quorum call:

quorum call:

the presiding officer: the majority leader. mr. reid: i ask the quorum call be --. the presiding officer: without objection. without objection. the question is on the paul amendment number 25. is there a sufficient second? there appears to be. the yeas and nays are ordered. the clerk will call the roll. vote:

vote:

the presiding officer: are there any senators in the chamber who wish to vote or wish to change their vote? if not, the ayes are 44, the noes are 53. the amendment is not agreed to. under the previous order, -- without objection, so ordered. under the previous order, the question is on the adoption of s. res. 64. all those in favor say aye. all those opposed say no. the ayes appear to have it.

the ayes do have it. the resolution is adopted. under the previous order, the senate stands in recess until

>> consideration of a house bill, to consider government funding on this fiscal year. live coverage the senate when members return at 2:15 here on c-span2. and, as, said earlier, the house this week is taking up a bill to continue funding the government, house speaker john boehner, addressed that during remarks earlier today at capitol. here is bit what he had to say. >> the house our goal is to cut spending, not to shut down the government. we'll move the cr this week. we would hope the senate would take the bill up and move it quickly. the president on friday, agreed that there is no reason to get into some debate about shutting down the government. it is just not smart thing to do. >> can you handle it if they do send it back? >> i won't predict what the

senate will or won't do with our bill. i would hope they take it up expeditiously and pass it. >> speaker boehner for all intents and purposes. >> you need a haircut by the way. >> looking like you put up the white flag in terms of these budget battles. that he wants to move on to other issues such as immigration and possibly gun control. what do you feel about that? what is the appetite for those two issues in the house of representatives at this time where you stand? >> because of the president's reluctance to cut spending, we have been caught in this, this, this battle of having clips and having these deadlines and. this is no way to run a government. but until the president gets serious about the serious structural spending problem that we have, we're going to have to deal with it. i suggest that the presidented to the president other day. the best thing we do, find

some way to get the senate to finally do their work. have a large agreement that begins to address this spending problem. puts us on a path to balance the budget over the next 10 years and get out of this cliff business. it is not good for the country for us to continue to go through this and, i would also agree that because we've had all of these fiscal cliff issues, there are a lot of others that the american people want us to address. next week we'll be addressing the skills act where we take these job training, retraining programs, simplyfy them. combine them to put more effort into training people for the jobs that the american businesses have available today. there is lot of other things we need to do. >> immigration and gun control, is -- >> we have a longs list of things we would like to deal with. i'm sure his list is little different than ours but, yes, i made it clear on an immigration, we need to continue to work in a bipartisan fashion like we have been, to deal with this

very complex issue. >> and, the house rules committee will take up that continuing resolution today, and it will likely be voted on by the full house on thursday. the current continuing resolution or cr expires on march 27th. you can see that meeting on the continuing resolution live at 3:00 p.m. eastern on c-span3. tomorrow, attorney general eric holder will be on capitol hill to testify before the senate judiciary committee. he will be answering questions about justice department programs. we'll have that live at 9:30 eastern. that is on c-span 3. earlier today the house foreign affairs committee held a hearing on u.s. current policy towards north korea. in light of their third nuclear missile test last month. february 15th, the house passed a bipartisan resolution condemning north korea for the test and

for violating u.n. security council resolutions. the committee heard from former state department and intelligence officials and that were involved in past negotiations with north korea. california republican congressman ed royce chairs the hearing. >> this hearing on north korea will come to order. on february the 12th, north korea conducted its third test, its mess powerful test to date, a nuclear weapon, a smaller weapon because north korea is working on miniaturizing its win in order to place it on the head of an icbm. this followed september's launch of a three-stage intercontinental ballistic

missile. we had test after test, broken promise and broken promise. successive administrations both republicans and democrats, clung to an unrealistic hope that one day north korea will suddenly negotiate away its nuclear program. it is a hope in 1994 many of our senior members here shared when we passed the nuclear framework agreement, 19 years ago with north korea. during that whole period of time that we tempted to engage, we found instead that north korea was perfecting their weapon. was violating those negotiations. so the approach that we have taken has failed. and three nuclear tests later, i think we have to be realistic, we have to find a better alternative. a failed approach to north korea doesn't result in just a more dangerous

situation on the korean peninsula. it in fact results in a more dangerous world. we know folks in north korea helped build a carbon copy of their program in syria on the banks of the euphrates. we also know iran directly benefited from north korea's long-range missile technology. we suspect that they have benefited from the nuclear tests. last month, ranking member engle and i were in northeast asia and it is clear from our discussions there that our north korea policy must change. today we will look at the illicit activities that are underwriting north korea's weapons programs. we're going to look at its illicit missile sales abroad. at its meth trafficking. this is the only country in the world that manufactures

and then traffics in meth. we're going to look at their counter fitting, of u.s. $100 bills. and we're going to think about the reason why this country has been called the soprano state. we'll hear from one witness who will testify that north korea's illicit money-making machinery continues to turn. but it is this dependency by the regime on illicit activities that can in fact be exploited. this is a achilles heel and we did this once. in the fall of 2005 the bush administration targeted the macau based banco delta asia for its money laundering role while u.s. money was being counterfeited. they were laundering for north korea. and this led other banks in the region to shun

north korean business, which finally isolated the regime, and cut off its, its ability to get hard currency. however, after kim jong-il made promises on its nuclear program, the pressure was prematurely lifted. today, the current administration has done little to target north korea's illicit activities. instead the administration has defered to a policy over at the united nations that is opted for strategic patience. the purpose of today's hearing is to examine how best to pressure north korea's ruling elite by systematically restricting their access to that hard currency on which they depend. . .

>> identify the network, interdict hipments and disrupt -- shipments and disrupt the flow of money. this would sever a key subsidy for the or weapons of mass destruction program. only when north korea's leadership realizes that its criminal activities are untenable do prospects for peace and security in northeast asia improve. i will now turn to our ranking member for opening comments. >> thank you very much, mr. chairman, and i'd like to thank you for calling this timely hearing and for your relationship in addressing the north korean threat. i would also like to say

publicly that it was a privilege to travel to the region with you earlier this year to discuss north korea with top leaders in seoul, tokyo and beijing. the recent nuclear tests conducted by the north was a dangerous provocation that raised tensions in northeast asia. it reinforces the fact that pyongyang poses a serious threat to the national security of the united states and our allies in the region. following the test, the house overwhelmingly passed a strong bipartisan resolution authored by chairman royce and myself condemning the north's irresponsible action. among other things, that resolution called for the united states government to use available legal authorities and resources to defend our cup's interests -- our country's interests against north korean illicit activities which is, of course, the topic of today's hearings. north korea's nuclear tests, ballistic missile launches and

attacks against south korea have been obvious to the entire world. what has drawn less attention, however, is the fact that north korea engages in a wide array of activities to support its leadership. the north korean's regime criminal conduct including the sale of nuclear and ballistic missile technology to rogue regimes in iran and syria and the counterfeiting of u.s. currency, cigarettes and pharmaceuticals serve as a lifeline to keep itself in power. of proceeds from these criminal activities are distributed to members of the north korean elite including senior members of the military and are used to finance the top leadership's lifestyle. they're also invested in north korea's military programs. i am one of the few members of congress that have been to north korea, and i've been there twice. i have visited the capital of north korea, pyongyang, on both occasions, and i can tell you that the north korean regime

would do better to help its own people, give them the things that they need rather than spend b its time and money on nuclear weapons and missile technology in defiance of the international community. the north korean regime practices what experts have called criminal sovereignty. in essence, pyongyang uses state sovereignty to protect itself from outside influence and interference. while dedicating a part of its government to carrying out activities in violation of international law and the domestic laws of many other countries. for north korea these criminal activities are viewed as necessary to maintain the power of the regime with no regard for the fact that they are corrosive to international law and order. so the question is, what steps can we take to combat north korea's illicit activities, and can our efforts to prevent these activities be used to pressure north korea to abandon its nuclear weapons and ballistic

missile programs? now, i just heard on the news this morning that the agreement has been made ostensibly with china to punish north korea for its missile-launching nuclear tests. i hope that china will not do what it's done in the past and agree to sanctions and then just erode those sanctions so the sanctions really never took hold. i hope that china will finally understand that the north korean regime is a threat to stability in that region of the world and in many regions of the world, because as chairman royce pointed out, korea, north korea is a rogue state helping countries like syria trying to obtain nuclear weapons and collaborate with iran. i want this committee to know that on this issue there is not a millimeter's worth of

difference between the chairman and myself. um, we both view the north korean regime as a threat and one that needs to be contained. i want to tell you the first time we took the trip to north korea was probably about nine, eight or nine years ago, and one of the first things we noticed in pyongyang was the billboards that were all across the country. one of the billboards still sticks in my mind. it showed a north korean soldier bayoneting an american soldier in the head, in his helmet. and we knew it was an american soldier because on his uniform it said "usa." so the regime is hostile to the united states and warrants watching, and i look forward to our witnesses' testimony. this is really very, very important, and we have many pressing concerns all around the world, but we ought not to forget about the pressing concern with north korea. we ought to stay focused on the region. i thank you, mr. chairman. >> thank you, mr. engel.

this morning we're joined by a distinguished panel of experts, dr. david asher is a non-- is a senior fellow at the center for a new american security. previously dr. asher served as a senior asia adviser at the state department. he was the coordinator for the north korea working group that attacked kim jung-il's illicit activities and finances. dr. son yong lee is known for his ability to turn a phrase. he has written extensively on the korean peninsula including a recent piece entitled "don't engage kim jong un, bankrupt him," can which appeared in foreign policy magazine recently. ambassador joseph served as the special envoy for six-party

talks with north korea in 2003. from 2010 to 2012, he was the director of the national counterproliferation center. and without objection, the witnesses' full--prepared statements will be made part of the record, but i'm going to ask each to summarize your testimony to five minutes, and we'll begin with dr. asher. >> chairman royce, ranking member engel and other distinguished members of the committee, i want to thank you sincerely for this opportunity to testify on a matter of truly grave concern, the growing nuclear proliferation risk of the north korean regime and the need for a fundamental new policy approach to comprehensively address that threat that north korea poses to asia and the world. in short, our diplomatic efforts which i was part of along with ambassadorty tranny and the six-party talks have objectively

failed. unfortunately, so have our effort ors to counter the proliferation activities and nuclear procurement of the north korean regime. i believe in the next 24 months north korea's global and regional threat will go from bad to worse. not only do i fear north korea will deploy nuclear warheads on its expanding and increasingly sophisticated missile force including directly against the united states and our allies, i am concerned that the chances of north korea exporting nuclear weapons and nuclear-capable missiles to iran is alarmingly high if, indeed, something has not an occurred. north korea has one and possibly two weapons grade production facilities. according to the institute of science and international studies, north korea could accumulate enough weapons-grade uranium for 21-32 nuke laugh weapons by the -- nuclear weapons by the end of 2016. this is on top of the 10-12 weapons that are publicly estimated to already be in north

korea's arsenal. north korea does not need 30-40 or 50 nuclear weapons. north korea does need money, and my concern is that the regime needs money in particular as a young region takes power to cement his position, solidify his control over the military and pay for his expanding and highly expensive wmd and missile programs which he's been putting on prominent display in the streets of pyongyang during these recent parades. the nation that has the money and the need for nuclear material, including enriched uranium and weapons most obviously is the government of iran. in mid july 2002, korean president kim john name led a high-level assembly. on july 18, 2002, an agreement was signed between the

governments of syria and north korea. in hindsight this scientific agreement was the keystone commencing the covert nuclear cooperation between north korea, its general bureau of atomic energy and its counterpart, the ssrc inside the syrian government which is in charge of weapons of mass destruction. ominously, president kim jong-nam recently led a delegation to iran. they announced a signing of a scientific cooperation agreement that appears almost identical to that between north korea and syria in 2002. the iranian attendant at the ceremony welcoming the north korean president included the minister of industry mine and trade, the defense minister and most ominously, the head of the atomic energy agency of iran. they also had high-level discussions on coordinating key strategic issues. we can only guess what those are.

it is time to stop the complacency on countering, containing and disrupting north korea's proliferation machinery in a malevolent regime before serious and enduring damage occurs to global security. working closely with our allies, especially those on the front lines in south korea and japan, we immediate to organize and commence a global program of comprehensive action targeting the apparatus, its facilitators, its partners, agents, proxies, its overseas presence. we need to interfere and sabotage decisively their nuclear missile programs. we also need to revive an initiative identifying and targeting the kim regime's financial lifelines including illicit sources of revenue and overseas financial nest egg bank accounts, especially in china. chinese wangs and trading -- banks and trading companies who continue to facilitate access for north korea themselves should be targeted. finally, the united states should commence a program to influence the internal workings of the north korean recream to undermine the kim dine sty and

ultimately lay the -- dynasty and ultimately lay the groundwork to end it. across the whole of government and among the legal of willing foreign partners similar to the initiative that i had the opportunity to run during the bush administration. organizing such an initiative is not a trivial effort, and it will require considerable energy and commitment including oversight of your committee. i appreciate this opportunity to make these testimony before you. thank you. >> thank you. we'll go to mr. lee. >> thank you, mr. chairman, members of the committee. sixty years ago today on march 5, 1953, the soviet leader, stalin, died, and the prospects for ending the korean war improved dramatically. and we had a ceasefire agreement signed in july, july 27th, and the past 60 years has been a history in dramatic contrast. south korea has risen to be one of the world's most successful

cases on how to build a free and affluent country. while north korea has become a model, an exemplary failed state marked by a brutal regime that has maintained power through hereditary succession, extreme internal repression and also military extortion. my point here is that the kim dynasty, the dprk, is engaged in a systemic contest for korean legitimacy which is the more legitimate representative government representing the entire korean nation. the it's a contest that -- it's a contest that north korea cannot win. hence, north korea associates financial crimes, earnings derived from such activities, nuclear blackmail and repression as the sin conon, a necessary condition to its self-preservation. odd approach to national policy

practiced by the regime has created a country that is quite abnormal, i would call it grammatical impropriety notwithstanding uniquely unique. let me illustrate. finish north korea is the only country in the world, it is the world's sole hereditary communist dynasty. it is the world's only case of an industrialized, urbanized, literate peacetime economy to suffer a famine. it is the world's most cut -- cultish, isolated country with the world's largest military in terms of manpower and defense spending proportional to its overall population and national income. the result is this abnormal state, one that is able to exercise disproportionate influence in regional politics commensurate with its territorial size, population size, economic power -- exceedingly small economic,

political or soft of power. and this north korea achieves principally through a strategy of external provocations and internal repression. in short, the leadership in pyongyang will not make concessions on its nuclear and missile programs unless it is confronted with a credible threat that calls into question the need for its continued existence. and the united states is singularly well equipped to deliver this kind of pressure to the regime. this is due to the strength and attractiveness of the u.s. financial system and the pyongyang regime's low threshold for withstanding financial pressure. because it is so overly dependent on illicit activities to maintain its own regimement the united states' treasury department should declare the entire north korean government a

primary money laundering concern. this would allow treasury to require u.s. banks to take precautionary, special measures substantially restricting foreign individuals, banks and entities from gaining access to the u.s. financial system. treasury could also apply these measures to third-country business partners that finance pyongyang's shadowy economy, and the u.s. should also ask ally governments to apply corresponding measures to third-country banks, businesses, nationals doing business with north korean. moreover, the u.s. should expand the designation of prohibited activity to include those furthering north korea's proliferation, illicit activities, import of luxury goods, cash transactions in excess of $10,000, lethal military equipment transactions and, and the perpetration of crimes against humanity. north korea is the world's leading candidate for indictment

for crimes against humanity. such measures would effectively debilitate, present north korean regime with a credible threat that would far surpass what took place against banco delta asia in 2005. i would urge congress to pass a bill that gives treasury investigative powers and requires the treasury department to investigate reports of suspicious activity, enforce u.n. security council resolutions and also clamp down on further perpetration of crimes against humanity. by linking human rights violations with financial sanctions, the united states could deliver a potent threat, a credible threat to the regime. thank you very much. >> thank you, professor lee. >> mr. chairman, ranking member engel, thank you for the

invitation, members of the committee. it's an honor being here with you. >> can thank you, ambassador, we appreciate your willingness to testify. >> thank you. by way of background, in january 2003 north korea pull led out of the npt, the non-proliferation treaty, and told the iaea and monitors to leave the country, and that was after the united states told north korea that we knew they had a clandestine uranium enrichment program which was in violation of the commitments they made with the agreed framework. we started the six-party process in august of 2003. it was a two-pronged approach, by way of background. 2003 was the first plenary session. we told the north koreans we're looking at denuclearization, but we're also looking at your illicit activities. we're looking at you counterfeiting our $100 bill, counterfeiting pharmaceuticals, getting very, very much involved with the counterfeiting of cigarettes, human rights issues for which we need transparency

and you need to make progress on. it was a dual approach. in september 19th, you cited that, sir, in september 19th, 2005, we had a joint statement. we had two things on the 19th of september, 2005. we had a joint statement committing north korea to denuclearization, comprehensive, verifiable denuclearization, in exchange for security assurances, economic assistance and, ultimately, normalization. the normalization, before we'd even talk about that, they need to make progress on their illicit activities and human rights. and on the same day, the 19th of september, on the federal region industry treasury -- registry treasury moved forward based on, based on section 311 of the patriot act, the predicate being money laundering -- and that was what you cited, sir, banco delta asia -- where making authorities and the spank froze about $25 million of north korean currency. the impact was immense, because the measures to international

financial institutions was very clear. if you do business with north korea and they're involved in money laundering, you could be affected also. the impact was immense. the north koreans were upset with this for obvious reasons, because as you describe, it caused significant pain. that was the model. unfortunately, we went back, unfortunately in the sense that we went back to negotiations, and we proceeded with negotiations. they eventually got the $25 million back when banco delta asia was in compliance with our laws, and we moved forward. but what happened was what you describe, missile launches and nuclear tests in 2006 and 2009, 2012. so we're looking at four launches, three nuclear tests. during this period of time, we have three security council resolutions, u.n. security council resolutions looking at sanctioning them. they're moving their money. we have executive orders coming out of treasury, executive order

13382, executive order 13551 which speaks to proliferation of weapons of mass destruction and the supporters where we would sanction those who are involved with wmd proliferation and anyone supporting them; a state, a bank, any entity. so we are looking at it, we are pursuing it. and concurrent with that we are looking at proliferation security initiatives. that means the united states with over 90 countries have come together to say if north korea puts anything on the high seas and we have any information indicating that they're proliferating something, they're moving something they shouldn't be moving in violation to security council resolutions, we would interdict those shipments. we've had many inwriter ris. a number of these vessels were turned around at sea. a few of them were going to myanmar, and they went back to port in north korea because of the determination to do something with that. now, north korea persists. north korea persists with their human rights activities and illicit activities, but they know very, very clearly if they

want any progress with the united states, certainly with the united states, illicit activities have to go by the wayside. this is causing pain, and i could only, i only -- i concur fully with my colleagues here and with your statement, mr. chairman, these sanctions are biting. they are biting. it's causing north korea not to get access to the funds they need, not to move the money they need. they need to bite even more significantly, and they should even more impact as we move forward with further, if you will, responses to their most recent nuclear tests. and there will be additional sanctions and additional activities. so the message is clear to north korea that two paths, there will be further sanctions and they will become more of a pariah state, and they will find it much more difficult to survive if they continue on the present path. or them cock back to the september -- come pack to the september 2005 statement and getting into the financial institutions and getting their economy back in shape and caring about the people.

and on that one basic to all of that is comprehensive, verifiable denuclearization and the ceasing of all illicit activities. and transparency and progress on their human rights issues. >> ambassador detranny, thank you very much for your testimony. i wanted to go back to an observation that professor lee made. he noted that if sanctions are effectively imposed and hard currency is cut off, the rise in the number of disgruntled men in the party pure rock si in the military -- bureaucracy in the military would give the kim regime reasons to rethink its long-term strategy. and in the same vein, looking back on your efforts, dr. asher, in the last administration, you say that the effect of the campaign froze north korea out of key aspects of the

international financial system. and that that produced a destabilizing internal effect that could have been magnified to compel north korea to abandon its nuclear program. pretty definitive statement. i wondered if you, if our panel might elaborate a little bit on the impact on the regime's financial lifelines and its effect on the regime's mineset with an eye toward whether this could be redone again if we went with legislation to try specifically to replicate what was done with banco delta asia. i'm working on legislation, and i wondered how could congress help in this vaip. in this vein. and we'll begin with professor lee. >> thank you, mr. chairman. the notion that sanctions are not necessarily effective because they do not necessarily lead to regime change or a

fundamental change in the behavior of autocratic states, i would say, is not particularly relevant to north korea. i would argue that north korea is uniquely vulnerable to targeted financial sanctions because, because unlike any other authoritarian governments in the world, the regime is so dependent on such revenue streams, illicit streams of revenue. so blocking, damning if not all, even some of those streams of revenue would achievement and secondary, tertiary effects in any sanctions regime which is to provide that regime, that target with a psychological threat of prolonged sanctions that would lead to a rise, increase in the number of disgruntled men in the north korean party, pure -- bureaucracy, military, this is an existential crisis for the

regime. how much does the regime depend on such illicit earnings? well, we don't know for sure, but i know that dr. asher and others have estimated that as much as practice one-third or even as high as 40% of the regime's total trade and probably a much higher sum in terms of the regime's cash earnings are derived from such criminal activities. so north korea is singularly vulnerable to such targeted sanctions, i would say. >> i'll ask you, dr. asher, to chime in on that. i remember i was in north korea in 2007, and afterwards had an opportunity to talk to a defector who had worked in their missile program. and he told me how obtaining hard currency was so difficult that the whole production line at one point was shut down. i think he said for seven or

eight months. because they couldn't get the hard currency to buy on the black market eye gyroscopes thay needed -- that they needed for the program. but let me ask you your thoughts. >> well, i mean, i think the key to the effectiveness of our program of action during the bush administration's first term was we created a very sophisticated model working with the ambassador in his previous capacity and other members of the intelligence community as well as doing a lot of open source research on businesses. businesses have public records associated with them. we understood that north korea's financial lifelines were centered outside of north korea. north korea did not have its own internal banking system. it was largely rez in a minute in places in seas asia and us a industry -- austria, places we could get to. and given the fact that there was a disproportionate association between the high-level regime finances of kim jung-il and his family, we

knew that by combining law enforcement as well as targeted regulatory actions involving the patriot act we could affect those finances. and we did so in a way that was aiming at specific individuals, specific actors, specific institutions. we didn't just go willy-nilly at this. there's a sort of black art behind the way this was conducted, and i think that's why we had an effect. i believe the same could be done today, but it's going to require a use of coercive force against chinese institutions and act to haves and trading companies -- and actors and trading companies that will require considerable resolve by the administration. >> ambassador? your thoughts, and then we'll close. >> no, i agree with dr. asher and dr. lee. i think they are biting. i mentioned the executive order, the treasury's executive order 13382, proliferation of wmd and their supporters. i i mean, entities like the bank, the korea trading

corporation, these entities are being sanctioned, but anyone dealing with them would come under the same ruling and have the same consequences. so, yes. and i, in addition to the sanctions which are biting and are very, very important, i believe the proliferation security initiative by getting the countries, getting all our countries together to insure that north korea does not proliferate and does not receive the materials that are necessary to sustain their program so vital, and i think we're moving, i think, pretty aggressively and with significant success in that area. and as dr. lee said, i think it is biting. because, eventually, it's going to have consequences. you've been there, mr. chairman. there's two north koreas, the provinces where the leadership in pyongyang really doesn't care that much and pyongyang itself. well, eventually, these sanctions are biting those in pyongyang who rely on this flow, and that's going to cause significant pressure on the leadership. and that, i think, is powerful.

>> thank you. mr. engel. >> when chairman royce and i were in asia a few weeks ago, we raised with the chinese leadership a situation in north korea, wondering if any of you have thoughts about china and the role it has been playing and the role that it might play in the future? i mentioned that before this morning i heard that there was an agreement which china ostensibly was going along with, but we know that china has been propping up the regime for years. china is fearful that in case the regime were to collapse they'd have a million north korean refugees moving into china itself and that china also would have a fear of south korea dominating a united korea and having a u.s. l ally right up to its or borders. of i'm wondering if my of you can give me your thoughts op china's actions and -- on china's actions and what we can expect. >> i think china, and you

mentioned, i think china is a key player if not key to the north korean nuclear issue, certainly very, very instrumental in getting some resolution. i think china has been working it. it's been -- they modulate their approach because of what you cited, the potential for instability, refugees coming across the boarder and the concern about the weapons -- the border and the concern about the weapons. but i think our objectives are similar, denuclearization. it's not in china's interests to see a nuclear north korea for the same reasons. that stuff can get in the wrong hands. one of the big issues we have and concerns we have is nuclear terrorism, the ability of some of this material -- it was cited a minute ago by the chairman in his statement -- what they did in syria. i mean, having in this nuclear material in north korea, it's not only north korea having nuclear material and weapons, the potential for that proliferating, and china is very concerned about that. so i think with china and now

with the new government coming in, xi jinping and with additional sanctions, i think we -- i believe and hopefully we will turn a page, and we will be more in concert with them and approach this issue in a very deliberate way to include a dialogue with pyongyang so they understand what the consequences are. there's no surprises here: so they know what's ahead for them, and they have a decision to make as to what path they want to take. >> dr. lee? >> over the years it's become something of a slick lues in the policy and academic world that the chinese communist party will never give up on the dprk. sixty years ago or in 1950 china had compelling reasons to intervene, to take a great risk and confront the united states-led forces in the war.

today china has compelling reasons not to take that risk and to continue to develop its economy and grow richer by producting the integrity of the international financial system. mao she tongue was viewed as the leader of the asian revolutionary movement for china not to take action as the dprk was falling, would have had implications on his intention to liberate taiwan, and china had a fallback plan in the soviet union. today the emergence, the eventual emergence of one free korea, a single, united korea that is democratic, pro-u.s. and pro-china of necessity, it will be pro-china, poses no threat to the chinese. of course, the chinese won't move to destabilize pyongyang on their own initiative. so we, the united states, can give china that incentive. >> thank you. any thoughts about the

negotiations that the north would like to have ostensibly with the united states in one of the things that sticks in my mind when i met with north korean officials, again on two occasions, was that they seemed to be disinterested in the six-party talks and more interested in bilateral talks with the united states. do you think that's still the case today? dr. lee or ambassador? anyone? >> i definitely think that is the case. it's always been the case. north korea has made it very clear they want a dialogue with the united states, and the u.s. position has been this is a regional, it's a multilateral issue. but there are issues like the illicit activities that we were talking about that are very unique to the united states. in many ways, that's why the september 2005 joint statement has two pieces to it; resolving the nuclear issue, but also each country having a bilateral dialogue with the north koreans on issues that are unique to their respective countries. and that's been our approach

with the north koreans, and they have reluctantly, given the fact they have no choice, they've accepted that reality. but they, indeed, would prefer just dealing with the united states. >> well, thank you. i'm wondering if i could ask dr. asher a question, and i'll conclude with this: in your written testimony you talked extensively about the link between north korea and iran. i'm wondering if you could tell us a little bit what's your assessment of the effectiveness in crippling the north korean regime if sanctions similar the to what we are implementing against iran are enacted against north korea. >> yeah. it is a very good question. it is quite startling to me that the sanctions that are imposed in the action programs that are imposed against north korea pale in comparison with those being pursued against iran today. north korea is a country that is not a theoretical enriched uranium-producing, bomb-making nation, it is creating a large

stockpile right now. it is a proven track record of exporting every single myrrh tear program it -- military program it has ever developed including as was evidenced in syria. the fact that the sanctions imposed those against north korea is a clear indication to me why our policy is, in some ways, upside down. north korea has supplied the iran needs of basically untarnished, unvarnished, noneffective nuclear material and capability. we should have proposed, we did propose and we should have pursued an aggressive program of action against the north korean nuclear network equivalent to what we've pursued out of the a.q. khan network out of afghanistan. it was something i and the ambassador both agreed to. as a result, north korea's in a position to be relatively pristine in its ability to provide the supply that iran and other nations may desire to

fulfill their nuclear goals in the future. >> thank you. thank you very much, mr. chairman. >> thank you, ranking member engel. we now go to the chairman of the middle east subcommittee, ileana ros-lehtinen. >> thank you so much, mr. chairman. thank you for convening this important hearing. and most importantly, for getting such great panelists before us today. our approach over the years in dealing with north korea has resulted in complete failure administration after administration. north korea has held america and the world hostage because pyongyang continues to pursue its goal of nuclear armament, thumbing its nose at the world while leaving its citizens malnourished, suffering from disease and, indeed, starving. north korea uses the same dangerous tactic time and time again, it dangles the idea that it is willing to denuclearize as a bargaining chip and then the kims renege on this. it was the bush administration's inability to see that evil trick

that led to the erroneous and dangerous decision to remove north korea from the state sponsor of terrorism sst list, despite the fact that illicit activities continued. as we have seen in the last few months, north korea has only further advanced its nuclear and ballistic weapons capabilities. i was vehemently against the bush administration's decision to remove north korea from the sst list and have continued to call on the current can administration to place north korea back on the list for the sake of our national security and the security of our allies in the region including south korea and japan. the fact that north korea warned today that it would cancel the korean ceasefire in rellalluation for more -- retaliation for more sanctions only reaffirms the threat to our ally, south korea. kim jong un has made his priorities clear. north korea is perfecting nuclear capability, it's supporting and equipping rogue regimes such as iran and syria.

such support to other state sponsors of terrorism d pause i believe north korea -- because i believe north korea wrongs on that list, should be more than enough to redeads nate north korea on that list. i have introduced a bipartisan bilker the north korea sanctions and diplomatic nonrecognition act, that would do just that. how extensive do you think the cooperation between these rogue regimes has been, i would ask the witnesses, and if north korea is allowed to keep its nuclear and ballistic missile program and successfully shares this material and technology with iran, the world is looking straight in the face of the most dangerous nuclear arms race that we could ever imagine. we know that north koreans need money x one of the only ways that it can get that money p is through these illicit activities, counterfeiting, drug trafficking, proliferation of nuclear and ballistic missiles, technology and expertise to other rogue regimes. if iran is one of north korea's main sources of hard currency,

how effective have recent sanctions been in limiting iran's access to cash, and what more needs to be done to insure that it cannot continue to finance its or north korea's nuclear program? another main source of aid for pyongyang is the help from china and russia. now, we know the news that china has reportedly agreed to support new sanctions at the u.n. on north korea. however, there have been no final agreements on the language. do you think that china will degree to meaningful measures, or will the chinese water down the sanctions to protect north korea? how can the u.s. convince china and russia to stop protecting north korea pote at the u.n. and domestically? we must begin to have a comprehensive approach to our sanctions capability when we attempt to cut off these regimes from their source of income. and that's why i introduced the

iran, north korea and syria non-proliferation accountability act which will prohibit assistance to any foreign government that has provided assistance to iran, north korea or syria, that would increase sanctions on any person or entity transferring goods, services or technology for the them call, biolodge car or advanced conventional weapons program of iran, north korea and syria. now, according to reports, it may be possible that the pyongyang's latest nuclear test was a test for iran and north korea. what are the possibilities that north korea was testing an iranian warhead? and would this be a game changer, and what implications would this mean for u.s. policy toward iran and north korea? but i'm more interested in dr. lee's recommendations for legislation that we could file or pressure we could bring to bear to treasury, commerce and other agencies to enforce stronger sanctions. do you believe that those can be done through executive order,

they should be done by congress? do you believe that listing north korea as a state sponsor of terrorism would then include all of the sanctions legislation that you recommended or action that you recommended, dr. lee? one second. we'll talk later. thank you. >> go ahead, mr. lee. >> all of the above. but as the ambassador mentioned, we have executive orders. 13382 signed by president bush in 2005 and 1355 is signed by president obama in 2010. the question is enforcement, the political will to enforce those measures, to clamp down and to punish third-party, third-country parties, institutions, chinese banks and so forth. >> thank you very much. political will. thank you. thank you, mr. chairman. >> yes. we'll go now to mr.-- [inaudible] the ranking member on the asia and pacific subcommittee. >> thank you, mr. chairman.

mr. chairman, north korea remains, as one son churchill once said of the soviet union, a riddle wrap inside a mystery inside an enigma. we have only the slightest glimpse of what its leaders are like or what they are thinking. this includes the new 28-year-old leader, president kim jong un. that is why the opportunity presented itself when a basketball star named dennis rodman's recent visit should not be completely dismissed as trivial. by my calculation dennis rodman has now spent more face time with north korea's new leader than any other american. as i recall, mr. chairman, we were dismissive of the invitation that the americans' ping upon or tennis table -- ping-pong team's visit to china. china, with the legacy of the

korean war and ongoing great cultural revolution, was much a pariah state then as north korea is depicted today. however, it should be noted that this so-called pipping pong diplomacy -- ping-pong diplomacy changed world history with the american president, richard nixon, arriving less than a year later. it is my understanding kim jong un loaves basketball. sometimes sports, mr. chairman, can have a positive result on diplomacy. as i noted in a recent article in a korean name, as only nixon can go to china, it now seems in my opinion at the height of the renewed tensions in the peninsula, only south korea's president can seek to move national reconciliation between the two koreas. she took a first step by going to north korea in 2002 to meet with kim jung-il, the man widely

suspected as being responsible for the death of her own mother. why did prime minister pak -- president pak 'em park on that? she did it for the tens of thousands of families divided by a demilitarized zone mandated by more powerful nations almost 70 years ago. yes, the south korean people are concerned about the nuclearization of the korean peninsula, but once again they will be the victims not of their choice. a resulting second suicidal war and a nuclear one at that would see the korean people once again pay the greatest price with untold human suffering in a lose/lose situation on pote, for both north and south korea. in my opinion the leaders of both knot and south korea -- north and south korea need to step up to the challenge, ten is up to the plate to seek ways to resolve their differences and to

do so in their own way and not be duck tated by other countries. dictated by other countries. previous american presidents have all called for a nuke -- nuclear-free peninsula, but all the rhetoric has not stopped north korea, nor have all the sanctions. china, a permanent member of the united united nations security council, showers an 800-mile-long worlder with north korea. it remains beijing's primary goal to preserve a friendly relationship with north korea for obvious reasons and at whatever the cost. adding more sanctions, in my opinion, mr. chairman, may threaten pyongyang's survival. but it will not be seen as being in china's best interests. therefore, china does not vigorously enforce sanctions, and in doing so sanctions, in my opinion, are largely meaningless. indeed, financial sanctions aimed at chinese banking institutions which do business

with north korea seem rather presumptuous coming from a country like ours which owes china a debt of some $1.3 trillion according to the latest report on national debt to other countries. mr. chairman, can you imagine that a heated situation among countries in asia setting off a nuclear arms race where these front line states will develop and acquire their own nuclear weapons, nuclear arsenals in japan, in south korea, in taiwan, in indonesia and vietnam, in the mill phoenix and many laze ya, it's not a scenario that conjures up a peaceful, prosperous asia the same can be said of countries in the middle east. iran fears israel's capability, nuclear capability. they're bringing wide fear among the arab countries, and the chain reaction continues. where's non-proliferation in all of this? if i will add one thing, mr. chairman, and let me make clear,

north korea is already a nuclear state. having its capability now of stockpiling some eight nuclear weapons. and i suspect it now has the capacity to produce even more nuclear weapons. my time is up, mr. chairman, thank you. >> if i could just ask, were you addressing the chairman when you said, when you said iran fears, fears israel and, therefore, is developing -- nuclear weapons capability? >> my point, mr. chairman, i wanted to say that this is what makes a sense of hypocrisy and the double standard of the whole non-proliferation policy. why is it that we continue to allow the five permanent members of the security council to hold on to their nuclear weapons, nuclear bombs and then telling the rest of the world you cannot have them? and this is where in my opinion, i may be wrong, why this sense of strain and tension among the haves and have nots. and that's why --

>> i understand. but to quote formerrer president kennedy, sometimes the difference is attitude, the difference between with states that are using something for defense but other states that are avowed an intent to use it for offensive capability. and since you had addressed the question to me -- >> and i might add, mr. chairman, we have a saying in the islands -- [speaking in native tongue] which means the coconut tree leaves do not move for nothing. there's a reason. there's a causation. and i think this is, perhaps, one of the issues to the whole non-proliferation movement and what we're trying to do is that what is the cause? what's causing countries like iran and north korea to cling onto their nuclear weapons system? that was the basis of my -- thank you, mr. chairman. >> thank youment we're going to go now to mr. shack ott who is the chairman of the subcommittee on the asia and pacific. >> thank you, mr. chairman, and

thank you for calling this very timely hearing. i look forward to working with you in an effort to create stronger and more effective sanctions on the north korean regime. i think most of us agree that more needs to be done aside from the issuance of strongly-worded responses from the administration, the usual routine condemnation from the united nations and perhaps a slight tightening of sanctions from our western allies. we know that the primary opposition to our efforts comes from north korea's prime benefactor, communist china. and that without substantial cooperation from beijing, our efforts to curtail this illicit activity of the kim regime will be greatly hindered. this morning it was reported that the u.s. and china reached a deal in the united nations on a new set of sanctions against north korea. it's not clear what the new measures include beyond possibly

adding new companies and individuals to the financial and travel ban list. professor lee, um, you discuss how the use of executive orders 13382 and 13551 could actually freeze the assets of chinese entities assisting north korean proliferation activities. and that this pressure would induce beijing, hopefully, to cooperate. do you think this is an effective way to persuade china to work with the international community to pressure by i don', or do you think it would cause a more negative reaction from china's new leadership? china's already said it will not embargo oil for fear that be the north korean -- if the north korean economy collapsed, it could send waves of refugees to china. what is the most effective way for china to work with the international community and

pressure the cum regime while also -- the kim regime while also protecting its borders? >> thank you very much. the chinese are supremely pragmatic. there's a reason, in my humble opinion, that the chinese civilization is the oldest in the world on point of continue continuity, and it's due to their resilience, hard work and profound pragmatism. be the chinese were given financial -- if the chinese were given financial discontent, reasons to put it crudely lose money, i think that would be more effective in gaining chinese, china's attention than other channels of diplomatic action. >> thank you very much. um, dr. asher, let me, let me ask you, um, north korea, you know, earns a very large share of its income from illicit activities, as you had

mentioned. how important is it to the regime's survival and its military capabilities? and has the percentage of gdp originating from criminal activities changed in recent years, has it remained similar levels? what would you suggest that the administration and congress do in this area that would actually do some good? >> i have no doubt that the interagency effort that we ran with over 15 government partners around the world and 14 different u.s. agencies including multiple department of justice agencies to investigate and implicate, indict north korean entities including leaders of the membership in the conduct of a wide range of illicit activities, everything from cocaine trafficking to, you know, counterfeit cigarettes, methamphetamine trafficking including into the united

states. you might be aware that we had a sting operation going on within the gambino crime family through our agent, jack garcia, the 320-pound fbi agent who was also in touch with north korea which we learned in the process that was truly a sopranos state given their eighty for the -- affinity for the partnership they formed with that crime family, that, you know, i think we had a strategic level effect on their criminality. i think we cut the percentage of gdp considerably, i think we scared them. and when we say "them," i mean all the way up to the level of kim jung-il, but then in 2006 those efforts were abandoned by the bush administration, and we've seen based on what i've heard from government colleagues a slow recovery in the illicit activities of the north korean regime. we've seen it even more protracted in the weapons of mass destruction proliferation activity, i believe, behind the scenes. these are not always in the same

pots, but they're ultimately, every one has to kick up revolutionary funds to kim jung-il, and almost excruisively the source of those -- exclusively is ill illicit cond. >> thank you very much. my time's expired. thank you, mr. chairman. >> thank you. we go to mr. brad sherman, ranking member on the terrorism non-proliferation and trade subcommittee. >> thank you. i usually agree with my colleague from american samoa, but i do want to address briefly his view that there's hypocrisy in america's non-proliferation policy. the world has avoided the destruction that many predicted when the nuclear genie was unleashed in 1945 chiefly because of the non-proliferation treaty. iran and north korea are in violation of that treaty. the five permanent nations of the, on the security council are in full compliance because they

signed as nuclear states. and india, pakistan and israel are nonsignatories. defending that treaty is critical since without it i'm sure that there would be dozens of nuclear states, and we would have experienced several nuclear wars by now. i would also point out that iran has no legitimate fears, no even illegitimate fears of israel. they do not share a border. israel has not called far world without a persia. it, iran's nuclear program is not defensive. um, in fact, there are striking similarities between iran and north korea, but one striking difference is the degree of ambition. you've described a regime in north korea that seems to be, and their number one goal seems to be sure that fine scotch is available to the elite.

iran has sought to influence affairs around the world; bombed the community center in buenos aires which, i believe, is as far as you can get from iran without going into outer space. so iran both by action and rhetoric is intent on accomplishing, on affecting things far outside its borders in ways that we would find up acceptable. um, gonna ask our witnesses a question, i'll kind of preview for a second, and that is just in terms of billions of dollars i want to break down north korea's sources of foreign capital or funds into the following categories: their military and nuclear exports, their ill his sit but nonlethal

exports, their licit activities, and in that i would include goods that are licit except for the fact that they're mislabeled and sold as made in some other country but actually made in north korea or the economic zone. the subsidies that they receive from china including the reduced price on oil and then, finally, aid which i realize is not completely under the control of the north korean government. but before i ask for that question, i would say that it's going to be very hard to force in this regime to change its behavior in return because, and to give up its nuclear weapons because, among other things, that's what gadhafi did. the sins of ghadafi's past visited him notwithstanding his promise, you know, his change in behavior, he did not have

nuclear weapons, and he's no longer with us. that's a good thing except to the extent that it shows the north koreans, um, what can happen. with that, why don't i hear from the witnesses. can you try to tell me roughly in terms of billions of dollars how that money shakes down? does anybody have an answer? dr. lee? >> as you know, it's very hard -- >> oh, obviously. >> -- numbers. this has been reports over the years that north korea makes several hundreds of millions of dollars in the sale os of weapons -- sales of weapons. >> so less than a billion, but hundreds of millions. >>less than a billion. but the north korean economy is very small in terms of per capita gdp. it's one of the lowest in the world. the only country in the asia-pacific that has a smaller economy the terms of per capita gdp is burma, and north korea's

economy compares unfavorably with many countries of africa. it's a $40 billion economy. when north korea was exporting, say, around the year 2000, only about half a billion dollars' worth of goods, and this is soon after the famine years, south korea gave north korea unconditionally cash and other things including food, fertilizer worth hundreds of millions of dollars per year. and over the course of ten years during the so-called sunshine policy years, south korea gave north korea unconditionally over $10 billion in aid. now, i don't want to say that was a necessary condition to prolonging the regime, to preserving the north korean regime. but it was of a factor. that kind of unconditional, nondiscriminating aid, i don't t think, is in the best interests

of the international community. south korea still has a major joint economic venture with north korea, as you mentioned, the cay song industrial complex. the total sum that north korea makes from that enterprise is, perhaps, $20 million or so a year. not a huge sum. but as raise, there are questions of north korean-made goods that are sold outside the korean peninsula. >> and how much do they get from china? >> well, probably over a billion dollars' worth of goods per year. which is a drop in the bucket for the chinese economy. >> if i may, the missile side of the ledger, north korea had made significant money from selling missiles. and when they have missile launches, a marketing approach to telling everyone these things work and so forth. but with the proliferation

security initiative of and things tightening up, the markets are not there for north korea. so they're hurting with respect to missile sales. they must evade quite a bit of money with thal ca bar program that was selling five-megawatt reactors, so there's a bit of treasure or more than a bit of pressure on north korea with respect to foreign reserves and getting the the capital necessary to sustain that element of lifestyle for the elite in pyongyang. so, and i think on the china side i think things are tightening up on china. the largess is not there. i think china's looking at things carefully, so i think the government is looking at substantial moments. >> north korea has been aggressively exploiting a monetary goal, and if ur yo trying to tighten up the

financial effects against north korea, you need to look at precious metals as a sanction lt item. they are typically marked with a korean 'em blend, and when they're not -- emblem. so you could create a regime that could screen out the gold exports which might be generating as much as a billion plus a year for north korea. our estimate in 2005 of north korea's illicit earnings was between 800 and a billion dollars, and that was overtly illegal acts. i do think that's declined considerably, however, i think it's increasing. >> thank you for the idea, dr. asher, it's a good one. we'll go to mr. moreno. >> thank you, chairman. good afternoon, gentlemen, and thank you for being here. over here. first of all, let me say that i personally do not consider a retired basketball player showing up at his own pr promotion in a wedding dress a

serious, credible ambassador representing the united states. and secondly, and as far as the terrorist state of iran is concerned, the u.s., to be sure, will continue to stand should orer to shoulder with our israeli friends and do whatever we have to do to protect israel and the world from the fanatics that hold demand. looking at this from a sixth degree of separation, and i know you've been asked what can we specifically do, i'm going to ask, basically, the same we again but from a different angle. can each of you address what countries and businesses within those countries do business directly or indirectly with north korea knowing and, obviously, that china is at the top of that list, and we do a great deal of liz with china, and they hold most of our outside debt.

it's complex. i know there's no single answer, but can you e e e lab mate moren the specifics on the what we to with those individuals, those other countries and businesses? ambassador and just town the line. >> if i may, china, as you said, sir, is key. i mean, i think literally with the respect to trade and investment, it's china. the european union in the past had considerable interaction with north korea. i think that's diminished significantly 2007 north korea's bad behavior, so my simple answer is china. and without china, in my view, the north korean economy just crumbles. >> dr. lee. >> we do know of specific north korean institutions that engage in proliferation and other illicit activities. there's a long list. executive order 13382 messageses

30 or so north korean -- mentions 30 or so north korean entities including individuals, and the most u.n. security council resolution 2087 adopted in january lists four north korean individuals by name. couple of those are associated with north korea's so-called space program, science and technology. the other two are associated with a north korean company, commercial bank, which is a long history of engage in illicit activities. there is also in the u.n. security council resolution 2087 a fleet owned by a north korean prank. eastern land bank. so the problem is not necessarily identifying sufficient number of targets, but implementing those targets. >> dr. asher, i'm going to

expand a little bit. of let's talk about the realities. what ramifications will the united states face in taking action against countries and businesses that are doing business or promoting north korea when that's true china or some other entity? what are we looking at? >> well, i mean, let's -- objectively, it was only when we designated asia that the chinese began to act against both proliferation and activity. they sprang to life as a partner of ours for about a year, and then once we remedies that action, it ended. i saw smell no blowback effects. in fact, the chinese were extremely scared we were going to designate other banks where we made them aware we had observed the exact same activities except in a larger

scale. they operate in a or very businesslike fashion like the professor suggested. they didn't threaten to ale off their treasury bond holdings, and we got a responsible response from the chinese government. i believe that if we were to reimpose certain measures in a clear and consistent and transparent sags of holding chinese entities and other foreign entities responsible for their complicit activities or cooperative activities as north koreans, they would shun their north korean partners. >> thank you. and i yield pack my mine seconds. [laughter] >> thank you. we go to lois frankel. >> thank you, mr. chair. and thank you, panel, for your discussion today. i know we've heard some, you know, it's quite horrifying to hear so many of the things you're talking about; human rights violations, illicit activities of counterfeiting of

money, cigarettes, drugs. but the increase in nuclear capacity is disturbing, assisting iran in its procurement of a nuclear weapon. my question to each of you is, though, what's the end game? what do we, in the end do we want to accomplish? i mean, north korea has 21 million people. it's in a strategic location. if we could cure these ills, what is it that we're -- what's the end game that we're looking for in many. >> our policy is a complete disarmament of the north korean nuclear program, but i think that's become a fantasy. we all wish that could be the case. i believe that we need to take a range of measures to try to actively upside mine the north korean nuclear program measures which i'm not going to talk about in any detail, but one can

guess what those are. it begins with a counternetwork operations if initiative equivalent to what we had against the a.k. khan network be -- a.q. khan network. the integrity of north korea's facilities as they threaten to be engaged in producing proliferation grade material, and we're going to have to work at the embassies and offices around the world and whether they should be allowed to have diplomatic sovereignty if they're engaged in commercial conduct, most specifically the sale of mass destruction which is not necessarily allowed under the geneva conventions governing diplomatic conduct. >> the ultimate end game, in my view, is to encourage, take action to that suggest tate the emergence -- facilitate the emergence of a single free korean state. and this is a long-term project, obviously. this year, again, marks the 60th anniversary of the korean war,

and i think best way to honor those brave souls who answered the call to defend a country they never knew, a people they never met as it is eloquently inscribed at the the plaque in the korean war veterans' memorial is for pragmatic and prudent policymakers in washington and seoul to come together to the lay the foundation for a genuine, a pell innocent piece in the korean peninsula and to deliver the long-suffering north korean people from bondage. >> i think the first step is to come pack to the september 2005 -- come back to the september 2005 joint statement. we had kim jung-il commit to it. we had kim jung-il in beijing committing to comprehensive demilitarization. kim jong un has never said he's commit today the september 2000 -- kim jung needs to commit to that joint statement as his

father did and commit to renuclearization. a nuclear north korea, given all the reasons we've discussed this morning with the potential for proliferation and what it means to the n prks, t --npt and the nuclear arms race that would engender if they retain those weapons, it's just not, it's not tolerable. and that's, should be and one would hope that's where the dprk is. that's the ultimate. but for that they need security assurances, economic assistance. ultimately, when they get their act together -- >> we will leave this now to return to live coverage of the u.s. senate here on c-span2. i s in morning business. the presiding officer: without objection. mr. leahy: madam president, tomorrow the senate is going to have an opportunity to correct itself from past action and

complete action on the nomination of caitlin halligan to the d.c. circuit. she was first nominateed to a vacancy on the court on september -- in september, 2010, 30 months ago. no one who knows her, no one who is familiar with her legal career, can be anything but impressed by her experience, her intellect and her integrity. hers is a legal career that rivals that of a d.c. circuit judge she was nominated to succeed. i might mention the judge she was nominated to succeed was john roberts on the d.c. circuit. he is now chief justice of the united states. it has been a little while we have been waiting to fill this position. now, i voted for the confirmation of john roberts to d.c. circuit. i voted for the confirmation of

john roberts to the supreme court. he and i don't share the same judicial philosophy or political party, but i voted for him because he was well qualified. i didn't agree with every position he had taken or argument even that he had made as a high level lawyer in several republican administrations. i supported his nomination to the d.c. circuit because of his legal excellence. what caitlin halligan is also well qualified. caitlin halligan is also as well qualified as john roberts who i voted for and her nomination deserves a vote. what i'm saying, madam president, is if we want to be honest in the united states senate, we have to apply the same standard to her as we apply to the nomination of john roberts.

after being nominated and renominated and then renominated and then renominated and then renominated. four times over the course of the last three years. it's time for the senate to accord this outstanding woman the debate and vote on the merits she deserves. caitlin halligan is a highly regarded appellate advocate with impeccable credentials in both public service and private practice that make her unquestionably qualified to serve on the d.c. circuit. in fact, the a.b.a. standing committee on the federal judiciary reviewed her nomination and they gave her the highest possible rating. the judge for whom she clerked on the d.c. circuit, former chief judge pat wald, urges her confirmation. those that worked with her all praise her. we have not heard a single

negative comment on her legal ability, her judgment, her character, her ethics or temperament. she is a stellar candidate with broad bipartisan support. she is supported by law enforcement with whom she worked closely while serving as the chief appellate lawyer of the state of new york. as general counsel for the manhattan district attorney. that support includes the new york city police commissioner ray kelly, the new york association of chiefs of police and the national district attorneys association. carter phillips who served as assistant to the solicitor general during the reagan administration describes her as one of those extremely smart, thoughtful, measured, effective advocates and concluded she would be a first-rate judge. in fact, i ask unanimous consent to include a list of those

letters of support of miss halligan in the record at the conclusion of my remarks. the presiding officer: without objection. mr. leahy: you know, madam president, i have been here 38 years and occasionally see things that really disappoint me. this is one when i see narrow special interest groups seek to misrepresent her as a partisan or ideological crusader. she is not. everybody who knows her, everybody who has dealt with her, republican and democrat alike, say she is not. what they do say is that she is a brilliant lawyer who knows the difference between roles of legal advocate and judge. she will be a fair and impartial and outstanding judge. to oppose her for her work as an

advocate would be like saying we can't have this, a particular nominee, be a judge because the nominee was appointed to defend a murder and we're against murder. no, we're against the rule of law. we're against everybody who appears before a court to have good representation, whether we agree with their position or not. otherwise, our whole legal system falls apart. while serving as the solicitor general of the state of new york, she was an advocate representing the interests of her client. how often have we heard republican senators say that what lawyers do and say in legal proceedings should not be used to undermine their judicial nominations. chief justice roberts himself has made that point. chief justice roberts advocated for positions where i disagreed

with him, but he was supporting the position of the people he was an advocate for. and so i voted for him. i remember a number of republicans said of course, that's the only thing you should do because after all you think he's qualified. now i have republicans who tell me they feel she is well qualified, but either this special interest group or that special interest group is opposed to her and she took positions that they disagreed with. well, that's not the issue. is she qualified? did she stand up for her clients? her public service in the state of new york is commendable. she shouldn't be filibustered. vote yes or vote no on this nomination. voting to block it from coming to a vote and saying i don't have the courage to stand up and vote yes or no. i want to vote maybe.

it never comes to a vote if we filibuster it. i get to vote maybe. so i don't have to explain to people that even though she is far more qualified than people we voted for nominated by republican presidents, i didn't vote against her, i didn't vote for her, i voted maybe. that's not the way it should be. after all, if somebody is a good advocate, then they are representing our legal system, an adversarial system, one predicated upon legal advocacy for both sides. there's a difference between serving as a legal advocate and as an impartial judge. she knows that. she is a woman of integrity. no one who fairly views her nomination has any reason to doubt her commitment to serve as an impartial judge.

i always said when i practiced law, madam president, that i didn't want to walk into a courtroom and say the case is going to be determined whether i was plaintiff or defendant or whether republican or democratic, but that the case would be determined under the facts of the law. we have been fortunate in vermont, we have had many judges like that, judges appointed by republican governors, judges appointed by democratic governors, federal judges appointed by republican presidents, federal judges appointed by democratic presidents. in vermont, we have been happy because no matter what their positions have been before, they turned out to be impartial judges, which is what this good woman will be. practice is not only wrong but dangerous with the legal position she took in

representing her client in the state of new york to her personally and then take the additional leap, and it's a huge leap, to contend their personal views will override her commitment to evenhandedly apply the law. and then we have the other justifications. they said we have waited years for the filibuster over the years. well, the justification used two years ago to filibuster is gone. some contend the caseload of the d.c. circuit was not sufficiently heavy to justify her appointment. there are now four vacancies in the d.c. circuit. the vacancies have doubled during the last two years. the bench is more than one-third empty. this is reason enough, -- reason enough for senators to reconsider their earlier votes to filibuster. the senate responded to this case in 2008 when we agreed to decrease the number of d.c. circuit judgeships from 12 to

11. well, caitlin halligan is not nominated for that 11th seat. she is nominated for the eighth seat four times now. just a few years ago when the d.c. circuit caseload per active judge was lower than it is now, all republican senators, all republican senators voted to confirm nominees to fill the ninth seat, twice the tenth seat and the 11th seat on this court. when it had less of a caseload than it has now, they had no problem with number nine, ten, 11 to fill it. now you can't make the argument it was a higher caseload that we can't fill the eighth seat. in fact, the d.c. circuit caseload for active judges

increased 50% from 2005, 50% when the senate confirmed the nominee to fill the 11th seat in the d.c. circuit bench. the caseload in the d.c. circuit is also -- the caseload in the tenth circuit to which the senate just confirmed robert bacharach of oklahoma last week. i urge those who say that filibusters on nominations are unconstitutional, that the senate vote to end this filibuster. i urge those who said here on this floor that they would never support a filibuster of a judicial nomination, then vote to end this filibuster. i urge those who said that they would only filibuster in extraordinary circumstances to realize there are no extraordinary circumstances, so end this filibuster. i urge all those who care about the judiciary, the administration of justice, the

senate and the american people to come forward and end this filibuster. and lastly, madam president, again, i would urge senators to continue to filibuster, what you're doing is saying i vote maybe. i won't vote yes, i won't vote no, i vote maybe. senators, there are only 100 of us. we should have courage. we should have the courage to vote yes or vote no. end the filibuster, have a vote yes or no. this is what we heard the last time there was a republican president from republican senators. well, i agreed with them then when i supported john roberts for this seat and for the supreme court. let's do the same for this good woman. she is eminently well qualified.

madam president, i ask unanimous consent the senate proceed to executive session to resume consideration of executive calendar number 13, nomination of caitlin halligan. the presiding officer: is there objection? the senator from utah. mr. hatch: madam president, i would -- i would ask that the colloquy between the distinguished senator from tennessee and myself be as if in morning business. i would ask unanimous consent. the presiding officer: without objection. mr. hatch: okay. that would be fine. the presiding officer: without objection. mr. hatch: sorry, madam president. the presiding officer: the clerk will report. the clerk: nomination, caitlin joan halligan of new york to be united states circuit judge. the presiding officer: the

senator from utah. mr. hatch: i ask that the colloquy between the distinguished senator from tennessee and myself be as in morning business. the presiding officer: without objection. mr. hatch: i thank you. madam president, i rise today along with my colleague from tennessee to discuss two pieces of legislation we have introduced to restore liberty and protect jobs. the first bill, s. 40, the american liberty restoration act would repeal obamacare's unconstitutional individual mandate. the second bill, the american job protection act, would repeal obamacare's job-killing employer mandate. these two provisions were included in the president's health law for the purpose of raising revenues and an attempt to pay for all of the new spending under obamacare and to garner support from the private insurance industry. i would ask senator alexander if he will, has the so-called affordable care act lived up to the promises president obama made during the hoark bate --

health care reform debate to reduce health care costs and decrease unemployment? mr. alexander: madam president, i thank the senator from utah for his leadership on these two pieces of legislation and the answer is no, it hasn't lived up to the promises and let me take an example. the president often said in the debates leading up to the health care act that he would promise that if you wanted to keep the insurance you had, you would be able to do that. i'm afraid it's not working out that way. and here is why -- what happens is that businesses around the country are finding out when the health care law goes into effect fully, that they'll either have to supply a certain type of health care insurance, which in many cases, maybe as much as half the cases, is a better policy and more expensive policy than they're now offering their

employees, or they'll have to pay a $2,000 tax or fine to the internal revenue service. that means the employee if the business decides to do that, will -- will go into the exchange and lose the employer insurance that the -- that the employee has. and based on my experience in in talking to many, many businesses, there's going to be a massive rush by small businesses in particular and by many large businesses to stop offering employer-sponsored health insurance to their employees. and instead pay the $2,000 penalty or tax. and that means that all of those employees, most of them lower-income employees or

middle-income employees will lose the insurance they had and be in the exchanges looking for a new insurance policy. mr. hatch: madam president, i agree with my colleague. and thank him for his comments. i would also argue the individual mandate is unconstitutional. when the law was debated here in congress and later, when it was being litigated in the courts, proponents repeatedly argued that the individual mandate was constitutional under the commerce clause. that simply isn't the case. while the supreme court ultimately upheld the law on other grounds, the majority of justices agreed that the individual mandate was not a proper exercise of congress' power to regulate interstate commerce. i have to say that i agree with that conclusion. indeed, i'd say it's common sense that the power to regulate interstate commerce does not include the power to compel individuals to engage in commerce which is precisely what the individual mandate does. despite the court's overall decision, the american people see the individual mandate for

what it is. an affront to individual liberty. indeed, the vast majority of the american people know it violates our constitutional principles and cedes too much power to the federal government. that is why in poll after poll, the majority of americans support repealing the mandate. i would also ask the distinguished senator from tennessee, senator alexander, to share his views about the mid vantd if he has any additional views. mr. alexander: i agree, madam president, with the senator from utah. i think he stated clearly what the constitutionality is, and he has been its most -- the most forceful advocate of that. as i think about the legislation that we're talking about, i'm thinking also about the employer mandate, and the requirement that, as i mentioned earlier, employers pay $2,000 if they don't offer insurance or $3,000

penalty if they offer the wrong kind of insurance. i would say to the senator from utah that we're making it more difficult to lower the unemployment rate in this country, which has stayed too high with 12 million people unemployed, when we keep loading up employers with costs that make it more expensive to hire an employee. i mean, if you make it more expensive to hire an employee, you don't give the employer an incentive to hire more people. you discourage the employer from hiring more people. and i wonder if i might ask the senator in thinking about the employer mandate, if he agrees that employers across the country are considering reducing their number of employees, having more part-time employees, as a way of dealing with this new cost of the

employer mandate, which is a part of the health care law. mr. hatch: the answer to the distinguished senator from tennessee, that's certainly the case. there are various reports and analyses of this that indicate that a significant number of employers will not -- would rather just pay the penalty and not come up with the -- with -- meeting the particular requirements that the affordable care act seems to require. and on top of the unconstitutional individual mandate, this job-killing employer mandate is a real problem. under the president's health law, employers with more than 50 full-time employees are required to offer coverage as the distinguished senator from tennessee said that meets a minimum value or pay a penalty of thousand dollars per employee. the senator from tennessee i think explained this well. if the employer does offer coverage, that coverage does

not meet the minimum value, that employer must play $3,000 per employee. i never heard of such a ridiculous approach towards a business. not surprisingly, the penalty under this provision costs less than offering coverage. according to the kaiser family foundation, the annual survey of employer-sponsored health insurance, average annual premiums are $5,615 for single coverage and $15,745 for family coverage. the penalty for a employer who doesn't offer -- does not offer health insurance is only $2,000 per employee. that being the case, the law does not incentivize employers to offer the employees health insurance. instead, it does exactly the opposite. rather than footing the full cost of providing health coverage, many employers i think are going to take the less expensive route and simply pay the penalty as the distinguished

senator from tennessee has so well mentioned. even worse, many employers that currently do offer their employees health benefits under current law will likely drop the benefits and instead choose to pay the penalty. studies are already showing this is the case or this will be the case. an employer survey done by mckenzie and company found that 30% of -- quote, 30% of respondents who said their, offered health insurance said they would definitely or probably drop coverage in the years following 2014, unquote. so despite the president's claim to the contrary, obamacare does not preserve the employer-sponsored health insurance market. it dismantles it. as a result, the president's promise of those who like their health insurance and would be able to keep it falls by the waysideside. i believe the senator from

alexander is also concerned about the fact that the president's law defines small employers as those with less than 50 employees. in addition, i thought this law was supposed to create jobs. the president claimed that it would. so, again, i'd just turn to my colleague from tennessee, does he think that has been the case? do you think the president has been right about that? mr. alexander: no, i would say to my friend from utah, i'm afraid the president was mistaken about that. and we've talked about some specifics but let me give some very specific examples of why i believe that's true. some time ago i met with a large group of chief executive officers of restaurant companies in america. now, restaurant companies are the largest employers in america of low-income, young, usually minority people. these are americans who are often getting their first job, or they're americans of any age

who are trying to work their way up the economic ladder. starting with a lower-paying job, a job that doesn't require as many skills, and hoping that instead of having a minimum wage, they'll end up someday with a maximum wage. but in order to get that maximum wage, they have to get on the ladder. they have to start somewhere. here's what i was told: the chief executive officer of ruby tuesdays which has 800 restaurants said to me fat tath and he didn't mind being quoted that the cost to his company of implementing the new health care law would equal his entire profit for the company last year. and that he wouldn't build any more new restaurants in the united states as a result of that. i would look to expand outside. another even larger strawnlt company said because of their analysis of the law instead of operating their stores with 90 employees they would try to operate their stores with 70

employees. so that means fewer employees, it means fewer employees receiving employer health care, and then almost every other restaurant said they were looking for ways to have more part-time employees so that they didn't have to incur the expense of the new health care law. so at least with that industry and those low-income, usually minority, often young employees, the jobs are going away because of the hack law and with those jobs goes whatever employer health insurance is being offered by those companies. mr. hatch: complaints by the restaurant co industry, but a lot of small businesses are looking not to hire more than 50 people and also are looking to cut their employees' work hours down below 30 hours a week in order to avoid these massive

costs that would incur to them. the employer mandate is a drag on our economy forcing too many of our nation's job creators to stop hiring to comply with the onerous provisions in the president's health law. instead of letting the federal government dictate how employers should allocate resources, we should we repeal this job-killing mandate and let businesses freely manage their personal needs. mr. alexander: i certainly agree with the senator from utah and that's the purpose of our legislation. we could offer more examples. "the wall street journal" article on february 22 of this year said -- quote -- "many franchisees of red lobster, k.f.c., taco bell, the kind of companies i was just talking about, have started to cut back on full-time employment though many are terrified to talk on the record, the article referenced a 2011 hudson

institute study that estimated the employer mandate will cost the franchise industry $6.4 billion and put 3.2 million jobs at risk. mr. hatch: i couldn't agree more with the senator from tennessee and i ask unanimous consent an article under "politico"'s banner, under a.c.a. employer mandate could mean fewer jobs. i'd ask unanimous consent that be placed in the roshed at this point. the presiding officer: without objection. mr. hatch: i thank my clique colleague from tennessee for working with me on these critical issues that impact every american and i'll conclude with a quote from a small business owner who is concerned about what the company quill will company come january 1 if these mandates remain in place. he wrote saying under obamacare -- quote -- "we will have to choose who will work 30 or less hours a week which in turn is bad for our business because we have to train more people to do one job.

it is bad for our commerce because they will have -- customers because they will have to interact with different employees who may not know their needs as well. it's most devastating for the employee because the employee's hours will be cut. if we want to turn this economy around government mandates must be repealed. our job creators cannot grow and innovate with these heavy-handed regulations coming from washington broths who have no clue how to run a business. we must work together on this important issue for the sake of the individuals working three jobs at a time to make ends meet, for employers trying to keep workers on the payroll and for the nation as a whole to put our economy on the track and keep us globally competitive. at least that's my viewpoint and certainly the viewpoint of my small business colleague there in utah. mr. alexander: i thank the senator from yult utah for this opportunity to have a colloquy

with him and i ask unanimous consent to place in the record letters from the chamber of commerce of the united states, the national refail tale federation, each of which strongly supports our legislation and makes the points we have made about the employer mandate. the presiding officer: without objection. mr. hatch: i thank my colleague from tennessee and once again want to thank him. i'm hoping others will hear our call for support and join us in these two crucial efforts to protect individual freedom and maintain our system of free enterprise. it has built this country and made at this time greatest country in the world. i thank my colleague for his comments here today. mr. alexander: thank you, madam president. i see the senator from maryland waiting. i wonder if we're through with our colloquy if the senator would allow me two or three minutes to correct a mistake on i made on the floor of the senate last week. confessing -- confessing error. i came to the floor following the vote on the hagel nomination

to point out the difference between a vote against cutting off a premature motion to cut off debate, which i thought the majority leader made, and an effort to kill a nomination with a filibuster which are two different things and i pointed out, correctly, that in the history of the united states senate, we've never denied to a district judge nominee his or her seat because of a filibuster. and i don't believe we should. and i pointed out that we've never denied a cabinet nominee his or her seat because of a filibuster, with the exception of john bolton which -- who the democrats filibustered, some presidents count that in that nomination to the u.n. in their cabinet, and some don't. i then went on to say that -- incorrectly -- that on appellate judges that the

democratic majority had filibustered and killed ten of president bush's nominations and republicans had in response denied two appellate judge seats by -- by filibuster. senator schumer of new york, ever wary of what i might say, corrected me and -- and said it was less than that. so i've consulted with him and his staff, and the score is actually 5-2. the correct result is that there were no instances before george w. bush became president, and the senator from utah knows this story very, very well, no instances of an appellate federal judge being denied his or her seat because of the filibuster. then our friends on the democratic side invented the idea of filibustering district

judges, and denied a -- and voted against a whole series of president bush's nominees just as i came, miguel estrada, priscilla owe yen, janice brown, and then four more in 2004, william meirs, david mckeying, henry sand, richard griffin. then we had a cooling of -- of tempers and a coming to our senses here and a gang of 14 bipartisan group said we don't want to make this a new precedent and we agreed, there was a consensus anyway that except in a case of extraordinary circumstances would there be a denial of a nominee of an appellate judge by a cloture vote. so then five of those ten bush nominees were approved. so the accurate facts -- and the schumer staff and my staff agree with this, and if anybody thinks it's wrong, i'd like to know -- that only in five cases

have democrats denied a republican president an appellate judge nominee by filibuster, and only in two cases have republicans denied a democratic president's nominee by filibuster in the case of appellate judges. and as i said when i began, the answer is never in the case of district judges and never in the case of cabinet members with the possible exception of john bolton. i'm glad to come to the floor and correct the record and i thank senator schumer for his diligence in noting my error. the presiding officer: the senator from utah. mr. hatch: i ask unanimous consent that we return to the nomination -- to the halligan nomination and ask further unanimous consent that i be permitted to speak immediately following the distinguished senator from maryland. the presiding officer: without objection.

mr. hatch: thank you. mr. cardin: madam president? the presiding officer: the senator from maryland. mr. cardin: madam president, i'm taking this time on the floor to speak in support of the nomination of caitlin halligan to be u.s. circuit judge for the u.s. court of appeals for the district of columbia circuit. and i think my comments are at the right time following senator alexander's comments about the difficulty we've had in the past in confirming judicial nominees. and the use of the filibuster that blocked the consideration of presidential nominees. senator alexander pointed with pride to an accommodation that was reached a few years ago, before i got to the united states senate, that pointed out that the filibuster would only be used in, quote, extraordinary circumstances. ms. halligan was first nominated

by president obama in september, 2010, after that accommodation had been reached and i'm disappointed her nomination with us filibustered nearly on a party-line vote in december of 2011. and i urge my colleagues to allow an up-or-down vote on ms. halligan's nomination. i just challenge my colleagues who oppose an up-or-down vote to come to the floor and explain the extraordinary circumstances that would prevent an up-or-down vote on ms. halligan's nomination. she is extremely well qualified for this position and i will support her nomination. the senate judiciary committee favorably reported her nomination last month. the american bar association's standing committee on federal judiciary unanimously rated mrs. halligan well qualified to serve on the d.c. circuit, the

highest rating from its nonpartisan peer review. miss halligan received her a.b. from princeton university and her j.d. from georgetown university law school. after law school, she clerked for the supreme court justice steven breyer and for judge patricia walt and the d.c. circuit, the court upon which she is now nominated. after working in private practice, she joined the new york state attorney general's office. she began working in the office as the first chief of the office's internet bureau, where she worked to protect consumers against internet fraud and safeguard on-line privacy. she was ultimately promoted to the position of solicitor general, a position she held for six years. solicitor general is basically the top attorney for the state of new york. in that capacity, she managed a staff of nearly 50 appellate attorneys litigating in state and federal appellate courts. her responsibility included

handling cases of public corruption and judicial misconduct. she then became a leading appellate lawyer in private practice at a national law firm, serving as counsel of record for a party or amicus curae in nearly 50 matters before the united states supreme court. she is well qualified for the position that president obama has nominated her for. she is currently general counsel at the new york county district attorney's office, an office that investigates and prosecutes 100,000 criminal cases annually in manhattan. in her current position, she is focused on reducing crime, protecting victims of domestic and sexual violence, and reviewing so-called cold cases that remain unsolved. most of mrs. halligan's career has been dedicated to public service and law enforcement. she's also made time over the years to devote substantial time to pro bono work, including

representing the evacuees from hurricane katrina and rita, who were in danger of losing their rental assistance benefits. she's also served as pro bono counsel to the board of lower manhattan development corporation, the entity that is overseeing the rebuilding of lower manhattan following the terrorist attacks of september the 11th, 2001. she has her priorities straight. she's an outstanding attorney that has used a lot of her time to help people less fortunate, who received free legal services as a result of her participation. miss halligan has received widespread support from law enforcement and legal professionals across the political spectrum, which i understand will be made part of the record so i won't repeat those statements now. madam president, i've heard only two substantial reasons in opposition to her nominee, so let's review those two points that have been raised to see whether they are extreme

circumstances that warrant a vote to support a filibuster. last time we had over 40 senators who supported the filibuster, basically blocking an up-or-down vote. we had an accommodation that that would only be used for extraordinary circumstances. let's take a look at the two cases that have been made about why those extraordinary circumstances may exist. and i will submit they do not exist. one argument is that mrs. halligan is a liberal advocate who cannot set aside her personal views on issues, including the second amendment. the other argument is that the d.c. circuit caseload is too low to justify additional judges. mrs. halligan was questioned about her views on the second amendment issues during her senate judicial committee hearing. she testified both at her hearing and in response to written questions that she would faithfully follow and apply the supreme court precedent from the district of columbia v. holler and mcdonald v. chicago,

which held the second amendment protects an individual right to keep and bear arms for self-defense. when asked by senator grassley whether the rights conferred under the second amendment are fundamental, miss halligan answered, "that is clearly what the supreme court held and i will follow that precedent, senator." some have also criticized her for her position she advocated while solicitor general for the state of new york. in her confirmation hearing, she made it clear that she filed these briefs at the direction of the new york attorney general, arguing on behalf of the new york state, not her own views. that was her responsibility as solicitor general, to represent her client, the state of new york. and, of course, she has worked on controversial issues before the -- before the state of -- for the state of new york, such as affirmative action, the death penalty and same-sex marriage. as new york solicitor general, she argued in support of affirmative action, in defense of the constitutionality of the death penalty, because that's what her client's position

service and she represented her client. that is what she's supposed to do. that's what a lawyer does. to represent her client as best as she can. and she did that well on behalf of her client, the state of new york. but i will remind my colleagues what chief justice roberts said during his supreme court confirmation hearing. in terms of attributing the views of a client to an attorn attorney. chief justice roberts testified that -- and i quote -- "it's a tradition of the american bar that goes back before the founding of the country that lawyers are not identified with the positions of their clients." we should apply the same standard when considering mrs. halligan's nomination. as our legal system requires vigorously to advocate on both sides of a dispute. and i quote chief justice roberts here in part because mrs. halligan's quite remarkably

has been no nominated in 2013 to fill chief justice roberts' former seat in the d.c. circuit, which became vacant in 2005. and this brings notice the second argument that's -- and this brings me to the second argument that's been used, and i just urge my colleagues to consider whether this is an extraordinary circumstance that justifies a vote in support of a filibuster. the second argument is that this court of has a low caseload, which is just not the case. chief justice roberts was elevated from the d.c. circuit to the supreme court in 2005. his seat has been vacant for eight years, one of the longest circuit vacancies in the country. the d.c. circuit has four vacancies on the 11-member cou court. madam president, that's one-third of the court that are currently unfilled. mrs. halligan's been nominated by the president for the seat formerly held by chief justice

roberts, so, of course, the senate should act as quickly as possible to fill this seat. the d.c. circuit is only referred to as the second most important court in the land due to the complexity and importance of its caseload. the court regularly reviews highly technical decisions and rule making of federal agencies that are based in washington, often without a lower court's decision of a federal district court. the d.c. circuit proclaims the final law of the land for many environmental, health, labor, financial, civil rights, and terrorist cases. the supreme court only accepts a handful of cases each year so the d.c. circuit is often the last word in these cases. according to the administrative office of the u.s. court, the caseload per active judge in the d.c. circuit has increased 50% since 2005, when this vacancy was created. it was also the year that the

senate confirmed president bush's nominee to fill the 1 11th seat on the court. let me repeat, we in 2005 confirmed president bush's 11th seat of the 12-set court. justice delayed is justice denied. to remind my colleagues, the senate confirmed president bush's nominees for the ninth, tenth, and 11th seat on the d.c. circuit. mrs. halligan is president obama's first nominee to the district circuit to fill the eighth seat. the senate confirmed four of president bush's nominations to the d.c. circuit, twice filling the tenth seat and once filling the 11th seat. so, madam president, there is no extraordinary circumstance that exists here. let's be clear with that. a vote against moving forward is filibustering a judicial nominee in an effort to kill the nominee and not allow an up-or-down

vote. there are no extraordinary circumstances that would justify the delay in not allowing us to have an up-and-down vote. i would iri would urge my colleo vote for us proceeding and not using the filibuster to adhere to the agreement that was reached. again, before i got to the senate. it was the right agreement. there should truly be an extraordinary circumstance before obstructing an up-and-down vote on a judge. it should not exist in this case. president obama's nominee is well-qualified. the court is in desperate need of additional judges, being four seats today, only two-thirds of the bench being appointed and confirmed today. i irk m urge my colleagues to vn favor of proceeding and then when we have the nominee before

us, i would hope my colleagues would join me in supporting the confirmation. i think that ms. halligan will make an outstanding member of the d.c. circuit. with that, i would yield the floor. mr. hatch: madam president? the presiding officer: the senator from utah. mr. hatch: madam president, do we have -- we have before us one of the most activist judicial nominees that we've seen in years. rather than choose a more consensus nominee, president obama has chosen to again provoke a political confrontation. this is unnecessary, divisive, and not in the best interests of either the judicial selection process or the judiciary itself. the constitution gives the power to appoint judges to the president, not to the senate. i believe, therefore, that the senate owes the president some deference with respect to nominees who are qualified by both legal experience and, more importantly, judicial philosophy. a nominee whose record shows that she has an activist judicial philosophy is simply not qualified to sit on the

federal bench. and the senate owes the president no deference under those circumstances. that is the kind of nominee we have before us today. nothing has changed since a cloture motion failed on this nominee in december 2011. well, that might not be quite true. one thing that has changed is that the need to fill another vacancy on the d.c. circuit is even less today than it was then. year after year, h., case filings decrease for the d.c. circuit while they increase for the rest of the judiciary. year after year the d.c. circuit ranks less among the 12 geographical circuits in the number of appeals found per three-judge panel. the court has even canceled argument days because of an insufficient docket. i would remind my friends on the other side of the aisle that the d.c. circuit caseload today is lower than when they used this

argument to block president bush's nominees to this court. which they did. now, looking at the nominee herself, caitlin halligan was a member of the board and titled the report "the indefinition report of 'enemies within a court'." based on policy, rather than legal grounds, it makes left-wing arguments that courts and even the obama administration itself have repudiated. though she tried to distance herself in the report's left-wing positions at her confirmation hearing, halligan signed rather than be a stained from the report as four other committee members have done and never repudiated it before her

hearing. if she were a republican nominee, my friends on the democrat side would be calling this a confirmation conversion. her report argued that the authorization for the use of military force or aumf does not authorize indefinite detention of enemy combatants. the supreme court rejected this in hamdi v. rum felled. the obama administration has sought and the d.c. circuit has adopted a broad construction of the aumf. halligan's report argued that alien terrorists should be tried in article 3 courts with full constitutional protections rather than in military commissions. on march, 2011, president obama signed an executive order reestablishing military commissions for enemy combatants held at guantanamo bay but halligan's extreme record goes beyond that report. she also authored a legal brief

in 2009 arguing that the aumf does not authorize the seizure and long-term military detention of lawful, permanent resident aliens. now, this position again disregarded the supreme court's holding in hamdi v. rumsfeld and appears to conflict with the obama administration's justification of assassinating american citizen alaki. she just won't take no for an answer when pushing such extreme views, not even from the d.c. circuit or the supreme court itself. that is the classic definition of judicial activism, trying to use the courts to advance a political agenda no matter what the law is. as solicitor general of new york, halligan aggressively sought to hold gun manufacturers libel for criminal acts committed with handguns. in one speak she said that the federal protection of the act

"would nullify lawsuits including one brought by my office that might reduce gun crime or create greater responsibility among gun dealers." the senate voted overwhelmingly for this legislation in july 2005. once again halligan turned to the courts to push her personal political views, filing a legal brief challenging the law's constitutionality. in new york v. sturm and ruder, she manufactured that gun manufacturers are a "public nuisance" of the illegally possessed handguns. the new york court of appeals rejected halligan's activist approach concluding that "the legislative and executive branches are better suited to address the societal problems concerning the already heavily i have regulated commercial activity at issue." attempting to address social problems in the judicial rather than the legislative branch is the hallmark of judicial being

aively. -- activism. other legal briefs she has filed demonstrate extreme views. halligan argued that pro-life protesters should be prosecuted under the federal racquet tearing statute because they somehow engage in extortion. the supreme court voted 8-1 to reject that position. and in hoffman classic compounds ring v. nlrb the supreme court rejected halligan's position that the nlrb can grant back pay to illegal aliens. talk about extreme. as i said, the senate owes the president some deference with regard to his nominee who are qualified by their legal experience and more importantly their judicial philosophy. republicans have consistently cooperated with the president and will continue to do so. but when a nominee's record

clearly shows that she has a politicized view of the courts, i for one have to say "no." the political ends do not justify the judicial means. i urge my colleagues to oppose this nominee, and i yield the floor. a senator: mr. president? the presiding officer: is noter from north dakota. mr. hoeven: i rise to speak as if in morning business. the presiding officer: without objection. mr. hoeven: mr. president, last week the u.s. state department issued its new environmental review for the keystone x.l. pipeline. this is the fourth environmental review in nearly five years of study and unpricingly it said

the same thing as all the other reports have said. the keystone x.l. pipeline will have no significant impact on the environment. ironically, the report indicates that there will be more emissions if you don't build the pipeline than if you do build the pipeline. soy let's go through that -- so let's go through that. the keystone x.l. pipeline project is the most thoroughly studied academlong-delayed project of its kind in u.s. history. the state departmentst favorable finding in its most recent report underscores the good government stewardship -- the good environmental stewardship of this project and the need to begin construction without further delay. but the state department now indicates that it will hold a 45-day comment period and as yet

an undefined period of time before it will issue a final environmental impact statement. then it will conduct an inner agency comment period to make its national interest determination. so while we welcome the finding of no significant impact for the fourth time now, we've got yet another indetermine national delay, which runs counter to both public opinion and reasonable due diligence. after four environmental reviews and favorable results, the president needs to approve the pipeline project without delay because there remains no excuse not to do it. the argument that be advanced that the oil sands will increase carbon emissions and that failing to build the keystone x.l. pipeline will somehow reduce emissions. butes most recent -- but the most recent state department

report makes clear that this contention is false. the report actually indicates just the opposite, that if the pipeline is not built from alberta, canada, to the united states, the oil will still move to market, but it's going to move to china, from canada's west coast. now to get the product to china, the oil will be shipped in tankers across the pacific ocean to be refined in overseas facilities with weaker environmental standards understand thastandards and more united states. the united states, moreover, will continue to import oil from the middle east, again on tankers. factor in the cost of trucking and railing the product to market over land and the result contrary to the claims of its opponents will be more emissions and a less secure distribution system than if in fact we build the keystone x.l. pipeline project. let's just look at it. i mean, this is a commonsense

argument. so the report indicates less emissions if we build the project. yet it's being held up by extreme activists on the basis that, oh, if we build the pipeline, somehow we get more emissions. that's just not the case. with the pipeline from up in the edmonton, alberta, canada, region, the pipeline brings oil down right in the north dakota/montana area where this picks up light sweet crude from the packen. -- from the bakken. the oil then goes to refineries in oklahoma, texas, and louisiana. the domestic oil from our country, oil from our closest friend and ally, canada, that we're using in our refineries for our customers. more energy, more jobs, more economic activity so we get economic growth, we get revenues to real estate duce the debt and the -- reduce the debt and the deficit without raising taxes. and you know what?

it is a national security issue. instead of having tankers coming from the middle east bringing heavy crude, which in fact has higher emissions than the canadian oil, we rely on oil from our country and canada. we get what americans want, no longer depending on the east for our -- on the middle east for our i will. if we don't build the pipeline, the oil is still produced. this oil will be produced but it won't come to the united states. it's going where? it's going to china. and it's going to be sent on tankers over to china, so you've got not only the emugses of those -- emissions of those tankers but it will be refined in chinese refineries which have worse environmental standards and we continue to bring in oil from the middle east. that makes no sense. and that's why 70% of the american people say, approve the project. only 17% have indicated opposition. so this is about president obama making a decision for the

american people rather than for special interest groups. in my home state of north dakota, like i say, it will put 100,000 barrels of day of light, sweet bakken crude into that pipeline. that takes 500 trucks a day off our roads. that's a safety issue. that's an issue for our roads in western north dakota. well, to recount briefly, this is a $7 billion high-tech pipeline project, will bring 837 barrels of oil a day from alberta, canada, from refineries in oklahoma, from the texas gulf coast including 100,000 barrels a day of light sweet crude from north dakota and montana. as the most recent state department report confirms, it will create tens of thousands of jobs during the construction phase. it will boost the american economy and raise much-needed revenue for state and local governments at a time when they

very much need them and do it without raising taxes. perhaps most importantly, it will put our country within striking range of a long-sought goal, and that is true energy security. for the first time in generations, the united states, with its close efpt -- closest friend and ally canada has the potential to create more than energy that it uses. yet, even after an exhaustive review process, the backing of the majority of congress and the overwhelming support of the american people, the keystone x.l. pipeline project continues to languish at the hands of the president of the united states. we again ask, as we have before, that president obama and secretary of state kerry provide us with an actual time line and

some certainty as to when this long-delayed project will finally get approved. the keystone pipeline project will provide tens of thousands of jobs and hundreds of millions of dollars in revenue to help us reduce our debt and our deficit and it will do it with good environmental stewardship. mr. president, with 70% of the american people in support of the keystone x.l. pipeline project and 12 million americans still out of work, there is no reasonable excuse to delay this project any longer. thank you, and i yield the floor. i also note the absence of a quorum. the presiding officer: the clerk will call the roll. quorum call:

quorum call:

quorum call:

a senator: mr. president? the presiding officer: the senator from kansas. mr. roberts: mr. president, i ask unanimous consent that the quorum call be dispensed with. the presiding officer: without objection. mr. roberts: mr. president, i ask unanimous consent that i may be recognized for 15 minutes as if we were in morning business. the presiding officer: without objection. mr. roberts: thank you, mr. president. my colleagues, i rise today to introduce a bill that has a long

title, improve nutrition program, integrity, and deficit reduction act of 2013. big title, but it's a good bill. last june, i stood here in this body along with chairperson stabenow of the agriculture committee to encourage my colleagues to pass bipartisan reform legislation known as the farm bill. the legislation we put together in the senate ag committee would have strengthened and preserved the safety net for our farmers and ranchers while also being responsible to taxpayers by providing billions of dollars for deficit reduction. at the time, we were told by the congressional budget office, the c.b.o., that the farm bill passed by the agriculture committee, one of the first bills, by the way, we were able to pass under regular order, and in record amount of time, two and a half days, but the c.b.o. estimated at that

time the farm bill passed by the senate would save $24 billion over ten years. including $4 billion from the nutrition title. however, according to the latest c.b.o. projections, a projection that have really reverberated in farm country, released just last friday, the farm bill we passed last year would now only save $13 billion and no longer represents any savings in the nutrition title. we could have done more last year and we must do more this year to rein in the largest expenditure within the department of agriculture's budget. no, it doesn't go to farmers. we're talking about specifically the supplemental nutrition assistance programs called snap, more commonly known as food stamps. now, in the context of sequestration, snap was exempted from any across-the-board cuts along with

medicare, medicaid and social security. it was in that pasture. a lot of other things were in a different pasture, especially national security. however, it is clear that there are several areas within the program that could provide significant savings that were, unfortunately, left untouched. now, the legislation that i introduce today along with senator johanns and senator thune, builds off several amendments previously offered in a piecemeal fashion. we've wrapped them all together. each that should be enacted but combined in this bill represents over $36 billion in savings. by eliminating loopholes, duplicative programs, unnecessary bonuses, inflation adjustments and restricting lottery winners from receiving benefits, this legislation will instill and restore integrity,

integrity to the snap program while still, still providing benefits to those truly in need. i really ought to repeat that. this restores integrity to the snap program while still providing benefits to those truly in need. i'm not proposing a dramatic change in the policy of nutrition programs. instead, this legislation enforces the principles of good government and returns snap spending to much more responsible levels. while saving over $36 billion, our legislation also makes commonsense and comprehensive reforms to the snap program, the food stamp program, that can and should be enacted immediately. over half of the snap food benefits in our country are utilized by households with children and snap can play and does play a critical role in helping people put food on the table in times of need.

however, at least 17 states -- i'm sorry to report, 17 states -- are gaming the system. by designing their low-income home energy assistance program, the acronym for that is lie hip, a very -- liheap, a very commonly used term in the nutrition programs and the energy programs -- but these 17 states designed their program to exploit the food stamp program. this is not right, mr. president. it's not right. the liheap loophole works like this: a participating state agency annually -- or the agencies annually issue streel extremely low -- extremely low liheap benefits to qualify for otherwise ineligible households for standard utility allowances which then result in increased monthly food stamp benefits. for example, today a state

agency can issue $1, only $1 annually in liheap benefits to increase monthly food stamp benefits on an average of $90 a month, that's 1,080 per year for households that otherwise do not pay out-of-pocket utility bills. that's not right. last year senate farm bill included a provision to tight ten liheap loophole even though it would only reduce the loophole, it set the minimum qualifying liheap benefit at $10 annually, not $1. at the time it would have saved taxpayers nearly $450 million every year for a total of $4 billion over a ten-year period. now, completely eliminating the liheap loophole as my legislation does will save taxpayers $12 billion. now, let me be very clear about this. eliminating the liheap loophole does not, does not affect snap eligibility for anyone using the

food stamp program. eliminating the liheap loophole would only decrease snap benefits for those who would not otherwise qualify for the higher snap benefits, the food stamp benefits. let me point out another area that must be reformed. states using categorical eligibility or automatic eligibility to provide food stamp benefits. categoric -- categorical eligibility is simply known as cat-l. it was designed to help streamline the administration of the snap program by allowing households to be certified as eligible for the food stamp benefits. and be certified without evaluating household assets or gross income. , a previous requirement. now, 42 states,

unfortunately, -- i don't like to report these kind of things but, however, 42 states are exploiting an unintended loophole of the taxpayer assistance needly -- temporary assistance needy family programs and simply provided informational brochures and informational 1-800 numbers to maximize the food stamp enrollment. and the corresponding increase in federal food benefits. these states are gaming the system to bring otherwise ineligible snap participants into the program. now, my legislation ties categorical eligibility to cash assistance, thereby eliminating this loophole. that saves taxpayers $11.5 billion, a lot of money. to be clear, this represents a cut to snap food benefits. however, this amount represents the amount of benefits to people who would not otherwise be

eligible for these benefits were it not for states gaming the system. in an ongoing effort to streamline government programs and reduce redundancy and taxpayer spung spending, we should also look at the unnecessary spending in federal employment and training programs. according to a g.a.o. report last year, there are currently 47 such programs that annually cost $18 billion. let me repeat that. 47 different programs annually costing $18 billion. federal employment and training programs. nobody would object to a federal employment program given the problem we have with our economy with 47, according to a g.a.o. report, $18 billion, eliminating the duplicative snap employment and training program would save more than $4 billion would not affect snap food benefits. i repeat. this legislation, this provision of this legislation would not cut the buying power of any food stamp household to

put food in their refrigerators and also their kitchen cub boards. what -- cawpboards. what am i talking about? in addition to the baseline funding program we're talking about, with employment and training, help, states have the option of providing their own funding to their state education and training program. then the department of agriculture is required to match that. currently four states receive over 80% of the total 50-50 match funding. four states, 80%. what about the rest of the states? they include new york, california, pennsylvania, and new jersey. new york, 37%, california 1%, pennsylvania about 13%, new jersey about 10%. this optional 50-50 federal match is uncapped. it can be used by states to provide reimbursement for participant expenses in regards to education and training deemed

reasonable and necessary. ah, but somebody has to define reasonable and necessary. and the following items have come under reasonable and necessary, especially in these four states. union dues. union dues. test fees. clothing, and tools required for the job. relocation expenses, licensing. bonding fees. transportation, childcare, tennis lessons. i made that up, mr. president. i thought it would catch your attention. there are no tennis lessons in here. might be, could be, but at least in regards to this reform, let's go to another provision 6 my legislation, it ends the practice of giving $48 million in awards every year to state agencies for basically doing their job to ensure proper use of the american tax dollar. currently bonuses are given to

states for best program access, signing up as many people for food stamps as possible. most improved program access, how many more people signed up for snap compared to the previous year. so if you sign up more people then you sign up more than the last last year you get an award. best application processing timeliness. that's handling applications within the required guidelines. and we're getting a benefit from that. mr. president, state agencies are rewarded for performing the minimum expectations for stewardship of the food stamp program and also of the american tax dollar. the bonuses are not even required to be used for food stamp administration. a recipient state may choose the funding for any state priority. so if we're talking here about 48 million bucks, that goes to

state agencies that had these four -- these four oscar awards in regards to food stamps, and -- but they can use the funding for anything, for any state priority. eliminating these unnecessary state bonuses will save taxpayers over ten years $480 million. another area where my legislation streamlines government programs is through the elimination of the snap nutrition education grant program. a number of existing nutrition education programs are delivered more equitably with a more cost beftd ratio that makes -- cost benefit ratio that makes sense. at least six programs by the national institute of health, land grant university extension programs. in practice, the snap education program is inekably distributed with the top four states receiving over 54% of the funding, the bottom 33 state

agencies receive less than 1% of the total. funding. that's not right. with credit to senator rubio. additionally, our bill ends inflation adjustments for countable resources and for emergency food assistance, saving over 600 million. the legislation also terminates the ongoing stimulus of several years ago, the american recovery and rereinvestment act of 2009, which provided extra funding to increase monthly snap food benefits, food stamp benefits. finally, the legislation does prohibit lottery winners, as senator stabenow insisted on that, makes a lot of sense, from receiving snap benefits and

keeps freshmen them from receiving new benefits if they do not meet the financial requirements of snap. overall, by eliminating several duplicative programs, closing loopholes, ending the unnecessary spending, improving the nutrition program integrity, and deficit reduction act will save taxpayers over $36 billion. latest score by the c.b.o. i understand the importance of domestic food assistance programs from any hard-working americans, including many kansans. i know that. back in 1996 when i was chairman of the house ag committee there was an effort to send the food stamp program back to the states, and the governors wanted it, they wanted the money, didn't they didn't want the food stamps. and we made an effort under a very historic farm bill at that time to save but reform and restore integrity to the food stamp program. we have another opportunity right now. so i do understand the

importance of domestic food assistance programs for many hard-working americans and kansans. my goal is very simple. again, restore integrity to the supplemental nutrition assistance program in a commonsense and comprehensive manner. enacting this package of reforms will allow the federal government to continue to help those that truly need food stamp, food benefits and assistance. again, i want to thank senators thune and johanns for their assistance in this effort. i look forward to working with my colleagues to enact these reforms for the benefit of all americans. i yield back, mr. president, and after very careful notice, i note the absence of a quorum. the presiding officer: the clerk will call the roll. quorum call:

worrquorum call:

mr. mccain: mr. president, i ask unanimous consent that further proceedings under the quorum call be suspended, and i be allowed to speak to the senate as if in morning business. the presiding officer: the senator from arizona, without objection. cane cannes thank the president. -- mr. mccain: thank the president. came to speak about a resolution that i've introduced that calls on the president of the united states pos posthumously par done worlafrican-american catch on. i'm proud to be joined by harass rye reid and the senator from mass marks senator cowan. i would point out that the majority leader of the senate was once an excellent fighter himself, a great skill and agility which he continues to display here as majority leader of the united states senate. i'd also like to thank him for his commitment to the sport of

boxing and for joining me again in attempting to do justice to a man that was done a great injustice. for my colleagues who may no not familiar with the story of the late-jack johnson, he is considered to be one of the great. he was born in galveston, texas, in 1878, to parents who were former slaves. at of an early age he realized his talent for the sweet science. in order to make a living, he traveled across the country fighting anyone willing to face him. but he was denied repeatedly on purely racial grounds a changes to fight for the world heavy weight title. for too long african-american fighters were not seen as legitimate contenders for the championship. fortunately, aves years of perseverance, he was finally granted an opportunity-to-in 1908 to fight the then-reigning

titleholder tommy burns in sydney, us a trail j. even though the fight lasted 14 rounds, johnson defeated burns to become the first african-american heavy weight champion of the world. mr. johnson -- jack johnson's success in the ring and sometimes indulgent lifestyle outside of it fostered resentment among many and raised concerns that his continued dominance in the ring would somehow disrupt what was then perceived by many as a racial order. so as history tells you a search for a caucasian boxer who could defeat johnson began. this recruitment effort became known as the search for "the great white hope." this so-called hope areid in the person of former champion jim jeffries who returned from retirement to fight johnson in 1910, johnson went on to defeat

jeffries and as a shameful consequence, race riots broke out in several cities as many sought to avenge jeffries' defeat. following the loss of the great white hope, the federal government launched an investigation into the legality of johnson's relationships with caucasian women. at that time the mann act, enacted in 1910, outlawed the transport of caucasian women across state lines for the purposes -- for the purpose of processtprostitution or did he r "for any other immoral purpose." using the "any other immoral purpose" clause is pretext, federal law enforcement officials set out to get jack johnson. on october 18, 1912, the federal government got their man. on that day, johnson was

arrested for transporting his caucasian girlfriend across state lines in violation of the mann act. however, the charges were subsequently dropped and the caucasian female whose mother had originally tipped off officials, refused to cornet with authority -- cooperate with authorities. she later married jack johnson. not to be outdone, the federal authorities remained persistent in their determination to persecute johnson, persuading a former scorned caucasian girlfriend of johnson's to testify that he had transported her across state lines. her testimony resulted in johnson's conviction in 1913 when he was sentenced to one year and a day in federal prison. during johnson's appeal, one prosecutor admitted -- and i quote -- "mr. johnson was perhaps persecuted as an individual but that it was his misfortune to be the foremost

example of the evil in permitting the intermarriage of whites and blacks." after the trial, johnson fled the country to canada and then traveled to various europe and south american countries before losing his heavy weight championship title in cuba in 1915. ultimately overcome by home sickness, jack johnson returned to the united states in 1920 surr. rendering to -- surrendering to federal authorities and served nearly a year in federal prison. despite this obvious and clear injustice, johnson refused to turn his back on the country that betrayed him. mr. johnson died in an automobile accident in 1946 at the age of 68 years. today as we look back on our nation's history, the jack johnson case is a shameful stain apparent to all. rectifying this injustice is

long overdue. the resolution we introduce today calls on the president to pardon mr. johnson post-hugh mustily. it recognizes the injustness of what transpired and sheds light on the achievement of an athlete forced into the are shadows of bigotry and prejudice. jack johnson may have been a flawed individual and he was certainly controversial during his day, but he was also an historic american figure whose life and accomplishments played an instrumental role in our nation's development and progress toward true equality under the law. there's no doubt that jack johnson deserved much better than a racially motivated conviction, which denied him his liberty and served to diminish his athletic, cull tiewrld and historic significance. as a body we should pass this resolution and continue to fight for post-mew must pardon for

jack goonston a. ford greater future generations the opportunity to grass p fully what jack johnson accomplished against great odded and appreciate his contributions to society unencumbered by the taint of an unjust, racially motivated criminal conviction. sadly, there is a no way for us to possibly right the wrong that was done to jack johnson during his lifetime. but what we can do is to take this small step toward acknowledging his mistreatment and remove the cloud that casts a shadow on his legacy. after all, that cloud over jack johnson's legacy says more about our past wrongs than it could honestly ever say about johnso johnson's own. i urge my colleagues to support and swiftly pass the resolution which requests that the president of the united states grant jack johnson a post-hugh

must pardon. i suggest the absence of a quorum. the presiding officer: the clerk will call the roll. sunun quorum call:

quorum call:

a senator: mr. president? the presiding officer: the senator from delaware. a senator: mr. president, i ask the proceedings under the quorum call be vitiated. the presiding officer: without objection. mr. coons: partisan founders of our country committed to justice and -- the founders of our country committed to justice and fairness for all its citizens and a country that would be uniquely strong as a democracy, give us three coequal branches of our government. two of those branches dominated the national news recently as we lurch from crisis to crisis,

from fiscal cliff to sequester, the back and forth between the president and congress, between the executive and the legislative branches has been the headline day after day. meanwhile, the third coequal branch, the judicial branch of our federal government, has quietly gone about its business, doing its job for the american people, providing fair hearings, equal justice under the law, the basic right to a speedy resolution to any dispute. or are they? all around this country members of the judicial branch are getting their jobs done, but with fewer and fewer resources and support, fewer colleagues on the bench than ever before. nearly 10% of all federal judgeships, positions for federal judges that should be filled, are vacant. empty. leaving those judges that are on the bench overwhelmed with steadily increasing caseloads and unable to provide the level of service, certainty, and swift

resolution that the american people deserve and that our government was predicated on because particularly when you're the one going into court seeking redress or when you're the one tpaesing legal action -- facing legal action, justice delayed is justice denied. as a member of the delaware bar as well as a member of the senate judiciary committee, i've seen firsthand the consequences of this ongoing, slow-rolling crisis in our federal courts. now we have more than double the judicial vacancies. the senate confirmed 30 fewer of president obama's nominees than it did of president bush's at this same time. one of the most underresourced circuits is right here under our nose in washington, d.c. the d.c. circuit is often called the second-most important court in the land.

although it may not make the headlines, it may not be as visible to the american people as this ongoing fight between the congress and the president, the d.c. circuit decides issues of national importance, from terrorism and detention to the scope of agency power. and they have importance to every american, not just the ones who happen to live in the district of columbia. and yet, its bench is almost half empty. congress has set the number of judgeships needed by the d.c. circuit court at 11, and right now they have just seven. president bush had the opportunity to appoint four judges to the d.c. circuit, including the tenth judicial position twice and the 11th judicial position once. yet, president obama has been denied the opportunity to make even a single appointment to the d.c. circuit court. despite four vacancies. and sruplt the per -- and as a result, the per-judge caseload

is 50% higher than it was as when president bush had the opportunity to fill that 11th seat. and that, mr. president, in terms of our obligation to this coequal branch, our obligation to the citizens of the united states, our obligation to provide an opportunity for justice, that is an outrage. today the senate has the opportunity to take up and consider a highly qualified nominee to fill one of these vacancies, to start to do our job and bring this vital circuit court closer to full capacity. we can do that by confirming the nomination of a brilliant lawyer and a dedicated public servant named caitlin halligan. ms. halligan has been nominated to the d.c. circuit court and renominated to the d.c. circuit court and renominated to the d.c. circuit court across three sessions of congress: 111th, 112th, 113th. she's been nominated because of

her qualifications and personal background. she worked at private practice at a respected new york law firm. she served as solicitor general for the state of new york. she is general counsel of the new york district attorney's office. ms. halligan earned the support of her colleagues in law enforcement across the spectrum, everyone from new york city police commissioner raymond kelly, to preeminent conservative lawyer miguel estrada, have supported her nomination. the american bar association standing committee unanimously gave her its ranking of highest qualification to serve. highly qualified. and yet, ms. halligan has had to face, in my view, outrageous distortions of her record that cause one to wonder if any nominee to this circuit would be acceptable on the merits. ms. halligan withstood steady

and withering attacks on positions she advocated while solicitor general for the state of new york, positions she argued on behalf of her client, new york state and its attorney general. not positions that represented her own personal views. and if you reflect on this, mr. president, it is, as all practicing attorneys know, inappropriate to disqualify a judicial candidate because she has advocated a position for her client with which a certain senator might disagree or which has been rejected by a court. this fundamental principle that you do not associate an attorney with a position advocated in court, has been widely shared and widely supported. in fact, chief justice roberts has himself said -- and i quote -- "it's a tradition of the american bar that goes back before the founding of our nation that lawyers are not identified with the positions of their clients.

even so, ms. halligan's positions on issues such as, for example, marriage and states rights have hardly been radical. when asked to analyze new york's marriage law, she concluded that the state statute did not provide same-sex couples with the right to marry. when presented with the question of whether a ban on same-sex marriage was legal under the new york constitution, she merely said that there were arguments for and against and that it should be left to the courts to decide. what could be more modest than deciding that a constitutional question should be decided by the courts and not the executive branch? and yet, i've heard on this floor and elsewhere her positions on this and other issues mischaracterized as extreme, as out of the mainstream. in my view, this position demonstrates her great respect for our judicial process and proves that if this body confirms her to the bench, she would fairly and faithfully apply precedent in making

important decisions on the d.c. circuit. she told us directly on the judiciary committee that she would respect and apply precedent in other important cases, cases that touch on the second amendment, such as the district of columbia versus heller and mcdonald v. chicago, cases that held the second amendment protects an individual right to keep and bear arms for self-defense. i'm confident despite what we've heard in the press about ms. halligan's positions, that she would faithfully respect precedent. in these two aero-- areas, i think we can see caitlin halligan is not a radical or i had i don't see lodge. she is an -- or idealogue. she is an attorney and a good one. in my view, having looked at her record, she has earned her nomination to the d.c. circuit court and she deserves for this senate to get out of the way and

to stop this endless delay of consideration, of qualified candidates for the bench and let her get to work. today the senate has an opportunity, a chance to do the right thing, to stop endless partisan political games, to break through our gridlock here and get something done. in the interest of the american people and especially those who seek swift and sure justice. every individual and business in this country has the fundamental right to a fair, fast trial, to access to the judicial system and to a hearing of their appeals in an appropriate and timely manner and judicial vacancies and understaffed courts at the district and circuit level are denying them that right. this senate and its dysfunction is denying them that right. so today i urge my colleagues on both sides of the aisle to do our jobs, to confirm caitlin halligan and recommit ourselves to moving forward in a productive and bipartisan way.

with that, mr. president, i thank you, and i note the absence of a quorum. the presiding officer: the clerk will call the roll. quorum call: mr. schumer: mr. president? the presiding officer: the senator from new york. mr. schumer: i ask unanimous consent the quorum call be dispensed with. the presiding officer: without objection. mr. schumer: first let me compliment my colleague from delaware not only for his typically excellent remarks today, but also for his vigilance on these issues. he's relatively newer member of the judiciary committee, but he has dove -- dived -- jumped in to these issues with tremendous eagerness, intelligence,

balance, and effectiveness. so i want to thank him for his great remarks. now i too rise today in enthusiastic support of the nominee to the court of appeals for the d.c. circuit of caitlin halligan. ms. halligan has been waiting for an up-or-down vote for 23 months. even more importantly, the entire country has been waiting to fill this position, a judgeship on the second-most important court in the nation for 23 months. the question that we're going to answer tomorrow is: can we take some of our bipartisan goodwill, our desire to legislate and get things done for the country and apply it to a nominee who is the very picture of moderation, mainstream legal thinking? a nominee who's dedicated her entire career to public service. a nominee who would be only the

sixth woman to join this court in its 220-year history. that's a 212-year history. that's right. there have only been five women to serve on the d.c. circuit in 212 years and the d.c. circuit is a third vacant. four of its 11 slots, 37%, are without active judges. hall gone -- halligan is one of the two nominees for these slots. now, two years ago when halligan was first filibustered, many of my colleagues decided they couldn't support a cloture motion because she would have been the tenth judge on an 11-member court, a court that they perceived as overstaffed and underworked. i take issue with the fundamental premise. the d.c. circuit hears the most complex and many of the most important cases in the country. the court hears appeals from virtually every regulatory agency, reviews statutes, has

jurisdiction over numerous terrorism cases, including those from guantanamo bay. but even if i were to accept this faulty premise that the court somehow needs fewer judges than it ever had, the court that hears the most complex cases, the court is now near a crisis point. there are only seven active judges currently sitting. what's more, the caseload per judge has risen by 21%. 21% since the last judge was confirmed, and that was under president bush's administration. so i think there is now more than a compelling evidence that the case load-based argument against halligan is gone, and you would have thought that our colleagues on the other side of the aisle would say okay, four vacancies, last vacancy filled under bush, we can now move to

support her. but they don't. so what else could possibly prevent a vote on halligan? is it her ideology? mr. president, i submit to you and my colleagues it cannot possibly be her ideology. if zero is extremely liberal and ten is extremely conservative, halligan falls right in the sweet spot of judges whom both president obama and president clinton have generally nominated, fives, some fours, maybe even a six or two. opposing halligan on her ideology, opposing even a cloture vote based on her ideology can mean only one of two things. first, that some of my colleagues have misread her record. let me clear up a few things today. halligan is not antigun nor antisecond amendment. she has clearly said at her hearing she fully supports the individual second amendment right to bear arms, as the supreme court decided in heller. her briefs for the state of new

york which were product liability cases, not second amendment cases, were briefs for a client and not her own views. just like chief justice roberts described his work for clients. in fact, halligan, like many of my colleagues, enjoys shooting and does so from time to time on weekends. anyone, anyone who accepted a meeting with her would have discovered this. halligan's not antilaw enforcement in any way. she spent most of her career in law enforcement. new york police commissioner ray kelly, hardly a shrinking violent, hardly a wallflower, he is a tough on crime guy, that's why i like him so much. he is one of the most respected law chiefs in the country, has written a letter in full support of her. specifically, halligan has lived through the consequences of terrorism. she lives not far from the world trade center site. she represented the development corporation there in its post-9/11 efforts. she has personally handled terrorism cases for the

manhattan d.a.'s office. in her hearing, she stated her beliefs regarding the executive's power to detain terrorism suspects. mr. president, i've heard evasive nominees. she was not evasive. she gave complete and clear answers to every single question that she -- that was asked. the second possible reason my colleagues might decide to oppose cloture for such a reasonable candidate and such a gifted lawyer is that they want to put their own judges on the d.c. circuit, and they would rather leave it vacant than move halligan. in other words, it's not that halligan's extremely -- unacceptably extreme on her interviews. it's simply that she doesn't share all those views. it's one thing to fight judicial nominees with the sincere belief that they are outside the judicial mainstream. it's another for my colleagues to fight against a nominee because they disagree with him or her. i always look for judges when i

nominate them who are moderate. i don't like judges too far right, that's obvious, but i equally don't like judges too far left. and my judicial panel will tell you if i think a judge is too far left, i won't nominate him because judges at the extremes, whichever extreme, tend to want to make law, not interpret law. the best judges are those who see things clearly and fairly, not through an ideological lens, whether that lens is colored red or blue. there are judges who understand the law, those are judges who understand the law, understand the role of each branch of government, understand the proper balance between state and federal power and understand that people who come before the bench -- the people who come before the bench. so i say one other thing to my colleagues, and i just finished working with a bunch, four of us on each side, on coming up with a compromise so that we could

work together better. i want to let my colleagues know i have done it personally with a few that this vote, the desire to actually filibuster caitlin halligan, is really causing a lot of consternation on our side. clearly, clearly, this is a judge who deserves an up-or-down vote. one of the reasons that many of my colleagues, myself included, thought that we ought to change the rules was because a judge like caitlin halligan, a nominee like caitlin halligan, should not be filibustered, and it seems -- and i look -- i have respect for my friends on the other side of the aisle, but when they say -- one of my colleagues i heard say this morning that this one brief that she signed with a bunch of others was extraordinary circumstances, that just didn't

ring true. if that's extraordinary circumstances, wearing the wrong color tie or the wrong color blouse would be extraordinary circumstances. she has a long record. they can hardly find anything. and they come up with this one brief, they may not like it but to say it's extraordinary circumstances? no. so i'd say to my colleagues, i plead with them we're trying to start off on a good foot here. we're working together better than we've worked in a long time. each side has to give. part of the deal, amendments. they're going to get a lot of amendments on the other side of the aisle, but part of our deal is not to block things for the sake of blocking them or because there's another agenda, and that goes not just for blocking legislation but for blocking nominees. now, it is true in the deal we made, the agreement we made, it

was only district court judges that could go, but the spirit of our compromise applies to this court of appeals nominee, and i have not heard a single good reason why she should be filibustered. people who disagree with her -- i voted against some of george bush's nominees because i thought their views were not quite mine even if they were not extreme, and everyone on the other side of the aisle has the right to do the same. but not a filibuster. this court is a very important court. we know it makes lots of decisions about government, but that does not give license to block a nominee on what seemed to be trivial grounds, inconsequential grounds, given the long career. so again, i would urge, plead with my colleagues, please reconsider this cloture vote. please give her the 60 votes she

needs so that she can come to the floor and get the up-or-down vote she has waited 23 months for. it violates fairness, it violates the comity that we're trying to restore in this body, it violates simple justice to vote no on cloture and to filibuster caitlin halligan. mr. president, i yield the floor. ms. klobuchar: mr. president? the presiding officer: the senator from minnesota. ms. klobuchar: mr. president, i want to thank senator lee for allowing me to go for three minutes here before he has the next turn. i appreciate that. i come to the floor as some of my colleagues have done already, and we just heard from the great senator from new york, to discuss the nomination of caitlin halligan to the d.c. circuit court. caitlin halligan is currently the general counsel at the new york county district attorney's office. new york county is just another name for manhattan so we are talking about a big county and a

big office. in fact, it handles about 100,000 criminal cases each year. before that, she was a solicitor general of the state of new york for six years and the head of the appellate practice at a major law firm. she also clerked on both the d.c. circuit and the u.s. supreme court and has argued five cases in front of the united states supreme court. that is her resume. the nonpartisan american bar association committee that reviews every federal judicial nominee gave halligan its highest possible rating. and over 100 women law professors and deans wrote a letter saying that halligan is exceptionally qualified to serve on the d.c. circuit. there is no question that she has the experience, ability and intellect to sit on the federal bench, mr. president. it's also important to recognize that she is not an ideological or a partisan nominee. well-known lawyer carter

phillips who was assistant to the solicitor general in the reagan administration has said that halligan is one of those extremely smart, thoughtful, measured and effective advocates and that she would be a first-rate judge. phillips is not the only conservative lawyer to endorse halligan. for example, miguel estrada signed a letter from 21 prominent attorneys which stated that halligan brings reason, insight and judgment to all matters and would serve with distinction and fairness. given support like that from people like miguel estrada, i don't think it can be said that halligan is an extreme ideologue or that she is outside the mainstream of legal thought. her nomination should not and cannot be blocked. this is a great candidate who will make a great judge. as new york city police commissioner ray kelly said about her, she possesses the three qualities important for a nominee -- intelligence, a judicial temperament and personal integrity. she must be confirmed without

delay. filibusters, mr. president, filibusters are about debating issues. this is an individual. we can't amend her. we simply have to decide whether she is qualified to be on the bench. there is absolutely no doubt. people may not agree with every single thing she said. i don't think anyone in this chamber agrees with every single thing that judges have said or that people that we put on the supreme court have said, but we somehow came together and stood up for one simple principle, that our job is to decide if someone is qualified, if they can do the law, if they can interpret the law. this candidate can do it and she can do it well. if senators ultimately wish to oppose her nomination, fine, and that is her choice, but they shouldn't filibuster an extremely qualified candidate. let her have an up-or-down vote. thank you, mr. president. i yield the floor.

mr. lee: mr. president? the presiding officer: the senator from utah. mr. lee: mr. president, i ask unanimous consent for leave to engage in a colloquy with senator barrasso for a period of time not to exceed 15 minutes. the presiding officer: without objection. mr. lee: mr. president, the president of the united states has spent the last few weeks campaigning around our great country at taxpayer expense, telling americans about what he characterized as the catastrophic impact of the sequester. he said, for example, that the sequester will visit hardship on a whole lot of people. he said it will jeopardize our military readiness. it will eviscerate job-creating investments in education and energy and medical research. he said the ability of emergency

responders to help communities respond to and recover from disasters will be disregarded. border patrol agents will see their hours reduced. f.b.i. agents will be furloughed. he said that federal prosecutors will have to close cases and simply let criminals go. air traffic controllers and airport security will see cutbacks which mean more delays at airports across the country. he said that thousands of teachers and educators will be laid off and that tens of thousands of parents will have to scramble to find child care for their kids. and he also continued, hundreds of thousands of americans will lose access to primary care and preventative care like flu vaccinations and cancer screenings. today, we see the predictions of doom and gloom have not come to pass, and we have seen that many of these statements have been severely exaggerated if not disproven. peopn