as alexander hamilton stated in federalist paper number 78, the interpretation lot is that proper and peculiar province of accords. the constitution however must be regarded by the judge is as fundamental law. he further stated it is indispensable in the courts and justice is that judges have been inflexible in uniform appearance-- if here and to the rights of the constitution. and nominee who does not adhere to these standards necessarily reject the role of a judge dictated by the constitution and should not be confirmed. i look forward to a respectful and rigorous interchange with you during my time of questioning. i have several questions that i hope you will be able to answer. i will try not to put you in a case where you have to answer a future opinion. i understand your desire in that regard and i respect it. i thank you for being here and i

applaud your accomplishments. may god bless you. >> thank you senator. we have been joined by the deputy majority leader, senator durbin and just for those who can plan, especially a judge, we will hear from senator durbin. we will then recess until 2:00 and we will come back at 2:00 at which point senator klobuchar will be recognized. senator. >> thank you very much mr. chairman for good judge sotomayor welcome to you and your family. these nomination hearings can be long and painful but after surviving a broken ankle and individual meetings with 89 different u.s. senators in the past few weeks, you are certainly battle tested. at the nomination hearings for judge ruth bader ginsburg in

1993, my friend senator paul simon of illinois asked the following question. you face a much harsher judge then this committee. that is the judgment of history and that gentlemen is likely to revolve around a question, did she restrict freedom or did she expanded? i ask this question with respect to the nominations of chief justice roberts, justice alito but i think it is an important question of any court nominee particularly to the supreme court. the nine men and women on the supreme court serve lifetime appointments and resolve many significant issues. if the supreme court finds our personal rights to privacy and besides the restrictions can be placed on the most personal aspects of our lives, the court decides the rights of the victims of discrimination, emigrants, consumers, the nine justices to decide if congress has authority to pass laws to protect their civil rights and our environment. they decide what checks will

exist on the executive branch in war and in peace. because these issues are so important we need justices with intelligence, knowledge of the law, the proper judicial temperament and the commitment to a-- impartial justice. more than that we need are justices to have an understanding of the real world and the impact their decisions will have on every day people. we need justices whose wisdom-- >> the officer will remove the person. the officer will remove the person. as i have said before, in both senate sessions, you are a guest of the senate while you were here. everybody is the guest of the senate. judge sotomayor deserves respect to be heard. the senators deserve the respect of being heard. noel verse will be allowed.

it might interrupt the ability of the senators or of the judge or i might say of our guest were sitting here patiently listening to everything that is being said. i thank the capitol police for responding as quickly and professionally as they always do. i apologize senator durbin for the interruption and the yield back to him. >> thank you mr. chairman. more than that we need their supreme court justices to have an understanding of the real world impacts their decisions have on every day people. we need justices is wisdom comes with life, not just with law books. sadly this important quality seems to be in short supply. the current supreme court is issued many decisions that i think represent a triumph of ideology over common sense. when chief justice roberts came before this committee in 2005 he famously said the supreme court justice is like an umpire,

calling balls and strikes. we have observed unfortunately it is hard to see homeplate from right field. if being a supreme court justices were as easy as calling balls and strikes we would not see many 5-4 decisions. in lst alone 23 of the decisions were decided by a 5-4 vote. the recent decision of ledbetter forces could year tire and rubber is a classic example of the supreme court putting activism over common sense. the question in that case was simple, fundamental. should women be paid the same as men for the same work? lilly ledbetter was a manager at a goodyear plant in alabama, worked there for 19 years and did not learn until she was about to retire that her male colleagues were paid more. she brought a discrimination lawsuit. the jury awarded her a verdict for the supreme court in a 5-4 decision reversed it. the basis for it? they said lilly ledbetter filed her discrimination complaint to

lake. the sedar complaint chevette been filed with 1180 days of the first discriminatory paycheck. the realities of the workplace were fewer employees know what their fellow employees are being paid contradicted the decade of the past president and in stafford versus redding, 13-year-old girl strip searched at her school because of a false rumor that she was hiding ibuprofen pills. the oral argument ask questions about the case that unfortunately revealed a stunning lack of sympathy about the eighth grade victum. one of the justices even suggested being strip search was no different than changing clothes for jim class. although justice ruth bader ginsburg help tariff eight colleagues understand why this trip search of a 13-year-old girl was humiliating enough to violate her rights, the majority of the justice ruled the school officials were immune from

liability. 5-4 case in 2007, gonzalez versus carhart the primm cordy gannett overturned the last president and rule for the first time it is permissible to place restrictions on abortion that don't include an exception. judge sotomayor, you have overcome many obstacles in your life that have given you an understanding of the daily realities and struggles faced by every day people. you crippen housing complex in the bronx. yorky misdiagnosis of juvenile diabetes at 88 and the death of your father at age nine. your mother worked two jobs she could afford to send you and your brother to catholic schools and you earn scholarships to princeton and yale. i know how proud you are of your mom and family. your first job out of law school was assistant district attorney. he went on to represent corporations which gave you and other valuable perspective. 17 years as a federal judge two

of demonstrated an ability to see both sides of the issue. you have earned their reputation as being restrained come moderate in neutral. of the 110 individuals who have served on the supreme court justices to rudder nation's history, 106 have been white males. until thurgood marshall pause appointment to the supreme court degeneration ago every justice the rather nation's history had been a white male. president obama's nomination of you to service the first hispanic and the third woman on the supreme court is historic. the president knows and we know that to be the first you have to meet a higher standard. before you can serve on this court, the american people through their elected senators will be asked to judge you. we'll with you and the constitution to be fair jury. thank you mr. chairman. >> thank you very much and judge

thank you. enjoy your lunch and we look forward to you coming back. when you come back we will hear from senator klobuchar, senator kaufman, senator specter, senator franken and welcome senator frank into the committee, and we will then have, and then we will have an introduction of you and what everybody has really been waiting to hear, we will hear from you so thank you very, very much judge. [inaudible conversations] [inaudible conversations]

>> thank you. we can get back in order in the room, and the judge, good to have you back here. as i recall, we left with senator klobuchar, your next and i yield to senator klobuchar. >> thank you very much. it is a pleasure to see you again. i enjoyed our conversation and what i most remembered about that is that you confess to me that he once brought a winter park that to minnesota in june, and i promise i will not hold that against you during this week. i know you have many friends and

family here but it was really an honor for me to meet your mom when president obama first announced your nomination. i love the story about how your mom saved all for money to buy you and your brother the first set of encyclopedias in the neighborhood and it reminded me of when my own parents brought us encyclopedia britannica's brigate is held the hollow-- how would place in the hallway. to me there were a gateway to knowledge, which they clearly to you as low. year mom raised you and your brother on her own. she struggle to buy those encyclopedias on her nurse's salary but she did it because she believed deeply in the value of education. you will not to be the valedictorian of your high school class in the btop senior class in college and go to law school. after that, and this is an experience we have in common, you became a local prosecutor. most of my questions during this hearing will be about opinions

you have authored and work that you have done in the criminal area. i believe having judges with the real world, frontline experience as prosecutors is a good thing. when i think about the inspiring journey of your life i am reminded of the other supreme court justices who came from in your own words, modest and challenging circumstances. there is justice o'connor who lived the first years of her life in a ranch in arizona with no running water and no electricity. bioshield necessity she learned how to mend fences, ride horses, brand cattle, shoed the rifle and drive a truck all before she was 13 years old. i also think about justice thurgood marshall was the great-grandson of a slate. his mother was a teacher while his father worked as a pullman car waiter before becoming a stored in an all white country club. justice marshall waited tables and his mom actually pond her wedding and engagement rings to

get the down payment to send him to howard university law school in washington. then there's just as blackmon view corrupt in st. paul working-class neighborhood in my home state of minnesota. he was able to attend harvard college only because of the last minute the harvard club of minnesota got him a scholarship and he went on to harvard where he worked as the tutor and a janitor. threw four years of college in three years of law school his family was never able to scrape up enough money to bring back to minnesota for christmas. each of these very different justices grew up in challenging circumstances. no one can doubt that for each of these justices, their life experiences shaped have their work and they did, that they did on the supreme court. the shelby and remarkable in in fact it is completely appropriate. our own committee members demonstrate the value that comes from members with different backgrounds and perspectives. at the same time i accomplished colleague senator whitehouse the

son of a renowned diplomat was growing up in saigon during the vietnam war, i was for knesset carhop at the a&w root beer stand in suburban minnesota. while senator hatch is a famed gospel music songwriter, senator leahy is a devoted fan of the grateful dead that he once had trouble taking a call from the president of the united states because the chairman was on stage with the grateful dead. [laughter] we have been tremendously blessed on this committee with the gift of having members with different backgrounds and different experiences just as different experiences are a gift for any court in this land so when one of my colleagues questioned whether you judge would be a justice for all of us or just for some of us, i couldn't help but remember something that hubert humphrey once said. he said america is all the richer for the many different and distinctive strands of which it is woven. along those lines judge, you are

only the third woman in history to come before this committee as a supreme court nominee and is he can see there are currently only two women on the committee, senator feinstein and myself so i think it is worth remembering that when justice o'connor graduated from law school the only offer she got from law firms for for a legal secretary positions. justice o'connor graduated third in her class from stanford law schools of her accomplishments reduced to one question, can she type? justice ginsburg faces similar obstacles when she entered harvard law school. she was one of nine women in the class of more than 500. one professor demanded that she justify why she deserves a c that could have gone to a man. later she was passed over for a prestigious clerkship despite impressive credentials. nevertheless both of them persevered and they certainly prevail. there undeniable merits triumphs over those who sought to deny them opportunity. the women who came before you to

be considered by this committee helped blaze the trail and although your record stands on your own you also stand on their shoulders. another woman with an opportunity to be a justice all of us. as justice ginsburg's recent comments regarding the strip search of a 13-year-old girl indicate as well as your dissent in lilly ledbetter yeakel pay case being a justice for all this may mean bringing real world practical experience into the courthouse. as we consider your nomination we know that you are more than a sum of your professional experience is. still, during one of the most wide-ranging legal resumes to this position, civil litigator, the trial judge and appellate judge, a straight out of law school you went to work as a prosecutor in manhattan d.a.'s office and ended up staying there for five years. wenger prosecutor the loss ceases to be in abstract subject. is not just a dusty book in the

basement. it is real and it has an impact on real people's lives. whether it is victims and their families, defendants and their families and in neighbored where you live. it also has an impact on the individual prosecutor. you never forget the difficult cases. i know in your case one of those is the serial burglar turned murder, the tarzan murder case. in my case it was a little girl, an 11-year-old girl shot by stray gang fire she sat at our kitchen table doing her homework. as a prosecutor, you don't just have to know the law, you also have to know people so judge i'm interested in talking to you more about what you have learned from that job and held that job shaped your legal career and your approach to judging. i am interested in learning more about your views on criminal law issues. i want to explore your fuse on the confrontation clause. i would like to know in criminal cases as well as civil cases how

you would balance the text of statues and the constitution and the practical things you see out there in the world. it seems to me in cases like false so, send an how are that you have a keen understanding of the world implications of your decisions. i often am concerned that those pragmatic experiences are missing in judicial decision-making especially when i look to the supreme court case in which the majority bradley interpreted the confrontation clause to include crime lab workers. i agree with the four dissenting justices of the ruling has the best potential to disrupt procedures that give ample protections against the misuse of scientific evidence. your old boss, manhattan district attorney robert morganthal called you a fearless in effect a prosecutor. this is how we put in in an interview. we want people with good judgment because a lot of the job of a prosecutor is making decisions. i also want to see signs of humility and anybody that i

higher. we are giving young lawyers a lot of power and we want to make sure they are going to use that power with good sense and without yurgens. these are among the very qualities i'm looking for in a supreme court justice. i too am looking for a person with good judgment, someone with intellectual curiosity but who also understands that her judicial decisions affect real people. with that i think comes the second essential quality, humility. i am looking for justice to appreciates awesome responsibility that she will be given if confirmed justice understands the gravity of the office and to respect the very different roles that the constitution provides for each of the three branches of government. finally, a good prosecutor knows that her job is to enforce the law without fear or favor. likewise the supreme court justice must interpret the law without fear or favor and i believe your background and experiences, including your understanding of frontline law enforcement, will help you to

always remember that the cases you here involve real people with real problems who are looking for real remedies. with excellent justice in excellent judgement and a sense of humility, i believe you can be a justice for all of us. thank you very much. >> thank you senator klobuchar and next, senator kaufman. >> thank you mr. chairman. welcome judge sotomayor and welcome to your family and friends and congratulations on your nomination in congratulations to your parents who did such a good job in raising you to get where you are today. we are now beginning the end of an extraordinarily important process, to confirm supreme court justice to the united states. short of-- the sentence obligation to advise and consent of the supreme court nominees is probably our most important

responsibility. supreme court justices serve for life and once the senate confirms the nominee she is likely to be affecting the law on american lives much longer than many of these senators who are here to confirm her. the advising consent process for the nomination began after justice souter announces intention to resign in president obama consult with members of both parties before making his selection. it has continued since then withheld from extensive debate among analysts and commentators, scholars and activists, both the press and the blogosphere. this public vetting process while not always accurate or tempered is extremely valuable both to the senate into the public. one of the truly great benefits of a free society is our ability to delve deeply into an extensive public record. we have seen a wide-ranging discussion of the issues in which anyone, literally anyone

can help disect in debated. even the most personal expressions of opinion. and another less public part of the process you have the experience of meeting with 90 centers. over 90% of the senate. these meetings are extremely useful. i know i learned a great deal from my meeting and i'm confident my colleagues did as well. for me the critical criteria for judging a supreme court nominee are the following. a first-rate intellect. significant experience. unquestioned integrity. absolute commitment to the rule of law. um wavering dedication of being fair and open-minded. the ability to appreciate the impact of court decisions and the lives of ordinary people. based on what we have learned so far, he were truly an impressive nominee. i'm confident this hearing will give this committee and the rest of the senate the information we need to complete their

constitutional duty. as senators, i believe we each of you a decision based on your record and your ratta answers to our questions. that decision should not turn on and the code words like judicial activist who are in charge of guilt by association or any litmus test. we should focus on your record and your responses and determine whether you have the qualities that will enable you to will serve all americans and the rule of law on our nation's highest court. as my colleagues have already noted your rise from humble beginnings to extraordinary academic and legal achievement is an inspiration to us all. i note that he would bring more they grow judicial experience to the supreme court than any justice in over 100 years. you also have experience not only as a prosecutor but also is a commercial litigator. in terms of your judicial record you have been careful,

thoughtful and open minded. in fact what strikes me most about your record is it seems to reveal no biases. you appear to take each case as it comes without predilection giving full consideration to the arguments of both sides before reaching a decision. when justice souter announce his retirement in may i suggest of the accord would benefit from a broader range of experience among its members. my concern at the time wasn't the relative lack of women or racial or it ethnic-- of that deficit is glaring. i was pointing to the fact that most of the current justices whether they be black or white, women or men shared roughly the same life experiences. i am heartened by what you bring to the court based on your upbringing, your story of achievement in the face of adversity, your experience as a prosecutor and yes, the prospect of your being the first latina to sit on the high court. the supreme court is not a

representative body. we should hold as an ideal that broadly reflect the citizens it serves. diversity serves many goals. outside the courtroom it better? our institutions to understand more of the viewpoints and backgrounds that comprise that our pluralistic society. moreover, growing body of social research suggests that groups with diverse experience come to the right outcome more often than do non-diverse groups which may be just as talented. i believe in the divorce court will function better as well. another concern i have about the current supreme court is its handling of business case is. to oppen it seems they disregard lot and congressional policy choices. based on my education, my experience and my inclination i am not anti-business. but whether it is granting state consumer protection laws, striking down punitive damage awards, are restricting access

to the courts or overturning 96 years of pro-consumer antitrust law, today's court gives me the impression that in business cases the working majorities outcome oriented and therefore too one-sided. given our current economic crisis and the failures of regulation and enforcement that led to that crisis, that bias is particularly troubling. congress can and will enacted dramatically improve regulatory system. the president can and will make sure that relevant enforcement agencies are populated with smart, motivated and effective agents but a supreme court resistant to the federal government involvement in the regulation of markets could undermine those efforts. a judge or a court has to call the game the same way for all sides. fundamental fairness requires that in a courtroom, everyone that comes to the plate as the same amount of balls and

strikes. one of the aspirations is that it is a place where the powerless have a chance for justice on a level playing field with the powerful. we need justices on the supreme court not only understand that aspiration but also are committed to making it a reality. because of the importance of business cases before the supreme court i plan to spend some time asking you about your experience as a commercial litigator, you are handling of business cases and on the court of appeals your approach to business cases generally. from what i have seen of your record you seem to recall these cases write down the middle without any advice or agenda. that is very important to me. very soon those of us up here will be done talking and you'll have a chance to testify in answer our questions. i look forward to your testimony. thank you. >> thank you very much and another former chairman of this committee, senator specter i yield see you.

>> mr. chairman, i join my colleagues and judge sotomayor in welcoming you and your family here and i complement the president for nominating an hispanic woman. i think it was wrong for america to wait until 1967 to have an african-american justice, thurgood marshall, on the court. waited too long until 1981 to have the first woman, justice sandra day o'connor. i think, as the defers nation, diversity is very, very important. hubering excellent credentials, academically, professionally. your service on the court, the constitution requires the process for this committee and the full senate to consider in detail your qualifications under

our consent and function. most of the questions, which will be asked of you and the course of these hearings, will involve deciding cases. i intend to ask about deciding cases, but also about cases that the supreme court decided not to decide, and on their rejection of the cases for decision that is a big problem. the court i would suggest has time for more cases. chief justice roberts noted in his confirmation hearing that the decision in more cases would be very helpful. if you contrast the docket of the supreme court in 1886 with current, in 1886 there were 1396 cases on the docket, 451 were decided. a century later, there were only

161 signed opinions, 2007 there were only 67 signed opinions. .. don't know which way the precedents are and the supreme court decides not to decide. but take the case of the terrorist surveillance program which was president bush's secret warrantless wiretaps and contrast it with authority under article i on the foreign intelligence surveillance ban.

perhaps the sharpest conflict in the history of this great country on the article one hours of congress and the article to paris of the president as commander in chief. the federal district court in detroit said the terrorist surveillance program was unconstitutional. the sixth circuit decided to to one that the plaintiffs did not have standing. i thought the dissenting opinion it was much stronger than a majority opinion in standing as we all know is a very flexible and doctrine at least as i see it used frequently by the court to avoid deciding a case. then the supreme court of the united states denied -- decided not to hear the case and didn't even decide whether the standing was justifiable. this has led to great confusion

in the law. and it is as current as of this morning's newspapers reporting about other secret programs which apparently the president had an operation. the supreme court of the united states taken of the terrace surveillance program in a court could have ruled on whether it was appropriate for the president not to notify the chairman of the judiciary committee about the program. we now have a law which says all members of the intelligence committees are to be notified. the president did not follow that law. did he have the right to do so under article to power is? will, we don't know. within the past to raise the supreme court denied hearing a case involving claims about families of victims of 9/11

against saudi arabia and saudia arabian commissions and four princes in saudi arabia. in the congress decided what sovereign immunity was in legislation in 1976 and and have exclusions, but the supreme court denied an opportunity for those families who have suffered grievously from having their day in court. one of the questions with my a bit too near crisis will be to ask you what would be the standards that even employee in deciding what cases the supreme court would hear. there is currently a major matter at issue on the voting rights act. and the conflict has been present for many years between

the authority of congress to decide what is the factual basis for legislation. standard which justin harmon decided was a rational basis. a supreme court were recently has adopted a standard of congruent lay proportionality. a standard which justice scalia said was advised judicial lawmaking. you'll hear a lot about in this hearing about the judge's responsibility in the to interpret the law of the statutes and not to make laws and during the confirmation in the hearing of chief justice roberts he said in pretty plain terms that the court ought to allow the congress to decide what the fax -- factual basis is and for the court to do otherwise is to engage in judicial legislation.

the voting rights case was decided on narrow grounds, but it certainly looks if you read the record that the court is about ready to upset the voting rights case just like it did in eric vs. alabama on americans with disability act, notwithstanding an arrest record establishing the basis. so i would like to know what your standard will be if confirmed. in a rational basis which had in the traditional standard or congruence and personality. if you tell me congruence of proportionality then i will ask you what it means because it slips and slides around so much that it is impossible to tell what a constitutional standard is. and we senators would like to know the standards are so we know what to do when we undertake legislation. your decision on at the district

circuit court in a case caption energy corporation vs. river keeper inc. involving the environmental protection agency and the clean water act has especial prominence now that we are debating climate control and global warming. in the second circuit opinion you were in the majority deciding that it was a the best technology. the supreme court reversed five to four saying that it turned on a cost-benefit analysis. it i think is worthy of explanation, although when you answer obviously is a matter of your discretion as to whether on a 524 decision is hard to say who's really right. the five or the four is a matter of interpreting the constitution or the statute.

having a different view, i'd be interested to know if you'd care to respond when the time comes as to whether you would be with what have been the minority and perhaps a voice as strong as yours in the conference room when produce a different result. you could have a real impact on what we are legislating now on capt. trade. with a few seconds i have left, out like to review some questions on televising. why don't know why there's so much interest here today. have had this many cameras sans justice alito was sitting where you are sitting. you have had experience in the district courts with television. you are replacing justice souter who said that if tv cameras would come to the court they would have to roll over his dead body. if you are confirmed, they won't have to roll over his dead body.

[laughter] but the court decides all the cutting edge questions of the day. the senate as televised, the house is televised. a lot of people are fascinated by this hearing. i would like to see the court televised. thank you very much, judge sotomayor, thank you, mr. chairman. >> thank you, senator specter. in -- the next will be senator frank and and then we will call for the two people who are going to introduce you. then you come a judge, have a chance to say something. and senator frank and has been waiting all day and i appreciate you having been here. please go ahead. >> thank you, mr. chairman, it's an incredible honor to be here less than a week into my term as united states senator.

my first major responsibility is here at this historic confirmation hearing. i am truly humbled to join in the judiciary committee which has played and continue to play an important role in the overseeing our nation's system of justice. chairman leahy for several years now i've admired your strength and integrity in meeting this committee. i'm grateful for your warm welcome in the consideration that you've given me, sir,. i am honored to serve alongside of you. ranking member sessions, i want you to know that i plan to follow the example of my good friend and predecessor, paul wellstone, who was willing and ready to partner with his colleagues across the aisle to do the work of the american people. i look for it to working over the years with few and my other republican colleagues in the senate to improve the lives of all americans.

two all the members of this committee, i know that i have a lot to learn from the to do. like so many private citizens, i have watched at least part of each and every supreme court confirmation hearing since they have been televised and i would note that this is the first confirmation hearing that senator kennedy has not attended since 1965. >> the senate will suspend come officers please remove whoever is causing a disturbance. again, senator sessions and i have sent a -- have said this is a meeting of the united states senate to and will show respect to everybody who is here. we will show respect to everybody here. uncertain into judge sotomayor, to the senators what with one.

>> thank you, what i was saying was this is the first hearing since 1965 the senator kennedy has not been present and i know he is off the committee now but we do miss his presence. in these televised hearings over the years have taught americans a lot about our constitution in the role that the courts playing in upholding independent. how look forward to listen to all of your questions and issues that you and your constituents care about. to judge sotomayor, welcome. over the next few days i expect to learn from you as well paragon as has been said, you are the most experience nominee to the supreme court and a hundred years after meeting in my office last week i know that you are not just an outstanding jurist, but an exceptional

individual. as others have said, your story is inspirational and one which now americans should take great pride in. i welcome your family as well. as most of you know, this is my fifth day in office. that may mean i am the most junior senator, but it also means that i am the center who most recently took the oath of office here last tuesday i swore to support and defend the constitution of of the united states and to bear true faith and allegiance to it. on i take this of very seriously. juan as we consider your nomination. judge sotomayor. i may not be a lawyer, but neither are the overwhelming majority of americans yet all of us regardless of our backgrounds

and professions have a huge stake in who sits on the supreme court. now and we are profoundly affected by its decisions. i hope to use my time over the next few days to raise issues that concern the people of minnesota in the people of this nation. this hearing will help both sitting in living rooms and offices in wenonah in duluth and the twin cities to get a better idea of what the court is, what it does it is supposed to do in most important and how it affects the everyday lives of all americans. justice souter who you will replace, if you are confirmed, one said, the first lesson and simple as it is is that what ever court we're in, what ever we are doing, at the end of our task some human being is fine to be affected unless some is going to be challenged by what we do.

and so we had better use every power of our minds and our hearts and our beings to get those rulings right i believe that justice souter had it right to appear, in the past months i have spent a lot of time thinking about the course impact on the lives of americans and reading and consulting with some of minnesota's top legal minds. i believe that the rights of americans and citizens and voters are facing challenges on two separate fronts. first, and i believe that the position of the congress with respect to the courts and executive is in jeopardy. even before i aspire to represent the people of minnesota in the united states senate, i believe that the framers made congress the first branch of government for a reason. it answers most directly to the

people and has the legitimacy to speak for the people in crafting was to be carried out by the executive branch. i am weary of judicial activism and i believe in judicial restraint. except under the most exceptional circumstances the judicial branches designed to show deep deference to the congress and not make policy by itself. yet looking at recent decisions on a voting rights, campaign finance reform and other number of other topics, it appears that a proper deference may not have been shown in the past few years and there are ominous signs that judicial activism is on the rise in these areas. i agree with senator feingold and senator white house. uyghur a lot about judicial activism when politicians are running for office and when they talk about what kind of judge they want on the supreme court,

but it seems that their definition of an activist judges 12 votes differently than they would like. for example, during the rehnquist court, justice clarence thomas voted to overturn a federal laws more than justice stevens ended justice breyer combined. second, i am concerned that americans are facing new barriers in defending their individual rights. this supreme court is the last chord in the land for an individual and is promised a level playing field and can seek to right a wrong. it is a last place an employee can go if he or she is discriminated against because of age or gender or cholera. is a the last place a small business owner can go to ensure free and fair competition in the market. it is the last place an investor can go to try to recover losses from securities fraud and.

it is the last place a person can go to protect the free flow of information on the internet. it is the last places citizen can go to protect his or her vote. it is in the last place where a woman can go to protect her reproductive health and rights. yet from what i see on each of those fronts for each of those rights the past decade has made it a little bit harder for american citizens to defend themselves. as i said before, judge, i am here to learn from you. i want to learn what you think is the proper relationship between congress and the courts, between congress and the executive. i want to learn how you go about weighing the rights of the individual, the small consumer or business owner and more powerful interests. and i want to hear your views on judicial restraint and activism,

in the context of a issues like voting rights and open access to the internet and campaign finance reform. we're going to have a lot more time together so i'm going to start listening, thank you mr. chairman. >> thank you very much, and what we are going to do and live a couple tears in and just say there please. we are going to have two people who will speak each for five minutes to introduce you. i will then administer the oath of the committee to do. [laughter] how about that?

the oath before the committee. and then we will hear your testimony so going as we do by signore, senator schumer, you're recognized for five minutes and then senator gillibrand that you are recognized for five minutes. >> thank-you mr. chairman, and today is a great national opportunity. it's an opportunity to recognize that the nomination of one of the most qualified candidates to the supreme court in american history could not have happened anywhere else in the world. judge sotomayor's story is a great american story and i might add a great new york story as well. consider this: in no other country in the world could a woman from a minority group who grew up in a working-class family have received an education of the best institutions and having to drive their gone on to be a judge and

now a nominee for the highest court in the land. it this is because we don't have a caste system in this country or even a class system. 250 years ago we threw away the centuries old framework of the gentry and ability. we started fresh with no ransom note titles, more than fourscore and seven years later a farmer in self-taught lawyer from illinois became perhaps our greatest president. and so the american story goes ended judges sonia sotomayor and from the bronx, a daughter of a single parent practical nurse has written her own chapter in history. judge sotomayor embodies what we all strive for as american citizens. her life and her career are not about race or class or gender although as for all of us these are important parts of who she is.

her story is about how race and class at the end of the day are not supposed to predetermined anything in america. what matters is hard work and education and those things will pay off in a matter who you are or where you have come from. it is exactly when each of us wants for ourselves and for our children and this shared vision is why this moment is historic for all americans. judge sotomayor was born to parents who moved to the new york from a puerto rico during world war ii, her father was a factory worker with a third grade education, he died when she was nine, her mother worked and raised sonia sotomayor and her brother, juan, now a doctor working in syracuse, on her own. sonia sotomayor read a first of her high school class from cardinal spellman high school in 1971. she has returned to cardinal spellman to speak there and to

encourage future alumni to work hard, get an education and pursue their dreams in the same way she did it. when sonia sotomayor was growing up, the nancy drew stories inspired her sense of adventure, developed a sense of justice, and showed her that women could to ensure it being outspoken and bold. now and 2009 there are many more role models for a young cardinal spellman student to choose from. with judge sotomayor and foremost among them. judge sotomayor went on to employ her enormous talents at princeton where she graduated summa cum laude, receiving the highest honors bestowed upon a princeton student. this is an award that is given not just to this -- students in class, but to the most exceptionally smart student who is also given the most to her

community. she graduated from yale law school where she was a law review editor and because we have such an extensive judicial record before us, and believe that these hearings will matter less than an for several previous nominees or at the least that these hearings will bear out what is obvious about her, that she is modest and humble in her approach to judging. as we become even more familiar with her incisive mind and balanced views, i am certain that this hearing will prove to wall what is already clear to many. this is a moment in which all americans can take great pride, not just new yorkers, not just porter ricans, not just hispanics, not just women, but all americans who believe an opportunity and to want for themselves and their children

with their reading of the loss by a judge who understands that while we are a nation of individuals we are all governed by one law. mr. chairman, people felt that the founding of america that we were, gods noble experiment. judge sotomayor personal story shows that today more than 200 years later we are still gods noble experiment. thank you. >> thank you senator schumer. and senator gillibrand, the other senator from new york, please go ahead of senator gillibrand. >> thank you chairman leahy, ranking member sessions and the other distinguished members of the judiciary committee for the privilege to speak on behalf of it judge sonia sotomayor.

president obama has chosen one of the country's outstanding legal minds with his nomination of the sonia sotomayor to the united states supreme court. as a new yorker, i take great pride in it judge sotomayor's nomination along with the rest of my state and our delegation with senator schumer and my colleagues of the house, congresswoman alaska is a first person to introduce me to judge sotomayor and her record and congressman jose serrano. as a woman i take great pride in this historic nomination. in the words of the justice sandra day o'connor took a very long time, about 171 years, to get the first woman on the supreme court and i thought that we very likely always have to and eventually more. i'm very thankful for president obama in his recognition of the importance of women's voices on the nation's highest court. for life in carrier irish studies and excellence. commitment to learning a

dedication to the law and a constant pursuit of the highest ideals of our country and constitution. for story is also the quintessential american new york story, born to reporter rick and family, growth in public housing in the south bronx and raised with a love of country and a deeper appreciation for hard work. judge sotomayor demonstrated a devotion to learning, graduating summa cum laude from princeton and serving as editor on the yale law journal before pursuing her career of the law. the breadth and depth of the judge sotomayor's experience make her uniquely qualified to the supreme court. judge sotomayor's keen understanding of case laws and the importance of precedence is to rise from working in nearly every aspect of our legal system as a prosecutor, a corporate litigator, trial judge, an appellate judge. as prosecutor judge sotomayor that five of the worst of society's ills prosecuting in many of crimes for murder to

child pornography to drug-trafficking. the manhattan d.a. described her as fear less and in effect a prosecutor and an able champion of the law. for years as a corporate litigator exposed her to all facets of commercial law including real-estate, employment, banking, contracts and agency law. judge sotomayor was appointed to the u.s. district court and the seventh district of new york by president george herbert walker bush presiding over roughly 450 cases and earning a reputation as a tough, fair minded and thoughtful jurist. he would replace justice souter as the only member on the supreme court with trial experience. at the appellate level, judge sotomayor has participated in number 3,000 panel decisions offering roughly 400 published opinions with only seven being brought up to the supreme court which reversed only three of

those decisions, two of which were closely divided. with confirmation judge sotomayor three's more federal judicial experience to the supreme court than any justice in 100 years and more over judicial experience than any justice confirm to the court and 70 years. as a testament to judge sotomayor, many independent national, legal and law enforcement groups have already endorsed nomination. including among them the ada, voting unanimously and giving her the highest rating as well qualified, complementing not only her formidable intellect but her mature the goal line and her record of deciding cases based on the precise facts and legal issues before her, also faithfully following the law as it exists. and that she has a healthy respect with a limited role of judges in the balance of powers with executive and legislative branches. out president to the fraternal order of police also stated she is a model jurist, tough, fair minded and mindful of the

constitutional protections afforded to all u.s. systems. in nominees his appearance as a legal advocate for civil rights certainly must not be seen as a disqualifying criteria for confirmation, but instead as a hallmark of individuals commitment to our accounting principles of equality, justice and freedom. like justice ginsburg participation in the aclu women's rights project or a third of marshall's participation on behalf of the naacp legal defense and education fund, judge sotomayor leadership role in the puerto rican legal defense fund demonstrates her commitment to the constitution, constitutional rights and for values, equality and the inalienable right american right and not being ascribed to based on gender or color. judge sotomayor's entire breadth of experience uniquely the firm's ability to discern in taxes she applies the law and follows precedent.

judge sotomayor's commitment to the constitution is unyielding. as she describes her judicial philosophy saying, i don't believe we should end of the constitution under any circumstance. it says what it says. we should do honor to it. judge sotomayor's record in of the second circuit demonstrates the paramount importance of this conviction. importance of judge sotomayor's professional and personal story cannot be understated. many of our most esteemed justices have noted the importance of their own diverse backgrounds and life experiences and being an effective justice. like judge sotomayor that also understand that their gender or ethnicity did not be a determining factor in the judiciary and put another asset which may bring to the courts much like education, training and previously the work. justice scalia said in, quote, i am a product of the melting pot in new york, grew up with people of all religious and ethnic

backgrounds. i have absolutely no racial prejudices and i think i'm probably at least as antagonistic as the average american and probably much more so toward racial discrimination. justice clarence thomas said, my journey has been one of the required to me to as some point touch of virtually every aspect, every level of our country for people who couldn't read and write, to people who were extremely literate. >> senator, we're going to have to put your statement in the records of that judge sotomayor can be heard it cannot may i conclude my remarks? >> if it can be done in the next few seconds. >> 20 seconds? [laughter] i strongly support judge sotomayor's nomination and firmly believe per to be one of the finest jurists in american history.

>> thank-you. now we will administer and of the senators can setback if they like. please raise you're right hand. to be used for the testimony you are about to give before the committee be the truth, the whole truth and nothing but the truth so help you done? >> i do. >> thank you, please be seated. and i think my two colleagues from new york for the introduction. i appreciated because i know both have known you for some time. judge, you have also introduced

a number of your family and now the floor is yours. >> thank you, mr. chairman. i also want to thank senator schumer and senator gillibrand for their kind introductions. in recent leaks i have had the privilege and pleasure of meeting 897 years including all of the members of this committee. each of you has been gracious to me and i have some much enjoyed meeting you. our meetings have given me and eliminating two or of the 50 states and it is valuable insight into the american people. there are countless family members and friends to have done so much over the years to make this a possible. i am deeply appreciative for their love and support. i want to make one special note of thanks to my mother. i am here as many of you have

noticed because of her aspirations and sacrifices for both my brother, juan, and me. mom, thank you. i am very grateful to the president and humbled to be here today as the nominee to the united states be one. the progression of my life has been uniquely american. my parents left puerto rico during world war ii. i grew up in modest circumstances in the bronx housing project. my father, a factory worker with a third grade education, passed away when i was nine years old. on her own mother raised my brother and me. she taught us that the key to success in america is a good occasion and to set the example, standing alongside my brother and me at our kitchen table so

that she could become a registered nurse. we worked hard. i poured myself into my studies in cardinal spellman high school, earning scholarships' to princeton university and then yale law school, while my brother went on to medical school. our achievements are due to the values that we learn as children and that they have continued to guide my life's endeavors. i tried to pass on this legacy by serving as a mentor and friend to my many by children. and two students of all backgrounds. over the past three decades i have seen our judicial system from a number of different perspectives. as a big city prosecutor, as a corporate litigator, as a trial judge, and as an appellate judge. my first job after law school was as an assistant district attorney in new york.

there i saw children exploited and abused. i felt the pain and suffering of families torn apart by the needless deaths of loved ones. i saw and learned the tough child law enforcement has in protecting the public. in -- legal job i focused on commercial instead of a criminal matters. i litigated issues on behalf of national and international businesses and advised them on matters ranging from contracts to trademarks. if my career as an advocate ended in my career as a judge began when i was appointed by president george h. w. bush to the united states district court for the seventh district of new york. as a trial judge i did decide over 450 cases and presided over dozens of trials.

with perhaps my most famous case being at the major-league baseball strike in 1995. after six a store near years on the district court, i was appointed by president clinton to the united states court of appeals of the second circuit. on that course i have enjoyed the benefit of sharing ideas and perspectives with wonderful colleagues. as we have worked together to resolve the issues before us, i have now serve as an appellate judge for over a decade the citing a wide range of constitutional statutory and other legal questions. throughout my 17 years on the bench, i have witnessed the human consequences of my decisions. those decisions have not been made to serve the interest of anyone litigant, but oas to serve the larger interest of

impartial justice. in the past month many senators have asked me about my judicial philosophy. a simple -- fidelity to the long, the task of a judge is not to make long feared is to apply the law. and it is clear i believe that my record in reflects my riss commitment to interpreting the constitution according to its terms, and lipitor ming statutes according to their terms and congress's intent in doing faithfully to precedent established by the supreme court and by my circuit court. in each case i have heard i have applied the law to the facts at hand. the process of judging is at hand when it are missing concerns of the parties of the litigation are understood and

knowledge to. that is why i generally structure my opinions by setting out what the law requires and and explaining why a decision sympathetic or not is accepted or rejected. that is how i see to strengthen both the rule of law and faith in the impartiality of the judicial system. a my professional and personal experiences homage to listen and understand with the long haul is commanding the result in every case. since president obama announced my nomination in may i have received letters from people all over this country. many italian a story of hope in spite of struggles. each letter as a deeply touched me. each reflects a dream come a belief in a dream that led to my parents to come to new york all

those years ago. it is our constitution and that makes that dream possible and i now seek the honor of upholding the constitution as a justice on the supreme court. senators, i look forward in the next few days to answer your questions comes to having the american people learn more about me into being part of a process that reflects the greatness of our constitution and of our nation. thank you all. >> thank you, judge. i think all senators for their opening statements this morning and especially thank senator schumer and senator gillibrand for the introduction of new but especially to judge sotomayor. i thank you for your statement. a look of the cases of your

family, they appreciated and we all do. we will stand in recess until 9:30 a.m. tomorrow morning. thank you very much. [inaudible conversations]

members of the senate health committee continue work on the draft legislation to overhaul the nation's health care system in monday's meeting the 11th

day on the bill senators considered more amendments. this is five hours. >> and like to say my colleagues for being here. the committee will come to order, we continued health choices. first let me express my gratitude to all of you here for the condolences that are expressed last week over the loss of my sister, i appreciate that very much. let me also think cooperation of the committee members and thing tom harkin for taking over the gavel and working as hard as they did along with everyone else and enzi forgetting as much done as you're able to get accomplished last thursday as well.

just to give a short of data and give some idea of our plans for proceeding, this is our 11th day in march compared we have had it 17 sessions. i done of that is a record are not but as that to be close in terms of amount of time and i'm very grateful to all the members. i talked to many of you last week and called an express my personal gratitude for the time and effort people have spent even when there has disagreement they have worked as hard as i have a am very grateful of that effort we have considered a couple hundred eminence, roughly 200 and poll by staff we have been able to accept a hundred and 11th offered by republican friends and made progress. it is my intention and today two have a break at 530 for a vote to the suspension took mike enzi that way, seven and work until nine this evening in see how things are moving here tomorrow

begin the morning and my intention would try to complete the work of the committee at some point whether during the day when the evening, hopefully sooner rather than later but intention to be to try to wrap up with weekend. let me mention that coming at a break at 530 pairs of staff has worked hard over the weekend as well to understanding and offer has been made to accept an additional 64 and the amounts offered by minority s filed. an offer to accept 37 democratic amendments filed as well and another 18 amendments that we believe the staff was able to work out and i suspect over the course of the marked up there be many more to accept that are being offered and proposed. is my understanding we can read this eminence and have them become by unanimous consent accepted the let me turn to mike enzi and run down the list with

64 amendments of the 13 democratic amendments and in that much out as a move toward an open up the committee for additional amendments. >> i appreciate the work the staff has been doing over the weekend and the number of amendments being considered. i think there is more work that has to be done to be finished on some of the amendments on both sides. >> even the republican amendments? we are willing to accept that. >> i think some of our members on the votes and of the theory that they then will be kicked out. >> the 64 republican amendments we are ready to take. >> i have no problem with the

taking some of the members have that, some of the members have a problem with you taking it to. we will let you know which ones shortly. [laughter] i think so too, i would agree. >> not yet, senator enzi wants to finish, and further comments. >> in order to get things to proceed and will go ahead and move into amendments because the two people on our side are the ones the hearings on the supreme court and want to be able to expedite them as much as possible to so if it is okay senator hatch will go ahead. >> that is fine and would just ask that on the amendments we are prepared to accept them and get out like to move along. it is a unique position to be willing to accept 64 eminence and having the author is reluctant to have them accepted. so for those members who are reluctant to have the amendments accepted they tell me which ones it like to have a vote on and will provide a vote here if they

let me know that in the next half hour in would be helpful so we can move forward. >> we can do that. >> to accept your eminence? they are your amendments. [laughter] you have made some objections. >> there may be some differences. >> senator hatch. >> i call up an immense number to 27 as distinguished ranking member said. >> 227? >> this is an amendment that a simple. what piven -- prohibit federal dollars used to pay for abortions unless the mother's life is in danger or the results of a reaper incest. is the high language we have included in preparation bills since 1976 as i recall last week when we were debating the mikulski amendment number 201 to extend women's health services they offer told committee members that her amendment which would define planned parenthood clinics and other entity as a

central committee providers would not require plans to cover abortions. my amendment simply has language of title one of the legislation before the committee and my understanding is abortion coverage is included unless it is specifically excluded. more specifically based on prior administrative and legal interpretations of statutory law unless abortion is specifically excluded the secretary of health and human services could mandate coverage of abortion as both an essential health care benefits to and as necessary permitting minimum qualifying coverage. now for example, when the federal medicaid statute was passed nor in the statute did is say abortion would be covered. but the administrators of the program deemed abortion to be covered. the sixth circuit court of appeals explain because abortion foes within many of the mandatory categories including

family planning and operations services and physicians' services medicaid covered medically necessary abortions between 1973 and 1976. as a result of one of taxpayer was paid for three and a thousand abortions per year while the congress passed the hyde amendment in 1976 for having coverage of abortion. quote in the past have always included language to privet taxpayer dollars from being used to fund abortions and we did this when we're crave the chip program, tricare mph pp. they also have very stringent restrictions on the funding of abortion so i believe it's important to make it perfectly clear the taxpayers' dollars will not be used to fund abortions in the new programs been created in this bill as well accepted in very limited circumstances. the life of the mother is in danger with the pregnancy is a result of rape or incest so i urge my colleagues to support

this amendment and having brought it up a duty to get back to the judiciary committee and here the judge give her testimony so i hope we get a vote on this. >> let me ask my colleagues would like to be heard on this amendment. i'll just point out very briefly. my sense of it is the net affect of us even under private plans to that women have choices to make a deal with the subsidized plans to be virtually excluding any plan in a sense from having provided this option. and even those who have these news not matter from a position and the patient and the person is something ought to be careful and another have been extensive debate on the subject matter of the years but in the current private health-insurance marketplace most health plans

provide coverage for the services as part of a broader health care package and this moment of subsidize an unsubsidized participants would be restrictive for purchasing these plans and that goes much further but i think we ought to be going with this amendment is decisions should be left to the woman and her physician in my view and therefore as a result of plea to my friend from utah that i would urge the rejection of this amendment. is there further debate? >> question. the clarification, if, in fact, this is not adopted then federal taxpayer dollars will perform abortions, is that correct? >> the want to comment? >> the hyde amendment is still controlling.

>> even though the mikulski language we heard of last week does not preclude that? >> i don't know about the mikulski language. >> i think that the mikulski language would require even catholic services to contract with planned parenthood and if this is not passed and i don't think that is a situation we want to enter into because there are some federal court precedents on to that of town because abortion fit within a category as care such as family planning, outpatient services, inpatient services, a physician services that federal programs like medicaid could be required to cover a medically necessary abortions even with a language that we have a and we have several amendments deal with placing some assurance that would be the case. >> it doesn't overturn the hyde amendment.

>> no. >> that is our point. >> to answer that, i have an article here that it brings out that president obama said quote, in my mind reproductive care is essential care. basic your soul is at the center of the heart of the plan and proposed. so in the fight could nullify the hyde amendment and that is what i'm concerned about we battle that out for years and hyde has been a lot of a plan for a long time and i want to make sure it continues and therefore that is why this amendment -- we do take care of rape and incest. >> my concern is in a way and again we are not try to overturn a the hyde amendment at all, but rather the issue of whether not you end up restricting access in both subsidize an unsubsidized plans and there may be a better way to approach this in what appears to be i think the

amendment here that goes beyond that particular point. that is the point i have made in. >> and this amendment senator hatch, that means that low income person who is getting a subsidy to purchase a plan in exchange for the gateway even though they have had a plan that would be best for them and their family, it might be the cheapest. they would be precluded from buying that. if that plan provided abortion services. even though they may never partake of it and even though it's still covered by the hyde amendment they still would not be allowed to purchase and that would be as the chairman said it the most private plans out there do, in fact, cover the services right now. >> that is how medicare works, federal funds cannot be used to provide for abortion. >> is subsidy in order to purchase a plan including a private plan and therefore you

would be in effect prohibiting that private plan so every and all plants subsidize an unsubsidized would be adversely affected and that goes far beyond medicaid but when you're talking about private plans subsidize an unsubsidized plans, that is sweeping implications. i think it goes far beyond. this is obviously in division about general subject matter of abortion, we understand that, but it seems to me if you're going to discriminate against virtually everyone and when it comes to reproductive services that i think that goes far beyond where we want to go, that is my concern. >> cms, i would make to points because the hyde amendment has to be renewed every year so it is not set in stone and never to, you are taking a federal tax dollars and using it to provide abortion services. you will be, if somebody buys a

subsidized plan with then decides to utilize the services will be taking the federal dollars to provide abortion services, that is what will happen. by not accepting senator hatch's amendment. so obviously we don't have the votes to support this amendment, but the fact is the american people need to know that, that their tax dollars will be utilized for those services. >> mr. chairman. >> the reverse can be true as well if you restrict these funds and then, of course, they would be denied the ability for people who want that option in a private plan having nothing to do with a subsidy to make that's assuming there are other plans that don't have the service which is not necessarily an assumption that is, correct. >> but that person would be prohibited from purchasing or utilizing that plan. >> exactly the point is the rest of the people in this country should not be paying for that service to their tax dollars. that is the genesis of the hyde amendment. >> mr. chairman, this logic will

be to require anybody seeking the services to walk to the clinics lesson they use federal highway supported by federal highway funds. it doesn't make any sense. >> all those in favor. kirkwall halt -- clerk will call the roll on the hatch amendment. [roll call] [roll call]

[roll call] the amendment is rejected it. >> mr. chairman i have an amendment but i have to leave and i will offer one now and try to come back later for one. this is coburn number 246. >> amendment to under 46, the clerk will submit the amendment. ..

on the basis that the entity that does not provide, paid four, report coverage or make otherwise arrangements for abortion or abortion training. the amendment also designates the office for civil rights and

the department of health and human services as a depository for receiving complaints of discrimination based on a provider's decision not to be involved with abortions. congress has passed three laws, the church amendment, cut the men minton hida amendment over the past 35 years to protecting the conscience writes for healthcare workers. however this new healthcare legislation before us does not contain protections for healthcare workers to do not want to be involved in abortions. consciences about choice. healthcare professionals should not be forced to engage in an action they see as the taking of the human life. no one should be forced to have an abortion and no one should be forced in an action, forced to be an abortionist in violation of his or her religious or ethical convictions. some state medicaid programs pay for abortion and conscience protection in visions will ensure funds cannot be used to force healthcare providers and those days to participate in abortion in violation of their

consciences. federal funds directly through state and local governments are any healthcare plans created or mandated should not be used to pressure healthcare workers to engage in activities that they find morally objectionable. it should be up to the healthcare worker as to what he does or does not violate, not up to congress, the secretary of health and human services are government bureaucrats. there are multiple cases presently undergoing conscience violations in discrimination against healthcare workers. lawsuits hospital association force the private committee hospital and alaska to open its doors for late term abortions. new hampshire a merger that would have greatly benefited the community was stopped after abortion advocates approach the state general to challenge it. in new york and operated it hmo was threatened with a loss of contracts because it refused to allow abortions in its facilities. the american board of obstetrics and gynecology issued certain

requirements for 2008/2009 that could lead to discrimination against obstetricians are gynecologists. eight d.o.t. certification requirements reference and ethics report adopted in 2007 by a cog. this report undermines the physicians right to refuse to perform abortion and rejects his or her right to refuse to refer for abortion or sterilization. kiffin obstetrician or gynecologist disagrees with the ethical stance he or she could face decertification by abo cheaper go into the 2008 american medical association renewed its stance armistice to be required to dispense drugs including the morning after pill. some find unethical because drug may prevent a human embryo from implanting in the womb thus leading to death. president obama rescinded regulations this year that imports current laws protecting conscious rights of healthcare

workers thus leading in question the commitment of the federal government to enforce it, in enforcing current conscience protections. this amendment is necessary to provide abortion conscience protections in the new healthcare reform legislation and is consistent with current content laws. the americans also overwhelmingly support this position. the polling company showed 87 american adults surveyed said it was important to make sure healthcare professionals in america are not forced to participate in practices that which they have moral objections. the 63% also supported the existing conscience regulation and 62% opposed the president's plan to get rid of it. polling company gun 95% of physicians agreed, i would rather stop practicing medicine altogether have them be forced to violate my conscience. so, i hope we would have

favorable consideration of this. this does not limit somebody's right to get an abortion but what it does say is the professional, the train professional has the right to follow their conscience, which they do and every other matter regarding healthcare but now we are saying they can't in this area of healthcare. so i would hope we would have support for this amendment and i yield back. >> to members want to be heard on this matter? i would like to make a few comments of i can. first of all i don't believe there is any fundamental disagreement about the idea of choices of conscience and all of this and in fact i am told the president supports well crafted conscience causes it and hhs's proposed rules did not touch on the longstanding conscience clause protections for providers opposed to performing abortions but at the same time the president along with many others is committed to ensuring protecting women's health and requiring a careful balance between the rights of providers and the rights of patients and

their families to get the care they need. my concern about my friend's amendment here is this amendment fails to include protections for patients in an emergency or life-threatening situation and could allow hospitals to ignore medical standards in prevent doctors from terminating a pregnancy even when those doctors say it is necessary to protect the patient's health and life and these risks can be very real. law provides protections for individual healthcare providers who have religious or moral objections to providing services their patients need. these personal healthcare decisions either should be left to a woman, her family or her doctor. currently under title vii of a civil-rights act, employers already have a duty to reasonably accommodate employees or applicants religious beliefs or practices. unless doing so places an undue hardship on the employer's business. this law provides protections for individual believes while ensuring patients' access to

healthcare. certainly while abortion has been a very explosive issue obviously for many, many years, these are personal medical decisions best left to a woman, her family and her doctor and tom coburn as this the-- cited some statistics, 76% of the public opposes giving hospitals an exemption allowing them to refuse to provide medical services to which they object on religious grounds. 89% of the public opposes to allowing insurance companies refuse to pay for medical services to which insurance companies may object on religious grounds as well. this is a delicate question obviously striking a balance and i don't disagree at all with tom coburn's point about religious choices of keeping that in my think current law does a good job of that but on the other hand they are legitimate healthcare reasons that have to be weighed in all this and if you have a sleeping requirement such as proposed by this amendment that i think he put people at some risk so striking that balance we have tried with

existing law seems to be reasonable combination to take into consideration those religious conscious choices and at the same time not disregarding the healthcare needs of patients. senator hagan, the you have a comment? >> i agree with you mr. chairman and i think in addition one of the concerns i have about this amendment is that obviously these decisions will require a careful balance between the rights of providers and the rights of the patients and i think this amendment really fails to include the protections for the patients especially in times of emergency in life-threatening situations. >> i think the notion that this is about patient care, what patients need. they don't guys have the choice of where you show up at the hospital in an emergency situation and if you find yourself in a hospital setting and your healthcare is going to be compromised because, not of your choice but the choice the institution is making i think is one that we ought to be careful

about going down that road. >> mr. chairman let me answer that. you ahlers setting up a false choice in that atopic pregnancy is a pregnancy. no doctor refuses the care. you were making the assumption we refuse care. that is not true. we to an abortion every time we take care of an ectopic pregnancy. we abort the fetus to save the mother's life. i have done it hundreds of times. i have performed to abortions on women with congenital heart disease that are going to die have not performed the abortion. abortions are apathetical to me. the claim that life-threatening, every doctor has an oath to take care of their patient. they will do what is necessary to save the patient but to set up a claim that this is going to create like threading situations where people are not going to be cared for is just bogus. does not a legitimate argument and i rejected out of hand.

having been experienced in that area. the fact is, what you are saying by not including this is that the rights of the patients are greater than the rights of a professional that offers that care. when we move to the point in this country where we will dictate what they care will be, and we are doing a lot of that in this bill especially with comparative effectiveness, we are going to be dictating how doctors practice medicine. rejecting this amendment says that the provider, and i'm talking about physicians and hospitals who don't want to do and elected termination or elective sterilizations, what we are saying is we know better and went to take away that right of conscience you take away all rights of conscience. to not put this in the bill says we know where the plan is going. we know the administration withdrew the guidelines. that is true. they withdrew the guidelines and the fact is, what you are going to be doing it the don't-- you

are going to be putting physicians in jail because they have conscious objections to participating in abortions or sterilization is. that is what you are going to be doing. that is where we are headed with this. you have to give some consideration to the conscious positions of the physicians to break their backs and their lives to provide care for people in this country and if they have a legitimate moral objection to terminating the life of an unborn baby, that has to be honored. by not including it and saying you are not-- >> i would disagree respectfully. i think it is engaging in an exaggerating situation and the law of this take into consideration the moral and conscious decisions of providers and it believe that makes sense to do so. your proposal here would include insurance plans. i don't think insurance companies necessarily provided but of an insurance company takes the position that they are

not going to provide that kind of coverage, that to me goes far be beyond being a provider. >> so, the opposite of that is every company must provide insurance coverage? >> let that patients make choices. again, what is the right of the patient? what is the right of the individual? not just the institution that is simple. that is the fundamental distinction, but i think it goes far beyond our position and that is what the president is supporting and insisting well crafted, conscience clauses which exist are important and i don't disagree with that. i think that is important but i think there's the danger of this thing tipping to the point where you sense-- lose that sense of balance. >> mr. chairman congress has passed three laws of the last to 35 years to protect the conscience and rights of healthcare workers but this new healthcare bill, this legislation before us now doesn't contain those conscience

protections. it doesn't contain them for the healthcare workers who don't want to be involved in abortions and has nothing to do with the insurance company. >> the law is there. those are the laws on the book, i agree with you. there's nothing in this bill that eradicates or changes those laws. those laws are there, and so there's no disagreement about that. >> it is not eradicating anything-- >> it is going further than that. >> this is covering the workers. the healthcare workers. which is what we have done before. no one should be forced to have an abortion and one-- >> page 2 of the amendment the health insurance organization, the health insurance plan. that is the amendment right there. >> what is the opposite of that though? >> the argument is about providers. i don't think an insurance plan-- >> with the chair take the

amendment without the insurance plan? >> they have got a number of things in here, tom. i would tell you there's the kennedy amendment that include some additional language on conscience that i will add an appropriate time raised. it will cover a lot of what we are talking about here. it has not been accepted by the minority side yet. we ought to take a look at it and see if we can reach some agreement on the. we might be able to reach some point where leaking come on some common ground i think, but any other kind of healthcare facility, organization our plan. it gets pretty broad, the language. >> i will make one final point and then i will ask for a recorded vote. under this bill, to insurance plans have to provide abortion services? >> no. >> then, what is wrong with having that in there saying they don't have to? because existing lauper text

them. and they come of the conscience clause as i understand under existing law, we have hammered out over the years. >> what is wrong with having this in there? it is exactly identical. we are reinforcing present law so if our intent is not to force them to do that, what is wrong with this language? >> i think it goes far beyond that. that is our concern. >> it does not in terms of insurance companies. >> mr. chairman? do we have the language that is currently in law? any applicable federal law applies where applicable to this. there is no, for current law protections under federal law not to imply there would have to be a clause in here, which there is not, saying set aside these particular other clauses. >> the close is currently in any

aspect of law that is recorder documented? >> all applicable federal laws including conscious clothes is an insurance regulations and everything else essentially apply to this. you would need an affirmative statement coming in here, and there isn't one, setting them aside. >> the reason for having this amendment is the mikulski amendment and the hyde amendment have to be renewed each year. if we agree with those then we should put this in this bill. it is not any different than those two but they have to be renewed every year. use of a lot of problems for us in the future if we just included in the bill and the reason, what i am taking is that we are on the move to change that because nobody knows whether the hyde amendment will be accepted next year. nobody knows whether the mikulski amendment will be an appropriation bill and that this, their yearly mandates. their not statute. they are appropriation bills, writers and therefore to not put

this and says this and as we take those off, then we are going to force the opposite and that is the purpose for the amendment mr. chairman. i asked for a vote. >> mr. chairman, i would like to make a couple more comments. there are examples of conscience violations in discriminations against healthcare providers that evidently are not under the present law but this would take care of it. there was a lawsuit against the valley hospital association, a community hospital in alaska that were forced to open doors for late term abortions. in new hampshire hospital merger that would benefit of the community was stopped after abortion advocates approach the state attorney general to challenge it and in new york a catholic operated hmo was threatened with the loss of state contracts because it refused to allow abortions in its facilities. the american board of obstetrics and gynecology issued certification requirements that could lead to discrimination against them, against gynecologists and have them be

decertified. this amendment takes care of those. >> but it also raises some serious problems as well. the clerk will call the roll. [roll call] earl [roll call]

>> the bode is 11 ayes, 12 nays. >> the amendment is rejected. we are open for further amendments. >> mr. chairman? >> while we are on this subject i would call up the amendment number 277. >> number 277. i would mention that as we are doing each of these, there were very similar amendments on each of these categories of it least three amendments, so we are not bringing up the other ones. >> i am sorry. this is 277? >> in each of these concerns there been two or three amendments and we are only covering one of each of the

concerns. this particular amendment assures that nothing in the health reform bill can be construed to mandate coverage for abortion services with the exception of cases where the mother's life is in danger or the pregnancy is the result of rape or, and this is similar to coburn and some others that, we'll just have one vote. but, this amendment, the kennedy dodd bill does not prohibit the secretary from mandating coverage of abortion. in section 31 of three the bill allows the secretary to define what constitutes an essential healthcare benefit that can receive new federal subsidies. the language enumerate several categories which the secretary could interpreted as requiring abortion services. in section 31 of three essential healthcare benefits will include ambulatory patients services, hospitalization and emergency services. there's nothing in the bill that would prevent the secretary from interpreting any of these

requirements as including abortion. during a conference call on july 7, 2008 with planned parenthood action fund members from across the country then candidate president obama said as president i will make sure women have access to affordable healthcare including affordable reproductive services. pork joyce politicians continually argued for funding abortion under the guise of family planning, reproductive services, pregnant women services or outpatient services. they have long argued such services to include abortion services. mia amendment wincher this than will not mandate the health insurance plan that covers abortions while the hyde amendment annually prohibits federal funds from being used to pay for abortions. mylanta twip parmalee prevent this in the future from requiring health plans be required to cover abortions. and,-- >> members want to be heard on

this? >> no health exception clauses. >> mr. chairman? i think much of what we have vargas said also is implicit in their response as far as not passing this amendment. >> i agree. is sort of the same debate we have have already on the subject matter and again this is a matter in which as a nation, obviously the divisions of the nation about how to proceed on these matters and striking that balance, the law going back to the supreme court decisions and others have allowed for women to make that choice, and there's nothing forcing people to make that choice but they should not be denied if the law allows people to make that choice from doing so. obviously at some point the law could be changed but current lawsuit medz that's alexis to affordable healthcare including abortion services is critical

and women to participate in the public health insurance program should not be forced to face increased financial political pressures. that doesn't mean they-- they should not be denied that either, so that is a legitimate right and we believe people ought to be able to have. that debate, we had that debate over and over again. singling out the portion for exclusion from healthcare plans that cover other reproductive health services is harmful to women's health and discriminates against women as well. >> mr. chairman, again there's the concern that some of the organizations are going to be forced to contract with family planning, when they don't, when it goes against their conscience, but the argument that we are preventing private insurers from offering abortions really does not hold water. we prevented from tricare, a federal employee health

insurance plans. therefore the plans for every active military personnel in every federal employee are not allowed to cover abortions, so why would this be any different? >> any further debate? if not, the clerk will call the roll please. [roll call] earl

[roll call] >> the voted 11 ayes comment 12 nays. >> i'm going to offer an amendment that senator kennedy has proposed, number two of five and while the step for handing it out, let me just read it. it is a very short amendment. no limitation on contract team based on abortion. no individual healthcare provider or healthcare entity baby excluded from contrasting with the health insurance, the issue a participating in kate we on the basis that the provider or entity performs abortions or the provider into the refuses to perform abortions except in an emergency. performing abortions is contrary to the moral beliefs of the provider or entity. it is very straightforward.

it seems to me this ought to resolve any questions people have about this question that has been, we have discussed back and forth over the last half an hour or so. and, i will give members a chance to read it if they would like to but i think this is one that goes right to the heart of what we are talking about and that is being respectful of conscience and moral questions. and,-- any further discussion in this case? >> mr. chairman? i worry that this amendment is

unconstitutional because the constitution for habits congress from legislating on issues regarding religion, and specifically it mentions for the more consciences about choice, healthcare professionals should not being forced to engage in action that is taking a human life. it is clear the american people do not want conscious protections to be violated. 87% of americans surveyed said it is important and i think he quoted this, that healthcare professionals in america are not forced to participate in procedures and practices to which they have moral objections. i oppose this amendment because it forces individuals to contracts with providers, even if that individual disagrees with the services provided because of that the cult or moral convictions. it is kind of the opposite of what we have been talking about here and it is our concern we have with the mikulski of men meant that we did last week, that where they are forced to contract with providers, even if

the individual disagrees and that is a huge violation of rights and freedoms of individuals, usually because of their religious beliefs. i don't know why the chairman supports singling out faith based healthcare providers when they provide a majority of the services, particularly low-income and underserved areas and this amendment forces healthcare providers and entities to violate their conscience or to be excluded from contracts. >> i am a little, what we are trying to do here is say that if in fact a facility or a provider cannot be, no individual healthcare provider or facilities may be excluded from contrasting with the health insurer, insurance issue were if performing abortions is contrary

to the religious and moral beliefs of the provider or the facility and they include the other so they can do the the way. i thought was going to clear up the matter. we have been dealing with the so-called religious issues and i thought it would be reaffirming the notion that he should not be denied that if in fact you are doing this and so i try to strike that balance. again, no individual healthcare provider or healthcare facility may be excluded from contacting with the health insurance issuer, participating in the gateway. on the basis that the provider entity performs abortions or the provider entity refuses to perform abortions except in emergency. if it is contrary to religious and moral beliefs. we are trying to strike that balance, but i don't want to dwell on it. we still have a lot of the amendments on the subject matter. i thought this would help clarify that you are not excluding people's ability to make those moral and conscious

decisions. if this one's falls on the constitution i would assume every other offer shed as well but i have not made the case because the moral and conscious issues were certainly at the heart of the previous amendments. ..

i read and heard your explanation and i heard it senator enzi and got confused because it seemed that the they're completely to different interpretations as to what we're doing here. as i read it, we are simply providing that you cannot exclude an a provider or an entity from participating if they exercise the conscience clause, is that right? >> right. >> when you got the language here except in an emergency, and we don't define whether that is the line of the mother or anything else. i done of that is helpful because it is rather vague fair. i don't have any objection to having a provision that would

save if you as a provider or health care entity subject to performing abortions that you're not going to be excluded from the exchange, that seems to be reasonable and to make sense. i guess i'm just not certain that the language is as clear as we might like it. is this the conscience clause language you have suggested earlier that senator kennedy was working on that had not yet been available? >> this is an amendment that will be offered to sit there will be some agreement on accepting this amendment. i don't know the particular reasons why. maybe the word emergency although i thought leaving that word emergency gives obviously discretion so people can respond with great specificity what constitutes a new urgency. again, as senator coburn pointed

out by march when an emergency arius at their doorstep respond to its so we have enough discretion and hospital to respond to emergency is a making more sense and then getting specific. >> in december that somewhere within this draft that we have in front of us something that works, you have suggested that you don't think senator coburn conscience clause works. in senator enzi has mentioned he doesn't think this one works and i think we need to figure out how we dropped a conscience clause that works. i would imagine that all of us around the table and agree that it is appropriate to to have some and duration of a conscience clause when dealing with the issue of abortion here, providers and facilities. >> let me suggest -- >> maybe i can say what i was saying clearer because what we are afraid about in this

instance is the health care plan since it is the health care plan being forced to conflict with abortion providers. i don't think it excludes that and that is a little difficulty that is with this. i appreciate what it is trying to do but i think what they hav done is forced that service just as senator mikulski force contracts with people that have no intention of providing for abortion except in very specific cases. >> went out like to do is we have some language in this matter that we take this amendment and invite people to work on some wording that my have a greater sense of balance so we can move along. what i like to suggest so we have some language, i ask for a voice so we can move along on its.

>> in the past when we have done is have a vote on it to so i think we have something to work on here. >> all those in favor of the kennedy amendment say i. in the eyes have an and the kennedy amendment is adopted. >> mr. chairman, i like to offer her amendment number 203. >> i'm sorry, what was that? >> number 203. >> 203?

eighth >> cms, obviously there are a lot of opinions and honestly hope that there will not be differences of opinion on this one because i know that every member of this committee is strongly in opposition of any kind of fraud and and wants to do everything that we can to cut back on what is costing our nation and individuals and companies substantial sums of money. with this amendment does is provide explicitly that payments made by two or in connection with a gateway are subject to the false claims act and in

addition authorizes of to double the existing switches triple damages for false claims violations and what this means is that a prosecutor can seek in or a judge can oppose up to 16 times but no less than three times damages in these cases and the reason that i am offering this amendment is that having done a little bit of work and study of ron in health care industry and certainly not just medicare and medicaid existed throughout the private-sector as well, private insurance companies is that i worry very much that if you are a major multinational corporation that place of millions and billions of dollars getting hit with triple damages may well be worth it and pass along as a cost of doing business. a couple of points i want to make on fraud. we talk about medicaid fraud and medicare fraud. let's understand when we talk

about fraud in general what we're talking about is fraud is being perpetrated against these institutions not by these institutions and one of the things that we have had discovered which many of you may not know is that almost every major private entity in the pharmaceutical industry, in private health insurance and in the private hospital world has, in fact, engaged in fraud one. now whether this is bad apple operating improperly with this to some degree systemic i don't know, but i think what we have to tell especially these large multinational corporations with that if there are going to commit fraud they're going to pay dearly for it and we have to provide a strong disincentive read them to be continuing fraudulent action. let me just give you briefly

some examples so what is going on and this is just a few. in 2004 the division of pfizer said the guilty to two of felonies and agreed to pay $430 million to settle charges. in 2002 and pfizer agreed to pay 49 million the federal charges that defrauded medicaid program. in 2008 johnson & johnson was taken to court by the texas attorney general two urging that they were battling kickbacks for health officials and that charges are pending. in 2003 smithkline had an agreement of $88 billion in civil fines for overcharging medicated. in 1999 they agreed to pay plain guilty and pay him a $500 million criminal fine for meeting a conspiracy to raise express is regarding items.

into this and i'm zenobia and knowledge that violated the false claims act by misrepresenting drug prices and paid a 50 -- $95 million to the medicaid it dry rebate program. thus this year the u.s. government in 16 states have joined in to whistle-blower suits against pharmaceutical giant wire. the judge company was little else to pay hundreds of millions in rebates to the medicaid program. and that is just the drug companies. then you go to the private health insurance companies, united health in 2009 paid three have a $50 million to settle lawsuits brought by the medical society doctors and patients. in 2008 biggest turning general filed suit is united held subsidiary and three additional subsidiaries brother from consumers by manipulating reasonable and customary rates. in 2009 which is a huge increase

turns company was bought from bringing in new patients in the medicare part b and medicare and vantage program because it has demonstrated a longstanding and persistent barrier to comply with cms requirements for proper administration of its medicare drug program. in 2003 at number agreed to settle a class action brought by physicians by paying $450 million in overhauling business practice. in 2003 cindy ping it to a half-million dollars to settle allegations in terms of medicare fraud. in 1999 hospital corporation of america agreed to pay $745 million to settle civil charges in medicare. i think there is the second-largest private health

care chain been a $54 million in fines. in 2006 they agreed to pay $725 million in cash to give up $175 million because they were over billing medicare claims and on and on and i won't bore you with more of these stories, but what you have time after time is not just a little fly by night operations selling wheelchair's to people who aren't alive but donated for selling and other medical devices, you have large major multinational corporations. i fear, this may be the tip of the iceberg and i hope will be more vigorous in going after these guys so bottom line when we are doing is saying that if provides that payments made in in connection with a game-winning presented to the

false claims. which we don't say clearly double the damage from three times up to six times and i would hope that we could have strong support for this amendment. >> mr. chairman come i am supportive of this amendment. i think senator sanders is on to something. the pain for defrauding and in the use, medicare is easy to defraud and is designed to be that way. i think the amendment will send a good message and means corporate responsibility whether individual actor our corporate policy has to be attentive to it so i offer my support for his amendment. >> thank you senator. is there further discussion on us? >> mr. chairman, i supported and i wonder if we could expand it to include states for american the same errors on their requests. >> we could talk about that demand for the debate and

discussion on the sanderson and? the clerk will call the roll. >> [roll call] [roll call] >> that is a great vogue here.

we have a trend going here now. any other amendment we might be able to embrace here? >> senator coburn and should offer another one while we're on a roll. [laughter] >> congratulations, bernie. thank you very much. further amendments? senator coburn amendment number two and 37. the clerk will submit the amendment.

[inaudible conversations] >> mr. chairman. >> senator coburn. >> this amendment is straight forward. it says that we're not going to use of the force of the federal government to cause providers with to participate or act against their conscience, their long hurt, long-held moral or at a local police in assisted suicide. very straightforward. what we are saying is we're not

going to put them in that box. this amendment explicitly precludes abortion, we very carefully detailed we're not talking about withdrawing the end of life care when and why is there. we're talking about the active act of assisting in the suicide of a patient. and what we are asking is that we put a prohibition in terms of a threat of the federal government and going against that conscience that ethical and moral beliefs of the providers who attend these patients. there's nothing to say that in the states that allow that they still can't have that. but what this says is you can't force someone to offer that. it is a straight up and down conscious protection.

>> i am reading to the amendment. this is primarily designed to deal with the issues of euthanasia and assisted suicide or mercy killing, that is the fundamental thrust, is that correct? and all their some issues with this drafting you have an amendment number 229 which is very similar to this amendment numbered two and 37. which i am told we are prepared to accept coming tills with the same subject matter but crafted slightly differently. your amendment number two and 29 also the purpose of that is again to deal with the death of an individual such as by assisted suicide, euthanasia or

mercy killing and and try to look at the distinctions between the two sets of languages. 229 and a staff reviewed and would accept that amendment number 229 which goes to virtually the same amendment except for slight differences. where are the differences? >> mr. chairman, owned a curious to know the problem is with this one. i'm willing to move in that direction. >> i'm looking at both side-by-side and i saw the same language on euthanasia, assisted suicide and mercy killing and this is a cautionary language so i'm trying to find out what the -- where is the language? in an senator coburn, can you tell me what it is you want to do? >> i don't want to force -- i don't want to force a position or a hospital or a provider against their conscience to

perform euthanasia, assisted suicide or a mercy killing. >> and i agree with that. >> we agree with that but i think one of our troubling things is when a the line is reached between one informed consent about what people want to do and they give their medical directives. >> we have clarified that in our amendment. it does not deal with the withdrawal of care. first of all, is alito -- >> can you show me where it is? i'm trying to understand imminent. >> line 14, page two does not have any affect on limitation relating to the withholding or withdrawing of medical treatment or medical care or nutrition or hydration or abortion or the use of an item good benefits for alleviating pain or discomfort even if that may increase the risk of death. >> my view is on this having

read this the staff has gone over and accepted the amendment. and i recommend we do. >> i would second mr. chairman. >> all those in favor of the coburn amendment. the amendment is agreed to. we're on a roll here, we've had two of them. they're both so the same and i couldn't find a station in the two. >> seniority has its perks around here i guess. [laughter] >> further amendments? senator miracle a. >> thank you mr. chairman, call on a member 200 and him and the clerk will distribute to number 200. >> i think it is fairly

straightforward. the bill was constructed in exchange individuals and small businesses can go to get a plan may small business to go to get a plan for its companies. in doing so it may be able to get a plan and a better cost or a better health care coverage because it has that collective bargaining clout of hundreds of thousands of and jewels or as currently -- ma business is to get insurance it doesn't have much bargaining clout. it is really in a difficult spot which is what i think most of us have been hearing from small businesses that are very concerned about what a significant price they have to pay. as written, the bill calls for businesses up to 10 employees to be able to go to the exchange to get a health care plan. this amendment raises that too 50. what that does is essentially triples the number of employees

through small businesses or small business could go to the exchange to select a plan for their company. this amendment is endorsed by the national association of realtors, the mainstream alliance, the small business majority, u.s. hispanic chamber of commerce and by the center for rural affairs. >> is there further discussion on the amendment? >> as amendments proposed, given in the workload and of the cbo. >> whether logically it would give the concern the address that mr. chairman. this would have no impact upon the credits available to the individuals because this is about businesses selecting and program on the exchange, they

simply get in getting a program in a better price if they choose to go to the exchange but it has no impact on any government revenues. >> for the debate and discussion on the amendment? teeone to record the votes. >> and try to understand, the point of your amendment essentially that we're now going to expand the employer mandate instead of it being 25 of us employees to be 50 employees or less? >> no, senator. the 25 employees is a different issue. this bill currently says that only small businesses with 10 or fewer employees in go to the exchange to select a plan. i want to be very clear, this is not about -- >> tell me what it is. >> yes currently i am a small company and i by blue cross six gerunds this allows me and i am a small business up to 50 to go

to the exchange and perhaps by that same blue cross insurance. >> thank-you. i was getting lost with the 50 number. thank you very much. >> i have one question, i supporting but what if that company then grows from the 2000? >> this amendment provides was two have gone to the exchange you can grow so that you don't get any sort of -- he would continue to be eligible and, indeed, the amendment also allows states to set a higher number and they should choose to do so and some states might well decide that they wish to let businesses of any size go to the exchange. that would be the state's decision. >> mr. chairman. >> things like the administration would go up depending on the increased number of employees? >> because the plans are designed to provide the premiums to cover including costs of administration there shouldn't to the best of our knowledge,

and there would be no impact on government funds. if i can sum this up, many small businesses paid one of $3 for administration and when they get health care as a single company because i have no market clout. this allows them to be part of a large pool to negotiate a better deal. >> what i like about it is with concerns raised that if he went beyond sir numbers and exclude or include people it could have a contrary effect on expanding economy. and it seems to eliminate the argument in these particular situation and even if you're hiring more employees you don't get excluded from the game plan, is that right? >> you are absolutely correct, that issue had come up in terms of an employer pays you're or play issue, completely separate issue but in this case it prevents them from being in a

clipped by allowing companies to be grandfathered in. >> and i asked a question? what is the logic for having any limit? >> personally i don't see any logic in having a limit. because related company of any size of it was a better deal on the exchange -- will have them go there. on the other hand, as they get larger the have more clout and are able to get a better deal currently so there may be an argument in terms of the start of this plan to accommodate more employees in the beginning for from smaller businesses who have the current or steal if you will and health of out. but i suspect that once this is in place if there are larger companies to participate they will talk to their state and saint this makes sense for us to and if it does that would be a win-win solution. >> u.s. plan when 10 was picked? the situation with regard to

states that some of their own gateways the size of employer that has allowed into the gateway is the determination of the state. with respect to this is for the secretary steps and up the size, the size limit is up to the secretary set by regulation. the underlying bill says the secretary doesn't establish anything else in the number would be 10, the amendment was say the secretary doesn't establish an in-house the number would be 50 with the proviso that once you are in use the and if you go over 50. >> the secretary can choose 500 or thousand? >> the secretary would have latitude to choose 25, to a nifty, what ever. in this merely sets the default as starting a secretarial action and is not interfere with the ability of the states to tailor the size of business allowed in a way to the conditions that pertain in that state. >> for the discussion prius. >> i believe if i can restate

one point to see if i have this wrong, but i believe it is in page three at the top in the case of participating by regulation establish number of employees but such number may not be less than 50 so they cannot senate at 25 of this amendment. >> by the terms of the amendment would be precluded from going under 50. >> i just had one question. >> and like the insurance i have now, i don't get to keep it? because i am going to the exchange in active you hear the question? >> if that is a question i'm happy to respond to it. your employer currently may choose an insurance plan of for your company. the right of the employer to choose a plan is absolutely safe guard and in the structure. >> teeone to record a vote on

this? >> as the will of the chair. >> all those in favor of the amendment say i commend those opposed say now. the amendment is agreed to. congratulations, senator we're on a roll, that is the third amendment almost unanimous. further amendments? we will go back and forth. >> amendment to under 49. >> coburn amendment to under 49. the clerk will distribute the amendment, please. well this is being distributed let me explain what i am attempting to do here. now, the idea of -- fqhc is a good idea. but what we are finding in many rural communities in my state is we will have a county hospital that is totally non profit, that is struggling in that we put in

an effort hqc in a close because the revenues that they were making to get by all of sudden are sucked from them and go to the fqhc. the idea is a good idea. but what of this asks wharf is prior to expanding and developing fqhc, gao will have an impact statement proposing each of the locations and consider the proximity to an urban population, the economic impact and competing with nonprofit or county hospitals, there are commercial in their county. the proximity to a private rural hospital the duplication of existing medical care services and the availability of primary care services and other end of

the residence are comprised of migratory are seasonal agricultural workers. this is important because i have seen three hospitals on the basis of us trying to do something good we have for them. the other thing that happens is we have fqhc that are needed in one area and then they will open a satellite clinics for this rural hospital so in our intent to do something good we are actually hurting the established infrastructure that are there in any of these rural communities and i know it's not just oklahoma where it is happening so all this says is let's look at it before we allow this. in this bill we have said that fqhc no longer have to having needed, they can go without demonstrating the need in the area. so what i would hope is we would look at that as we try to help

and three instances in oklahoma we have heard a the care for the rural population where the fqhc are located. and they no longer have hospitals associated with which refer. >> is there a comment on that coburn amendment? senator sanders. >> i strongly oppose it. when we're talking about health care reform very close to the top of the list should be the way to primary health care. in one of the very strong public health programs long supported in a bipartisan matter, senator mccain spoke about it during his campaign is a fqhc program. president bush was very strong on this and the fact of the matter is that today as best as i can understand federally qualified health centers provide the most cost-effective primary

health care in this country, in fact, with this legislation and with the house and no compromising specifically expanding fqhc all over the country. let's remember fqhc provide primary health care on a sliding scale basis, dental care, mental health counseling and low cost prescription drugs all of which are needed in underserved areas throughout america. this amendment would do is severely slow and restrict the development of native fqhc and results long delays in underserved communities being able to get health care directly in opposition to this bill is trying to do in the truth is that institutions senate committee may offer services seller to fqhc but they often do not do so with a population that health center service on a sliding scale basis. so applicants already are already reviewed extensively to ensure that federal funds and not duplicating services and must demonstrate corporation and

of several relationships with local hospitals. my understanding is but i ate don't have -- i oppose. >> let me read modified. they do have referral relationships. for about six months to a. the hospitals, no longer have referral relationships. this is not designed to slow down fqhc. it is designed to put some common sense so that we look at it, the delay is six months for us to look at this and establish what we need to do so that we don't actually heard it. on not an opponent of fqhc. i see them as many areas in oklahoma that made a tremendous difference of but when i don't want us to do is to hurt bible care alternatives other than the fqhc actually means. but the economic basis to support them both. and i have another amendment

which will take care of senator sanders concerns which allows fqhc to partner with some of the marshall hospitals so that they can but it at the hospital and still be fqhc and of the hospital can actually per with. so the goal is not and that is amendment 248 senator sanders, the goal is not to delay or deny it, it is two have us to prevent look at what we're doing. and i'm sure oklahoma in real estate and this has happened appear in. >> i asked senator coburn, reading your attendance here is fqhc cannot be constructed within 3 miles of a private commercial hospital for nonprofit hospital. they close down every fqhc and i-safe of iowa. and i've got to tell you,

senator, every time we have open one in iowa there were some initial resistance to open and once they open, the doctors and hospitals say it is the best thing that happened to have the fqhc in sioux city, council bluffs and water blue in davenport, but they were within 30 miles of a nonprofit hospital. you shut them all down met know, this has no retroactive to a man given not able to construct a new one. >> i'm saying if you wait all your concerns will be satisfied. [laughter] >> why don't i withdraw the amendment and off her amendment to hundred 48. >> since you can't wait. 248. the clerk will distribute to that amendment. we will handle this one back.

>> i withdraw 248 because it is not what i thought it was. >> alright. >> i ask unanimous consent. >> you have an amendment? >> i call up read 201. that is not impossible appear in [laughter] >> everything is going so well i hope i don't interrupt the flow. this amendment clarifying that under federal law there is no requirement run individual to a role in a qualified health plan or participate in a gateway for, but when it would do would give states the ability to require insurers to offer all the insurers and gave way for a subset of insurers the non erisa

health-insurance burden essentially using the gateway as the chief marketing tool that of the entire state. there is a danger if we do not adopt something along these lines and it could be market segmentation. insurance companies could choose to have marketing plans outside the gateway to a healthier wealthier folks and essentially create a situation where they wait becomes a place where they're highly subsidized not integrated with the whole population and there are some indication that in massachusetts that can have a very successful of breaching of subsidized markets but not other markets. again let me emphasize this to be the sole prerogative of state nonfederal government and the proposal own witness been endorsed by the national

association of commissioners but the individual commissioners in massachusetts, i won, maryland, washington, rhode island, ohio, tennessee, utah, alaska and kansas. they feel that they need this to will remain in this to try to flee manage to the gateway into avoid a situation where you simply have the highest risk in a highly subsidize individual able to be in the gateway and they can market outside to be very exclusive and half a clientele and with that i would ask either comments or passing. >> any additional comments about senator reid's proposal. >> i am trying to understand how does this keep that amount distribution from happening? >> it would allow the state either state law or insurance

commissioner pursuant to the law to essentially require that all health care plans have to go through the exchange in that way it avoids the possibility of essentially to market its. >> this free emphasizes the lack of federal government cannot make the decision. >> maximizes state flexibility. >> and allow us given the particularities of a state to say that either all plants will define sensitive plan after the opera on the gay way. again some of the experiences of massachusetts a connector works well for subsidized individuals coming into the connector, but

for other plants and other types of risks doesn't work quite as well. frankly i think this you have the broadest possible risk will within a game may and learned to minimize costs as well as. >> it is all stays joyce. >> any further discussion about the reid amendment erects can i just to clarify for me senator miracle is imminent if you have a company that was 25 employees. >> an example if you have a company that had 25 employees the way i read this sounds like one of those might choose not to enroll in a way. i have a question on exactly what it means. >> the underlying legislation makes it clear no one will be compelled to go today way and if the employer is offering insurance to the individual

presumptively he will take that insurance or that is occurring system with no intent to undermine the current system. >> would only be individual -- i can't follow it exactly who wouldn't agree to sign up for this. >> would be essentially an insurance companies could have entomb market though put a plan on the a way or they will keep one of which they will to the intuit and advertising special populations where they could, in fact, not even go on and gave way in certain states and identify risks that they like with current business and as a result i think this intent is to clarify so that the states will have this. >> i have another question. it would seem to me with this

amendment then every state will have a gateway for all plans. >> i think that would be up to the states. >> but under this scenario for the genesis of your eminence there would have been a group that was cherry picking. >> no state wants that to happen so they're all having a win of the plans in every state will be in the gay way? >> i don't think that is the case. this does not require the states to do anything it makes it clear that they could exempt certain plans directly from the gateway. i think this gives flexibility so that they can make proper adjustments to their market. otherwise the danger is and we tried to highlight that in some cases their role be to markets

that will be the gateway market and a large and disruptive market. >> their only be one market. >> i'm not necessarily opposed to its because we have state medical exchanges in our bill which allows the states to do the same saying. >> it may well be that way but i think in please consider certain localities where there with a sigh and not mind it is not affecting the attraction to the game wis. >> let me just ask david to clarify. my understanding is in order to offer coverage to the gay way you have got to offer a qualified health plan in order to buy coverage through daily account of a so-called qualified individual under the act and

that wouldn't prevent from occurring what is just describe which is that everything would be offered through the gateway available in the state. am i right about that? could you clarify that. >> explicitly but implicitly in the language just discussing an explosively impairing consumer choice, paragraph one has continued operation of markets outside the gate so there is a market outside subject to the same rules of dissident be this segmentation and deprives the good clarification of how the operational work but you're right that there would be an allowance for market outside the game with subject to the same kind of rules event within the purview they might want to have

a full range on the gay way so that individual looking for a plan will see everything that is available and on simply what is a way and on a way. there has been some experience son of a cooperative insurance arrangements purchasing, but they never got any attraction because the other competitors aggressively advertise and their potential clients won the battle and it just one out of business. and i must say i think a lot of these issues are into related complex and cetera. i would certainly suggest this going for to make additional beverage of and be very happy to. >> and want to make sure i have this right. we have in a wave of those individuals we have discovered

with a subsidy and that we also have a group health plan that businesses starting in 50 and under a i believe according to senator berkeley came by a group plan but they could grow to be a thousand and 2,000 employees. am i correct? we have both group plans that are not subsidized because of the employers find it and then have on the group plans are individual plans some of which may be subsidized and some which may not available in this game may, is that correct? >> i think not. even the provisions of a self-employed individuals essentially enough to make a choice as to whether to declare themselves qualified individuals must be eligible for the subsidies or as a group of one in which case of normal commercial will supply so that

is not quite there. >> let's i am an individual and i don't qualify and i don't work for a group of 50 come i can't have the advantage of the purchasing power of the plan because i don't qualify i have to go outside the plan? >> as an individual by a commercial insurance product would be under the the limit of the bill as modified and you could buy in a normal transaction a plan to the gay way and not have the advantage of a subsidy but you'd have the manages and more comprehensible market and better comparison to ming that is exactly what i said so if, in fact, ever for a company 50 or i qualifying under a means test i'm eligible and even if i don't qualify i can buy in the plan, is that

correct? >> that is correct in mecca so why would anybody not buying the plan would then as an individual if, in fact, the plan can lower their cost? >> the messages this experience has been some continue to buy outside the gay way and the connector. there is a broader range of insurance products available and as you know in the connector system there are these tears of benefits but many on the commercial insurance side said there is a great value in being able to offer products that are broader than knees and there still is a market outside so i would imagine that if this bill were enacted there would be differences in different states as to the level of sight and out signed. >> if it is economically to my advantage why would i not by in a way?

>> the reason david gone. >> but with the qualification economically to my advantage. why would i not do what is in my own economic advantage? >> that presumes you can make a calculation of different choices with the one that maximizes. >> that is, right. >> if you can't do that because there are some plans that are off in exchange then you don't have the kind of information to maximize the value but again i think the purpose of trying to encourage the exchange is get as many products as you can on and as many people and i think that is right. but i can visualize where there could be companies that market very specialized plans that for one reason or another thing and maybe the effectiveness of their

advertising are able to get people to sign up even though on a clear analysis it is probably not the best plan. i think that happens all the time. >> but it will be less. >> question for counsel. david, you envision that health savings accounts as they are currently constructed one would meet the threshold of, to be part of the plan? >> there is nothing to preclude the secretary from defining as minimal, coverage, but to fall under that there is a requirement that made an actuarial value, isn't it? >> two flip into this section 31 of three, there are a series of broad a categorical recurrence about the kind of a that it's coming to be a qualified health plan you have to offer the health benefit and their various

other criteria i don't see anything that would qualify. >> part of that is meeting in actuarial value in it my understanding actuarial values work relative to the size of the catastrophic, the more risk one is willing to assume on the run been a catastrophic care of being bigger and therefore taking more risk of front of the less actuarial value. there could be plants that would not qualify because the actuarial value was not determined with un's requirement that the issuer offered a plan of the lord to levels and so theoretically you can satisfy that by offering an age as saying something else i would imagine and the reason of qualifying is not because i'm trying to hedge the rather because some of this has to define. >> it is reasonable that anybody could participate in a tier one

level but because of their requirements for tier two or 23 the likelihood is the gsa that had a larger deductible when it would not reach the actuarial and value to participate. >> the deductible for the out-of-pocket limit, so the out-of-pocket limit for qualified health plan and the basic level is set at the basic level so it will not be disqualified from being the basic level plan if, indeed, the issuer offered something else in addition that would satisfy that requirement. >> both within the gay way? >> yes if you offer it you could satisfy the secretary were to define differing you could satisfy the requirement of basic plans and it was satisfied the

out of pocket limitation of the basic plan and there would have to be an actuarially higher percentage, higher coverage and a plan to satisfy the summit paragraph b plan that has an actuarial value that is higher. i feel like i am not clear find sufficiently but i think the short answer is, yes. >> my right to be concerned that tier one may go to be met from the standpoint of actuarial value guidelines set up with tier one and tier two probably not? like that i think is correct, right. >> as i understand, jack and you can respond to this, but timmons clarify this that federal law does not compel any individual who to be a part of a qualified plan whereby anticipate. we have said that all the way to this process and secondly maximizes state flexibility. in fact, the states could have them on requirements and would

be constituted as a gateway in qualifying not having to adopt so you have the maximum flexibility. >> i ask another question? david, would you explain to me the authority of the secretary in regards to hsh accounts and no latitude of her authority with which to allow them to continue to be increased or decreased? >> there are not provisions in the bill specifically related to the operation generally. the provisions of was referring to and on and go for in section 31 of three that deal with the criteria for a man qualified coverage so play at the section 31 which deals with the design of the plans so the first mention of section 223 of internal revenue code which is the section that deals with a

gsa is on page 69 where it talks about minimum qualifying coverage so in general the section is given latitude to define what minimum coverage is and there are certain restrictions on the way she can define and she cannot include one is a single disease or cluster of diseases policy meeting that coverage and then she cannot define to meet minimum call live coverage and a policy that has an out-of-pocket limit less than not applicable to age as saying. the other place where out of pocket limitations kind to plant a reference are in a 3111 which i will try and find in a moment where there are three tiers of plan established some paragraph a which is a basic plan for the out apartment limitation is not greater and then a plan with a

slightly greater level of coverage in the out of pocket limitation is half that and the higher tier with a limitation so there is nothing here that i would imagine could preclude rahm meeting the basic plan but there is a requirement that an issuer offer plans with the basic level. >> their reed amendment is agreed to. further amendments from my colleagues? >> this is a man and 272.

>> while this is being tested due to an at the outset of the markup this afternoon and mentioned that there was some 64 amendments offered by my republican friends and would be prepared to accept their in be some republican members of that have rejections and was hoping to get some clarification on that. >> can we get some clarification on that? >> as soon as we can i would appreciate that. >> i will. >> there may be an opportunity to take a look. when. this is a coma and amendment number two. with