expectation, and i think they look to whatever indicators that they can in the, in the practices, in the case of the text messaging i was describing, they look to certain practices of employers and the expectations of the employees. and they may look to the case law as it has developed in the state courts and the federal courts. and so this happens, i think, all over the constitutional jurisprudence as elaborated by the supreme court. and so i think this is, in some sense, kind of a banal observation about the way the court elaborates doctrine. >> i see my time's expired, so we may be able to get back to that later. >> thank you. >> thank you very much, senator lee. senator coons. >> thank you, mr. liu, for your preparation and your family's willingness to stand by you through this long process, and i'm grateful, madam chair, for

the chance to have visited with you in person, have reviewed your writings and your work and to spend time with you in this hearing today. i think you would be a very capable jurist, and we'd be blessed to have you join the ninth circuit. i know there's been a lot of questions raised about your writing as an act demic and how that would or would not influence your work. .. the first half of the article rejects the idea that courts have any role in rights in the

social and economic realm. that is consistent with the instructions of the supreme court in this area where in case after case the supreme court has said our constitution is the charter of-liberties and not one of positive liberties and and would fully apply those presidents where i confirm this process. that article does recognize limited judicial role in interpreting rights created by statute so that the crucial difference that but to the article is directed at the notion that policymakers are the ones in charge when it comes to this contested area. what courts do is on limited occasion they assess the legislature's eligibility requirements, termination procedures against the dictates or due process clause and that

is supported by precedent and those precedents remain on the book. the role that i propose is fully consistent with the state of the law as it is today and i feel prepared to fully follow that law if confirmed as a judge. >> can you point to anything else that this has been consistently your view that the role of the judiciary and recognizing demolition is limited and in many ways subservient to the policymaking of the legislature? >> absolutely. my scholarship has been devoted to the subject of public education. in another article from 2006, wrote a piece that was about education but directed at the policymaker. the caveat in the front of the article said that i am not contemplating any particular judicial role here and in fact

acknowledge the supreme court decision in 1973 in the rodriguez case that was very much informed by principles of judicial restraint was the basic approach that i was taking in that article recognizing courts have limited capacity or no capacity and no authority to wade into what are essentially political decisions. so much of my riding has been centered on those. >> one last question about something else on the subject of some debate, what role does foreign law played in judicial interpretation or application of domestic u.s. law? >> the answer is none. foreign law has no authority in our system unless american law requires that in the case of the contadora treaty of some sort.

to clarify that issue there is one paragraph of writing in my record that acknowledges solutions for legal problems might come from other places in the world when there are common problems constitutional democracies face. with other ideas on matters that are before them they looked to examples from other nations but there is a crucial distinction between that kind of information gathering to the extent that it is informative and the use of those sources as authority. no one would cite this article as legal authority that controls the proposition of law. the same exact rule applies to any foreign president or for or

in what. -- foreign law. >> at the recommendation of the chairman of would like to invite you to my office to have a sit down at your convenience before the committee. i promise the chairman that i would do that when your nomination was discussed. earlier today you said there are areas of the constitution that are very precise. i have a question for your article 3 section 2 that judicial power will extend to all cases arising under this constitution and treaties made of which they will be made under their authority. is that precise to you? the idea of precisely this is an important definition. >> certainly. article 3 section 2 contains with it an absolute requirement that judges the site only cases of controversy and do not render

advisory. that is fairly explicit in the text of the constitution. >> the reason i ask that question is the chairman quoted you in terms of your statement absolute fidelity of the law and language in the statute. your statement that has caused difficulty is the following. resistance to this in terms of reference in foreign law is difficult for me to grasp. these are your words. since the united states cannot claim to have a monopoly on wise solutions face by a constitutional democracy around world people if you have absolute fidelity to the law, and this precise, how could anyone ever consider foreign law as a basis for a decision sitting on the supreme court and or an appellate court? >> the supreme court has followed the general approach they look to for a lot as

confirmatory or ideas about to approach a particular problem. i don't read the president as dictating those forces have authority in the sense of legal controlling and binding authority in the interpretation of u.s. law and it is not my view that foreign law has that kind of authority. >> justice stevens in mcdonald versus chicago. the fact that our allies on uniformly regulating firearms extensively tends to weaken the right to possess a gun once choosing this fundamental life of liberty. do you believe there is merit to his argument? he is now referencing foreign law in defense of his position on that case. is that fidelity to the language law and statutes and is this precise? >> as i recall justice stevens

was in dissent in that case. if confirmed that the judge i follow the majority view. >> but again, we have a supreme court justice who is relying on foreign law so it is clear to the senator to want to know exactly where you are, given the statement that you said it is difficult for you to grasp that people would have trouble with the utilization of foreign law. >> if recall correctly there is no sense in which the examples he gave and i don't have any view because i can't recall it very clearly of the merits of how he used his examples. he is citing those forces as anyway positive of the legal question that came before him. as i said, that opinion was a defense and if confirmed as a judge i will follow not only the

holding of the supreme court but one would have to absolutely follow the reasoning of the case. that reasoning is to stop it. >> i submit two rounds of questioning. on many you fail to give me an answer. i am going to run out of time and i am going to run out of time in this hearing to do that. i look forward to meeting you in my office to get those answers. the other question i want to go back to, your statements about judge a legal --alito. billing experience today, you would not have included the last paragraph in your critique. is that a case of poor judgment to the turtle do you think? or just a case of lack of knowledge and insight? >> it was poor judgment. >> i have 7 seconds left and a

multitude of questions. i will try to accomplish that with the nominee in my office. >> thank you for meeting with him. very much appreciated. senator bloom and fall --blum t --blumenth --blumenthal. >> thank you professor liu and your family for being here day. i want to commend you for your success so far and you are a great american success story going to public school in sacramento and going to stanford, oxford on a rhodes scholarship and yale law school and many years of teaching and for answering difficult questions. so candidly and forthrightly. most especially your expression of regret for some of the comments he made about then nominee justice alito. i want to say about this process

that i think you are entitled to an up or down vote by the united states senate but also feel that this scrutiny has been a share, searching and demanding, but i believe this body has a responsibility to ask the kind of questions you have been asked and i hope that you agree that the process is a fair one in that regard. i want to really go to what i consider the central question for any judge on the court of appeals which is where you would follow and particularly what you would follow if your personal views weather in your past writings or your presently held beliefs conflict with the rulings and decisions of the united states supreme court. is there any doubt in your mind

that you would follow faithfully and consistently the rulings and decisions of the united states supreme court? >> no doubt in my mind about that. in fact, i would add that the approach i have taken in my riding this has been fairly consistently to acknowledge what the state of the law actually is and scholars are paid to critique it and to say other things about it but it always begins with a clear acknowledgment of what the law is. that is what i would follow. >> on the question of school choice and busing, you have taken some stands that would indicate your support for a broadbased school choice initiative under some circumstances. we may disagree about it. i am not sure we do but even if we did, there's no question in

your mind even as a supporter for example of school choice initiative is, school vouchers that you would fall to overruling of the supreme court. >> absolutely would. >> to follow an excellent line of questioning from senator lee, if the united states supreme court were unclear, and he may have used the word incoherent which sometimes litigators' regard the united states supreme court as being on certain issues, what would be your approach? would you also look to what the combination of presidents from the supreme court is and try to make the best sense of it and apply it as you thought? >> that is what i thought one would have to do in the role of an immediate appellate judge. >> one of the criticisms i have seen having reviewed your previous testimony has related

to racial quotas. the statement is made that you support racial quotas with no foreseeable end point. just so we are clear do you support racial quotas that have you ever supported them? >> i absolutely do not. >> do you think affirmative-action plans should be pitched forever? >> i do not. i think affirmative action as originally conceived was a time limited remedy for past wrongs and i think that is the appropriate way to understand what affirmative action is. >> thank you. my time is expired. i may have additional questions but i want to thank you for your testimony. i am greatly impressed by it and wish you well. >> senator sessions. >> thank you. mr. liu, we don't have time to go into detail discussions as i would like to, awfully difficult

to get as prepared as we would like. a pretty good job overall. you have gone through this before and answered questions before. i just want to note you have had no experience practicing law as a judge. only two years in private practice arguing one case on appeal, a pro bono case but never having tried a case before, you have apparently enabled, advanced academic world, i do believe a serious defect, serious lack in any judge who goes on a court one step below the supreme court, that to me is a serious matter, something i have to weigh in my judgment as to whether you should be on the court. secondly, from your writings, i

have been on this committee for 14 years. i consider them to be the most advanced statement of the activist judicial philosophy that i have seen. don't think there's anyone close to that and i think it is a little bit a demonstration of some lack of sensitivity or maybe deep practical legal experience that you have no difficulty in talking around rather direct contradiction in your ridings and the positions you are taking here in the committee on some of the questions. they are very clear distinctions and i don't think they are easily -- with regard to the foreign law question you suggest yours is not an unusual view but i would suggest it is clearly

from the statements -- clearly on the most aggressive foreign law citation furies and they are unacceptable. in your yale law journal article of 2006, you might put -- before the fourteenth amendment, equal protection and guarantees national citizenship, this is affirmatively declared, not merely protected against state abridgment. it more than designates legal status together with section 5, obligates a national government to secure full membership and equal dignity of all citizens in the national community. this obligation company's to assure adequate educational opportunity for all citizenship

for familiar reasons. the constitutional guarantee of a national citizenship has never realized its potential to be a source of substantive rights. that is what it says. the words are pretty plain. you have become a citizen of the united states but to become generative source of substantive rights the personal to me take that quite a bit further and basically says the judge using those words can begin to evaluate political, social policies that you discuss in your article and again to make decisions on those. you are talking about substantive rights to be found in the document itself that

judges can act upon. i ask you to respond to that. don't you think that is from the other strengths of the constitution? >> i will try to address this in four points. the article says absolutely nothing about what a judge should do. the article is addressed to policymakers. there's not a single sentence in that article that says judges should use that language as a generative source. secondly, the article -- >> who would find within that document a source of substantive rights? legislatures don't need to use the citizenship clause to pass a welfare bill? >> my argument in the article is merely that the legislature, members of congress may --

>> constitutional provision provides potential source of substantive rights and i think that is clearly directed to the courts. >> that is not my view. i think the article in the very beginning explains very clearly that i avoid using the language of rights precisely because rights connote judicial enforceability which is something i am not interested in in that article. if i may make a couple more points, it is hard for me to respond. you mentioned there were contradiction between my record and my testimony. if there were specific instances i would be happy to try to clarify but hard for me to respond in the abstract. >> i am sort of a judge here when we go through this. i have to evaluate what i am hearing and i would suggest to you there are in number of

contradictions in your written statements and your testimony and written answers to the committee's questions that i don't think are adequately adequately addressed the differences. >> it is hard for me to respond without knowing what contradictions you have in mind. the last point i will make is in terms of the gap in my experience i acknowledge you are correct. it is true my resume is primarily a scholarly resume. i spent a couple years in practice under the tutelage of the likes of people like bill coleman which is a credit to me i hope. i do bring other strengths to the role of an appellate judge. the role of scholar has always been one of rigorous inquiry and the fair consideration of arguments and counterargument and ability to listen to the different sides of an issue and in terms of our i would approach the role, noaa i have some gaps

in my experience i have some experience that -- i clerked for an appellate judge not on the district court before. one thing he always did was he always read the record of the case very carefully. the temptation and the appellate level because the issues are cleaned up and neat, just beside them as abstract matters of law. abstraction always was to look at the record and look at the record and look at the record because it is important to understand how a case came to the appeals process. i would adopt same approach if i were fortunate enough to be confirmed. >> briefly, madam chairman, in that same article you say it was directed only to policymakers yet you use this language.

in your words, the article was a small step towards reformation of thoughts on how welfare rights might be recognized through constitutional adjudication. >> i am sorry for interrupting. there are two articles in question. the quote is from an article in referenced previously, the one that contained the phrase legislative duty which from a 2006 article, in that article there's not any reference to a judicial role. >> the source to generate substantive rights. that can only mean by a judge because the legislature cannot. cannot act on these matters without having citizenship clause of the constitution

authorized around it. have of time. thank you. >> note to the generosity of the chairman. >> you are very current. >> i would say you are a most able advocate for the judge from california that you believe in. hallways respect your insight. >> i wish it did some good. senator cornin. >> let me go to the statement that referred to your comment about judge alito. it helps people understand both what you said and why there is concern about it. you said, quote, judge alito's vision and records where police may shoot and kill an unarmed boy, to stop him from running away with a stolen pears,

federal agents made point and guns and ordinary citizens during a raid even after no sign of resistance. the fbi may install a camera, where you sleep on the promise that you won't turn it on unless an informant is in the room. wear a black man may be sentenced to death by an all white jury for killing a white man's and multiple regression analysis showing discrimination and where police may search where permits and then some. this is not the america we know, or is this the america we aspire to be. did i read that correctly. >> you did. >> this is the second time you

had a nomination hearing before this committee. last time was april 6, 2010. >> can't remember the exact date but it was in april. >> do you know why your nomination was never called up on the floor of the senate? >> senator, i have read various press accounts but i have no direct knowledge. >> you are aware that under senate rules the only person who can do that would be the majority leader senator reid. >> i think i am aware of that. >> did you have a conversation with him or his staff about why he did not call your nomination up and have a vote at the united states senate on your nomination reports at the end of the last conference? >> not on that subject. >> so it is a mystery to you why you are having to go through this twice and you never had an opportunity for a vote on your

previous nomination? >> i wouldn't perhaps a mystery. i have read some press accounts of how of the decisions were determined. as i learned to this process one can't always trust press accounts but i have some ideas about it. >> you were denied a vote on your nomination last congress, correct? >> i was. >> the only one who could have scheduled it would be majority leader senator reid. >> i believe that is true. >> you said in talking about justice john roberts's nomination to the supreme court, quote, there's no doubt roberts has a legal mind, a brilliant legal mind but a supreme court nominee must be evaluated on more than legal intellect. is that correct quote? >> it is. >> you would agree that should apply to you?

>> absolutely. the advise and consent process is in the constitution because it is one of the checks and balances in the system that before any judge has tenure there should be a political check on that process. >> the difficulty you are encountering in some members of the committee, you have such a comprehensive set of legal writings expressing opinions on everything from the death penalty to same-sex marriage to what constitutes welfare rights protected by the u.s. constitution and the like. you are now saying wipe the slate clean because none of that has any relevance to how i would conduct myself as a judge if confirmed by the senate. is that correct? >> that is correct because my understanding of the role of an intermediate appellate judge in the hierarchy of the judicial

system is to follow the instructions of the higher court which is the united states supreme court. my scholarly views, a wood base decisions if lucky enough to be confirmed. you mentioned what i wrote about the roberts nomination, with respect to the united states supreme court which justice's applying the doctrines started in different sizes may if they apply the test in that way overturn precedents and that is simply not something that an intermediate appellate judge has any authority to do. ..

>> and the ability to set aside your strongly held academic and scholarly views, and to be able to basically start over from scratch and ignore them. the problem we have as members of this committee is that we have five minute rounds to ask you questions. we follow it up with written questions, and you have answered most of those i believe. the difficulty is we know this kabuki theatre, sometime where nominees come into the hearing

room, and they profess a nomination conversion. in other words, that there previously strong withheld and very articulate stated views are an operative, and we should not pay any attention to them, and we should take at your word your ability, made it your hope and maybe it's your aspiration, but we need to know whether you have the ability and you actually will, if confirmed as a judge, do as you say you would do and set all of this aside and decide based stripper on the matter of precedent and fidelity to the constitution itself. we've had a sad expense just in a short time i've been in the senate when people come in and they say the sorts of things that you are saying today about how they would conduct themselves as a judge, but in practice they have either been unable or unwilling to keep that promise. and the senate and -- has no recourse whatsoever, short of

impeachment, which as you know is extraordinarily rare. so i just want to explain to you, i think we owe you in fairness our candid views, my candid views. as i said, i think you have accomplished a lot in your life. you have a lot to be grateful for and proud of, but i'm not convinced that this is the right job for you. -- >> thank you very much. before recognizing senator klobuchar, i would like to place in the record the statement of our chairman, pat leahy. and he, too, refers, senator, to the confirmation of professor mcconnell. i'd like to just quote one thi thing. professor mcconnell's own provocative writings included staunch advocacy for re-examining the first amendment

free exercise clause, the establishment clause, jurisprudence, he expressed strong opposition to roe v. wade into the clinic access law. he testified before congress that he believed that the violence against women's act was unconstitutional. his writings on the actions of federal district court judge john spree so in a quitting abortion protesters could not be read as anything other than praise for the extralegal behavior of both defendants and the judge. and he was confirmed and members on the site gave him the benefit of the doubt. >> madam chairman, i appreciate that. i don't dispute anything you said, and a deadly judge mcconnell did what he promised to do. my only point is there's no recourse for the committee or for the senate is voting to confirm a nominee who doesn't do who doesn't do what they promise to do. so that is, that's the contrary we find ourselves in.

>> well, i don't want of a back and forth, but professor luke, can promise but he can't do know. he can only once get appointed and then you measure that. there's no way he has said he would. >> and again, thank you for allowing me to just briefly respond. we've had the experience in the case of the supreme court justice who came in, in the case of the second amendment, the right to keep and bear arms, said it was an individual right. and then subsequently wrote a decision on the court and disavowed the very individual right that she claimed that existed under the second amendment. that's my only point. i'm not disputing that professor lu may have those aspirations. he may be making a good-faith representation about his intentions. i'm just saying that you can ignore a body of legal

scholarship are writing like this expressing strongly held views about this, and just take for granted that someone will be able to completely ignore that in approaching their job as a judge. that's my only point. thank you. >> i will continue this discussion with you sometime. [laughter] >> senator klobuchar. >> hello, professor liu, welcome back. i think this is your second income is that right? >> yes, it is. >> iron emir talking to you then and i was listening as senator cornyn spoke about the five minute rounds. it had two hearings now and you, you may to some of able to members for whatever questions that they have to meet with them in their office, is that right? >> that is true. >> while i appreciate you making is also available about any questions they may have about your ability to do this job, and i stated before using the lindsey graham standard that i think you're more than qualified to do this job based on your

background and standard that he expressed during the kagan and sotomayor hearings about someone's qualities and academic qualifications and their understanding of the law and their willingness to follow the law. i just wanted to go back into what you were passionate with senator cornyn, with a just talking about, which is the difference, your work as a scholar. and i think i mentioned before that i'm a graduate of the university of chicago law school and has seen judge easterbrook and judge posner as professors and have often thought some of the things they said in class or views that they expressed and scholarly journals were not necessarily what guided them as a judge when they actually had to apply the law. and could you talk a little bit again about your view of a judge different from the role of an advocate or scholar? >> circa. thank you, senator klobuchar. i first want to express that i appreciate senator cornyn's

making transparent and plain his concerns about my nomination, and i think they are fair concerns to raise and to discuss. i think this is a robust and fair process. and it enables me an opportunity i think to clarify that in all of my academic writings, the role that i had was that of a commentator, as it were. what a scholar does him a scholar pokes and prods and critiques. a scholar doesn't make much headway in the law school by simply restating the law. and so that's why scholarship comes out of the way it does. it comes out as critical and it comes out as innovative and provocative. in fact, those are the very qualities that are rewarded in that profession. the role of the judge is very, very different. the role of the judge is fundamentally one of being faithful to the law as it is.

and i think i recognize that difference in the way that i i approached scholarship, which is to say that i understand what the law is first without grasping that essential foundation, one can't responsibly comment on it. and so, if i am able to take one hat off and put a different hat on, the role simply changes. and the nature of how you approach cases changes. it's not that judge easterbrook or judge poser, any judge who has been an academic consults their own legal writings and refreshes the recollection of what they thought as a matter of three before deciding a case. what they do is they read the briefs and they read the record of the case and they can find themselves, they discipline themselves to that process because that is the process of judging. so that is how i understand that difference, and that's how i would approach the job.

>> and i also know that been a lot of comments about writings and taking certain things you have said to try to demonstrate what people think might be your judicial philosophy. and do you want to describe in your own words without just taking one sense out of something you wrote, what your judicial philosophy is? >> sure. my judicial philosophy in a nutshell i think is that the courts of the united states have a very limited role in our system of government. it's limited because the members of the judiciary hold a life tenure without electoral accountability, and they are asked to review substantive only of democratically enacted statutes upon occasion. and so that is, because we're fundamentally a democratic system that several to be exercised very cautiously and in a very restrained way. it's also, however, a very important role because the judiciary as hamilton told us long ago is also an important

bulwark against tyranny of the majority. and so we have protections in the constitution for very's individual rights, and we entrust the judiciary to enforce it. we are causally insulated from the politics at the moment. and so is a careful act at all times, but in approaching the cases that would come before me i would take my instructions from the united states supreme court and all of those cases, and i think the court has in the main across the broad running cases balanced those to important prerogatives. one, the limitations of the judiciary, secondly, the important bulwark and tyranny that judiciary serves in our systems of governance. >> that you. if i could ask one more question i've been managing -- i missed the first round here. i wonder what you see of my new job here i'm going to be heading up the court subcommittee, and senator sessions is the ranking republican. but just generally what you see

is the greatest challenges facing the federal judiciary right now? >> well, i feel like it would be presumptuous of me to even comment on the question having not made it to the job yet. >> i'm trying really hard though. you must have some thoughts on. >> senator klobuchar, i don't have more thoughts on this than any lay person might have. i mean, i have paid attention to this process because of my own involvement in it, and i've observed many claims made about the crushing caseload that have affected not just the ninth circuit but many other circuits around the country. and so, you know, that is a test i think to the importance of this process and some of the challenges that you will face in the years to come. >> thank you very much. and again, i just think about myself as a student and lost the with professor easterbrook, professor posner, and somehow

they got to this committee and they got to this senate. they had many differences at that time as will and i hope that the same will happen with you, professor liu. you have great credentials. thank you. >> thank you very much. that completes our first round. and i'd like to put some letters into the record which i will do. and understand that senator sessions had questions he wishes -- this is your third round. well, senator grassley -- you were out? [inaudible] >> he has to come back or i will move on. so do you have a second -- why don't you go ahead and? [inaudible] >> again, i'm a bit baffled. you talk to just a moment ago about judges showing restraint, that they are cautious, that we

have a limited role. but i have and properly coded this article a while ago and you corrected me, rightly, but this is article on rethinking constitutional welfare. you talked about judges. this is your writing about how you think judges should perform. quote the historical development and binding character of our constitutional understanding demand a more complex explanations, taking additional account of the courts as an independent socially detached decision-makers that say what the law is. the enduring task of the judiciary, you state, is to find a way to articulate constitutional law that the nation can't accept as its own, closed quote. well first, i think the marbury

v. madison decision was -- had the famous line that a judge's role is to say what the law is. but you go quite a bit further from that, in your writings here and then when asked about you give a statement that justice scalia could get about the role of the judge. so i guess, doesn't this go far beyond what you just said? >> senator, i think that's the first time i've been accused of channeling justice scalia so i will take that -- >> it was a pretty good statement. >> thank you. >> but it is not consistent i think with what you wrote. >> senator, i don't recall -- i would be happy to look at that passage a little more carefully. >> i didn't misquote i don't think. >> i think you quoted it accurately. i think the passage, if i recall it correctly, was trying to say

that judges cannot decide cases, whether it's in this area, welfare rights or any other area, on the basis of some independent moral theory. that they have about what people are entitled to come if anything. and so, that statement is part of an argued i think in the article that says what judges have to do is they have to set aside their independent moral theories, and not import them into the law. i think the supreme court has been absolutely clear in this particular area, that there is that danger that judges unelected and unaccountable, based on their own conceptions of justice, might try to write that into the law. and i fully respect those precedents in that article. >> you mentioned a while ago pretty easily, i thought, that on the question of privacy, you said that, well, i do see society says it is basically.

and how do you find out? well, you look at what sources you can. but when you get away from the respecting the limitations of the constitution and its language, then you get into binding there is out here. you do polling data to determine what rights are, or to reload to foreign law as justice stevens set? you said you look to foreign law to get what advice they get, but it's our constitution that you're interpreting. and what we adopted, not some foreign law. so doesn't that indicate to me, and to all of us, your view is that a judge indeed is free to reinterpret the meaning of the words of the constitution, to advance what they consider to be in effect some societal value. which is i'm ascertainable

really by a judge in any fair complete way. >> well, senator, on the fourth amendment example i was not actually giving my personal view about the subject. i was trying to express what the supreme court itself had said about the subject, and if i were an intermediate appellate judge i would have to faithfully follow the standard of reasonable expectation of privacy or legitimate expectation of privacy as the society recognizes it. which is the applicable standard in the letter of the law. >> well, i think you and i appreciate the opportunity to have this exchange, enable a lawyer with a bind and building to articulate your position well. i would just say that i believe values you express in your writings indicate that you have a very active view of the role, which i think he would influence

your decision-making. i'm not unaware that the ninth circuit is considered to be the most liberal circuit in the country. one year they were reversed 27 out of 20 cases. and the new times wrote that the ninth circuit was considered by a majority of the court as a rogue circuit. so i am concerned about that, but i have no doubt of your goodwill, your skill, your leadership, your ability, your academic ability and you have a wonderful family. >> thank you, senator. >> senator grassley has returned, and i know he has additional questions. senator blumenthal, do you have additional questions for this witness? >> i did not, madam chair. i would yield to senator grassley. >> fine. and i know we are keeping the other nominees quite a time, but we will try to be quick in your hearings. i think you probably have seen

that this is a very interesting hearing for this particular candidate. >> madam chair and, i would offer for the record -- [inaudible] >> professor painter's letter, that criticize some of his writings, and he responds i think effectively to those. >> that was quick. it will go into the record. senate, would you like to take your turn? your academic writings and career, what is left to justify your confirmation? >> senator, i would hope that you wouldn't wipe my slate clean as it were. you know, i am what i am. my resume as a scholarly resume. and all i can say about that is

that i appreciate the distinction between the roles. i think there are important facets of being a scholar that are very beneficial to being a judge. the ability to have a broad knowledge of the law, the ability to see arguments and counter arguments and to be fair to those arguments. and also the ability frankly to listen well to the litigants position and to subject all of the argued to the most rigorous of scrutiny. i think all those aren't transferable skills from one to the other. what is not transferable absolutely are the substitute abuse that one might take as a matter of legal theory. those are left out the door, and then one becomes a judge, one applies the law as it is to the facts of every case. >> you devote an entire chapter in your book to defending the supreme court holdings in cases like roe and griswold. you describe these cases collectively as quote broad consolations of cases, extending

constitutional protection to individual decision-making on intimate questions of family life, sexuality and reproduction, end of quote. you argue and i quote further, the rights of firm in the cases from griswold, florence, enjoy widespread support and acceptance. they cannot be reconciled with an error textualism or an original is someone that asks how the framing generation would have resolved the precise issues. but they are wholly consistent with an approach to constitutional interpretation that reads original commitments and contemporary social context together, the abolition of constitutional protection for individual autonomy in certain areas of intimately decision-making reflects precisely the written form of constitutional interpretation that this book envisions, end of

quote. so question, given that you argue these cases quote reflect precisely the region form of constitutional interpretation, visions, is it fair to say that these cases demonstrate fidelity to the constitution under your judicial philosophy? >> well, senator, those are cases that have been rendered by the state supreme court. they are presidents of the court, and if i were confirmed as a judge i would fully follow them. i don't think that in the writing any -- it is a scholarly, which read is a scholarly description. one scholar description of a set of cases, and ensure there are scholars who disagree. but what all scholars would not disagree on, i think, is that however we might like to characterize those is a matter of three which is what that is. the decisions speak for themselves in their own

language, and any judge would have to consult not my book or any other person's book, but those decisions themselves in applying the law to the facts in the particular case. >> at your prior hearing, you respond to a question from senator cornyn by saying lord is a case in which the supreme court relied on simply because it was favorable to the majority opinions decision. in doing so, did the court quote reads original commitment and contemporary social context together, end quote? >> senator, i'm not sure. and i'm not sure i understand the question. well, i can state it again, but pretty simple to me. we are trying to compare what you said about original commitments and content for a social context, the extent to

which the lawrence decision in your reliance upon foreign law was favorable to the majority opinions, how that fits in with what your quote that i gave. >> well, senator, in the lawrence the supreme court was interpreting the term liberty and due process law of the 14th amendment. and in interpreting that term the court did look to a variety of sources, but most especially a look to the presidents of the court itself, the primary discussion as i remember it of the opinion is a discussion of how the notion of liberty had traveled through a variety of courts on presidents during the time of the early 1900s all the way up through the present day. with respect to the citation of foreign law i think i have said in our previous hearing that there are reasons to be skeptical as well about the use of foreign law because one has

to know whether or not one is cherry-picking in a sense among the possible sources. and perhaps that was the caution i expressed in the first time i had this conversation about the case. >> this will be my last question. we've had a host of liberal academics admitting that the role was largely invented out of it -- the professor wrote quote one of the most curious things about our role is that behind its verbal smokescreen, the substitute judgment on which it rests is nowhere to be found in a book. in 1985 justice ginsburg describes the role as quote heavy-handed judicial intervention that was difficult to justify and appears to have provoked not resolve conflict, end quote. yo maxfli professor kermit

roosevelt wrote a book entitled the myth of judicial activism said quote, as constitutional argument, wrote is barely coherent. the court hold its fundamental right to choose more or less on the constitutional ether. end of quote. lashes, a former law clerk to justice blackmun wrote quote, as a matter of constitutional interpretation, even the most liberal jurisprudence, if you administer truths are will tell you it's basically indefensible. and you know, we could go on and on but my question to you is this, do you still believe that roe demonstrate what you term constitutional fidelity? >> senator roe is a president of corporate it has been reaffirmed as recently as late as 1992 in the casey opinion by the court. as a president of the court it is entitled to respect the supreme court. in the case of an enemy of how a

judge, if i were fortunate enough to be confirmed, that means that roe is a compelling case under? also i would have to apply safely. >> so you're saying that it demonstrates what you have turned constitutional fidelity? >> center, the supreme court has said it is inappropriate decision under the united states constitution as an intermediate appellate judge i'm obligated to respect that. >> thank you, professor liu. >> i know this is tough, and i i want to thank you for your bright mind. i want to thank you for your scholastic intuition and judgment and knowledge. i thought the answer to senator grassley's last question showed that you also have courage of your views, and i thank you for that. i actually think you'll be fine appellate court judge, and i think this is really hard

because you see the polarization that exists. whether we can overcome it or not i don't know. i hope members will meet with you separately. i was delighted to hear that senator coburn agreed to do so. that means a great deal to me. and one of my concerns, and i just want to spell it out, has is made up of the best we can get. giants of our time, and that we not dumb it down. if you are able to make it. one thing i'm sure of, you will not dumb it down. so thank you very much for being here, and you are not excused. >> thank you, senator feinstein. >> u.s. senate is about to gavel and for the day. first up morning business speeches on any topic. they will speak for about an hour or so before turning to legislative work. on the calendar more debate on a patent overhaul bill.

amendments and votes are expected throughout the day. the u.s. house also gaveling in at this hour to begin debate on small business reporting requirements. now live senate coverage here of c-span2. the chaplain, dr. barry black, will lead the senate in prayer. the chaplain: let us pray. almighty god, eternal and unchangeable, you have ordained that day follows night and that in trials we find our triumph. keep our lawmakers aware of yor goodness and mercies which nevr

fail. lift them above contention and disappointment to an optimism that trusts the unfolding of your loving providence. may they also live with the awareness that our times are in your hands. lord, give our senators the wisdom to rededicate themselves to the doing of your will, so that this nation may yet shine with the beauty of righteousnes and justice, as a citadel of healing, wisdom and strength. we pray in your merciful name.

amen. the presiding officer: please join me in reciting the pledge of allegiance to the flag. i pledge allegiance to the flag of the united states of america and to the republic for which it stands, one nation under god, indivisible, with liberty and justice for all. the presiding officer: the clerk will read a communication to the senate. the clerk: washington, d.c, march 3, 2011. to the senate: under the provisions of rule 1, paragraph 3, of the standing rules of the senate, i hereby appoint the honorable tom udall, a senator from the state of new mexico, to perform the duties of the chair. signed: daniel k. inouye, president pro tempore. the presiding officer: the clerk will call the roll.

quorum call:

the presiding officer: the goral is recognized. the senate is currently -- the presiding officer: i ask unanimous consent that the quorum call be terminated. officer without objection. mr. reid: following morning business, the senate will proceed to a period of morning business until 11:00 this morning, with senators permitted to speak up to ten minutes each. the republicans will control the first half and the majority will control the final half. at 11:00 a.m., the senate will resume consideration of s. 23, the america invents afnlgt i would hope, mr. president, if people have amendments that they want to offer to this legislation, they would do so. i would hope that they would be gear plain, but there's no restrictions. people can offer whatever amendments they want on this matter.

but i would like -- i would hope that we can do that. we had an important amendment offered by senator feinstein yesterday. it is an extremely important measure. i'm supportive of that. it's -- it's aaron that i think we -- it's an issue that i think we shouldn't try to fix something in that area of patent reform that's not broken. but the patent reform bill is important. we have 750,000 patents that have been applied for, and there's been no response from the patent office. one of the big issues that we had was how we're going to pay for this work that they have to do. and we had a novel idea. senator coburn, it is my understanding, came up with the idea first: have the patent office pay for it with the applications that people file that. money would go to the patent office to get rid of the backlog. in the past, as i understand it, those moneys have gone to the general fund. so that issue was going to be a big, debatable issue on this

bill. but there was a bipartisan agreement that we should take care of that. that's in the managers' package. so that's good. so the other issue is on the first to file. senator feinstein offered that amendment. we'll have a vote on that as soon as we can. and i would hope that if there are other amendments, we can get to them quickly. there will be a period of morning business from 2:00 to 4:00 today. the majority will control the first hour, the republicans will croalt next hour. senators should expect roll call votes in relation to amendments to the america competes act to occur throughout the day. mr. mcconnell: mr. president? the presiding officer: the republican leader is recognized. mr. mcconnell: for two years now, washington democrats have taken fiscal recklessness to new heights. the amount of red ink democrats plan to rack up this year alone would exceed all of the debt run up by the federal government from its inception through 1984.

the recklessness is the reason we've seen a national uprising against their policies. now, americans have demanded that we reverse this recklessness and restore balance. democrats have resisted at every turn. to conceal the extent of their spending plans, they didn't even pass a budget last year. after a nationwide repudiation of their policies in november, they proposed a massive spending bill loaded with new spending that amounted to a slap in the face to the voters. following the outrage, they tried to get a spending freeze past the public. they said, how about we just lock in place the out-of-control spending levels we set last year? to them, this entire debate isn't about how to respond to the american people. it's about seeing what they can get away with. we will, republicans have taken a different approach. responding to our constituents, we've insisted the status quo simply won't cut it anymore. we've sinced on actually shrink

the size of government. and yesterday we delivered by forcing the first actual cut in government spending in recent memory. while it was just a small first step, yesterday we showed it is actually possible to change the status quo in washington. not bad. what about the white house? the white house responded to all of this by announcing they want to have a meeting. we're happy to go to the meeting, but putting a meeting on the schedule doesn't change the fact that neither the white house nor a single democrat in congress has proposed a plan that would allow the government to remain open and that would respond to the voters by reining in spending. all we get is talk. the president made an audacious assertion yesterday after the two-week c.r. was passed. he said, he wants his advisors to come up with a plan that -- quote -- "makes sure we're living within our means." live within our means? let me remind you,

mr. president, that the president's budget has us amassing a national debt of more than $20 trillion within the next five years. amassing a national debt of over $20 trillion within the next five years. we're projected to spend more than $1.6 trillion in year alo alone, more than we're taking in. that's a $1.6 trillion deficit this year. does this mean we can expect the president's budget director to present with us a piece of paper that outlines $1.6 trillion in cuts for the current fiscal year? if so, that's great news. if the president's measure of success, he's he said, is a plan to make sure we actually live within our means, the way most people do, count on me showing up early for this meeting. unfortunately, i suspect the president is once again just saying something he thinks people want to hear. the fact is, if democrats had a

plan of their own that would cut $1 in spending, i think we would have seen it by now. but we haven't. democrats have abdicated all responsibility for their own recklessness over the last two years. though they've left-- --they've left us to do something about it. we made a accept in the right direction yesterday. now we look forward to their plan. it's time for democrats to prevent -- present a serious plan of their own that addresses this crisis. it's time for democrats to take the concerns of the american people seriously. the presiding officer: under the previous order, the leadership time is reserved. under the previous order, the senate slb in a period of morning business -- under the previous order, the senate will be in a period of morning business until 11:00 a.m. with senators permitted to speak

therein for up to ten minutes each, with the time equally diswieded and controlled -- divided and controlled between the two leaders or their designees with the republicans controlling the first half and the majority controlling the second half. mr. mcconnell: mr. president, senator paul and i would like to adress the senate about a bill we'll be introducing. coal is an enormously vital sector of kentucky's economy. more than 200,000 jobs in my state depend on it, including the jobs of approximately 18,000 coal miners. coal is tremendously important to our country as w well. one half of the country's electricity comes from coal. yet as we're faced with a weaninged economy and high unemployment and overreaching environmental protection agency is blocking new jobs for kentuckians and americans by

wage a literal war on coal. to mine for coal, coal operators must receive what are called 404 permitteds. those come from the e.p.a. in order to operate. one such mine in southern west virginia followed all of the proper procedures, got the green light from e.p.a. to proceed with operations back in 2007, but now three and a half years later in an unprecedented reversal, the e.p.a. has receipt tremendous activel retroactiveld the permit and shut down the mine. it cost 280 americans their jobs. the e.p.a. also announced that 79. 404 permit apliling applicatione subject to enhanced environmental review. enhanced environmental review. effectively putting them in limbo, along with jobs and

economic activity they could create. some of those permits are for jobs in kentucky. the e.p.a.'s action simply defies logic. they are not only changing rules, they are chapping the rules to shut down -- they are changing the rules to shut down mines they already approved. no matter whether they have operated in full compliance can be assured that uncle sam won't come along and shut them down. thousands of minors are literally in jeopardy. other industries are at risk also. farmers, developers, the transportation industry and others also need permits from e.p.a. to continue to operate. they, too, could see these permits revoked. the e.p.a. has turned the permitting process into a backdoor means of shutting down coal mines by sitting on permits indefinitely, thus removing any regulatory certainty. what they're doing is outside

the scope of their authority and the law and represents a fundamental departure from the permitting process as originally envisioned by congress. that's why i rise today to introduce, along with my good friend, senator rand paul, and senator james inhofe, the mining jobs protection act here in the senate. this bill will tell e.p.a. to use it or lose it when deciding whether to invoke its veto authority of a 404 permit within a reasonable time frame, giving permit apoliticia applications e certainty they need to do business. the bill would ensure that all 404 permits move forward to eitherring approved or rejected so applicants aren't left in limbo. the bill also ensures that e.p.a. cannot use its veto retroactively. while being fair to permit applicants, the bill still preserves the e.p.a.'s further authority to protect human

health and the environment. here's how the legislation would work: once the e.p.a. receives a 404 permit, it will have 30 days to determine if it's considering using its veto authority. if the agency is considering doing so, it must publish that fact in the federal register, cite any potential concerns, and detail what must be done to address those concerns within the initial 30 days. the e.p.a. then has an additional 30 days for a total of two months to invoke its veto authority. if the agency does not use its veto authority within 60 days, the permit automatically moves forward and e.p.a.'s veto authority expires. all permits that have been applied for go through this process ensuring every permit gets a fair shake. any permit vetoed prior to the

passage of the bill would be reconsidered by the army corps of engineers. and it was important to me that this legislation address every 404 permit, not just one or a few. this is a fair process that allows the e.p.a. to act as vigorously as necessary to protect the environment and those of us living in it, while also giving permit applications the certainty of knowing within a reasonable time frame whether or not to proceed with mining operations. and knowing that once they have the green light, it's not going to be subsequently revoked. more important, this legislation would allow my state and others to protect the coal and related industry jobs we already have and grow new ones in the future. so i want to thank my colleague from kentucky and senator inhofe for standing alongside me on this matter that is so important to our states. but also for the country as a whole. this is not just a kentucky issue. we think our bill strikes a fair

balanced toward skwerpbg the best of national -- conserving the best of america's natural beauty. mr. president, the e.p.a.'s mission is important, but so is job creation. and particularly when unemployment is higher than all of us would like, both sides of that equation must be considered. so i look forward to working with my colleagues on both sides of the aisle to make the mining jobs and protection act a law. mr. president, i yield the floor. a senator: mr. president? the presiding officer: the senator from kentucky is recognized. mr. paul: i rise in support of this legislation. i think this is a good first step to reining in an out-of-control unelected bureaucracy. i think the e.p.a. has gone way beyond its mandated duty and is now at the point of stifling industry in our country. you see this and hear this across the state of kentucky, but across are the country.

the president doesn't seem to understand why the country thinks that he's against business and tkpwrepbs progress. you -- and against progress. you can't be for job creation if you're against the job creators. as the minority leader indicated, we have nearly 100,000 jobs and hundreds of thousands of other jobs connected to coal. and it really applies to the rest of the country as well. over half of the electricity in our country comes from coal. over 90% of the electricity in kentucky comes from coal. you have mining regulations who went through the process. i think the mine in question went through a ten-year process, spent millions of dollars to try to get started to provide electricity for the rest of us, and yet then the e.p.a. comes in at the last minute. there is said to be nearly 200 permits that are out there languishing. i asked the question of my staff this morning, i said how many have been applied for and how

many are granted? the e.p.a. won't even tell us that. but from talk to those trying to produce the coal, to produce the electricity for our country, they say they can't get permits. in fact, there's one coal company in kentucky who is now suing the federal government saying they're taking his property. they have effectively taken his property because he can't get a permit. the average expectancy for getting a permit for all property is seven years. we wonder why we're languishing and we depend on everyone else for natural resources. yet we sit atop some of the world's greatest natural resources in coal and oil and won't produce our own. we have to become so involved and there's so many justifications for war across the world because of oil and we refuse to use our own resources. this is a very good first step in trying to make the process

better. all it's saying is the e.p.a. cannot have unlimited time to sit on our permits. this is saying that there have to be rules. i say this is a first step because i think the last election was about saying that unelected bureaucrats should not write law. that's what's happening. the president and many of his supporters have indicated the cap-and-trade, they can't get it through the elected body they're going to go the back door. the american people should say unelected bureaucrats should not and cannot be aloud to write law. -- allowed to write law. i wholeheartedly support it. i relinquish my time. the presiding officer: the clerk will call the roll.

quorum call:

a senator: mr. president? the presiding officer: the senator from virginia is recognized. mr. warner: mr. president, i ask that the proceedings of the quorum call be dispensed with. the presiding officer: without objection. mr. warner: mr. president, i ask to speak for up to eight minutes of the democratic time. the presiding officer: without objection. mr. warner: mr. president, i

rise today to honor another great federal employee and a constituent of mine from fredericksburg, virginia. as we debate this week and over the coming weeks about making sure the federal government stays open, i think it's important to realize that what we're talking about are the real lives of many of our great federal employees who provide the services day in and day out to make sure that many important public purposes of served. this is an initiative, i know the presiding officer realizes that our former colleague, the senator from delaware, started. i've been proud, when senator kaufman moved on, to pick up that mantle on a regular basis coming on the floor of the senate and recognizing federal employees who are often in an

unsung way do great things for our country. the federal kphraoe i'm going to recognize -- kphraoe i'm going to -- the federal employee i'm going to recognize today is -- i know the presiding officer coming from new mexico in the air, that's a subject what have we're going to be talking about today. you know, nearly 2 million people in the united states take to the skies every day. once in flight, their safety relies on the diligent work of individuals responsible for ensuring that airplanes are we will-designed and safe. when we reach our destination, as we most often do, it is because of their tireless work. in the rare moments when accidents happen, we rely on individuals like robert benzing, who possesses the skill and innovative thinking to find the causes of accidents and ensure

that we don't make the same mistakes safe. he is a senior air safety investigator with the national transportation safety board. his job is is to investigate aircraft incidents and accidents. he analyzes the equipment and data, identifies the causes of the accident, and makes recommendations to the industry on thousand to improve safety. he began his career flying combat missions in vietnam as an air force pilot. in 1984 -- 1984, that was long before many of these pages here were even born -- he went to work for the national transportation safety board in chicago. over his 25-year career, he has served as the lead investigator in several high-profile cases and is considered the best in his field. more than 80% of his team's recommendations have been adopted by the industry. in 1996, mr. benson led the

investigation of twa flight 800 crash in the atlantic ocean. his investigation following this crash led to the recommendations that oxygen contained in aircraft fuel tanks be replaced with another nonburning gas like nitrogen to prevent fuel tank explosions. in 2001, mr. benson led the investigation of the fatal crash of american airlines flight 587 in queens, new york. his investigation led to an industry-wide redesign of the rudder system as we will as changes to pilot training systems. mr. benson also led the investigation of u.s. airways flight 1549 known nationwide as the miracle on the hudson which made capital sullenberger a household name in this country. his investigation included an analysis of the engine damage in black box flight recorders,

interviews with the flight crew, pilots and passengers and meeting with manufacturers of both the airplanes and its engines. mr. benson has also been a strong advocate for the collection of more in-flight data points from black boxes which he believes are crailt to the understanding of what exactly may have gone wrong during a flievment his efforts have led to a significant increase in data from less than ten data points collected in flights to over 1,000. in an interview, he said, "my work is a waif getting bafnlgt i get a good feeling after ever one of these investigations is over, i. " it is this sentiment that inspires me to highlight the great federal employees on the senate floor. there are countless federal employees who dedicate their lives to making sure that the rest of our lives are better and safer. every day that we set foot on an

airplane and arrive safely at our destine i destination, we ht ben sewn and his team and others to thank. i hope that my senate completion will join me in honoring robert benson and all those at the national transportation safety board for their dedicated service and important contributions to our nation's aviation safety. mr. president, i know you share this well regard to this great federal employee and the many others who tirelessly serve, make our country a better place. it is my hope that in the coming weeks we can come to some resolution so that these federal employees can know for the balance of his fiscal year that the federal government will stay in operation, will stay running and that they can continue to do their work. with that, mr. president, i yield the floor and note the absence of a quorum. the presiding officer: the clerk will call the roll. quorum call:

the presiding officer: the senator from illinois is recognized. mr. kirk: i ask consent that we dispense with the quorum. the presiding officer: without objection. mr. kirk: mr. president, the cold manufacture blooded murder of four americans, this danger now stretches across our vital oil supply lines and threatens not just americans handing out bibles at indian ocean ports of call but our vital supply of energy. i think it is time to recall the tough choices made by the jefferson administration to suppress 21st century pirates in this new chapter. we may forget that as much as 10% of all federal ref niewls

were paid -- revenues were paid by the washington administration to the barbary pirates operating in what became libya. payments continued under the adams and jefferson administrations, but as always with kidnappers and priets, ran systems -- and pirates, ran soms only led to more danger. in 1801, president nominee that is jefferson decided that continued payments of tribute to the barbary pirates had gone far enough. over the next five years, jefferson sent the new united states navy ironically built over his objection to attack and defeat the pirates. the conflict that followed gave us a new american hero, especially capital steven decatur. it was detater's sploitz that were very dangerous but inevitably successful, even

involving close-quarters combat. my state of illinois named one of our major cities after him and place add statue to the capital in its center. in the end, piracy was defeated and the flag of the united states was not strongly challenged by any future pirates until this century. in the wake of the murder of four americans by somali priets, we need to recall jefferson's policy under what i would call the decatur initiative against indian ocean pirates. since 200 o 6, pirates attacked more and more vessels. there were over 400 attacks just last year. according to "the new york times," modern-day pi pirates currently hold 50 vessels and over 800 hostages. according to the international maritime bureau, pirates murder 3-d 79 people on the high ceasen

the high seas with many, many individuals missing. according to reports, a typical ran some for pie rots in 2505 was between $100,000 and $200,000. by 2008, the ran some grew to between $500,000 and $2m a year later in 2009, the average ran some paid grew again to a range of $130eu 5 million to $3.5 million. and in late-2010, ran soms hovered around $4 million per vessels. ransom payments have now reportedly been made as high as $9 million. recently priets captured another supertanker worth $200 million carrying 2 million barrels of

oil bunds for the united states. its ransom may become the moth motherload for pirates to extend their reach across the indian ocean and possibly into the red sea or the persian gulf. we would be naive not to be concerned that many of the profits from these operations would then be used to support terrorism against the west. the horn of africa is critically important, not just to the u.s. economy but to our global market because it is astride a major artery of international shipping. the oil tankers that pass by these waters provide much of the world's supply of energy and to protect our own economy, we cannot risk their safety. this region is also a potential incubator for growth for taboo burgeoning al qaeda franchises, al qaeda in the islamic magreb and somalia's al shebob group.

yesterday i raised this issue with our secretary of state hillary clinton. she hinted that our policy may be changing and that is w well come use in news. i asked if we can't tough on priets, who can we be tough on? today i would like to announce the start of an initiative here in the senate to draft legislation and support for a tougher new administration policy along the lines of thole thomas jefferson's policy on pirates. these legislative concepts could be collectively called the decatur initiative, named after steven deindicator and his most famous mission to recapture "u.s.s. philadelphia." i think it is fipple for for us to call for several new aspects. to define a pirate exclusion zone that would allow the immediate sinking of any

develops leaving somalia not approved for sea by allied forces. sexedly, an exspie duetted legal regime permitting the summary trial and detention of pirates captured on the high seas. third, a blockade of pirate-dominated ports like hobio, somalia and for intrad powers and authority given to on-scene commanders to attack and arrest pirates once they dare to leave somalia's 12-mile territorial limit. this would include the summary sinking of pirate ships if a local commander deemed it warranted. i think we should explore actions to attack the financial links between pirates and terror groups such as al shebob and target them the same way we do with terrorist networks. american missionaries were gunned down in cold intlood.

i am hopeful many of my completion will be willing to join me in take up bold action against pirates operating in the waters off east africa. it is ironic that the united states and our allies currently station expensive and substantial naval forces against pirates but they are not limited from -- they are elemented from taking any aggressive -- they are limited from taking any aggressive action against them. while the pirates have substantial strength on the ground in somalia, once they put to sea, we can be their masters and they have very weak means of opposing us. a set of vessels, blockading pirate-dominated ports should make quick work of pirate operations. mr. president, the cost of oil and the price of gas in the united states is already high enough. further increases could endanger our slowly recovering economy.

as part of the effort to stablize the price of gasoline in the united states, we need to recover ever songs policy to atack and defeat pirates on the high seas and especially in this case as they soon leave so mall yays territorial waters. in addition, mr. president, i'd like to address one other unrelated subject. as this body begins to finalize final spending legislation for the remainder of the year, i'd like to highlight the growing danger to the u.s. economy and our country. we all know that our national debt now tops $14 trillion. but we should note that we are borrowing $35 billion additionally each week or about $5 billion a day. the $4 billion cut made by the current spending bill approved by congress yesterday would not even stop our borrowing for one additional day.

that $4 billion cut represents just three -- .3% of this year'sage annual deficit or just .03% of the current money we owe. the fame use harvard economic historian kneel ferguson has said you can mark the decline of a country when it pays more known its lenders than to its arm. we have already crossed that point. this year the congressional budget office estimates that interest payments that we pay to our moneylenders will top $225 million this year. that's more than the cost of our army, which we currently estimate costs about $195 billion. or our air force which we estimate costs about $201 billion. or even our navy, which costs $217 billion this year. our money lender costs now are

higher than the entire gross domestic product of the country of denmark at $201 billion. we must pay $4 billion per week in interest or $616 million per day to our money lenders. what's worse, interest payments are expected to more than double over the next decade and will top $778 billion. that means soon we will have to pay our money lenders more than it costs to operate our army, navy, and air force combined at $623 billion. remember also that interest payments on the debt are a form of wealth transfer, from hardworking middle-class americans that pay federal taxs to wealthy lenders, now many of them who live abroad. for those in the senate who are opposing budget constraints put on by the house, we should force them to admit that they are

either for higher taxes for the american people or more borrowing that transfers wealth from hardworking middle-class americans to high-income money lenders, most of whom now live abroad. and with that, mr. president, i yield back and would suggest the absence of a quorum. the presiding officer: will the senator withhold his request. mr. kyl: thank you, mr. president. mr. president, i ask unanimous consent to speak in morning business for ten minutes. the presiding officer: without objection. mr. kyl: thank you. mr. president, actually i want to speak on the pending business before the senate. we're hoping that in maybe 45 minutes or so we'll actually be able to vote on the feinstein amendment to the patent bill. and i'm hoping that my colleagues will vote against the feinstein amendment and support the authors of the legislation. i noted yesterday that every

version of the patent bill from 2005 forward had included the primary sort of centerpiece reform of the bill, which is so-called first to file. it may seem strange, but it has not been the case in the past that our law is that you have a patent when you file it. that is to say that the first person to file on the patent is the one who has the patent, that the patent dates to the day you file it. that's what we do in law in virtually every other situation i can imagine. instead what has been the law is that if a -- it's called the first to invent. one of the reasons that the whole patent reform movement began five or six years ago was that this concept is very costly and difficult to administer because it relies on a lot of legal discovery and legal process to resolve questions or

disputes between who actually conceived of the idea first and then did they apply the necessary diligence to get it patented. as a result, every other industrial country uses the first to file. most of the companies in the united states are obviously used to that because of the patents that are worldwide in scope. so the fundamental reform here of the patent legislation to simplify to, reduce costs, to reduce the potential for litigation was to conform our system to that and the rest of the world, the first to file. what the feinstein amendment would do is to throw that over and to say, no, we're going to go back to the concept of this first to conceive of the idea or first-to-invent notion. whether intended or not, that will kill the bill. it is a poison pill amendment, because the whole concept of the legislation and everything that

follows from it is based upon this first-to-file date. as i'll note a little bit later, the bill simply wouldn't work. otherwise you'd have to scrap it and start from scratch. in fact, most of the reforms that are in here wouldn't exist because you'd have to go going back to that first concept of first to invent. so all of the savings and simplified procedures would simply not be possible. unfortunately, i would note that if my colleagues have any notion of supporting the feinstein amendment, they should realize that were it to pass, it would kill the bill. i don't think that's what we want to do. there are so many tkpwraoufplts that have been -- improvements that have been made in here. all three of the major groups that have been working on the legislation are in support of the legislation and oppose the feinstein amendment because they want us to move forward. we haven't had a patent reform in many, many years, and i think everybody recognizes that it's time. first and foremost, the administration and the patent office itself, the patent office

supports the legislation, opposes the feinstein amendment. one of the good things from the patent office's point of view is that the fees that have been collected from the -- the filing fees from the inventors have not all gone to the patent office. they are woefully understaffed and underfunded in working through the thousands and thousands of patents that are filed every year. as we can all appreciate, our competitiveness in the world depends first on the ability of our people to invent things and secondly to require the legal rights to those invention sos they have property interest -- so they have property interest in them. investors can count on return for their investment. it's a critical thing we're talking about here. i would just urge my colleagues who perhaps haven't focused as much on this amendment and on the patent reform legislation itself understand we're talking about something very, very important here.

something that can create jobs, that is important to the competitiveness to our country. the beauty is that unlike a lot of what we do around here, this is totally bipartisan. i'm a republican. the administration supports the legislation. it has senator leahy's name on it as the chairman of the judiciary committee. in the house it is supported by republicans and democrats. it's important that we move this legislation through. as i said, unfortunately the feinstein amendment would result in having to scrap the bill. there's no point in it if we're not going to comply with this first-to-file notion. let me be a little bit more specific here. one of the reasons why you wouldn't be able to move forward with the bill is the bill's entire postgrant review process, which is a big part of the bill, would be impossible for the patent office to administer under the discovery-intensive invention date issues that arise under the first-to-invent system. that's because, as i said, under that system you come before the patent office and say i realize

nobody had a record of this, but i actually thought of this idea way back in 1999. i've got a couple of notes here that i made to myself. i dated them, and so that shows -- you can see all of a sudden you're getting into a big discovery and legal process here. and that's what we're trying to get away from. the whole post grant review concept would be turned upside down if we went back to the first-to-invent kind of notion. also, striking the first-to-file provisions would greatly increase the workload for the patent and trademark office. one of the things we're trying to do is simplify the procedure so it can get its work done and get these patents approved so our businesses can better compete in the world and also provide more money for them to do their job. that would also be jeopardied as a result of this. we would add backlogs and delays and not allow our patent tofs do

what they are being asked to do. it's interesting, most american companies already use the first to file because it's obviously easiest. it's the most direct way to confirm the fact that you have that patent at that time. and it's very hard to win a patent contest through what's called an interference proceeding if you weren't the first to file, which of course is logical. and because all of the other countries in the world use a first to file system, if you want your patent to be valid outside of the united states, you need to comply with first to file in any event. fully, from our most innovative companies, more than 70% of their licensing revenues come from overseas. obviously they're already going to be complying with the first-to-file concept. the feinstein amendment doesn't so much therefore switch the system with which americans are complying today as it simply allows american companies to only have to comply with one

system rather than two. as i said before, the first-to-file concept is clearer, faster, more transparent and provides more certainty to inventors and to manufacturers. on the other hand, the first-to-invent concept would make it gob in many instances -- would make it impossible in many instances to know who has priority. to determine who has priority under the first to invent, expensive discovery must be conducted and the court must examine notebooks to determine who conceived of the invention first and whether the inventor diligently reduced it to practice. under the first to file an inventor can get priority by filing a provisional application. this is an important point. it is so easy. it is not as if the first to file is hard to do. this provisional application which only costs $110 for the small inventor here only requires that you write a

description of what your invention is and how it works. that's all. that's the same thing that an inventor's notebook would have to con coin under the first to -- contain under the first to invent concept. the date is clear. there is no opportunity for fraudulently back dating the invention date. thereit's -- you're essentiallyt requiring anything in addition. you file the provisional application, you've got an entire year then to get all of your work together and file your official application. but your date is as of the time you file the provisional application. as i said, for a small entity, only $110. that grace period makes it clear that the patent will not be invalid because of disclosures made by the inventor or someone who got information from the inventor during the one year before filing. that's important. a lot of academics or folks go to trade shows, they begin

talking about their concepts of what they've done. if you disclose this, you've got a year to file after you disclose the information. and another other tkeus kelo insurance companies -- no other disclosure can validate the invention. i think the bill has been very carefully written to protect the small inventor or the academic. we've really tried to do that. this is not a case of big verses small although people both big and small support the legislation. if anybody suggests are the feinstein amendment is to protect the small inventor. it does not protect the small inventor. the legislation is very carefully crafted to give the small inventor a variety of ways to ensure that he or she is protected. the first coalition to bring the idea of patent reform to the congress, the coalition for 21st century patent reform is strongly in support of the legislation and in opposition to

the feinstein amendment. in fact, it noted in a statement released wednesday that not only does it oppose the amendment, it would oppose the entire bill if the amendment were to be adopted. and this first to file concept stricken from the bill. thaoer's what they said. the first inventor to file provisions forms the linchpin that s. 23 promises. here's what the statement of administration, obama administration policy says. it lays out what's at stake. by moving the united states to a first-to-file system the bill simplifies the process of acquiring rights. this essential provision will reduce legal costs, improve fairness and support u.s. innovators seeking to market their products and services in the global marketplace. and then continuing the statement, most of the arguments in opposition to the bill and the fitf appear to be

decades-old contentions that have been fully and persuasively rebutted. as one example, the national research council of the national academics assembled a tkpwraoufp leading patent -- group of leading patent professionals who spent four years intensely studying these issues and concluded in 2004 that the move to the fitf represented a necessary change for our patent system to operate fairly, effectively and efficiently in the 21st century. they go on to say without retaining s. 23's current first-to-file provisions, the bill would no longer provide meaningful patent reform. let me repeat that. if the feinstein amendment were to prevail the bill would no longer provide meaningful patent reform. as an example, the new provision on post grant review of patents, an important new mechanism for ensuring patent quality, could no longer be made to work. instead of a patent reform bill,

what would remain of s. 23 would essentially be an empty shell. so, mr. president, in conclusion -- let me finish this statement. thus, the statement concludes we could not continue our support for passage of s. 23 without the first inventor to file provisions present in the bill. it would place us in the unfortunate position of opposing moving forward with the bill for we have long been among the longest most ardent supporters. end of quote. just to conclude, the national association of manufacturers which represents both large and small manufacturers at every industrial sector has also made it clear that it strongly opposes the amendment. i'll conclude by quoting from that group's statement in opposition to the feinstein amendment. the n.a.m. supports transferring to a first to file system to eliminate complexity in the u.s. patent system. manufacturers large and small operate in the global marketplace and the united states needs to move toward a system that will provide more

patent protection around the world for our innovative member companies. the first to file provision currently included in s. 23 achieves this goal. end of quote. so, mr. president, i hope that my colleagues will pay close attention to the arguments that have been made by chairman leahy, the arguments that i've made in opposition to the feinstein amendment, whether intended or not, it would be a poison pill, would kill the legislation if it were adopted. we need to move this important legislation forward, as the administration notes in its statement of policy, and, therefore, i urge my colleagues when we have an opportunity to vote on the feinstein amendment to vote against it and to support the legislation as filed. the presiding officer: morning business is closed. under the previous order, the senate will resume consideration of s. 23, which the clerk will report. the clerk: calendar number 6, s. 23, a bill to amend title 35, united states code, to provide for patent reform. mr. leahy: mr. president? the presiding officer: the senator from vermont is recognized. mr. leahy: mr. president, i understand we have the feinstein amendment number 133 at the

desk. i ask unanimous consent that the feinstein amendment number 133 be modified with the changes that are at the desk. the presiding officer: without objection. mr. leahy: mr. president, i want to thank the distinguished senator from arizona for his words here this morning. he -- he was part of the small group of republicans and democrats who've worked very, very hard over the last couple of years on this bill with the idea of giving us something that would allow inventors, entrepreneurs and innovators in america to compete with the rest of the world. i'm one american who feels we can compete with anybody, anywhere provided we've got a level playing field. and other counties have set us

enough barriers to us of their own, we shouldn't be setting up barriers here in the united states. and one thing we can do is to take a major, long overdue change of the patent -- patent legislation and give us that level playing field. inventors and innovators in america will take advantage of this. we'll be better off for it. and we'll create jobs. but most importantly, we'll show the rest of the world, america's open for business, america can do america's business, america can be the innovators that they've been from the time the first patent was issued -- i say with pride -- to a vermonter back in a day where the then-secretary of state, thomas jefferson, reviewed the application. it was then signed by the president of the united states,

george washington, the heirs of that vermonter wish they had the copy of the original. it would be worth a tad right now. but probably more than the invention was worth. but it's a -- now, of course, they're not reviewed by the secretary of state and signed by the president. thank goodness, there's over 700,000 pending. we need legislation to bring that up to date. and this act will promote innovation, it will create new businesses and, as a result, new jobs. this is bipartisan legislation that will allow inventors to secure their patents more quickly, have better success commercializing them. now, the pending amendment, of course, basically would gut the bill. with all due respect, it would destroy all the work we've tried

to do in this bill. it would eliminate a major piece of this effort, the transition to first-inventor-to file patent system. first- inventor-to-file is the first part of this legislation and enjoys support from every level of the patent community. the administration, the secretary of commerce, the head of the patent and trademark office, they all oppose this amendment. a vast array of individual, independent, small investors, small businesses, labor oppose this amendment. the four senior republicans on the judiciary committee worked so hard on this bill. senators grassley, hatch, kyl and sessions oppose this amendment. needless to say, mr. president, i oppose this amendment. the amendment would gut the reforms intended by the bill. it would, of course, be a poison pill to these legislative reform

efforts. supporters of the legislation before us, ranging from high-tech and life sciences companies to universities and small businesses, place such a high importance on the transition to first-inventor-to-file system than many of them, including those who reside in just about every state, would not support a bill without those provisions. a vote in support of this amendment which would strike first-inventor-to-file provision is effectively a vote against the heart of the america invents act, is effectively a vote to kill the act. a transition to first-inventor-to-file has been part of this bill since its introduction four congresses a ago. yet until very recently, first-inventor-to-file was never the subject of even a single

amendment in the judiciary committee over all those years. this sldges a product of eight senate hearings, three markups spanning weeks of consideration, numerous amendments. never was first-inventor-to-file a contentious issue. some well-fansed special interests that -- well-financed special interests that do not support the america invents act, have mounted a campaign to strike these vital provisions, and i urge senators who support the goals of the america invents act to vote against this amendment to strike first-inventor-to-file. mr. president, the united states is the only industrialized country still using

first-to-invent system and there's a reason for that. a first-inventor-to-file system, by contrast, with the priority of a right to a pat sent based on the -- patent is based on the earlier filed application, adds simplicity and objectivity into a very complex system. by contrast, our current outdated method for determining the priority of right to patent is extraordinarily complex, it's subjective, it's time-intensive, it's expensive. the old system almost always favors the larger corporations and the deep pockets over the small, independent inventor. this past weekend, "the washington post" editorial board endorsed the transition. they called our first-inventor-to-file standard a -- quote -- "bright line" and they went ahead and that said it

would bring stoarnt the -- certainty to the process. the editorial also rightly recognizes the protections for academics to share their ideas with outside colleagues or preview them in public seminars that are included in the bill. the transition to first-inventor-to-file system will benefit small inventors and inventors of all sizes by creating certainty. once a patent is granted, an invebter can -- inventor can rely on his filing date on the face of the patent. now, if you have a patent, you want to raise capital, you want to grow your business, you want to create jobs and you're going to use the patent when you go out to investors and say, here's the patent i have. they're going to say, how do you know that's a pat not that we're going to be -- patent that we're going to be able to rely on? and the answer is, because i was

the first to file. and then spanning maybe years of investigation, you can go forward. and the cost of the patent that comes with the transition in the system should also help the independent inventor. in the outdated current system where more than one application claims the same invention has filed, the priority of a right to a patent is decided through an interference proceeding to determine which applicant can be declared to have invented the claimed invention first. it's lengthy, it's complex. it can cost hundreds of thousands of dollars. small inventors rarely, if ever, win interference proceedings. a first-inventor-to-file system, however, the filing date of the application is objective, is results in a streamlined and less costly process. the bill protects against the

concerns of any small inventors and universities by including a one-year grace period to ensure that inventor's own publication or disclosure cannot be used against him as prior art against another patent application. this encourages early dischoash you're of new in-- early disclosure of new inventions, regardless of whether the inventor ends up trying to patent the invention. the transition to first-inventor-to-file is also needed to help american companies and innovators compete globally. as business and competition increasingly operate in a worldwide scale, inventors have to file patent applications in both the united states and other countries for protection of their inventions. after all, mr. president, all of us realize that we are an interconnected world. and when you go to invent something, you want to sell something, you obviously think of global markets but you also

think of global competitors. it's a reality. it's a reality of today. and since america's current outdated system differs from the first-inventor-to-file system used in other patent issuing jurisdictions -- all our competitors -- it causes confusions and inefficiencies for american companies and innovators. harmonization will benefit american inventors. commerce secretary gary locke highlighted the importance of the first-inventor-to-file provisions of the bill in his column published in "the hill" yesterday. he noted that -- quote -- "it would be good for u.s. businesses, provide a more transparent and cost-effective process that puts them to a level playing field with their competitors around the world." secretary locke, who tries to

make sure that we can create jobs in america to compete with the rest of the world points out how necessary this is. he went on to confront the erroneous notion that the current outdated system is better for small and independent inventors and he did it head-on by explaining his strong opinion that the opposite is true. the first-inventor-to-file system is better for the small and independent inventor. so the secretary noted the cost of proving that one is first to invent is prohibitive, requires detailed and complex documentation of the invention process. in cases where there's a dispute about who the actual inventor is, typically it costs at least $400,000 in legal fees, even more if the case is appealed. by comparison, establishing a filing date through a provisional application and establishing priority invention

costs just $110. closed quote. mr. president, if i was a small inventor and i thought i had something worthwhile and i thought something i would apply for a patent and faced with proving that it's my invention by spending $110,000 or more than $400,000, this vermont occur do the math pretty quickly. i know which i'd prefer. and secretary locke explained how the $125,000 provisional -- 125,000 provisional applications currently file each year prove that early filing dates protect the rights of small inventors. and he reiterated that during the past seven years under the current outdated, cumbersome and expensive system, of almost 3 million applications filed, only one patent was granted to an individual inventor who was

the second to file. that's why our reform legislation enjoys such broad support. i've already mentioned some of these supporters but let me highlight a few more. just yesterday, the national association of manufacturers urged every senator to oppose the effort to strike the first-to-file transition. they wrote, the national association of manufacturers supports transitioning the united states from first-to-invent system to a first-to-file system to eliminate unnecessary costs and complexity in the u.s. patent system, closed quote. the small business and entrepreneur council said it opportunities in the international market will

expand. the intellectual properties association calls the first-to-file system central to modernization and simplification of the patent law and very widely supported by u.s. companies. independent inventor lewis foreman, the first inventor to file transition will help independent inventors across the country by strengthening the current system for entrepreneurs and small businesses. six university medical colleges of higher education associations have urged the transition to first to file saying it will add greater clarity to the u.s. system. in urging the transition to a first-to-file system, the association for competitive technology, which represents small and mid-sized i.t. firms said the current outdated system negatively impacts

entrepreneurs, puts american inventors at a disadvantage with competitors abroad who can implement first-to-inventor-to-file standards. just ni about that. we keep -- just think about that. we keep this outdated system, we're at a competitive disadvantage with those people we're trying to win over in other countries. we ought to be thinking of what puts america on a level playing field instead of holding america back and giving the advantage to other countries. that's why it's so important to move to first-inventor-to-file system. i ask consent that copies of "the washington post" editorial patenting innovation be included in the record at the conclusion of my remarks. the presiding officer: is there objection? so ordered. mr. leahy: i also ask, mr. president, that letters to the senate association of manufacturers higher education

association, the small business entrepreneurship council be placed in the record at the close of my comments. the presiding officer: without objection, so ordered. mr. leahy: i thank the chair and conclude with this: we want to maintain our position at the forefront of the world's economy, and right now it is a real battle to include our position there. if we are to continue to lead the globe in innovation production, and again our position is threatened, if we are to win the future through american ingenuity, we must a patent system to streamline efishes is i. the first inventor to file system is particularly crucial to fulfilling this promise. i urge senators on both sides of

the aisle to oppose the feinstein amendment and support the important provision of first inventor to file at the heart of the america invents act. and i would submit the list of stakeholders across the spectrum, who support the transition of the first-to-file system and ask consent that that list be part of the record. the presiding officer: without objection, so ordered. mr. leahy: mr. president, i see the distinguished senator from delaware who has been so helpful in this on the floor, and so i will yield the floor.

mr. coons: mr. president? the presiding officer: the senator from delaware is recognized. mr. coons: my thank to the leadership regarding s. 23. i rise to speak in opposition to the feinstein amendment which would strike the first to file provision that i think is one of the critical components of this act that will harmonize the american patent system with the rest of the world. as you heard chairman leahy speak to, this is a critical feature of this reform bill. this is the first comprehensive patent reform bill in 60 years. it is a key piece of our bipartisan work to make sure that the united states remains a competitive country which can once again be at the forefront of world innovation. as someone who, like you, mr. president, is concerned about manufacturing, is concerned about employment, is concerned about jobs, i think one of the ways we can restrengthen, reinvigorate, reenergize manufacturing in this country is by making sure that our patent and trademark office is as capable, is as strong as

it can possibly be. and i take quite seriously that the patent and trademark office under the very able leadership of director capos is opposed to this amendment and has also raised concern, which i share, that this amendment would tear apart the very broad coalition that has worked so hard and has negotiated this particular act, the american invents act, over the last six kwraoefrplts on an issue that is as important as this, i think it is important that we in the senate not allow this bipartisan bill to fall apart over this issue. the transition of first to file is an improvement over the current system because it provides increased predictability, certainty and trance parpb seufplt patent priority will determine the date of public disclosures and effective filing date rather than secret personal files which may or may not be admissible and

often leads to long, contentious and expensive litigation as the chairman mentioned in his floor comments. this predictability, the predict ability the first to file system will bring i believe strengthens the hand of the inventors and the public all of whom will know as soon as an application is filed whether it is likely to have priority over other patent applications. in contrast, the current system does not provide an easy way to determine priority. that's why interference proceedings can be so contentious, so long and so expensive. there are some innovators, some inventors, some small inventors in particular who i know are concerned that first to file will be used by larger companies to steal away their rightful inventions. this bill contains critical protections for all inventors so that the ultimate new system, once this is passed, will be more fair, more predictable and transparent for all. for those inventors who publicly disclose an invention before

anybody else, they have a one-year grace period to claim priority for any patent application based on the subject matter which they disclosed. smaller inventors as well as large inventors would be protected as soon as they public or disclose under this america invents act. in my view, that will increase the free flow of ideas while still protecting the i.p. rights of any inventor, large or small. the patent and trademark office commissioned a study of patent applications filed over the past seven years. they found only one in 300,000 filings would under the new system grant a patent to a large company that otherwise might have gone to a small company or an individual inventor. by avoiding the cost, the difficulty, the unpredict ability of lengthy interference, the new first to file will get around this. first to file gives the holder of a new patent increased confidence in the strength and

reliability of this patent which i also think will accelerate venture capital investment, new company formation and movement towards deployment of critical new technology. i think experience has shown in other countries, in europe and canada, that transitioning from a first to invent to first to file system will not lead to an increase in so-called junk applications and will instead make patent application simpler, fairer and more predictable. in short, mr. president, my view is that it is crucial to this legislation for its success. it is crucial for the coalition that has come together over many years to support it. it is crucial for the progress that this act will make in strengthening and streamlining the patent review and granting process here in the united states. and so i urge my colleagues to oppose senate amendment 133. with that, i suggest the absence of a quorum. the presiding officer: the clerk will call the roll.

quorum call:

a senator: mr. president? the presiding officer: the senator from colorado is recognized. mr. bennet: is the senate in a quorum call? the presiding officer: it is. mr. bennet: i would ask that the quorum call be vitiated. the presiding officer: without objection, so ordered. mr. bennet: thank you, mr. president. mr. president, i'd like to speak briefly on the importance of passing the america invents act. chairman leahy and the judiciary committee have worked hard to put this product on the floor. it will mark the biggest reform to our patent system in 60 years. this bill will create jobs in

colorado and across the country by promoting innovation. by making our patent system more efficient, we are building the foundation for future economic growth. in my state alone, nearly 20,000 patent applications have been granted between the years 2000 and 2009. these applications have created the foundation for our clean energy economy and emerging tech and bioindustries. having the trademark office is essential to maintaining american leadership in innovation, the america invents act will help us build new industries and help cure the backlog and delay that has stunted the ability of inventors to patent their ideas. right now the average pendency period for a patent application is 36 months. that is completely unacceptable if we are to compete with the rest of the world. this doesn't even account for those patents that have been tied up in years of litigation after they are granted.

and we've improved the bill on the floor by helping solidify alternatives to litigation, provide for more efficient resolution of disputes and help create more certainty, which is essential to inventors. it's hard to pass a jobs bill without spending money, but that's absolutely what we've done here. this bill does a good job of balancing the interests of innovators across the many sec teasers our economy. and we passed a number of bipartisan amendments that have improved this bill. we added amendments promoting the establishment of the satellite u.s. p.t.o. offices in regions all across the country, creating a discount for small entities to participate in the accelerated patent examination program of the patent and trademark office. it addresses concerns in venue positions. i am proud to have worked with the chairman and rank member to get these resolved. i also want to commend senator menendez on his office to provide a fast-track for paten

patents, which i cosponsored. the senate has come a long way toward improving our patent system with this legislation and harmonizing our system with the rest of the world. there are a the love people in my state who are interested in further improvements, and i pledge to continue to work with them to make sure we continue to fine-tune this legislation where we can. the america invents act represents significant progress. we are moving our patent system into the new century which is already being defined by the next wave of american innovation. the breadth of support from large and small industries as we will as our yiewftz provided momentum to complete in work. i would like to thank the chairman in the judiciary committee. i urge my colleagues to vote for patent reform. thank you, mr. president, and i yield the floor. i had neat the absence of a quorum -- i'd note the absence of a imoarm. the presiding officer: the clerk will call the roll.

quorum call:

ben ben i have seven unanimous consent request for committees to meet during today session of the senate. they have the apriewl of the majority and minority leaders. i ask unanimous consent that these requests be agreed to and that these requests be printed in the reported. the presiding officer: without objection. so ordered. ben ben mr. president, i note the absence of a quorum. the presiding officer: the clerk will call the roll. quorum call:

mr. durbin: i ask that the quorum call be suspended and i ask consent to be he canned are in as if morning business. the presiding officer: without objection, so ordered. mr. durbin: thank you. this morning the republican leader came to the floor, senator mcconnell, and made some pretty strong and sweeping statements about the state of the deficit and responsibility,

and i'd like to have a chance to respond. senator mcconnell said for two years now washington democrats have taken fiscal recklessness to new lights. the amount of red link democrats plan to exceed would exceed all the debt ran up by the federal government since its inception through 1984. understand what the national debt of america was when president william jefferson clinton left office. we were running surpluses. we hadn't done that for decade. surpluses in the federal treasury. what did we do with all of this money? we put it in the social security trust fund, we bought more longevity and solvency for social security and if you remember, the economy was never stronger. william jefferson clinton left office and at that moment in time, the national debt, the accumulated debt of america from george washington until he left office, $5 billion.

-- $5 trillion. remember that number. $5 trillion. fast-forward eight years after the end of president george w. bush, eight years later where were we? the national debt was now $12 trillion. fiscal recklessness by democrats? under president bush, the national debt more than doubled. and i stead of leaving a surplus for president obama, he said, welcome to an economy that is hemorrhage hemorrhaging hundreds of thousands of jobs lost every month and we anticipate next year's deficit, he told president obama, to be $1.2 trillion. that was what president bush handed to president obama. now, i don't mind a selective view of history. i guess we're all guilty of that to some extent. but to ignore the fiscal mess created that more than doubled the national debt in eight

years, to ignore that we waged two wars without paying for them, to ignore that we cut taxes in the midst of a war which is something no president in the history of the united states has ever, ever done is to ignore reality. the reality is we are here today in the midst of this titanic struggle about whether we are going to continue to keep the federal government functioning. we are really being asked whether or not two weeks from now we want to have security at our airports. air traffic controllers, whether or not we want to have social security checks sent out, people actually sending the checks, answering questions at the internal revenue service, whether we want the securities and exchange commission still working on wall street two weeks from now. we cannot lump two weeks at a time forward without doing a great disservice to the

taxpayers of this country as we will as to the people, the men and women who work hard for our government every single day. now, what is the answer in the house of representatives? well, the house of representatives says, we need to cut $100 billion in. they started at $60 obama, incidentally, then decided that wasn't enough for bragging rights. let's get up to $100 billion this year. you say, out of a budget of $3.7 trillion, how big is that? whoa! they didn't like at the budget of $3.7 trillion. they looked at one 14% slice of the pie. domestic discretionary spending. that's it. nothing to be taken out of the department of defense, nothing to be taken away in terms of tax breaks for the wealthiest corporations, the most successful corporations. nothing out of the oil and gas royalties and the like. nothing out of that. we'll take it all out of domestic discretionary. so what did they take away? i'll tell you what they took away. i looked in my state last

weefnlg i went up to wood stock, illinois, and we have an office open there with counsel lores who are bringing in unemployed people, sitting them down in front of computers with fax machines and copy machines and phones and counselors. they're preparing their resumes and trying to get back to work. they are people who want to work. and they need a helping hand. and this place has been successful. it places people in these jobs. what would happen to that office under the house republican budget resolution? it would close its doors. more unemployed people, more unemployment checks. is that the answer to putting america's economy back on its feet? that how we're going to get 15 million americans back to work? how about the house republicans' proposal to eliminate $850 a year in pell grants? senator leahy, you know what that's all about. these are kids from the poorest families in america, many of them for the first time in their family have a chance to graduate from college but they can't make it. they don't have enough money. we give them

a helping hand and the republicans take it away. what will it do? the president of augustana college in rock island, illinois, told me what it meant t. meant that 5% o, one out of every 20 students, would go home. that's what it means. to cut job training, to cut education. when we have 15 million people out of work, what are they thinking? not bad enough. i went to a medical school in my hometown of springfield, southern illinois university school of medicine -- we're so proud of it -- and met with the researchers. they get a few million dollars each year to do medical research in fields of cancer therapy, dealing with heart issues, dealing with the complaints of veterans who are returning. what do the house republicans do? they virtually close down the research for the remainder of the year. close down medical research. is that right? is that what we want in america? have you ever had a sick person in your family and you went to the doctor and you said, doctor,

is there anything, is there a drug, is there something experimental, clinical trial, is there anything? have you ever asked that question? if you did, then you'd know that this cut by the house republicans is mindless. to cut medical research at this moment in history? and then i went to the national laboratory, argonne national laboratory on monday. what do they do there? you know, a lot of people couldn't answer that question. well, i learned specifically. are you aware the chevy volt, this new breakthrough automobi automobile, all-electric automobile? where did that battery come from in this automobile? the argonne national laboratory. how about the latest pharmaceutical breakthroughs? virtually every one of them uses the advanced photon source at the argonne national laboratory. i met a flan eli lilly who was there experimenting with a new drug that can save lives at this laboratory. and how about computers? where's the fastest computer in

the world today? i wish it were in the united states. it's in china. china! we are now working on the next fastest computer so we don't lose that edge where. at the argonne national laboratory. so what would the house republican budget do to that laboratory? and most every other laboratory? is would eliminate one-third of the scientists and support staff working there and cut their research by 50% for the rest of the year. so what? so, if we don't move these pharmaceuticals forward to market stoorn save lives -- sooner to save lives, if we don't compete with the chinese on this computer, in we don't deal with battery technology so that we don't lose that negligent the world? what will it mean? lost jobs. the house republicans weren't thinking clearly. they were performing brain surgery with a hacksaw. and as a result, they've cut things that are essential for the future of america. infrastructure projects,

education, research. and now to have the republican leader come and tell us we've got to accept that, that's the future of america. no, it's not. time and again when we sit down to deal with the budget challenges, whether it's in the deficit commission, which i was honest servicessered to serve on -- which i was honored to serve on, or whether it's in past negotiations, we open this table up to all federal spending, not just to 14%, that tiny slice of a pie. senator mcconnell can remembe remember, and i can too, under president herbert walker bush and under president clinton, we put on the table these tax breaks for some of these oil companies and corporations and said, is it really worth america's future for us to give them a tax break or to use the money to reduce the deficit? that's an honest question. mandatory spending. all of these things need to be brought to the table for conversation. but that's not the position of the republicans. they would rather see us shut down the government than to open this conversation to the entire federal budget. they would rather see us shut

down the government than fight to make sure that education and training, research and innovation, and infrastructure are there to build a strong american economy for the future. i would sty my friend, senator mcconnell from ken -- say to my friend, senator mcconnell from kentucky, we don't need any speeches from that side of the aisle about a national debt that more than doubled under the last republican president. we've got to work together in a bipartisan way, acknowledging the reality of history, that we all have had a hand in reaching the point we are today, both positive and negative points where we are today, and we all need to take a responsible position to move us forward. mr. president, i yield the floor. mr. leahy: mr. president? the presiding officer: the senior senator from vermont is recognized. mr. leahy: mr. president, i appreciate the comments of the senator from illinois. i -- i recall the great discussions during -- when i -- i happened to have liked president reagan, we got along

very well, but i remember his discussions on a balanced budget and all that as his budget tripled the national debt. i do recall he did -- he did veto one spending bill because it didn't spend as much as he wanted. so, you know, rhetoric is one thing, as the senator from illinois points out, reality is often different. so i thank him. mr. president, i ask unanimous consent that at 12:30 p.m., the senate proceed to a vote in relation to the feinstein amendment number 133, as modified, with no intervening action or debate, the time until then be divided equally between the proponents and the opponents and no amendments be in order to the feinstein amendment prior to the vote. the presiding officer: is there objection? so ordered. mr. leahy: and, mr. president, i suggest the absence of a quorum,

the time equally divided. the presiding officer: without objection, so ordered. the clerk will call the roll. quorum call: