Floor Speech: Reforming ethanol subsidies and investing in advanced biofuel development

Mr. President, I rise today to speak to the proceedings that have just occurred in this body with regard to ethanol and to talk about how I see them from the perspective of my home state of Delaware.  Today, the Senate agreed on a path forward to end federal subsidies for corn-based ethanol.  The votes on today’s amendments were a reflection of where we’re from.  For Delaware, agriculture is the single-largest part of our economy.  We grow a lot of corn, a lot of soybeans.  We have companies investing in advanced biofuels, and we have a major poultry industry, and today I voted for Delaware’s poultry growers and for our consumers. 

Lots of folks across this country in the last few years have lost their jobs, lost their home, lost their livelihoods.  It’s important that the people of Delaware know on the record that the vote I cast today to end federal subsidies for ethanol was about voting to make sure that we are supporting our home state poultry industry.  My main concern is concern is that one of the most important economic engines – not just in Delaware but on the whole Delmarva Peninsula – is the poultry industry.  At a time when many other agricultural industries are seeing record prices – and that is a positive thing, a boon for them, for the poultry industry – it is forcing companies to rethink their business models.  Sadly, in one case just last week, one of the most important and vital poultry companies in Delaware shut its doors and went into bankruptcy. 

We need to move away from corn-based ethanol and toward homegrown, advanced biofuels if we’re going to accomplish three goals at the same time.  One is to reduce our deficit – to end unwise and unnecessary federal spending.  The second is to support and advance and defend our poultry industry, whether in Delmarva or throughout the rest of the country.  The third is to continue to move, to make progress, toward the future of clean, promising biofuels that are not from grain. 

The amendment I just voted for closes the door on corn-based ethanol, but in my view that should not prevent us from finding a path forward to advanced biofuels, those not from grain – whether cellulosic biofuels or those developed from algae or others.  Today, I also filed an amendment with Senator Carper, the senior Senator from Delaware, that makes it clear that, as we close the door on corn-based ethanol, we need to do two more things going forward.  First, use those billions of dollars in savings to reduce the deficit, and second, redirect funds formerly committed to VEETC to support an important but just-beginning advanced biofuel industry. 

Ultimately, the policies we pursue should lead to American consumers, producers, and farmers using less petroleum and – more importantly – using less oil from overseas sources.  If we are going to reduce our dependence on fossil fuels and, especially on those that we import from overseas, we’re going to need to continue to pursue a range of cleaner and more secure sources of energy.  Advanced biofuels are central to this effort. 

Now that we’ve taken the important first step by adopting the Feinstein-Coburn Amendment and signaling the intent of this body to end federal subsidies for corn-based ethanol, I hope that we’ll also responsibly pay down our federal deficit and continue on a strong path forward toward the advanced biofuels that Delawareans are making a significant contribution toward making a reality. 

Thank you very much, Mr. President, and I suggest the absence of a quorum.

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Floor Speech: On the Tester-Corker Interchange Amendment

Mr. President, I rise in support of the amendment offered by the Senator from Montana. 

I was an original cosponsor of Senator Tester’s bill, which forms the basis for this amendment, because I am concerned about consumers, credit unions, and the financial sector in Delaware.  The Federal Reserve’s proposed rule on interchange regulation does not guarantee consumers will benefit from reduced rates, and inadvertently creates a mechanism that could destabilize some of our small, community banking institutions.  Because of these unintended consequences, I believe the Fed should go back to the drawing board and rethink the way it’s going about setting interchange fees. 

I know my friend, the Senator from Illinois, worked hard last Congress, bearing in mind the interests of all parties involved, to authorize the Fed to make such a rule on regulating these fees.  The Durbin Amendment included a well-intentioned provision to protect small banks by creating a carve-out exemption from certain interchange fee caps. 

Unfortunately, I believe the Fed issued its proposed rule in haste, and it is becoming clear that this carve-out exemption threatens the competitiveness of smaller banks, community banks, and credit unions.  A belief in the viability of this exemption was crucial in securing the votes necessary to include Senator Durbin’s amendment in the Dodd-Frank reform package. 

When the Senator from Illinois wrote his amendment last year, I know he had the best of intentions when he directed the Fed to establish a debit rate that is “reasonable and proportional” to the “incremental” cost of an individual transaction.  These criteria, however, have tied the Fed’s hands and, essentially, prohibit the Fed from considering all costs associated with debit operations when regulating debit interchange fees. 

Additionally, the two-tiered interchange system proposed by Durbin’s small bank exemption may be considered unworkable in practice and subject to market forces.  The Chairman of the Federal Reserve, Ben Bernanke, admitted as much when he appeared before the Senate Banking Committee in February.  He noted that “there is a possibility …that, either because merchants wouldn’t accept the more expensive cards or because networks would not be willing to have a two-tier pricing system, it’s possible that in practice they would not be exempt from a lower interchange fee.”  

I’ve met in recent months with a broad range of large and small banks, credit unions, card networks, retailers, merchants, and other concerned parties from Delaware and other states about the Fed’s proposed rule.  With their helpful input, and with our continued economic recovery foremost in mind, I have joined with a bipartisan group of Senators in support of this amendment, which would direct the Fed to study this issue further and come up with a rule that does not risk harming the small banks and credit unions that play such an important role in our communities. 

At a time when large banks have been reluctant to lend capital, more and more new businesses and ventures are being started through loans from smaller community banks and credit unions.  We cannot afford to undercut their lending ability through the losses they are likely to incur if the Fed’s proposed rule becomes final.  The effect that would have on our recovery could be harmful. 

At a hearing held by the Banking Committee on May 12, Chairman Bernanke was asked what the effect of the small bank exemption would be if the proposed rule were implemented.  He answered:  “It’s going to affect the revenues of the small issuers, and it could result in some smaller banks being less profitable, or even failing.” 

Furthermore, at the same hearing, Sheila Bair, Chairman of the FDIC, stated:  “I do think this is going to reduce revenues at a number of smaller banks, and they will have to pass that on to customers in terms of higher fees.” 

Mr. President, above all, we must not do harm to consumers – especially when so many have had to tighten their belts during the recession and are just starting to get back on their feet.  The same goes for proprietors of small businesses.  Delaware is home to so many hard-working small business owners, merchants who rely on the acceptance of debit card payments for daily transactions.  I believe the Fed needs to create a rule that strikes a balance between supporting robust commercial activity for small businesses and their consumers and safeguarding the viability of small banks and credit unions. 

Senator Tester’s amendment does just that.  It calls on the Fed, the FDIC, the Comptroller of the Currency, and the National Credit Union Administration to make a determination whether a proposed rule does not include all fixed and incremental costs, whether it might adversely affect debit card consumers, or whether the small bank carve-out would be impractical. 

Mr. President, this issue requires a closer and more careful look.  Chairman Bair stated at the hearing in February that “it was done very quickly,” and “who’s paying for what, who’s going to pay more, and who’s getting to pay less under this is something that maybe wasn’t dealt with as thoroughly as it might have been.”  

This is why I am a cosponsor of Senator Tester’s amendment and why I will continue to work for interchange rules that are fair and do not harm a vital sector of our economy during these difficult economic times.  We must continue to be relentless in our focus on economic recovery and job growth, and the Tester Amendment does just that. 

Thank you, and I yield the floor. 

Floor Speech: Opposing the four-year extension of the Patriot Act

I am disappointed that my unanimous consent request was not agreed to, and I would like to explain my action here today, and the comments that I am about to give are in explanation of a vote I intend to take later today.    

As Senator Chambliss said just before me, the powers of the Patriot Act are too important for us to risk their expiration as this body considers whether or not to amend them or revise them, and I couldn’t agree more.  So I offered a one month extension in order that this body might take the time that I think is so needed and so deserved to seriously debate and conduct real oversight over the Patriot Act. 

This is a significant piece of national security legislation that I believe is worthy of further consideration and debate.  Law enforcement agencies—state, federal and local—work day in and day out, as we know, to protect us from very real threats that go largely unknown by most Americans.  And I want law enforcement to have all the appropriate tools in their toolbox to accomplish this goal.  

Unfortunately there are also, in my view, legitimate concerns about the legislation on which we are about to vote, concerns that my colleagues and I, including yourself Madame President, on the Judiciary Committee reviewed and addressed in detail and in a bill ultimately passed, S. 193, which forms the core of the Leahy-Paul Amendment, of which I am a cosponsor.  We put those modest, real but needed revisions to this Act before this Chamber. 

Madame President I am disappointed we don’t have consent to move forward in order to have the time to debate these reforms to the Patriot Act.  As Americans, the choice between liberty and safety is not one or the other; we expect and demand both.  Balancing the two responsibly requires careful consideration to each.

 We must be cognizant our nations very real enemies intend to do us harm, just as they did on September 11th.  It was awareness of the dangers of this world that motivated this Congress, as we just heard in the previous speeches, to enact the Patriot Act now nearly ten years ago in the wake of those attacks.  A grave new threat called for bold, new authorities.  Though I was not then in the Senate, I likely too would have voted for its passage.

 But this body’s passage of the Patriot Act did not amount to a permanent choice of security over liberty.  Because of the broad scope of the new authorities in the Patriot Act, the bipartisan drafters of the bill insisted upon placing key  sunset provisions in the bill to ensure that Congress periodically reviewed how they were being used and assessed  whether they were still essential to our security.

Madame President, being cognizant of the number of other members who hope to speak on this topic today, I ask unanimous consent that the body of my comments be entered into the record in order that I might summarize and proceed to a conclusion. 

President: Without objection, so ordered.                            

If I might in summation simply say this: If we were today to pass a four year extension without amendment, without revision, it will have been nine years in which Congress does not act in any substantive way on the amendments.  I join the chairman of the Judiciary Committee, Senator Leahy, in intending to vote no today, not because I believe the Patriot Act is fundamentally flawed, not because I believe the United States doesn’t face real enemies, but because I believe Congress has not taken seriously its very real oversight responsibilities, its need to strike that balance. 

The Judiciary Committee did that hard work, and for this Congress not to amend this bill with the simple balanced and reasonable amendments offered in the Leahy-Paul Amendment, I believe I am compelled to strike the balance between security and liberty on the side of liberty today by saying that this body has failed to act and to appropriately conduct thorough oversight of this bill before we send it four years into the future.   

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Floor Speech: In defense of Goodwin Liu’s nomination

Madam President, I rise today to continue to express my views in support of the nomination of Professor Goodwin Liu, a nominee, as you know, to the Ninth Circuit Court of Appeals. Many different things have been said on the floor here in recent hours, and I rise to offer my comments on some of the concerns that are being debated.

For once, it is great to actually hear debate on the floor of this chamber. I have been here, as you know, Madam President, just six months, and as someone who is new to the Judiciary Committee, new to the debates and dialogue of this chamber, I am struck at the things that I’m hearing about Professor Goodwin Liu and the significant divergence between what I have found in questioning him and looking at his record, in speaking to my colleagues, and in what I have heard here on the floor just today. So I will do my best, if I might, Madam President, in a few moments to try and lay out what I see as the real record of the real professor of Goodwin Liu, our nominee to the Ninth Circuit Court of Appeals.

Some have come to the floor today and argued that Professor Liu lacks the candor or the temperament to serve on a circuit court, and, as someone who clerked for the Third Circuit Court of Appeals for a distinguished judge, I will suggest something that I think is commonplace, which is that candor and an appropriate temperament are critical to service on a circuit court of appeals. A lot of these charges raised against Professor Liu seemed to center on a few comments that Professor Liu made during the nomination hearing for now Justice Alito or some purported deficiencies in his disclosures to the Judiciary Committee. Let me speak briefly to both of those, if I might. 

Professor Liu has apologized at length and in detail for the intemperate tone of one brief passage that he wrote as a part of his testimony before the Judiciary Committee during the Alito nomination hearings now some six years ago. I take this apology at face value. I take his expression of regret at the tone at face value. But anyone who has taken the time to meet him, to interview him, to question him I think has to conclude that, despite this one brief episode of the use of intemperate language, he is not an intemperate person. In fact, the American Bar Association – as my colleague, Senator Boxer, pointed out previously today – specifically considered Professor Liu’s temperament when it gave him its highest rating of “unanimously well qualified” in the recommendation for his consideration by this body.

Let me next turn briefly, if I might, to claims about candor before the Committee, which I believe are equally unfounded. He has, in fact, testified before the Judiciary Committee for a total of five hours and answered hundreds of questions and requests for additional information. He has been sharply criticized for missing some documents from his initial response to what is a searching Committee questionnaire, but I will comment for those following this that Professor Liu has been a prolific scholar and speaker. He is someone who has published extensively, he is someone who has spoken extensively, and he is the first controversial circuit court nominee to have his confirmation take place, not just in the Computer Age but in the YouTube Age, when a combination of cell phones and video recorders have literally made a record of every brown bag lunch, every five-minute speech, every off the cuff remark made by this nominee before us. The argument that is needed to supplement the record to include some documents not initially produced, in my view, and that somehow that reflects some lack of candor and that somehow that suggests a lack of truthfulness that should disqualify him, not for a vote but not even for consideration of a vote, I think, is wholly without merit. 

As the Chief White House Ethics Counsel under President Bush, Richard Painter, has written, Professor Liu’s “original answers to the questions asked by the Judiciary Committee were a careful and good-faith effort to supply the Senate with the information it needed to assess its nomination.” It means a great deal to me that someone like Mr. Painter concluded that Professor Liu provided a lot more information than most nominees do in similar circumstances, and frankly it seems to me overreaching to try and suggest that, simply because in the YouTube Age this professor – who provided us with hours of testimony, pages of responses – failed to notify the Committee about some brown bag lunches and off-the-cuff comments, does not rise to the standard of justifying a filibuster.

Let me next turn to the suggestion that he is insufficiently qualified to hold the position of circuit judge. An important concern, because we want judges of judicial temperament, of openness and candor and good character and also those who are sufficiently experienced. 

As I said a moment ago, the American Bar Association, after a searching, confidential, comprehensive review of his qualifications, concluded he was “unanimously well qualified,” its highest possible rating. In previous nomination debates, senators of this body, senators of the other party, have touted the ABA rating as a comprehensive and exhaustive evaluation that provides valuable insight that ought to be trusted. Several folks, several members of this body, several senators, including some who spoke immediately before me, have made those exact references to the value of the ABA rating process. Reasonable minds may be able to differ on the margins, but it is not credible, in my view, to claim that a candidate with Professor Liu’s remarkable legal education, long record of public service and experience and the ABA’s highest rating is not qualified to serve on a circuit court.

The charges or suggestion that Professor Liu was unqualified because he is young or because he lacks significant courtroom experience are also hollow and one-sided when we look at the real record.  Since 1980 fourteen nominees younger than Professor Liu advanced by Republican presidents have all been confirmed. Judges, for example, Neil Gorsuch on the Tenth Circuit, who was thirty-eight when nominated. Judge Brett Kavanaugh, an acquaintance – and I would say friend of mine from law school – now on the DC circuit, was thirty-eight when nominated. Now Justice Samuel Alito was 39 when nominated to the Third Circuit. Republican nominees with similar or lesser practical courtroom experience than Professor Liu have also been nominated and confirmed. Circuit court Judges Frank Easterbrook and J. Harvie Wilkinson were both under forty when nominated, and yet their relative lack of practical experience didn’t prevent either of these judges from becoming among the best respected, most widely-regarded in their respective circuits.

I would ask that my colleagues seriously consider instead looking at the standard that was applied when a similarly controversial professor came before this body. I was not here at the time, but I understand from the record that Democratic senators approached the nomination of Michael McConnell, President George W. Bush’s nominee to the Tenth Circuit, in a way that was generous, that accepted at face value some of his assertions. Like Professor Liu, Professor McConnell was a widely-regarded law professor who was nominated to a federal appeals court without having first served as a judge. Many Democratic senators at the time had concerns about Professor McConnell’s conservative writings, which included strong opposition to Roe v. Wade, Congressional testimony that the Violence Against Women Act was unconstitutional, and harsh criticism of the Supreme Court’s 8-1 decision in the Bob Jones case. Despite these positions, which one could argue are at the outer edge, even the extreme of the legal cannon of the time, Professor McConnell was confirmed not after a filibuster, not after a long series of grinding nomination hearings and public discourse, but Professor McConnell was confirmed by voice vote of this chamber just one day after his nomination was confirmed by the Judiciary Committee. 

In supporting Professor McConnell’s nomination, Democratic senators at the time credited his assurances that he understood the difference between the role of law professor and judge, that he respected and would follow precedent. In my view, the senators of this body should credit similar assurances that Professor Liu has provided during his confirmation hearings and that Professor Liu has provided to me in an individual interview, in answers to hundreds of written questions from members of the Committee, as well in answer to challenges presented here.

Let me next turn, if I might, to some challenges or concerns that have been raised about Professor Liu’s view on education. A bipartisan group of twenty-two leaders in education law, policy, and research have written to support Professor Liu’s nomination and to highlight his scholarship and reputation in the field of education law and policy. They wrote: “based on his record, we believe Professor Liu is a careful, balanced and intellectually honest scholar with an outstanding set of academic qualifications and the proper temperament to be a fair and disciplined judge.”  Later, they wrote in this letter that his work is nuanced and balanced, not dogmatic or ideological, and I ask unanimous consent, Madam President, that this letter be included in the record.

During his confirmation hearings, Professor Liu testified to the Judiciary Committee: “I absolutely do not support racial quotas, and my writings, I think, have made very clear that I believe them to be unconstitutional.” Professor Liu also stated to the Committee that “I think affirmative action, as it was originally conceived, was a time-limited remedy for past wrongs, and I think that is the appropriate way to understand what affirmative action is.” These two statements, which reflect Professor Liu’s testimony to the Committee, are well within the mainstream. Professor Liu has written and spoken about his support for diversity in public schools, and in my view, there is nothing extreme in this view.

Ever since Brown v. Board of Education was decided by a unanimous Supreme Court in 1954, the Supreme Court of the United States has recognized the legitimacy of state action to desegregate schools. In fact, the Supreme Court upheld the use of race as one factor in admissions decisions in the 2003 case Grutter v. Bollinger. Although some on the far right of the Supreme Court have argued that both Brown and Grutter should be disregarded to the extent they recognize the permissibility of efforts to achieve diversity in public institutions, it is, I would argue, those justices out of step with the mainstream of federal jurisprudence and of the constitutional tradition of this country. Even in its most recent case on point, the 2007 Supreme Court decision, Parents Involved v. Seattle School District, which struck down a specific desegregation program, five of the nine justices that made up the majority opinion agreed with Liu that achieving diversity remains a compelling governmental interest.

The notion that, somehow, Professor Liu is an ideologue on these issues is belied by his actual record. As a scholar, Professor Liu has supported market-based reforms to promote schoolhouse diversity, reforms that are often labeled conservative. Professor Liu believes and his written in support of school choice and school vouchers, stating that they have a role to play in improving educational students for disadvantaged children. He has publicly advocated for these programs on a nationwide scale, earning praise from conservatives in the process.

Clint Bolick, Director of the conservative Goldwater Institute, referred to by my colleague, Senator Boxer, previously has written: “I have known Professor Liu and, since reading an influential law review article that he co-authored supporting school choice as a crisis of inner city public education, I believe it took a great deal of courage for him to take such a strong public position, and I find Professor Liu to exhibit fresh, independent thinking and intellectual honesty.” He closes his letter by saying, “Professor Liu clearly possesses the scholarly credentials and experience to serve with distinction on this important Circuit Court.”

Professor Liu has, in my view, made very clear that he understands the difference between being a law professor, a scholar, an advocate ,and a judge and has assured us during his nomination hearings before the Committee and again in personal conversations with me that he would follow the court’s precedent if confirmed. During his confirmation hearings, Professor Liu testified to our Committee: “if I were fortunate enough to be confirmed in this process, it would not be my role to bring any particular theory of constitutional interpretation to the job of an intermediate appellate judge. The duty of a circuit judge is to faithfully follow the Supreme Court’s instructions on matters of constitutional interpretation not any particular theory, and so that is exactly what I would do. I would apply the applicable precedence to the facts of each case.” As I said before and I will say again, this quote, I know, from Professor Liu deserves exactly the same weight and deference and confidence as similar assertions by then-Professor McConnell, now Circuit Court Judge McConnell when he was confirmed by voice vote of this chamber. To speak otherwise I think is to do violence to the tradition of deference to those who give sworn testimony to hearings and to the deliberations of this body.

Last, let me turn to some points that were raised just recently about whether or not Professor Liu believes that Americans have a constitutional right to welfare benefits like education, shelter, or health care, and, if confirmed, would somehow declare those constitutional rights from the bench. Professor Liu has authored, as I’ve said, many different law review articles and in one, the 2008 Stanford Law Review article entitled “Rethinking Constitutional Welfare Rights,” he, in fact, criticizes another scholar’s assertion from a 1969 article that courts should recognize constitutional welfare rights on the basis of a so-called comprehensive moral theory. Professor Liu rejected that. 

In 2006, he penned a Yale Law Review article that argued that the 14th Amendment authorizes and obligates Congress to ensure a meaningful floor of educational opportunity. His record is replete with sources that make it clear that Professor Liu respects and recognizes the role of this body, of Congress, and the role of the Supreme Court in establishing, interpreting, and applying both precedent and constitutional theory and that he accepts, acknowledges, and will respect the very real limits on a circuit court judge in innovating in any way.

Madam President, in closing, allow me to simply share with you and with the members of this body that new to this body, new to the fights that have divided this chamber that have so, I think, deflected real deliberation on nominees to circuit courts to the Supreme Court, I have taken the time to review his writings, to interview him individually, to attend a nomination hearing, and have come to the conclusion that candidate, nominee, Professor Goodwin Liu is a qualified, capable, competent, in fact, exceptional legal scholar who understands and will respect the differences between advocacy and scholarship and serving as a member of the Circuit Court in the judiciary of the United States.

I urge the members of this body, I urge my colleagues to take a fresh look at the record and to allow this body to vote. Why on Earth this record of this exceptionally qualified man would justify a filibuster is utterly beyond me and suggests that, unfortunately, we’ve been mired in partisanship rather than allowing debate and votes on this floor, which, in my view, if we follow the best traditions of this body, would lead to the confirmation of Goodwin Liu to the Ninth Circuit.

Thank you, Madam President, and I yield the floor.  

Floor Speech: Supporting the confirmation of Goodwin Liu to U.S. Circuit Court of Appeals

Mr. President, I rise today in support of Goodwin Liu’s nomination to the U.S. Court of Appeals for the Ninth Circuit. 

Years ago in the early 1990s, when I was working for the national “I Have a Dream Foundation,” I crossed paths with Professor Liu, who was then a Senior Program Officer with the Corporation for National Service.  An issue had arisen with regard to the Corporation’s support of one of our Foundation’s program and Professor Liu quickly distinguished himself through his competence and obvious commitment to education and national service.  I lost touch with Professor Liu in the intervening 18 or so years, but he made such an impression on me that, when I heard of his nomination, I immediately remembered him and was anxious to find out what he’d been up to.  The opportunity to reconnect with Professor Liu as part of his confirmation process has turned out to be one of the real pleasures of this job.

It is readily apparent to me, as well as to so many Senators on both sides of the aisle who have met him, that Professor Liu is a good, decent, bright and engaging man.  His career is marked by a commitment of service.  From his time working for the Corporation to National Service, to his work as a civil rights advocate while in law school, for the Department of Education as a young lawyer, to his work as a judicial clerk and his later scholarship in support of opportunities for all Americans, Professor Liu has been guided by a desire to leave the world a better place than he found it.

Despite the many positive personal qualities to recommend him, it is perhaps something of anunderstatement to say that Professor Liu’s nomination has been controversial.  Professor Liu is a prolific scholar, who has written on a number of topics of relating to educational rights and public schooling, among others. 

When I heard the attacks against Professor Liu, I was shocked, but concerned.  The charges that are being levied against Professor Liu – that he is a radical who would use the bench to engage in judicial activism – are serious.  So I took it upon myself to meet with Professor Liu, to review his record, and to come to my own conclusions.

I can say withcertainty that Professor Liu will be a first-rate judge in the finest traditions of the legal profession.  Professor Liu knows the difference between lecturing and judging.  He knows that the role of a judge is not to advocate, but to follow the Constitution and the precedents of the Supreme Court.  Goodwin Liu is will obey the law.  We can and should ask no more.

If we take a step back from the partisan rhetoric, I think we can find broad agreement across the aisle that a judicial candidate ought to be evaluated according to his legal ability and experience, his standing within the legal profession, his integrity and his temperament.  Professor Liu rates extraordinarily highly in all of these areas.

Professor Liu’s academic and professional qualifications demonstrate that he is a lawyer of the utmost ability with a broad range of experience.  He was a Rhodes scholar and holds a law degree from Yale University, where he was editor of the Yale Law Journal.  He went on to clerk for one of the great intellects on the D.C. Circuit, Judge David Tatel.  After that, he clerked for Justice Ginsburg on the U.S. Supreme Court.  Since that time, he has worked in private practice and earned a tenured professorship at the University of California, Berkeley School of Law.  At Berkeley, he has been a prolific scholar of exceptionally high regard.

In addition to a sterling resume, Professor Liu enjoys the highest esteem of his colleagues.  Noted conservative scholar John Yoo has spoken out in support of his nomination, as has Kenneth Starr.  He is the recipient of the University of California’s highest teaching award. Clint Bolick, director of the Goldwater Institute, has said that Professor Liu’s writings, quote, “exhibit fresh, independent thinking and intellectual honesty,” end quote.  This high opinion of Professor Liu is broadly shared.  In giving Professor Liu its highest rating of “Unanimously Well Qualified,” the American Bar Association interviewed scores of attorneys and judges who have worked with Professor Liu and, evidently, found that his reputation is one of impartiality, integrity, and great ability. 

Professor Liu’s activity as a noted legal and policy scholar is, in my view, being used unfairly to impugn his judicial temperament.  In meeting with Professor Liu, he explained to me that he understands and respects the difference between scholarship and jurisprudence.  Academics explore the contours and limits of the law, often advocating for policy outcomes.  Judges, on the other hand, apply legal precedent to come to the conclusion that the law compels, without prejudice or a policy agenda. 

When Professor Liu has been asked to apply the law, as would a judge, any criticism that he allows policy preferences to cloud his judgment does not pass muster.  As an example, though Professor Liu has saidthat his personal views are that individuals should be treated equally, regardless of sexual orientation.  Even so, he testified before the California State Senate in 2008 that California’s controversial Proposition 8, which banned same-sex marriages, would pass muster under the California constitution.  This is a concrete example — from before his nomination to public office — that Professor Liu is capable and willing to set aside personal preferences when called upon to render a legal judgment.

I also examined Professor Liu’s scholarship on the topics of education and welfare, to which his opponents claim he would create a constitutional right if confirmed to the bench.  I would be concerned if these charges have merit, but they do not.  Rather, they reflect a distortion of what he has actually written.  Professor Liu has repeatedly clarified his unexceptional belief that Congress, and not the courts, have the power to create new fundamental rights.

An objective review of Professor Liu’s qualifications, temperament, and intellect lead to the conclusion that he is an outstanding nominee and should be confirmed to thebench.  Former Representative Tom Campbell, a five-term Republican Member of the House, agrees.  In urging his swift confirmation, Representative Campbell specifically praised Professor Liu’s reputation for, quote “integrity, fair-mindedness, and collegiality,” end-quote.

I call upon all of my colleagues to take a fresh look at Professor Liu and to come to their own conclusions about him.  In my opinion, Professor Liu is a dedicated public servant who has undergone intense scrutiny over the past 15 months at great personal sacrifice.  Too often, it is easy to lose sight of the fact that judicial and executive nominees are also people, with families, careers, and other responsibilities in their lives.  The confirmation process can exact a steep cost and, as a result, many qualified and decent individuals either withdraw or decline to submit to it in the first place.

Professor Liu is an exceptional nominee to the Circuit Court.  He has borne the challenges of confirmation with grace and dignity, as is in keeping with his character and dedication to public service.  In voting on the petition to invoke cloture, I ask my colleagues to consider the content of Professor Liu’s character.  Listen to those who know him above the interest groups who have sensationalized his nomination.  I ask them to consider his bipartisan support from those who work with him and those who know him best.

I know Goodwin Liu. I trust him and know he will make a fine judge. I urge my colleagues to support his confirmation.

Mr. President, I yield the floor and note the absence of a quorum.

Floor Speech: Honoring Delaware’s law enforcement officers

From May 15 through May 21, Americans will be recognizing those who serve and have served in police departments in communities from coast to coast.  Law enforcement personnel and their families will also be coming together to hold memorials for those who have made the ultimate sacrifice and lost their lives in the line of duty. 

National Police Week holds special significance to me, because when I served as New Castle County Executive for six years I was responsible for a police force that worked day and night to keep our county’s communities safe.  Each year in May I would attend the memorial held by the Fraternal Order of Police that so ably represented them along with the family of the one member of our police force who had been killed in the line of duty.  I would often have differences with the Fraternal Order of Police in my six years of leadership, but I will tell you they were great and tireless partners in standing up for the working men and women who kept us safe each and every day.  They kept us focused on officers’ safety and kept us focused on providing for them the equipment and the training and support they so richly deserve. 

I’ll tell you that every week I would have a tough week, when we had difficult times dealing with local budgets or coming to compromise in making progress in the County, if I ever for a moment felt sorry for myself, all I needed to do was turn on the police radio in my county car and listen to dispatch.  There was always something going on.  As the squad cars responded to crises, I was reminded day-in and day-out of the incredible selfless service of men and women – these dedicated men and women – who sacrifice time away from their families to put themselves daily in harm’s way, and all too often it finds them. 

Since the beginning of 2009, 122 police officers lost their lives in service to their communities, and today I want to focus on one:  Patrolman Chad Spicer of Georgetown, Delaware.

A Georgetown native, Chad attended the Sussex Central High School and graduated from Delaware Tech in 1999.  Following four years with the Delaware Department of Corrections, he began service with the police department in Bridgeville and later in the town of Laurel.  In 2008, Chad joined the force in his hometown, fulfilling his greatest childhood dream. 

On September 1, 2009, Chad and his partner, Corporal Shawn Brittingham, were in pursuit of a vehicle containing suspects in a robbery.  The car abruptly stopped, and before the two officers had a chance to get out of their cruiser, a suspect fired a single gunshot at close range, killing Chat and, on a ricochet, seriously wounding his partner.  The suspects were eventually apprehended and have been brought to trial. 

Patrolman Chad Ernest Spicer was only twenty-nine years old when he was murdered doing his job.  He is survived by his fiancée, his beautiful young daughter Aubrey, his parents Ruth Ann and Norman, a brother, two sisters, and his family of fellow officers in Georgetown and across Delaware.  His funeral service was one of the most moving I have experienced in my adult life, as thousands of law enforcement professionals – men and women from literally across the country – gathered to pay tribute to this brave, likable, dedicated young man who gave his life in the protection of our community. 

Earlier this month, the people of Georgetown erected a memorial to Chad and to his courage and the sacrifice he made for all of us.   Georgetown Chief of Police William Topping noted that everyone in town knew him and liked him, even those from the roughest part of town, even those who were on the receiving end of his service to our community.  Chad died protecting the community where he was born and raised.  Losing him to violence like that had a devastating impact on the people of Georgetown and our whole state. 

Chad was the first Delaware police officer to die from wounds received in the line of duty since 1993.  His loss is a constant reminder that law enforcement officers all over America live with the daily reality that their lives may be put on the line as they serve their communities and our country. 

This is why, Madam President, I think it’s so important that the federal government continue to strengthen local police departments’ capacity through programs like the Bulletproof Vest Partnership, which helps local law enforcement purchase bulletproof vests and other police supplies.  It is so important to me that, when federal, state, and local law enforcement work together, we can always succeed in keeping Americans safe.  There is always more we can do, though.  This is why the Judiciary Committee will be holding a field hearing in June in Wilmington, Delaware, to explore ways we can improve the collaboration and cooperation between federal, state, and local law enforcement agencies. 

While we honor our men and women of law enforcement every day, during National Police Week we celebrate their service and sacrifice and thank them for being ever on the watch. 

Mr. President, in memory of Patrolman Chad Spicer and all other law enforcement officers who made the ultimate sacrifice, today I stand in memory of their service. 

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Floor Speech: Taxpayer subsidies for oil companies

If I could talk briefly about the ongoing pain that each and every working American family feels when they go to the gas station. With the price of gasoline at an all-time high — with the price of gasoline flirting with $4 a gallon and with the price of oil returning to an all-time high and with, most importantly, oil company profits gushing through the roof and hitting an all-time high, members of our party, members of this body came forward yesterday with a bill which got more than 50 votes but failed to hit the 60 needed in this body to make for cloture, which would have made significant progress on dealing with our deficit.

We just heard a comment on the floor that we need to stop picking winners and losers and need to move forward in helping America end its dependence on foreign energy. I couldn’t agree more because the expenditures through our tax code — the billions and billions of dollars in needless expenditures through our tax code that continue to subsidize some of the most wildly profitable corporations in American history — is exactly that: picking winners. And the losers are the American people.

When I go home to my state, I know, Madam President, when you go home to your state, I hear people day in and day out say why can’t you do more to help create decent jobs, to deal with the deficit, and more than anything to stop the oil companies which are despoiling our natural resources and picking my pocket at the pump.

This isn’t picking on one particular industry: this is rationally looking at our immense tax expenditures through the code and saying there is a time here for us to stop. We would save literally $21 billion by fiscal year 2021 – over the next decade, $21 billion in deficit reduction. That doesn’t solve the problem that we need to come together and address as a body, both parties, both chambers of this great congress, but it is a significant down payment.

I’m from a state where we produce very little in the way of oil or coal or gas, but where we consume a lot of energy and where we’ve got lots of opportunities to invest in alternative energy. These investments would create new jobs, a competitive platform for the United States as we enter this new century and that could help sustain our economy going forward. 

The votes cast here yesterday to sustain these senseless tax breaks and credits, to help keep afloat the most profitable companies in American history strike me as doing exactly what we were just urged not to do — picking winners – where the average American is, in fact, the loser.

It is my hope that we will continue to look with a sharp and clear eye at the billions of dollars, the 35 — more than $35 billion in first quarter profits made by the five largest American oil firms. I have nothing against corporations making profits. In fact, that’s what helps propel our economy as we try to recover from this terrible recession, having a profitable private sector is the best way forward to help create jobs and to help grow our economy and help deal with federal revenues.

But the spending through our tax code, something that has accumulated on the underside of the American economy over the last decade, has to be stopped and we have to find ways to plug the holes through which billions in federal potential revenue are leaking. Frankly, I think it’s time for us to have a sensible national energy policy, and continuing to defend decades-old needless tax breaks for major oil companies so that they can engage in manufacturing by extracting oil from the ground.

For example, one of the five that would have been ended by this bill is just senseless. It’s my hope that we will reconsider – that as we move forward and try to find a way together to create jobs, to reduce spending and deal with our deficits, that we’ll look hard at some of these outdated tax breaks that make it possible for bloated oil companies to make billions of dollars of profits off the working Americans who pay too much at the pump.

Floor Speech: Saluting the Service of Our Troops Since September 11, 2001

We all know where we were the moment we heard the tragic news of the attacks on this nation of September 11, 2001.  I trust that all of us will long treasure the moment we first heard the news last night that Osama bin Laden, after a decade of determined and diligent work by our Armed Forces and the men and women of the intelligence community, had at long last been captured and killed.

The successful operation by the Navy SEAL team yesterday was the capstone of ten years of distinguished and honorable service by our brave men and women in uniform.  In Afghanistan, in Iraq, and around the world, literally tens of thousands of Americans over this past decade have faced battle resolutely, carried out their mission with valor, and made all of us proud.  When I visited our troops in Afghanistan in February, I saw firsthand their determination, their level of professionalism, and their commitment to this important and long task.  I hope, as we face the days ahead and the uncertainty of what will be the path forward in our continuing conflict with al-Qaeda and all who would do us harm, that there is no doubt about the determination of the American people and our resolve to pursue, to capture, and to kill those who would plan attacks on the United States and on innocent civilians around the world.  

I want to pause today, Mr. President, and simply reflect on all who have sacrificed so much.  There are hundreds of Delawareans currently serving in Afghanistan – some active duty, some in the Reserves, some with the National Guard – and my wife and I and our family pray for them every night, as I know so many do in our nation for the many who serve us overseas.  Personal friends of ours, Brooke James and Troy Bockius and Jeff Steinberg, are all folks who are on repeat deployments and whose families we know, along with hundreds of others who bear the sacrifices of deployment.  Indeed, there are many – seventeen in the case of Delaware – who have made the ultimate sacrifice in this decade of conflict in Iraq and Afghanistan, including Sergeant Shawn Moudy and Senior Airman Elizabeth Loncki – the first woman from Delaware killed in combat – and many others mourned by their families and communities.

The Senate Foreign Relations Committee begins tomorrow a series of six hearings on Afghanistan and a review of our relationship with Pakistan, alliances in the region, and the incredible investments that we need to continue to make to sustain our effort to take the fight to those around the world who would do us harm.  But I just wanted to come to the floor today and briefly pause on what this historic moment means for the American people.  

It was just a decade ago, with the attacks of 9/11, that a group of determined and hardened terrorists led by Osama bin Laden believed they had struck a blow – believed they had hit their target – when four aircraft that had been commandeered were turned into missiles and sent into principal targets they thought were the centerpieces of America.  Two of them succeeded in striking the Twin Towers and in knocking down columns of steel and glass.  One of them succeeded in striking the Pentagon and setting ablaze the center of our military might, and one more, were it not for the intervention of incredibly brave American citizens, might well have struck this very building in which we meet today, Mr. President, or the White House.  

They did succeed in tragically taking thousands of innocent lives.  They did succeed in striking a tough blow to our economy.  They did succeed in surprising us with an unexpectedly vicious attack on thousands of innocent civilians.  But, Mr. President, they utterly failed to strike at our spirit. They failed to knock down our resolve.

I know around the world many marveled while thousands of folks flooded out of the Pentagon and the Twin Towers, as hundreds of determined volunteers and public servants flooded in, risking – and in many cases sacrificing – their own lives to try and save some of their fellow countrymen.  Most importantly, in the months afterwards millions of Americans took up the cause of volunteering to rebuild and restore our communities, and thousands volunteered to serve in our Armed Forces.  It is their resolve, it is their commitment, it is their professionalism, and it is the great leadership of our Armed Forces and the decisions made by President Obama and Vice President Biden in leading our nation today that have brought us to this moment.

I just want to close, Mr. President, by saying that those who struck us on 9/11 missed their target.  They misunderstood our spirit and our resolve as a nation, and, last night on the other side of the world, justice was served.  

The tragedy of those who were lost and the sacrifice of those who have chosen to serve will never be forgotten, but, last night on the other side of the world, justice was served.  So let there be no doubt among any around the world who would wish us harm, who would today plot to carry forward the terrible terrorist dreams of this now-dead man, Osama bin Laden.  

Our spirit is not broken, our resolve is unbending, and justice will be served. 

Floor Speech: Introduction of the Job Creation Through Innovation Act

Mr. President, I rise today to introduce my first bill in the Senate, one I believe will promote competitiveness and spur the growth of sustainable middle class jobs.  As I noted in my maiden speech in January, the people of Delaware sent me here with a mission to work with my colleagues to help create jobs and get our economy moving again. 

My bill, the Job Creation Through Innovation Act, will do just that.  By making strategic investments in research and development and incentives for economic growth, this legislation will help companies in Delaware and across the United States innovate, create jobs, and compete globally. 

First, it will simplify, expand, and make permanent the Research and Development Tax Credit.  When this credit was enacted into law in 1981, the United States was the best place in the world to perform research and development.  Thirty years and fourteen temporary extensions later, we still do not have a permanent R&D credit on the books.  Passing temporary extensions, one after another, undermines the very purpose of this credit.  Whenever there is uncertainty about the credit’s future availability, businesses discount its value, and we reap only the counterproductive effect of reducing the credit’s benefit to our economy.  Research and development projects are never stop-and-go, and the R&D tax credit shouldn’t be either. 

Second, many new small businesses today are ineligible for the R&D credit, because they are not yet profitable.  My bill will create a new Small Business Innovation Credit, which will provide tax relief to these start-ups.  Currently, the R&D credit is non-refundable, so only those companies with income tax liability benefit from it.  This poses a special problem for research-intensive start-up businesses – just the sort of businesses that have the potential to develop revolutionary technologies and products.  Such firms often spend their first several years operating at a loss while spending a great deal of money on research and development.  The Small Business Innovation Credit will address this by allowing companies with 500 employees or fewer to claim a refundable R&D credit. 

Another provision of my bill is a new Domestic Manufacturing Tax Credit, which will provide additional tax incentives to companies that both conduct research and manufacture their products right here in America.  This will reward companies that invest in America and give multinational firms another reason to keep manufacturing jobs from being shipped overseas. 

The Job Creation Through Innovation Act would additionally extend the Section 1603 Treasury Grants Program – or “TGP” – and the Advanced Energy Manufacturing Credit.  Both of these were authorized in the Recovery Act and are designed to promote clean energy technology and investment.  Both have also had a significant and beneficial impact on energy project developers and manufacturers in my home state of Delaware and other states in the past two years. 

The TGP provides payments for specified energy property in lieu of investment tax credits and production tax credits.  Economic certainty is critical to wind, solar, biofuel, geothermal, and other clean energy projects, and, according to a survey of leading participants in the tax equity market, without an extension of the TGP the anticipated total financing available for renewable resource projects would decrease significantly, should it be left to expire at the end of 2011.  My bill extends the TGP for another year.  

The Advanced Energy Manufacturing Credit, also called the 48C Incentive, provides a thirty percent investment tax credit to domestic manufacturers who build or expand facilities that produce a range of clean energy products and technologies.  These credits can also be used to leverage private investment, and it is estimated that this tax credit has to date helped businesses raise more than $5.4 billion from just a $2.3 billion federal investment.  It is also estimated to have created 58,000 jobs.  My bill will provide an additional $5 billion in incentives, of which up to $1.5 billion would be made available to companies whose applications are already pending under the original solicitation. 

In my maiden speech in January, I spoke at length about the new agenda for manufacturing I intend to promote during my service in the Senate, and this bill is just the first step.  I am proud that Delaware is already on the cutting-edge of the high-tech and clean energy manufacturing revolution I believe will be the key to winning the future. 

While we are all rightly focused now on the deficit and cutting our budget, we must also think ahead and make those long-term investments that will boost our economy, incentivize clean energy resources and manufacturing, and grow the jobs we need to sustain a strong middle class in this country for years to come.  I hope my colleagues will join me in this effort, and I commend those who already have. 

Thank you, Mr. President, and I yield the floor. 

Floor Speech: Recognizing National County Government Month

Mr. President, I rise to recognize the contributions made each day by our nation’s 3,068 county governments, and the men and women who serve in county government.  They are tireless public servants whose daily efforts to ensure that local government works for all Americans are honored during National County Government Month, which takes place each April.  

As a former County Executive for New Castle County, Delaware, I know that county governments are responsible for providing essential services important to our communities.  New Castle County provides critical services in public safety, land use, parks and libraries, sewers, and economic development.  Many other counties provide a broad range of services, such as maintaining roads, bridges, and water systems, and operating airports and other transit, and delivering critical health care services.  Counties provide law enforcement, courtroom, and jail services, schools, and numerous social services for children, seniors and families, and often serve as the first lines of defense for emergency response and preparedness.   

Since 1991, the National Association of Counties, or “NACo,” has encouraged counties across America to highlight their programs and services in order to raise awareness of the important role county governments play in our national life.  National County Government Month is a great opportunity to recognize this.

The National County Government Month theme for 2011 is “Serving Our Veterans, Armed Forces, and Their Families.”  NACo President Glen Whitley, County Judge for Tarrant County, Texas, is urging all counties to honor and to thank their residents who have served – or are currently serving – our nation in the military.  In addition, Judge Whitley is urging counties to showcase their many important services to America’s veterans, military service members, and their families, such as those relating to physical and mental health, housing, employment, and the justice system.

In New Castle County, as in many counties across the country, we felt the impact of the call to duty on service members and their families, as county employees – many in our public safety community – deployed to Iraq and Afghanistan with units of the Reserve and National Guard.  I am pleased to join Judge Whitley and county officials across the country in honoring service members and veterans, and highlighting the important services county governments provide. 

Mr. President, National County Government Month also provides the Senate with an opportunity to acknowledge that county governments – with the help of the National Association of Counties – are working together to restore the partnership among all levels of government to serve communities across America better.  We in the Senate share our constituents with county government officials and face common challenges.  It is incumbent upon us to recognize the men and women who work tirelessly within local governments and provide essential services directly to our constituents.  They deserve our sincerest gratitude.

I encourage all of my colleagues and all Americans to celebrate April as National County Government Month with their home counties and to recognize the important role county governments play in their communities and the critical services they provide. 

Thank you, Mr. President, and I yield the floor.