Restoring American Finacial Stability Act of 2010

Floor Speech

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Mr. McCONNELL. Mr. President, we have only had a few days to consider the President's latest nominee to the Supreme Court, but a few things are already becoming clear about the administration's approach to this vacancy.

As Solicitor General, Ms. Kagan is a member of the President's administration. The President, on Monday, also said: We are friends. The Vice President's chief of staff, who helped oversee her nomination, is evidently hard at work convincing members of the President's party that they will have nothing to worry about in terms of Ms. Kagan's possible appointment.

But in our constitutional order, Justices are not on anybody's team. They have a very different role to play. As a Supreme Court Justice, Ms. Kagan's job description would change dramatically. Far from being a member of the President's team, she would suddenly be serving as a check on it. This is why the Founders were insistent that Justices be independent arbiters, not advocates.

As one of the Founders once put it:

Under a limited Constitution, the complete independence of the courts of justice is peculiarly essential.

And further:

There is no liberty, if the power of judging be not separated from the legislative and executive powers.

So it is my hope that the Obama administration does not think the ideal Supreme Court nominee is someone who would rubberstamp its policies. But this nomination does raise the question, and it is a question that needs to be answered. Americans want to know that Ms. Kagan will be independent; that she will not prejudge cases based on her personal opinions; that she will treat everyone equally, as the judicial oath requires. That is the defining characteristic of any good judge, much less a judge on the Nation's highest Court.

The simple fact is, her lack of a record--especially her lack of a judicial record, and the fact that she does not have much of a record as a practicing lawyer either--gives us no way of answering that question at this particular point with any degree of comfort.

She has never had to develop the judicial habit of saying no to an administration, and we cannot simply assume she would. Later this morning, I will have an opportunity to meet with Ms. Kagan and to mention some of the concerns I have raised to her personally. We will welcome her to the Capitol and congratulate her once again on her nomination. This is not an easy process for any nominee, but it is an important one.

MIRANDA WARNINGS

Mr. President, President Hamid Karzai will visit the Capitol today to discuss the current situation in Afghanistan. His visit reminds us that the surge of forces into Afghanistan is not yet complete and that the counterinsurgency strategy developed by General McChrystal is still in its early stages.

President Karzai's visit also reminds us of the importance of completing our work on the war supplemental. We must complete this bill to fund our forces in the field, to help General McChrystal in his efforts to ensure that the Taliban does not return to power, and to ensure that Afghanistan does not again become a sanctuary for terrorists.

Let's remember that the 9/11 attacks were planned in Afghanistan, and that it was because of this attack and al-Qaida's many other attempts to kill innocent Americans that President Obama implemented a strategy for reversing the momentum of the Taliban in Afghanistan last December.

This is why it is so worrisome and, frankly, baffling to hear the Attorney General say the administration's views on issuing Miranda warnings to terrorists are now under reconsideration because of a ``new threat,'' and because we are ``now dealing with international terrorism.''

Perhaps it is the reported involvement of TTP in the Times Square attack that the Attorney General believes is ``new.'' But most people have been aware of the terrorist threat of international terrorists to the homeland since September 11, 2001.

The fact is, the clear purpose of many of the antiterror policies this administration in its first days tried to undo through Executive order was to deal with this threat that the Attorney General is now calling ``new.'' These threats did not begin with the Times Square bomber any more than they ended on 9/11. They have been with us for a long time now, and they are as urgent today as they were 9 years ago.

CONGRESSIONAL BUDGET OFFICE REPORT

Now, Mr. President, I would also like to note some news that might have slipped past some people yesterday in the midst of everything else that is going on. I am referring to the Congressional Budget Office report that the health care bill is now expected to cost $115 billion more than the administration said it would, wiping out every penny of savings they claimed the bill would produce.

This is truly astounding. Here was one of the Democrats' primary arguments in favor of their health care bill: that it would lower the deficit. Yet now we are learning that it will not. But you will not hear a word about it from the people who made that argument day in and day out for more than a year.

The fact is, the list of failed promises is growing every day.

They called us alarmists for saying businesses would dump employees from their insurance plan. Yet now it is being reported that some of the Nation's biggest employers are seriously considering cutting employee health care and paying the lower cost penalties instead, just as we predicted. There goes the President's vow that ``if you like the plan you have, you can keep it.''

Another thing we heard was that the health care bill would slow the growth of health care costs for families, businesses, and government. Yet an analysis last month by the Obama administration's own Actuary found that this bill will actually increase costs and that the national spending on health care alone could go up by $1/3 trillion--$1/3 trillion.

The President and the Democrats in Congress said time and again that their health care bill would strengthen Medicare. Yet the administration's own experts now say it would drive nearly one in six hospitals into debt and threaten access to care for seniors on Medicare.

They said the bill wouldn't raise taxes on the middle class. Yet now Congress's own bipartisan scorekeeper on the legislation says middle-class taxpayers will pay billions more in taxes as a result of this bill. Millions more will get hit with a fine for choosing not to buy government-approved insurance.

They said health insurance premiums would fall, but we have learned from the administration just this week that even some of the smaller reforms in this bill will actually drive up premiums.

So when Speaker Pelosi said we would have to pass this health care bill to find out what is in it, she knew what she was talking about, and what they are finding out is that Republicans were right all along. For every promise that crumbles, another one of our warnings is vindicated. Day after day, Republicans said the health care bill would raise taxes, raise premiums, and cut Medicare for seniors. We said it would increase costs because it didn't take an actuary to figure out that you don't save money on health care by spending more on it. Yet, even in the face of the clearest proof that we were right on every single count, the people who forced this bill through Congress against the will of the people continue to call us alarmists and to question our motives. But all of these headlines are already confirming what the American people already believe and what Republicans said all along: More government isn't the solution to out-of-control health care spending any more than spending money we don't have on projects we don't need is the secret to robust job growth.

The American people are tired of the reckless spending and the failed promises, and they are tired of elected representatives who won't own up to their mistakes.

Mr. President, I yield the floor.

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Mr. McCONNELL. Mr. President, let me just make a few observations, and then I will turn first to Senator Roberts.

The subject we would like to discuss is the Berwick nomination to be administrator of CMS. To be perfectly frank with you, I think many of us are alarmed by this nominee's focus on the British system, where government makes decisions for people on their care. In fact, I am reminded of a decision by the Department of Health and Human Services that I personally had a good deal of concern about last summer to limit the dissemination of information by companies who were in the Medicare Advantage business so that they could not communicate with their customers--clients--their opinions about legislation that would affect their product.

It was a stunning government gag order in effect saying to a corporation: You are not free to discuss a public issue before the Senate and the House; we are going to tell you what you can say. It was one of the most blatant examples of the government basically squashing free speech as a condition for doing business with the government.

Now we have this nominee who is applauding--applauding--a system where care is delayed, denied, or rationed. So I am particularly concerned this attack on free speech is just a first step toward much greater government intervention.

I will be talking with Dr. Berwick about his plans, but now I would like to turn to Senator Roberts, whom I know has already spoken to Dr. Berwick, maybe as recently as today, to get his thoughts on this nominee for this very important position.

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Mr. McCONNELL. Yes. And I would say to my friends that Wyoming and Kansas and Kentucky have a lot of rural areas. One of the things that Dr. Berwick has made very clear--and there was an article he wrote called ``Buckling Down to Change,'' in which he says there ought to be a concentration of change, in which he says there ought to be a concentration of services in metropolitan areas. He says most metropolitan areas in the United States should reduce the number of centers engaged in cardiac surgery, high-risk obstetrics, and neonatal intensive care services.

What he is really saying is narrow the specialties down to metropolitan areas only. I just think of how that would work in a State such as mine. We have a city--Pikeville, KY, in the mountains--about 2 1/2 hours from the closest major city--Lexington. I wonder how it would work in my State to have to drive 2 1/2 hours to put a baby in a hospital's neonatal intensive care unit. I mean, clearly, what he is talking about is major rationing of services.

That would be bad enough for the urban areas that are lucky enough to still have the service at all, but for States such as Wyoming and Kentucky and Kansas, where we have a lot of people in rural areas who are pretty far removed from major urban centers, we are talking about a catastrophe, as I see it.

Senator Barrasso has practiced medicine for 25 years. I wonder what his take is on that kind of approach.

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Mr. McCONNELL. Could I ask my friend from Wyoming, who practiced medicine for 25 years, the Congressional Budget Office just said yesterday that this bill is going to cost $115 billion more than was portrayed on the Senate floor. Would it not be reasonable to assume, based on this nominee's views on the issue of rationing, that it could be that the way they intend to save that $115 billion, if they do, is with massive and extensive rationing, by nominating an individual who has expressed himself so clearly and unambiguously on the virtues of rationing? The exploding costs that everyone, the administration's own actuaries, the Congressional Budget Office, everybody who knows anything about the subject is weighing in, in the aftermath of the health care debate, and confirming the concerns that Senate Republicans raised during the debate, every single one of them has been confirmed by independent groups that this is the way they intend to cut costs.

Mr. ROBERTS. I say to the leader, this isn't anything new. Dr. Barrasso has been predicting this for some time. Those of us on the Finance Committee and the Health committee, we got a double dose. During the health care debate, we tried to warn of the ``four rationers'' that were embedded in the bill. That is what we called them. I made several statements on them. We have: the Patient-Centered Outcomes Research Institute, the Independent Payment Advisory Board, the CMS Innovation Center, and the U.S. Preventive Services Task Force.

Dr. Berwick was actually the vice chair of the U.S. Preventive Services Task Force until 1996. You may remember this, as Dr. Barrasso pointed out, this was the body that recently ignited a firestorm by recommending that women wait until age 50 before they receive a mammogram. That certainly angered many doctors in America, and whoever said that beat a hasty retreat.

We also warned that ObamaCare, I say to the leader and my friend from Wyoming, will result in higher costs, not lower, a prediction not only by the CBO but by the bravest man in America, CMS expert, Richard Foster, who--it is amazing to me that he is still on the job, thank goodness. He recently backed all that up, in terms of higher premiums, higher cost, rationing, access to doctors by the elderly, and has renewed his warning time and time again.

Now our predictions are coming true and President Obama's CMS nominee,
Dr. Berwick, will be the man who cuts health care costs by putting the rationing plans into practice. We will call it cost containment, but it will be rationing.

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