunity for me to see the conference room. i had been a member of the bar of the supreme court, argue add few cases there. but it never seemedz their conference room. and frankly it was quite an eye ownership. is a small room, plain table, modest chairs, very intimate, very austere, and quite -- some insight as to how close the justices are together. and when we talk about diversity, how long it took to get an african-american on the

court, thurgood marshall did not go to the court until 1967. justice lewis powell made a comment reportedly that just having thurgood marshall in the proem made a difference in perspective. really surprising, perhaps scandalous, this it took until 1981 to have a woman on the supreme court. now there are only two. and when i was asked for recommendations for the current vacancy, i recommended four women. to say that a woman's point of view is different and valuable is really, really trite. when i was elected to the senate in 1980, senator kassebaum was the only woman in the chamber. senator hawkins was elected that year. now we have 15-plus and growing. and i think it's been a very

great addition and improvement, a liberation here to have more women here. and another woman would be a plus there, if judge sotomayor is confirmed. and also the diversity on being hispanic is important. we live in a very diverse society. when you see that small supreme court chamber, you can see the intimacy and you can see the -- almost visualize the intellectual discussions and the powerhouses in that room, and how the really big cases are decided with the court having the last word on life and death, a woman's right to choose, medicinal issues of attempted suicide, the death penalty in

capital cases and all of the cutting-edge issues of our society. so the confirmation proceeding of judge sotomayor will give us an opportunity to inquire into some very important issues on executive versus judicial authority, on the authority of the court versus the congress, and toward that end, i wrote a letter to justice sotomayor -- judge sotomayor dated june 15, and i ask unanimous consent that this letter be included in the record at the conclusion of my statement. the presiding officer: without objection. mr. specter: as i note in the opening paragraph of my letter to judge sotomayor, our meeting, so-called courtesy call, lasted more than an hour. and at that time i commented to

her that i would be writing on other subjects, which i intended to ask her at the meeting and she responded that she would be glad to have that advance notice. and the issue that i focus on in this letter involves the respective authority of the congress contrasted with the court on the establishment of a record to warrant legislation which congress enacts. and i noted that i had written to dheef scru chief justice roba similar vein back on august the 8th of 2005 in advance of his confirmation hearings. and i take you were in my letter to -- and i take up in my letter to judge sotomayor the same issue i took up with chief justice roberts, and that is the

decisions of the supreme court in invalidating congressional enactments, declaring them unconstitutional, because of what the court says is an insufficient record. and i note the case of united states v. morrison, which involved the legislation to protect women against violence, where the court was denigrating, really disrespectful to congress, where the court said that the congressional findings were rejected because of our -- quote -- "method of reasoning." -- close quote, as if there is some unique quality which comes to the nominee when the time of confirmation to walk across the green between the heergt room -e hearing room and the supreme court chambers. noted in the dissent by -- noted

in the dissent that the court's judgment was -- quote -- "dependent upon a uniquely judicial competence," as if the competence of the congress was to a lesser extent." that was a dissent by justice souter. and justice souter commented in disagreeing with chief justice rehnquist, who said there was an insufficient record, justice souter noted the -- quote -- "mountain of data assembled by congress, including a record on gender bias from task force in 21 states, eight separate reports by the congress." there was a similar finding by the supreme court of the united states in the case of alabama

v. garrett, where the supreme court decided that there was insufficient record to support the enactment of title 1 for the americans with disabilities act, even though there had been task force hearings in every state aattended by more than 30,000 people, including thousands who had experienced discrimination with more than 300 examples of discrimination by state governments. notwithstanding that, the supreme court in garrett said that there was an insufficient record. in dissent, justice scalia called the test of congruence in proportionality a flabby test, a test that was -- quote -- "an invitation to judicial arbitrariness and policy-driven decision making." when you look to a standard of

congruence and proportionality, it is very vague. sharp divergence from a standard that justice harlan articulated in maryland v. west in 1968, whether there was a rational basis for the congressional decision. so that as justice scalia noted in his dissent in blane v. tennessee, the standard of congruence and proportionality was flabby, and justice scalia went on to say this: "worse still, it tasks this court in the role of congress's fask h. task master. under it the courts and this court must regularly check congress's homework to make sure it has identified sufficient constitutional violations to make us remedy constitutional -- its remedy constitutional and

proportional." in the confirmation hearings of chief justice roberts, he responded in a way very supportive of the role of congress where the court should be differential to the congress. in response to a question by senator dewine, he said that the supreme court ought to defer to congressional findings, and the answer will be in the record with this letter. in response to my quelg, chief justice roberts said the following: "and i appreciate very much the difference in institutional competence between the judiciary and the congress when it comes to basic questions of fact finding development of a record. and also the authority to make the policy decisions about how to act on the basis of a stick record. -- on the basis of a particular record. it is not just agreement on the

record, it is a question of whose job it is to make a determination based on the record. as a judge that you are beginning to transgress into the area of making a law is when you are in a position of r reevaluating legislative findings because that doesn't look like a judicial function." now there the chief justice comes to grips with the dominant role of the congress that ought to be deferred to and says, when the court takes over its judicial law making, which is something which is generally recognized to be in an area which ought not to be transgressed. transgression is chief justice roberts word. it is up to the congress to make the laws and up to the court to interpret them. in the hearing on the voting rights act on april 29,

northwestern austin municipal district v. holder, on the issue of the sufficiency of the record, and here we have 16,000 pages of testimony, 21 different hearings, 10 months of action, then congress in 2006 reauthorized voting rights act. and now in listening to the supreme court argument n., in reading the record, you can't draw any conclusions totally that it looks very much as if the court may be on the verge of finding the record insufficient. chief justice roberts had to th to say in the course of the argument on the voting rights act. "1/20th of 1% of the submissions are not precleared." that to me suggests that they

are sweeping far more broadly than they need to to address the intentional discrimination under the 15th amendment." it's the elephant whistle, you know. i have this whistle to keep away the elephants, you know. well, that's silly. well, there are no elephants. i mean, if you have 99.98% of those being precleared, why isn't that reaching too broadly?" we'll all be watching very closely to say what the supreme court of the united states does in the voting rights case. and especially the opinion of judge -- chief justice roberts, which testified so emphatically at his confirmation hearing as to the role of the congress being dominant. and it was really, as he put it -- quote -- "as a judge, that

you may be beginning to transgress into the area of making a wall." so, those are issues which i'm going to be addressing to judge sotomayor in the course of the confirmation hearings. i'm not going to ask her how she's going to decide a case. that's outside the bound. but i think it is fair to inquire as to what is the standard. is it the justice harlan standard of rational basis? or is it a standard of congruent and proportionally? a standard which is of recent vintage in the city of bernie case, that having been applied in cases where it is very, very difficult to understand the conclusions of the court. if you take tennessee v. lee, where one article of the

americans with disability act was upheld and contrast it with the garrett case where it was stricken. justice scalia, in the argument of the voting rights case, took issue with the congress on a 98-0 decision, suggesting that if it's 98-0, it must not have been too carefully thought through. it reminds me of the 98-0 vote that justice scalia got on his confirmation. many unanimous decisions of the supreme court. i'll be attaching as an appendix this cases, a group of cases. general moore where justice scalia decided the case 9-0. so if this legislative body, if the united states senate votes 98-0 in favor of renewing the voting rights act, relying upon

the extensive record which i have cited, that's not a sign of weakness. that's not a sign that the senate doesn't know what it's doing with a 98-0 vote. so the questions which i have posed for judge sotomayor are these: would you apply the justice harlan rational base standard or the congruent and proportionality standard? what are your views on justice scalia's skarbgtization that the -- quote -- "congruence and proportionality standard is a flabby test and an invitation to judicial arrest by trarryness and policy -- arbitrariness and policy-driven decision making where justice scalia says that is a standard which is so vague? third, do you agree with chief

justice rehnquist's conclusion that the violence against women legislation was unconstitutional because of congress's method of reasoning? fourth, do you agree with the division of constitutional authority between congress and the supreme court's articulated by chief justice roberts in his responses cited in this letter to questions posed at his hearing by senator dewine and myself? i do believe that there will be an opportunity for very important issues to be presented to the nominee based on what i have seen of her, in reviewing her record, and the meeting that i had with her, i have noted her excellent resume and looking forward to giving her an opportunity to answer the many

questions raised in the press where she will have more of an opportunity to have a sound bite, but to give commentary on her record in support of her nomination. i thank the chair and yield the floor. a senator: mr. president? the presiding officer: the senator from tennessee. a senator: i'd like to speak as if in morning business. the presiding officer: is there objection? without objection. mr. corker: mr. president, i thank you. i rise today to speak briefly about a bill that senator warner from virginia and myself will be offering later today. the title will be the tarp recipient ownership trust act of 2009. this bill intends to deal with the issue that our government finds itself in a position of large ownership in companies, something that i think none of us ever imagined would be the case some time ago. this piece of legislation only

deals with tarp recipients. but what it does is solve the unease and the problem that many of us have here in the senate and in congress with the fact that we have such large government ownerships in companies. and what this bill would do would be to set up a trust for all company ownership, tarp company ownership to be put into when stakes are larger than 20% of the company. what it would do is give the administration the ability to appoint three trustees to have a fiduciary obligation to the taxpayers of this country. it would be my hope that these trustees would be people like warren buffet or jack welch or people like that that we consider, all of us in our country, with respect and certainly to be knowledgeable

participants. these trustees would be paid no money. they would do this as a duty to our country. and while their objective would be to look at these companies with fiduciary responsibility to the taxpayers, they also would be given the direction top unload these ownerships by december 24 of 2011. i think this would go a long way towards giving all of us more comfort that there wasn't a political agenda with any of these companies, that these companies were being dealt within a way that is fair and appropriate to the taxpayers. and i think this is something that while is not perfect, would do those things necessary to make us all feel a lot more comfortable about where we are. number one, we'd have three neutral, well-respected business

people looking after our taxpayer interest. hopefully that would shield as much as possible any kind of political involvement in these companies. and secondly, obviously they would be given the directive to unload these -- to unload this ownership by december 24 of 2011, as i have mentioned. mr. president, they can come back at that time, if they feel for some reason that this is not in the taxpayer interest. they can come back to us at that time and seek additional time should they think that's in our interest as taxpayers to extend that period of time. mr. president, this is a bipartisan piece of legislation. this is not done with any kind of ax to grind. this legislation is being offered truly just to solve this rub we find ourselves in where

we have large ownership stakes. specifically today, because of the ownership stakes that exist, the three companies that would be affected by this would be a.i.g., would be citigroup, and would be of course the automobile company general motors. there could be additional companies that through conversions to common equity, that might be affected by this. mr. president, i think this is a very commonsense piece of legislation that i hope will have broad bipartisan support for. i thank you for the time. i'd like to mention one other thing in closing. a number of senators, large number of senators, signed a letter to the leader asking that we do our business in a very thoughtful way as it relates to appropriations. each year we find ourselves in a position where we end up with an omnibus bill that most of us feel very uncomfortable signing into law. we've asked that the appropriations bill be passed in

such a manner that we have eight of them passed individually by the august recess. mr. president, i know today here we are skubg on a bill -- and i realize there's some stalling that's taking place. i have to question why we are focused on a tourism bill today when we still have not begun our appropriations process? i would just say to the leader, i hope that he will move on with doing the appropriations in an appropriate order so that as we've -- as i mentioned, we will have at least eight of those passed by recess so we can do our citizens work in the most appropriate manner. mr. president, i yield the floor, and thank you for the time. the presiding officer: the senator from new mexico. mr. udall: mr. president, i ask unanimous consent to speak as in morning business. the presiding officer: without objection. mr. udall: mr. president, i rise today to honor a proud son

of almagordo, new mexico. army specialist chris kerth died on thursday, june 4, after his vehicle was struck by an antitank grenade. he was 23 years old. in iraq, chris was responsible for escorting convoys, but this job description conveys none of the risk or the courage involved in the job. the military can secure a town or a base, but somebody must still travel the roads that cannot be secured. christopher kerth was responsible for undertaking this act of courage. chris knew how dangerous this job could be when he began his last mission. he was on his second tour of duty, and he had just recovered from a neck wound that won him the purple heart. but for chris, success was defined by keeping his fellow soldiers safe, and that's what he died fighting to do. the values reflected in this

duty are as important in peace as they are in war. his job was to protect his fellow soldiers to be a good friend, and the most difficult of times. by serving them, he served his country. the characteristics that made chris a good soldier also made him a good friend when he was back in alamagordo. they made him a good teacher when he volunteered to tell students at his former high school about his life as a soldier. and they made him a loving and loved son, brother, and husband. chris kerth lost his life keeping american soldiers safe. he was a proud soldier and a good man. my thoughts are with chris' parents and with his wife and with all those who knew and loved him. i ask you to join me today in remember his service. mr. president, i'd also like to speak on another matter today.

and i rise to mark a solemn moment for the navajo nation and for our keupbt. in the past month three of america's veterans passed away. these men were members of the small group of marines known as the navajo code talkers. their story is one of the most compelling in american military history. in may of 1942, 29 navajo indians arrived at camp pendelton in california. they were there to develop a code that could be deployed ease lip and would not be jacked by japanese cryptographers. they became a team of roughly 400 navajos responsible for building and using their code. their success in that mission helped the marines capture iwo jima. it contributed to the american victory and it